De Puy v. Sullivan

BRAY, J.

In an action for recovery of stock certificates standing in the names of plaintiff and defendant as joint tenants, defendant appeals from a judgment in favor of plaintiff. Solely presented is the question of the sufficiency of the evidence.

[293]

Facts

The first amended complaint alleged in three counts that defendant obtained in joint tenancy certain securities belonging to plaintiff by reason of the confidential relationship existing between the parties and through fraud of defendant and mistake of plaintiff. The court decreed that plaintiff is the sole owner of said securities, that any interest of defendant in them is as constructive trustee, and ordered them transferred to plaintiff’s name.

Defendant contends that as a matter of law the evidence shows an

inter vivos

gift of the securities to defendant in joint tenancy and that the statute of limitations has run as to the action. The ease is purely and simply a factual one in which the evidence is in some respects directly conflicting and depends upon the acceptance of plaintiff’s story that she did not intend to make a gift to defendant, and, in which, under the well known rule binding an appellate court, we are bound by the trial court’s findings.

Plaintiff is 87 years old. Defendant is the foster daughter of plaintiff, and at the age of 12 came to live with plaintiff and her husband, living with them for approximately seven years, when defendant married. After living away, defendant returned to plaintiff’s home in 1949 about two and a half weeks before plaintiff’s husband died. Defendant concedes that a confidential relationship existed between the parties. The securities were held in joint tenancy by plaintiff and her husband. Shortly after his death plaintiff and the attorney who was representing her in connection with her husband’s death and the other properties left by him, went to the husband’s safe deposit box in which were the stock certificates. Plaintiff does not recall signing a signature card making defendant a joint tenant in the box, signing the certificates or instructing the attorney to have the certificates transferred into a joint tenancy with defendant. She did recall that a joint checking account between herself and defendant was opened shortly after the husband’s death. Some of the stock dividends that accrued were deposited directly in the bank and some were first sent to plaintiff at her home. The latter came just in plaintiff’s name, but shortly thereafter they came with both plaintiff’s and defendant’s names on them. Plaintiff asked defendant the reason for this and defendant stated: “ ‘I fixed it so that I could take care of it if anything happened to you’ ” and “ ‘I fixed it so that I could take care of the dividends in case you were ill.’ ” The fact of both names