Topley v. Megarry

PLUMMER, J.

A corporation known as the Topley Company was incorporated in July, 1904, by the Topley family. Upon incorporation there was issued to James Topley, the father, two certificates, one representing 196 shares of the capital stock of said corporation and the other representing 200 shares. There was also issued to Anna Topley, the mother, one share and to the three childern of said James Topley and Anna Topley, to wit, to James H. Topley, William H. Topley, and Annie D. Topley Megarry, one share each. The father conveyed certain property to the corporation in consideration of the shares issued to him.

The father, James Topley, died on or about the twentieth day of January, 1905, leaving a will executed in 1899, whereby he devised to his wife, Anna Topley, all of his property.

The complaint alleges that on or about the sixteenth day of January, 1905, the said James Topley caused said certificates of stock issued to him to be indorsed, assigned, and delivered to his wife, Anna Topley. On the third day of February, 1905, the said Anna Topley signed an indorsement on the back of each of the certificates issued to the said James Topley, as heretofore stated, the indorsement being as follows:

“I hereby assign all my right, title and interest in this certificate one, calling for 196 shares to J. H. Topley, William H. Topley and Annie D. Topley Megarry in equal proportions, February 3rd, 1905.”

The indorsement on the second certificate referred to as issued to James Topley was in the same language, save and except as to the number of shares.

The certificates referred to were not detached from the ■stubs in the stock-book of the corporation, and after the indorsements herein referred to, the stock-book, including the certificates, was placed in the safe belonging to the company in the storeroom where the company did business, which business was that of conducting and maintaining a drug-store. So far as the record shows, the stock-book, with certificates therein, was kept' and remained in the safe

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belonging to the company until some time in December, 1921. The two sons remained in the employ of the company in the conduct of the drug-store just referred to, James H. Topley acting as manager. In the latter part of the year, 1921, James H. Topley became ill and went to a hospital some time in December of that year. Prior to going to the hospital James H. Topley brought to Anna Topley all the books of the corporation. Some weeks later in examining 1he stock-book, Anna Topley discovered her signature to the indorsements herein mentioned and proceeded to draw red ink lines through the same and to mark the indorsements “cancelled.” On January 20, 1922, James H. Topley died. On November 23, 1923, Anna Topley executed her last will and testament devising all of her property to William II. Topley and Annie D. Topley Megarry. On March 30, 1924, Anna Topley died. Thereafter, the will executed by James H. Topley in 1899 was filed and admitted to probate; also, the will executed by Anna Topley on November 23, 1923, was filed and admitted to probate. Thereafter, this action was begun by Emma S. Topley, as administratrix with the will annexed of James H. Topley, deceased, to recover a one-third interest in the 396 shares of the corporate stock of the corporation issued to James Topley, as hereinbefore stated. The defendants had judgment and the plaintiff appeals.