126 N.Y.S. 102 | N.Y. App. Div. | 1910
I do not think that adverse possession of personal property can give title unless, in fact,, the action to recover it, or its value, is barred by the Statute of Limitations, but the direction of the verdiet for the defendant may be sustained on other grounds. Both sides having - moved, the facts were for the court, and the undisputed evidence shows a gift inter vivos in 1895 by Joseph Bayley, Sr.,, to his three children. Bor the purpose of carrying out the wishes of his deceased wife, he renounced the right to administration, requested that letters be' granted to William and joined in the latter’s undertaking for the faithful discharge of his duties as administrator, and thereupon consented to the surrender of the certificates for the twenty-one shares of stock standing in the name of the mother, and the issuance of three new certificates in the names of the three children respectively and the delivery of them accordingly. ' Every requirement of a gift inter vivos was thus satisfied. (Pickslay v. Starr, 149 N. Y. 432; Haviland v. Willets, 141 id. 35, 52; Adams v. Brackett, 5 Metc. 280; Matthews v. Hoagland, 48 N. J. Eq. 455, 486.) The case is one not merely of tacit consent, but of active participation and actual assent, and it seems to me that it would be no stronger if the father himself had physically received and delivered the- certificates. Seven -years later, to wit, in 1902, the father sought to compel William to account, as administrator in the Orphans’ Court of New Jersey, and the result of that proceeding was that William was charged with the value of said shares and directed to pay over that amount to the father. (See Bayley’s Case, 67 N. J. Eq. 566.) The defendant, lioivever, was not a party to that proceeding and consequently is not bound by the decree. It appears- from the-opiriion of the Prerogative Court that the father’s claim was that he consented to the division among the children upon the representation by William that the mother had given the shares to the: children and in ignorance of the facts upon which the claim of gift was based ; and, upon that theory, the decision went in his.favor. .It now-appears, however, from the undisputed evidence that he had knowledge of all the factSj and -the inference
It appears that the father testified in the proceeding, in the Orphans’ Court of New Jersey that he did not know that under the law of New Jersey he was the sole distributee of his wife until he was so informed in Í902. That testimony would not have been admissible if objected to ; and, even if he could avoid the gift seven years after it was made upon his assertion of ignorance- of the law, the court was hot bound to accept liis testimony in the face of the fact that he actually renounced his right to administration and actively participated in what was done.
Moreover, if he wished to rescind the transaction upon learning his mistake of law, it was his duty to act promptly (Haviland v. Willets, supra), and, while he sought to compel William to account as administrator, so far as appears, he made' no demand upon the defendant, and no effort whatever to rescind the transaction as to him. Meanwhile the defendant invested the proceeds of the shares in real estate, which, his testimony shows, is.now worth less than one-quarter of its value when the investment was made.
The plaintiff sues as administratrix to recover the value of property of her intestate delivered to the defendant by her predecessor with the consent of the sole distributee. The latter alone, if anybody, could rescind the transaction, and so far as the defendant is' concerned, he died without ever having done -so. The plaintiff certainly can have no better right than the one for whose benefit the action is maintained, to wit, herself individually as legatee of her father. The father in the proceeding against William obtained a decree upon what now appears to have been an erroneous finding, i. e., that the latter had wrongfully distributed the assets of the estate ; but that decree so far from aiding the plaintiff in this suit might be an embarrassment. No doubt the attempt to hold an administrator responsible for wrongfully distributing the assets of the estate would not be inconsistent -with an attempt to recover said assets, or the value thereof, from his distributees. (Russell v. McCall, 141 N. Y. 437, 456.) Both actions would be for the same wrong. But upon this record, no wrong was com
When the defendant received the shares of stock in 1895, he had no reason to suspect that he had thereby incurred an obligation to account for any .value which the shares .might thereafter attain. When he sold the shares in 1900, and, as the evidence shows, was congratulated hy his father for what the latter termed “ a good Christmas present,” he still had no reason to suspect that he was to be held accountable for the proceeds; and we think that even if the original gift could have been rescinded by the father, his acquiescence until his death and for at least five years after learning his mistake of law amounts to a ratification. (Haviland v. Willets, supra.)
The order should be reversed, with costs, and the verdict reinstated and judgment ordered for defendant on the verdict.
Ingbaham, P. J., McLaughlin and Dowling, JJ., concurred.
The action is brought by the administratrix of Mary E. Bayley" deceased, to recover' the sum of $2,985.50, together with interest thereon from the 4th day of January, 1901, being the amount received by the defendant as the proceeds of the sale of seven shares of the Pennsylvania Coal Company stock.on said day and dividends received on said stock. The theory of the- action is that the stock ■ belonged to plaintiff’s intestate, who died at East Orange, ¡N'. J., on ¡November 22, 1894. Letters of administration on her estate were issued here. At the time of her death -she had in her possession twenty-one shares of the stock of this company, one certificate for twenty shares and one for one share. She left her surviving her husband, Joseph Bayley, Sr., and three children, the plaintiff, the defendant, and William Bayley. By consent of the husband and the children,. William Bayley was originally appointed administrator
Under the law of Hew Jersey it appears that the husband is entitled to letters of administration on the estate .of his wife and to all of her personal property. The plaintiif testified tliatin 1892, about two years before her mother died, there was a conversation between her mother and herself and her brothers and her father about the division of the twenty-one shares of stock, in which her mother stated in .substance that she wanted the stock divided among the three children equally; that on the morning after her mother’s death she took the certificates of stock from a wooden box in which her mother kept them and delivered them to her brother William, who thereafter informed her that he had surrendered them to the company and obtained three certificates for seven shares each, one to the defendant, one to the plaintiff and one to himself, and that in February, 1895, he delivered to-her one certificate for seven shares, which she subsequently sold; that her father consented to this division ; that she was the executrix of her father, and that she only was interested. in the action and would be entitled to any recovery herein. This evidence is uncontroverted and was corroborated by the testimony of her brother. It further appears by the undisputed evidence that the twenty-one shares of stock which stood in the name of Mary E. Bayley at the time of her death were transferred on the books of the company on the 19th day of February, 1895, and three certificates issued in place thereof, one for seven shares to the plaintiff, another for seven shares to William Bayley, and another for seven shares to the defendant, and that the certificate for seven shares was delivered to the defendant and he retained it until January 4, 1901, when he sold it for the amount stated. The husband of the decedent testified on an action or proceeding in the Essex County Orphan’s Court, Hew Jersey, to compel William as administrator to account, in effect that he was not aware of his rights until after the stock was sold by defendant, and that he supposed that the stock belonged to the children. He died on the 18th of August, 1907. This action was commenced on the 26th day of May, 1909.
The uncontroverted evidence shows that from the time the defendant received the certificate of stock in February, 1895, to the knowl
I do not deem it necessary to express an opinion on the point tin-' which the trial justice set aside the verdict and granted the new trial, for 1 think it .is clearly shown by the record that the Statute of Limitations of Hew Jersey would have been a bar to an-.action , for the recovery of the stock at the time this action was comménced, and that the defendant lias obtained good title to the stock and to the proceeds thereof by adversé possession. There is no evidénce of fraud. The possession was obtained under a claim of right to the knowledge and with the acquiescence of the defendant’s father, who may not have .been aware of his legal rights, but his ignorance of the law has; -no bearing, on the. question in these circumstances. The evidence clearly shows that the defendant at the time of the death of his mother and of the division of the stock in February,' 1895, resided at the'family home in Hew Jersey, and that he did. not change his residence until the month of July, 1902.
The facts material to a decision of the case on this theory were sufficiently pleaded in the answer and were established by the evidence as- matter of law. I am, therefore, of the opinion that the action cannot be maintained, and that the learned trial justice erred in setting aside the verdict and granting a new trial, and I vote for a reversal of the order and a reinstatement of the verdict.
Order reversed, with costs, verdict reinstated and judgment ordered for defendant on verdict, with costs.