141 N.Y.S. 306 | N.Y. App. Div. | 1913
This controversy involves the question of the ownership of certain shares of the stock of defendant Wells Fargo Express
Upon these facts the judgment appealed from awards the ownership of the stock to plaintiff tipon the theory that the possession of the indorsed certificate by George Porter raised the presumption that he was. the owner of it. Undoubtedly there is room for such a presumption unless it is- rebutted by the stronger presumption of continued ownership by Albert Porter. We are of opinion that it is "so rebutted.
It is easy.to understand that when the brothers broke up their home and left Springfield the certificate of stock might by mistake have found aplace among the papers which George Porter took with him. The circumstances that Albert Porter, while he was still living away from home indorsed the blank transfer, may indicate that he intended at some time to part with the stock, but as no name of a transferee is inserted, it is impossible to say to whom he intended to make the transfer.
On the other hand, George Porter, who appears to have been a person of methodical habits, would scarcely, if he owned the stock, have allowed it to remain in a box with a quantity of worthless papers,, or have permitted his brother, for twenty-one years, to receive the dividends upon it. Surely, if he had owned it, and knew that it was among his papers> he would have kept it in a box in which he kept his valuable securities, and would have transferred it to his daughter when he made over to her all his other property. It is a case of presumption against presumption, and we think that; upon all the facts, the presumption that the stock remained the property of Albert G. Porter until his death far outweighs the presumption that it has been transferred to George 0. Porter and was his property when he died.
The judgment appealed from must, therefore, be reversed and the complaint dismissed upon the merits, with costs in this court and at Special Term to each of the defendants separately appearing and answering.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.