241 Pa. 407 | Pa. | 1913
Opinion by
Susan A. Sullivan, administratrix of the estate of James J. Sullivan, deceased, filed this bill in equity against Frank Hess and his wife, Sallie S. Hess, and The J. Sullivan & Sons Manufacturing Company to prevent the transfer of certain shares of the capital stock of the defendant company to any one else, and to compel their transfer to her. A cross-bill was filed by J. Russell Sullivan against both plaintiff and defendants, praying that a portion of the stock should be transferred to him, and a certificate for it issued to him. From the undisputed testimony it appears that in the latter part of March, or the early part of April, 1901, James J. Sullivan handed to his sister, Mrs. Hess, certificates for
The controversy is essentially one of fact. If the trial judge was correct in his findings of fact, the decree was entirely justified. Counsel for appellants contends, however, that the findings of fact were erroneous, and that James J. Sullivan made an absolute gift of the stock to Mrs. Hess, for the benefit of the children. The essentials of a valid gift inter vivos have been well defined. A late statement of these requirements is found in Reese v. Trust Co., 218 Pa. 150, where our Brother Stewart said (p. 156) : “To constitute a valid gift inter vivos two essential elements must combine; an intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject, and invests the donee therewith.” The burden of proof is upon the one who claims the benefit of a gift inter vivos, and the proof must be clear and satisfactory : Smith’s Estate, 237 Pa. 115. In the present case the evidence of the appellants themselves, which the trial judge did not find convincing, was that James J. Sullivan delivered the certificates to Mrs. Hess with instructions that she was to keep them for the children. In corroboration, there was testimony that the decedent showed great affection for the children, his nieces and nephews, and subsequently in conversation had said to several persons that he had given his stock in the company to Mrs. Hess and the children or to her for the children, and that the children owned everything he had. On the other hand it appeared that the stock was never transferred by decedent on the books of the company, and that he received all dividends or profits upon the
As to the right of J. Eussell Sullivan to receive the 833 shares of the stock, his claim thereto was admitted by Susan A. Sullivan, administratrix, in her answer to the cross-bill. If the court below was correct in holding that the defendants Frank Hess and Sallie S. Hess failed to establish a gift to Mrs. Hess by James J. Sullivan of any part of the 2,499 shares represented by the certificates placed in the hands of Mrs. Hess, then these appellants have no interest in the claim set up by the cross-bill, and have no standing to dispute it on this appeal. The only one who could question the disposition of this portion of the stock would be the administratrix of James J. Sullivan, and she makes no attempt to do so. On the contrary, through her counsel, she asks for an affirmance of the decree of the court below directing the transfer of the 833 shares of stock to J. Eussell Sullivan.
The assignments of error are overruled, and the decree of the court below is affirmed.