D.C. Code § 28:8-107
(a) For the purposes of this article, the term “appropriate person” means:
(b) An indorsement, instruction, or entitlement order is effective if:
(c) An indorsement, instruction, or entitlement order made by a representative is effective even if:
“Uncertificated security”. Section 8-102(a)(18).
“Security entitlement”. Section 8-102(a)(17).
“Security certificate”. Section 8-102(a)(16).
“Security”. Section 8-102(a)(15).
“Securities account”. Section 8-501.
“Representative”. Section 1-201(35).
“Instruction”. Section 8-102(a)(12).
“Indorsement”. Section 8-102(a)(11).
“Financial asset”. Section 8-102(a)(9).
Definitional Cross References “Entitlement order”. Section 8-102(a)(8).
Example 4. Certificated securities are registered in the name of John Doe. John Doe dies and Mary Roe is appointed executor. Mary Roe indorses the security certificate that is registered in the name of John Doe and transfers it to a purchaser. After the indorsement and transfer, but before the security certificate is presented to the issuer for registration of transfer, Mary Roe is removed as executor and Martha Moe is appointed as her successor. Mary Roe’s indorsement is effective, because at the time Roe indorsed she was the appropriate person under subsection (a)(4). Her later removal as executor does not render the indorsement ineffective. Accordingly, the issuer would not be liable for registering the transfer. See Section 8-404.
6. Subsection (e) provides that the effectiveness of an indorsement, instruction, or entitlement order is determined as of the date it is made. The following example illustrates this subsection:
Example 3. Certificated securities are registered in the name of John Doe. John Doe dies and Mary Roe is appointed executor. The securities are not reregistered in the name of Mary Roe as executor. Later, Mary Roe is removed as executor and Martha Moe is appointed as her successor. After being removed, Mary Roe indorses the security certificate that is registered in the name of John Doe and transfers it to a purchaser. Mary Roe’s indorsement is not made effective by subsection (d), because the securities were not registered in the name of Mary Roe as representative. A purchaser or the issuer registering transfer should be required to determine whether Roe has power to act for John Doe. Purchasers and issuers can protect themselves in such cases by requiring signature guaranties. See Section 8-306.
Note that subsection (d) does not apply to a case where the security or securities account is registered in the name of principal rather than the representative as such. The following example illustrates this point:
Subsection (d) provides that an indorsement by John Jones as trustee is effective even though Jones is no longer serving in that capacity. Since the securities were registered in the name of “John Jones, trustee of the Smith Family Trust,” a purchaser, or the issuer when called upon to register transfer, should be entitled to assume without further inquiry that Jones has the power to act as trustee for the Smith Family Trust.
Example 2. Certificated securities are registered in the name of “John Jones, trustee of the Smith Family Trust.” John Jones is removed as trustee and Martha Moe is appointed successor trustee. The securities, however, are not reregistered, but remain registered in the name of “John Jones, trustee of the Smith Family Trust.” Jones indorses the security certificate and transfers it to a purchaser.
5. Subsection (d) deals with cases where a security or a securities account is registered in the name of a person specifically designated as a representative. The following example illustrates this subsection:
Example 1. Certificated securities are registered in the name of John Doe. Doe dies and Mary Roe is appointed executor. Roe indorses the security certificate and transfers it to a purchaser in a transaction that is a violation of her duties as executor. Roe’s indorsement is effective, because Roe is the appropriate person under subsection (a)(4). This is so even though Roe’s transfer violated her obligations as executor. The policies of free transferability of securities that underlie Article 8 dictate that neither a purchaser to whom Roe transfers the securities nor the issuer who registers transfer should be required to investigate the terms of the will to determine whether Roe is acting properly. Although Roe’s indorsement is effective under this section, her breach of duty may be such that her beneficiary has an adverse claim to the securities that Roe transferred. The question whether that adverse claim can be asserted against purchasers is governed not by this section but by Section 8-303. Under Section 8-404, the issuer has no duties to an adverse claimant unless the claimant obtains legal process enjoining the issuer from registering transfer.
4. Subsection (c) provides that an indorsement, instruction, or entitlement order made by a representative is effective even though the representative’s action is a violation of duties. The following example illustrates this subsection:
Subsections (c), (d), and (e) supplement the general rule of subsection (b) on effectiveness. The term “representative,” used in subsections (c) and (d), is defined in Section 1-201(35).
3. Subsection (b) sets out the general rule that an indorsement, instruction, or entitlement order is effective if it is made by the appropriate person or by a person who has power to transfer under agency law or if the appropriate person is precluded from denying its effectiveness. The control rules in Section 8-106 provide for arrangements where a person who holds securities through a securities intermediary, or holds uncertificated securities directly, enters into a control agreement giving the secured party the right to initiate entitlement orders of instructions. Paragraph 2 of subsection (b) states explicitly that an entitlement order or instruction initiated by a person who has obtained such a control agreement is “effective.”
2. Subsection (a) provides that the term “appropriate person” covers two categories: (1) the person who is actually designated as the person entitled to the security or security entitlement, and (2) the successor or legal representative of that person if that person has died or otherwise lacks capacity. Other law determines who has power to transfer a security on behalf of a person who lacks capacity. For example, if securities are registered in the name of more than one person and one of the designated persons dies, whether the survivor is the appropriate person depends on the form of tenancy. If the two were registered joint tenants with right of survivorship, the survivor would have that power under other law and thus would be the “appropriate person.“ If securities are registered in the name of an individual and the individual dies, the law of decedents’ estates determines who has power to transfer the decedent’s securities. That would ordinarily be the executor or administrator, but if a “small estate statute” permits a widow to transfer a decedent’s securities without administration proceedings, she would be the appropriate person. If the registration of a security or a securities account contains a designation of a death beneficiary under the Uniform Transfer on Death Security Registration Act or comparable legislation, the designated beneficiary would, under that law, have power to transfer upon the person’s death and so would be the appropriate person. Article 8 does not contain a list of such representatives, because any list is likely to become outdated by developments in other law.
One important application of the “effectiveness” concept is in the direct holding system rules on the rights of purchasers. A purchaser of a certificated security in registered form can qualify as a protected purchaser who takes free from adverse claims under Section 8-303 only if the purchaser obtains “control.” Section 8-106 provides that a purchaser of a certificated security in registered form obtains control if there has been an “effective” indorsement.
1. This section defines two concepts, “appropriate person” and “effective.” Effectiveness is a broader concept than appropriate person. For example, if a security or securities account is registered in the name of Mary Roe, Mary Roe is the “appropriate person,“ but an indorsement, instruction, or entitlement order made by John Doe is ‘’effective“ if, under agency or other law, Mary Roe is precluded from denying Doe’s authority. Treating these two concepts separately facilitates statement of the rules of Article 8 that state the legal effect of an indorsement, instruction, or entitlement order. For example, a securities intermediary is protected against liability if it acts on an effective entitlement order, but has a duty to comply with an entitlement order only if it is originated by an appropriate person. See Sections 8-115 and 8-507.
Dec. 30, 1963, 77 Stat. 738, Pub. L. 88-243, § 1
Mar. 16, 1993, D.C. Law 9-196, § 4, 39 DCR 9165
July 25, 1995, D.C. Law 11-30, § 7(g), 42 DCR 1547
renumbered and amended, Apr. 9, 1997, D.C. Law 11-240, § 2, 44 DCR 1087
1973 Ed., § 28:8-107.
1981 Ed., § 28:8-107.
This section is referenced in § 28:8-102 and § 28:8-402.