Appeal from the Circuit Court of Shelby county; the Hon.
CASWELL J. CREBS, Judge, presiding. Judgment reversed, and cause
remanded with instructions.
MR. JUSTICE HIBBS DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 29, 1955.
This is an appeal by Nelle F. Waggoner from a judgment of the circuit court of Shelby county finding that forty shares of the capital stock of Shelby County State Bank of Shelbyville, Illinois, represented by certificate no. 177 is the property of appellee, Clara M. Aichele.
The Shelby County State Bank and John J. Smith, Sr., administrators of the Waggoner estate, filed a petition in the county court of Shelby county alleging on information and belief that prior to March 1, 1944 the decedent was the owner of forty shares of the capital stock of the Shelby County State Bank, evidenced by certificate no. 177, and on the latter date, he delivered the same to W.F. Aichele, cashier of the bank, with authority to transfer said stock on the books of the bank to his wife, Clara M. Aichele, sister of the decedent; that although the certificate had been in the possession of Aichele, the decedent continued to collect the dividends on the stock and voted the same until the time of his death. The petition further recited that the decedent left him surviving his wife, Nelle F. Waggoner and eight brothers and sisters as his sole and only heirs at law, by virtue of which the widow became the owner of all the personal property of the decedent after the payment of all his debts. The petition prayed that a citation issue requiring the widow, and Aichele and his wife, Clara, to appear and answer the petition, and that the court ascertain and determine whether the certificate was a valid gift to Clara Aichele or was an asset in the estate of the decedent.
The respondents, Aichele and wife, answered, claiming that Mrs. Aichele was the owner of the certificate as a result of a valid gift during the lifetime of the decedent. The widow, by her answer, alleged that the gift was not a completed one and prayed that the court find that the certificate was an asset of the estate of her deceased husband.
The county court by its judgment found that there was no valid gift and the certificate was the property of the administrators. On appeal to the circuit court of Shelby county, judgment was entered finding that the certificate was the property of Mrs. Aichele.
Charles W. Waggoner died January 30, 1953 leaving him surviving as his heirs, his widow, Nelle F. Waggoner and four brothers and four sisters, including the respondent, Clara Aichele. At the time of his death, he was the owner of over four hundred acres of land in Shelby county and possessed over $200,000 in personal property. Part of the personal property consisted of an interest in a clothing store, forty shares of stock in the Shelby County State Bank, of which he was a director, acquired a considerable period of time before December 1943. Aichele was elected a director of the bank in 1940. He was in 1944 its cashier and since 1946 has been its cashier and trust officer, and as such officer, it was a part of his duty to make transfers of certificates of stock on the books of the bank.
In December 1943 the bank declared a 100 per cent bank stock dividend, as a result there was issued to the decedent, certificate no. 177 representing forty shares of its stock. Shortly thereafter the decedent said to his sister in his clothing store in the presence of her daughter, Hope: "Sis, you would like to have some bank stock, wouldn't you? That's a good place to put it. Will is there and he can take care of it for you, and I think that that is a good place to put it." The daughter's recollection was that the deceased said to her mother: "You would just as soon have bank stock, wouldn't you?" That her mother mumbled something and moved away, and her uncle said: "Well, you would, wouldn't you?"
On March 1, 1944, decedent came into the bank, either just before or after closing hours and said to his brother-in-law, Aichele: "I want Sis to have this," and handed over certificate no. 177 issued to him as a stock dividend. Waggoner signed the assignment in blank on the back thereof. The other blanks were never filled in. Thereupon at the decedent's request Aichele prepared a document in the following words: "This is to certify that I have delivered to W.F. Aichele, certificate 177 for 40 shares of stock of the Shelby County State Bank, and authorize him to transfer said stock on the books of the bank to Clara M. Aichele." Waggoner signed the instrument and it was clipped on the stock certificate and placed by Aichele in his safety deposit box in the bank where it remained continuously until this cause was tried in the county court. At the time of the demise of Waggoner, Aichele had bonds in this same box payable to the deceased or to his various brothers and sisters, including Mrs. Aichele. The latter had access to the box and possessed one of the keys thereto, but at no time before her brother's death, did she know that this certificate of stock was in the bank box or was she advised of the transaction which occurred between her brother and her husband at the bank on March 1, 1944. In 1946 Waggoner told one of his fellow directors that he had delivered a certificate for forty shares of bank stock to Aichele for his sister, Clara.
Although the relationship between the decedent, Aichele and the decedent's sister, Clara was intimate, the subject was never discussed between them or any two of them subsequent to March 1, 1944. The decedent continued to receive all dividends declared upon this particular forty shares of stock and voted the same at all stockholders' meetings up to the time of his demise.
There is no conflict in the testimony on the material facts in the case. Whether such facts justify a conclusion that a valid gift inter vivos was made by constructive delivery is the question at issue.
It is insisted by appellees, William F. Aichele and Clara M. Aichele, that the burden of proof rested upon the petitioners to establish by the greater weight of the evidence that the asset, viz., the forty shares of stock, was the property of the estate of the decedent. In support of that contention they rely on In re Estate of Jones, 274 Ill. App. 616 and Hogg v. Eckhardt, 343 Ill. 246. In the former case the petition alleged that the respondent was in possession of certain securities, including certificates representing shares of stock, which the administrator contended were assets in the estate of the decedent. In Hogg v. Eckhardt, supra, it appeared that the decedent in his lifetime endorsed in blank certain certificates of stock and delivered them to the donee, and such certificates were in the possession of the donee at the time the administrator filed a bill of complaint for their recovery.
It is true that in this proceeding the administrators filed a petition praying that a citation issue requiring the respondents, the widow of the decedent, and Clara M. Aichele and her husband to appear and answer the petition, and that an order be entered finding either that the certificate was a part of the assets of the estate of the decedent or was the property of Clara M. Aichele. It is also true that the administrators in the trial of the cause proceeded as the moving party. However, the petition failed to allege that Clara M. Aichele was personally in possession of the certificate and the proofs show that she never did have possession thereof in person.
The question involved here is whether Clara M. Aichele's husband was in possession of the certificate as agent or trustee for his wife, which would constitute a completed delivery of the gift, or as agent for Waggoner, whose authority terminated upon his death. The reason announced in In re Estate of Jones, supra, at page 624, as the basis for the rule there announced is that "The law will not require one in the possession of a chattel or security, negotiable or otherwise, under claim of ownership, to deliver the same over upon the mere adverse claim of another, but will only disturb such possession upon proof of the right of such adverse claimant, that is to say, the presumption of the law is that one so in possession ...