Smith v. Smith , 38 Pa. Super. 251 ( 1909 )

Opinion by

Beaver, J.,

The plaintiff filed a bill in equity in the court below, claiming that the defendant held twenty-four shares of the capital stock of the Pennsylvania railroad in a certificate issued to her which belonged to the estate for which the plaintiff was administrator and which was purchased in the lifetime of the decedent by the defendant at the request of, and with money belonging to, the decedent; that the defendant had been requested “to transfer to him, as administrator of the estate of Eliza Smith, deceased, the remaining twenty-four shares of said stock belonging to the estate of said Eliza Smith,” alleging that the plaintiff had no adequate remedy at law, and praying, “1. That your orator, administrator as aforesaid, be decreed to be the equitable owner and entitled to the said twenty-four shares of stock of the Pennsylvania Railroad Company. 2. That the said defendant be required to assign to your orator, administrator as aforesaid, the said twenty-four shares of stock of the Pennsylvania Railroad Company. 3. That during the pendency of this action the defendant, her executors, administrators, agents, servants and employees be enjoined and restrained from, selling or disposing of, or parting or interfering with, the said twenty-four shares of stock of the Pennsylvania Railroad Company, until otherwise ordered and directed by this court.”

The defendant filed a demurrer, which was overruled, and answer made, denying the general averments of the bill.

The demurrer rested upon two general grounds: That the bill did not show ground for equitable relief and that the plaintiff had a complete legal remedy, and, second, that the statute of limitations barred the right of the plaintiff to claim the stock alleged to belong to the estate of the decedent. We think the demurrer was properly overruled.

Testimony was taken before Judge Barratt of Court No. 2 of Philadelphia county. Two disinterested witnesses testified to a paper signed by the decedent which was dictated by one of the witnesses and reduced to writing by the other, which paper was alleged to have been reduced to writing and signed by the decedent at the request of the defendant, for the purpose of indicating clearly how much of the stock of the Pennsylvania Railroad held in the name of the defendant belonged to her and how much to her mother, the decedent. The paper was dictated and written down in the presence of the defendant and after-wards read to her, and the testimony showed that it was read to, and the facts therein asserted reaffirmed by, her, after it was written. The facts connected with the signing of this paper by the decedent were very carefully brought out in the examination of the plaintiff’s witnesses, the cross-examination of the defendant and a discriminating examination by the court. There was some contradiction of this testimony, but the court found that the declaration dated “Philadelphia, June 11th, 1898. I, Eliza Smith, do certify and declare under my hand and seal of this date in presence of witnesses that I am the owner of one hundred and twenty-four shares of Pennsylvania Railroad stock that is in the name of my daughter, Emma Smith, and the balance and the remainder is her own personal property bought and paid for by her in cash. I certify to this fact that it will avoid any mistake or dispute in the future, and it is subject at any time to be of less amount if necessity requires me to sell, and she is the absolute owner of forty-six shares at this date,” was, at the request of Emma Smith, dictated by Joseph K. Gamble to his wife, in the presence and hearing of Emma Smith and Eliza Smith. The signature was witnessed by two witnesses, the person who dictated the paper and the sister of the decedent, who was not examined because of her extreme illness at the time of the hearing. Upon cross-examination, the witness was asked: “ Q. Why didn’t you get Emma Smith to sign this paper, when you got Eliza to sign it?” and answered, “A. It was for the protection of Miss Emma Smith against her brother, and for that reason I had no idea it was necessary to have her name attached to it, because it was only she was afraid that after her mother’s death her brother would not think she had the number of shares she had, and I thought if it was drawn up showing how much she had and how much her mother had, it would stop any dispute in the family.” The testimony, as we read it, sustains the findings of fact of the court below, to which exceptions were taken in the court below, and the refusal of the court to sustain said exceptions constitutes many of the assignments of error here. The twenty-four shares referred to in the complainant’s bill having been purchased with the money of the decedent and being in the name of the defendant, as found by the court below,- justified and sustained the conclusions of law -that: “ Positive evidence, which there is no reason to question, shows that she (defendant) accepted a continuing trust in 1898 to hold the stock in question for her mother, to sell or to hold, as the mother should direct, and that she continued to hold twenty-four shares upon that trust until her mother’s death in 1906. '

“The defendant argues that equity has no jurisdiction in this case, because the bill seeks specific performance for an undertaking to deliver shares of stock and that, if a wrong has been done by refusal so to do, there can be compensation in damages, for which action must be brought at law: Edelman v. Latshaw, 159 Pa. 644; Roland v. Bank, 135 Pa. 598; Foll’s Appeal, 91 Pa. 434; Dungan v. Dohnert, 11 W. N. C. 330; 3 Parsons on Contracts, 364. The answer to that argument is that the present case is not one for the specific performance of a contract. It is a case of trust. Equity has jurisdiction in order to ascertain and vindicate the trust.” The court also held that the statute of limitations did not apply, saying: “Even were there no trust, it has been established by the evidence that the defendant did not hold adversely to the decedent. She did not set up any adverse title until after her mother’s death, only two years ago. On the contrary, the services to be rendered by the defendant, and which required her possession of the property, were not completed until the mother died, as during her life the parties contemplated continuous holdings, sales, etc., as the mother should direct.”

The findings of fact and the conclusions of law sustain the decree of the court, declaring that, “The estate of Eliza Smith, deceased, is the equitable owner of, and entitled to, twenty-four shares of the capital stock of the Pennsylvania Railroad Company, evidenced (together with forty-six other shares) by certificate No. 520,884 in the name of Miss Emma Smith, and now in the possession of the defendant, Emma Smith,” and “That the said defendant transfer and deliver to the said complainant the said twenty-four shares of stock upon the said Samuel P. Smith entering additional security as administrator of the estate of Eliza Smith, deceased, in the office of the register of wills, in the sum of $3,000, ” “ and the defendant pay the costs of these proceedings.”

The opinion of the court below in the conclusions of law arrived at is fully vindicated by the authorities which are cited and fully discussed. There is no necessity for requoting them here.

The defendant has thirty-six assignments of error, but the questions raised by them are those herein referred to and are satisfactorily disposed of by the opinion of Judge Barratt in the court below. For the reasons therein set forth, and herein very briefly referred to, none of the said assignments is sustained.

Decree affirmed and appeal dismissed at the costs of the appellant.