McGhie v. First and American National Bank

In my opinion, defendant waived its right to the dividends on the corporate stock pledged to it by obtaining the allowance in probate court of its claim as an unsecured creditor of the Turrish estate. The note forming the basis of the claim is the $20,000 note dated November 20, 1931, referred to in the opinion of the Chief *Page 330 Justice. The bank's claim was allowed, by order of the probate court dated January 23, 1940, "upon condition that within ninety days from the date hereof the above named claimants [including the defendant specifically by name] surrender the securities held by them to the representative of the estate, or exhaust the same in the manner provided by law." This order was entered subsequent to the time defendant acquired full knowledge that the dividends here under consideration had been paid to the special administratrix of the estate. With such knowledge, the bank on December 20, 1940, in order to prove compliance with the conditions of the order of January 23, 1940, and to procure the allowance of its claim against the estate, filed its sworn petition in the probate court stating that it held no securities or collateral of any kind for the payment of said note. On the basis of this petition, the probate court allowed the claim absolutely and entered judgment thereon for the full amount thereof. The bank, having thus elected to comply with the order of January 23, 1940, imposing conditions upon the allowance of its claim as a general creditor, must be held to have waived any right that it had as pledgee to the dividends here in dispute.

Waiver is "the intentional relinquishment of a known right." Farnum v. Peterson-Biddick Co. 182 Minn. 338, 341,234 N.W. 646, 648; Coppoletti v. Citizens Ins. Co. 123 Minn. 325,143 N.W. 787; Hendrickson v. Grand Lodge, 120 Minn. 36,138 N.W. 946; Parsons, Rich Co. v. Lane, 97 Minn. 98, 106 N.W. 485,4 L.R.A.(N.S.) 231, 7 Ann. Cas. 1144; 6 Dunnell, Dig. Supp. § 10134; 67 C. J., Waiver, § 1. It may be created by acts, conduct, or declarations insufficient to create a technical estoppel. Mee v. Bankers' L. Assn. 69 Minn. 210, 72 N.W. 74; Bowman v. Surety Fund L. Ins. Co. 149 Minn. 118,182 N.W. 991; Parsons, Rich Co. v. Lane, supra. It may be by consent expressly or impliedly given. Coppoletti v. Citizens Ins. Co.supra.

The question of waiver is mainly one of intention, which lies at the foundation of the doctrine. Farnum v. Peterson-Biddick Co. supra. The intent may be inferred from facts and circumstances, as well as found in the written statements or oral declarations of *Page 331 the party. Parsons, Rich Co. v. Lane, supra. "Waiver * * * becomes a question of law when the facts and circumstances relating to the subject are admitted or clearly established." Minneapolis E. L. Co. v. Federal Holding Co. 175 Minn. 421,425, 221 N.W. 645, 646. And where conduct indicating a waiver in so "inconsistent with a purpose to stand upon one's rights as to leave no room for a reasonable inference to the contrary," the intent to waive appears as a matter of law. Farnum v. Peterson-Biddick Co. 182 Minn. 341, 234 N.W. 647, and Minneapolis E. L. Co. v. Federal Holding Co. supra.

Here, in my opinion, both knowledge and intent have been conclusively established. The bank, for a period of almost three years, had knowledge of the payment of the dividends to the special administratrix and took no action to assert and protect its claim thereto. It had such knowledge at the time it elected to proceed as a general creditor against the estate. It deliberately filed its claim in probate court, knowing what condition the court had imposed thereon. It must therefore be deemed to have voluntarily surrendered and waived any claim to the dividends which had been appropriated by the administratrix of the Turrish estate several years before.