BARNHILL, J., dissenting in part.
SEAWELL, J., concurs in dissent. This was an action by the executors of the will of David T. Barnes, deceased, under the Declaratory Judgment Act, for advice and direction in the administration of the estate. The devisees and legatees are made parties defendant. All are of full age.
The cause was submitted to the court for decision of certain questions of law based upon an agreed statement of facts. The admitted facts pertinent to the inquiry were substantially these:
David T. Barnes died 23 August, 1944, leaving a last will and testament wherein he named the plaintiffs executors, and made numerous devises and bequests to his nieces and a nephew of his real and personal property. The residuary legatees were the appellants. Ruth Buffaloe Wilson, Katie Buffaloe, Norman B. Buffaloe, and the plaintiff Ethel Buffaloe. Advice of the court was sought as to five specific matters, as follows:
1. On 14 June, 1944, the testator with his own funds purchased 70 shares of the preferred stock of the Carolina Power Light Co. for $8,261 and had the stock certificates issued to "David T. Barnes and Rossie Mae Barnes as joint tenants with right of survivorship, and not as tenants in common." The certificates were delivered to the testator and by him placed in his safety deposit box. A dividend paid on the stock was received by the testator. Rossie Mae Barnes now claims these shares of stock free of any claim of the executors.
2. On 16 August, 1944, the testator authorized a broker to purchase for him 15 additional shares of the preferred stock of Carolina Power Light Co. and issued his check in payment therefor $1,777.50 with instructions that the certificate be issued in name of "David T. Barnes and Rossie Mae Barnes as joint tenants with right of survivorship and not as tenants in common." The broker purchased the shares 18 August, and later mailed the old certificate to the Wachovia Bank Trust Co., the transfer agent, for issuance of new certificate as instructed. The old *Page 316 certificate reached the transfer agent 23 August, at which time it was ascertained that David T. Barnes was dead, and the transfer agent notified the broker the certificate could not be issued as directed. Subsequently the broker, who had delivered the old certificate to the transfer agent, instructed the transfer agent to issue the new certificate to Rossie Mae Barnes, which was done. Rossie Mae Barnes refuses to surrender the 15 shares of stock, claiming them as her own.
3. The third question presented was whether the devise of a certain store house and lot carried with it the adjoining lot which was originally included in the deed to the testator. It was held that the lot was included in the devise, and no exception having been noted, this item may be eliminated from further consideration.
4. The fourth question was whether the amount of the Federal Estate tax of $604 should be paid by the executors out of general funds of the estate, or charged against the individual beneficiaries. The North Carolina inheritance tax was admittedly chargeable against the individual beneficiaries.
5. Repairs upon real property of testator which passed under his will to named devisees were undertaken as follows:
(a) To house on Bloodworth Street ordered 16 August, 1944, materials furnished 21 August, $136.20, other materials furnished 31 August and 1 September, $29.68. Work started 28 August, completed 1 September; cost of labor $142.60.
(b) Painting house on Bloodworth Street, ordered 19 August, 1944, work started 28 August, completed 1 September — cost $195.00.
(c) Concrete sidewalk and driveway to house on Bloodworth Street, ordered 21 August, 1944, started 28 August, 1944, completed 31 August, cost $138.50.
(d) Concrete sidewalk and driveway to lot on Harrington and Jones Streets, ordered 18 August, started 21 August, completed 22 August, cost $164.00.
(e) Repairs to house on Lane Street, ordered 21 August, completed 23 August, cost $6.50.
Total cost of repairs $812.48.
Upon the facts so agreed, the court was of opinion, and so adjudged:
1. That the 70 shares of preferred stock referred to were the sole property of Rossie Mae Barnes.
2. That the 15 shares of preferred stock were the sole property of Rossie Mae Barnes.
3. That the devise of the house and lot referred to in the third question included the entire lot originally conveyed to the testator. No exception was noted to this ruling. *Page 317
4. That the Federal Estate tax be paid by the executors out of the funds of the estate.
5. That all the repairs upon property of testator be paid by executors out of the general funds.
It was admitted that if the court's rulings prevailed there would be no residuum but a deficit in the estate. The appellants, the residuary legatees, excepted to the rulings of the court as to (1) the 70 shares of stock, (2) the 15 shares of stock, (3) the Federal Estate tax, and (4) the charges for repairs.
From the judgment rendered defendants, Ruth Buffaloe Wilson, Katie Buffaloe and Norman B. Buffaloe, appealed. The judgment appealed from was rendered upon an agreed statement of facts in an action for advice and direction in the administration of the estate of David T. Barnes under his will. The appellants, who are the residuary legatees named in the will, assign error in the judgment in four particulars, which will be considered in order.
1. The trial judge was of opinion and so adjudged upon the facts agreed that upon the death of David T. Barnes the defendant Rossie Mae Barnes became the sole owner of 70 shares of preferred stock in the Carolina Power Light Co., the certificates representing these shares having been issued in the names of "David T. Barnes and Rossie Mae Barnes as joint tenants with right of survivorship, and not as tenants in common."
It was admitted the testator paid for the shares from his own funds and had the certificates in his exclusive possession at the time of his death. No other fact appears in addition to the admission that the certificates were issued in accordance with the expressed instructions of the testator. There was no consideration from Rossie Mae Barnes; nor agreement between the parties in relation to the stock. A dividend on the shares of stock was received by the testator.
Rossie Mae Barnes bases her claim to the 70 shares of stock on the ground that the transfer of these shares under the circumstances constituted a gift inter vivos, and that upon the death of David T. Barnes in accord with the stipulation appearing on the face of the certificate she became sole owner by survivorship. The appeal presents the question *Page 318 whether the facts agreed are sufficient to establish her ownership of these shares consequent upon a valid gift inter vivos.
To constitute a gift there must be an intention to give, and the intention must be consummated by a delivery of, and loss of dominion over, the property given, on the part of the donor. Jones v. Fullbright,197 N.C. 274, 148 S.E. 229; Nannie v. Pollard, 205 N.C. 362,171 S.E. 341. To complete a gift inter vivos there must be first the intention to give and then the delivery "as it is the inflexible rule that there can be no gift either inter vivos or causa mortis without the intention to give and the delivery." Newman v. Bost,122 N.C. 524, 29 S.E. 848; Bynum v. Bank, 221 N.C. 101,19 S.E.2d 121. "In order to a valid gift of personal property intervivos there must be an actual or constructive delivery with present intent to pass the title." Parker v. Mott, 181 N.C. 435,107 S.E. 500. Donative intent is an essential element. 24 A. J., 738, 770. To constitute delivery of shares of stock as the consummation of a valid gift inter vivos the donor must divest himself of all right and title to the stock and of all dominion over it. Phillips v.Plastridge, 107 Vt. 267; 99 A.L.R., 1074; Payne v. Tobacco TradingCorp., 179 Va. 156, 18 S.E.2d 281; Pomerantz v. Pomerantz,19 A.2d 713 (Md.). There must be an intention to make a present gift accompanied by a delivery of the thing given or the means of obtaining it. Payne v. Tobacco Trading Corp., supra; Pomerantz v.Pomerantz, supra. It cannot be made to take effect in the future.Askew v. Matthews, 175 N.C. 187, 95 S.E. 163. The transaction must show a completely executed transfer to the donee of the present right of property and the possession. Thomas v. Houston, 181 N.C. 91,106 S.E. 466. Doubts must be resolved against the gift. Figuers v.Sherrell, 178 S.W.2d 629. In Grissom v. Sternberger, 10 F.2d 764, the certificates, with proper assignment, were delivered to the donee.
The general rule is that where the owner or purchaser of shares of stock has the certificate therefor issued in the name of another, and so registered on the books of the corporation, though retaining possession of the certificate, nothing else appearing, the transaction is regarded as a gift completed by constructive delivery. Simonton v. Dwyer, 167 Or. 50; 99 A.L.R., 1080, and cases cited. But the rule is otherwise where the name of another is inserted in the certificate for the owner's convenience,Getchel v. Bank, 94 Me. 452; 24 A. J., 771; or where the donor has not divested himself of right and title to the stock and of all dominion and control over it, Phillips v. Plastridge, supra; Payne v. Tobacco TradingCorp., supra; Schoenheit v. Lucas, 44 F.2d 476 (484); Decker v. Fowler,199 Wash. 549; or where donative intent is not established. SouthernIndustrial Institute v. Marsh, 15 F.2d 347; Trenton Savings FundSociety v. Byrnes, 110 N.J. Eq., 617; *Page 319 Hudgens v. Tilman, 227 Ala. 672; Jones v. Jones, 201 S.W. 557; Frazierv. Okla. Gas E. Co., 178 Okla. 512; Hart v. Hart, 272 Ky. 488; Figuers v.Sherrell, supra, 152 A.L.R., 429.
From an examination of the facts agreed in the case at bar, upon which alone the judgment was based, it would not seem to follow as a necessary conclusion of law that a present gift was intended. The interest in the stock which might accrue to Rossie Mae Barnes depended upon a contingency. The donor retained possession of the certificates, the evidence of title, and received the dividends. Though the certificates were in the names of both as joint tenants, the testator had the right at any time to segregate his interest therein by partition. G.S., 46-42. This statute applies to joint tenants as well as tenants in common. The right of control over the shares of stock at least as to one-half interest therein was retained by the testator.
Somewhat similar questions relating to gifts inter vivos of shares of stock were considered by this Court in Jones v. Waldroup, 217 N.C. 178,7 S.E.2d 366. In that case Waldroup had the certificate for shares of stock in Blue Ridge Building and Loan Association issued in name of "R. M. and H.L. Waldroup (his wife), either or survivor," and delivered the certificate to his wife. After Waldroup's death his administrator brought suit for these and other shares of stock. The trial court's peremptory instructions to the jury in favor of the husband's administrator were held for error and a new trial was awarded. It was said by Justice Seawell, writing the opinion for the Court, that while survivorship as a legal incident to a joint tenancy was abolished by statute (G.S., 41-2), that did not prevent persons from making agreements as to personalty such as to make the future rights of the parties depend upon the fact of survivorship, citing Taylor v. Smith, 116 N.C. 531, 21 S.E. 202. It was said that the position of the wife was stronger because Waldroup had required the issue of new certificates of stock to himself and wife and had them so registered on the books of the corporation "under circumstances which might be evidence of a gift inter vivos, creating an estate for the common enjoyment of himself and wife, with right of survivorship upon the death of one of them." In the case at bar, however, we have neither the verdict of a jury nor other definite determination of permissible inferences of fact which would compel a conclusion in accord with the appellee's contention. Rewisv. Ins. Co., post, 325.
In Gwinn v. Commissioner of Internal Revenue, 287 U.S. 222, referring to a joint tenancy in property in a tax case, the Court said: "Although the property here involved was held under a joint tenancy with the right of survivorship created by the 1915 transfer, the rights of the possible survivor were not then irrevocably fixed since under the state *Page 320 law the joint estate might have been terminated through voluntary conveyance by either party, through proceedings for partition, or by an involuntary alienation under an execution." The decisions in Ervin v. Conn and Bank v. Frederickson, 225 N. C:, 267, relating to provisions for payment of U.S. Bonds, were controlled by the pertinent Acts of Congress under the Federal Constitution.
This subject was discussed in a recent case decided by the Supreme Court of Oregon, Manning v. U.S. National Bank of Portland, 148 P.2d 255. In that case it appeared that Edward D. Hendricks endorsed on old certificates an assignment of 100 shares of stock "to Edward D. Hendricks and Margaret M. Hendricks," and instructed the issue of a new certificate in the names of "Edward D. Hendricks and Margaret M. Hendricks, and upon the death of either, the survivor of either." The new certificate, issued as instructed, was read over and delivered to Mr. and Mrs. Hendricks, and both signed the receipt therefor. The certificate was handed to Mr. Hendricks and he and his wife left the bank, he saying, "I will put this away." After the death of Mr. Hendricks the title of Mrs. Hendricks to the shares of stock was upheld as a gift inter vivos. The Court said: "There is uncontradicted oral evidence tending to indicate that the stock was transferred with donative intent, but we consider the written instruments decisive on that issue. . . . The execution of the joint receipt constitutes evidence of delivery to and acceptance by both." The distinction between the facts in that case and in our case is apparent.
In Matthew v. Moncrief, 135 F.2d 645, involving a joint savings account, the gift was upheld upon the ground that there was an agreement contractual in form signed by donor and donee at the inception of the deposit.
The donative intent, which is uniformly held to be one of the necessary elements to constitute a valid gift inter vivos, is not conclusively established by the use of words in the face of a certificate of stock purporting to create a joint tenancy with right of survivorship. To determine the requisite intent to make a present gift of a joint interest requires consideration of all the facts attendant upon the creation of the purported interest. Ball v. Forbes, 314 Mass. 200. This view is in accord with decisions from other jurisdictions.
In Southern Industrial Institute v. Marsh, 15 F.2d 347, it appeared that Marsh, the owner of certain shares of stock, directed that the certificate therefor be issued to the plaintiff Institute but returned to him, expressing the wish to make the delivery in person and to retain right to dividends. It was held that the transfer on the books of the corporation was only prima facie evidence of delivery and that it was still within his power to have the stock transferred back to himself without *Page 321 consent of the Institute, and that under the evidence there was no intention unconditionally to surrender the stock.
In Trenton Saving Fund Society v. Byrnes, 110 N.J. Eq., 617, it was said: "The elements necessary to constitute a completed gift inter vivos are three; intent, delivery and acceptance." There the facts disclosed that a deposit was made in the bank in the name of depositor or her niece, with signature card reciting the money belonged "to us as joint tenants," with survivorship. It was held, upon the death of the original depositor, that the account did not pass to the niece as a gift, since the evidence did not show a donative intent in praesenti at time of the deposit. To the same effect is the decision in Ball v. Forbes, 314 Mass. 200.
In Besson v. Stevens, 94 N.J. Eq., 549 (568), it was held that an alleged gift inter vivos failed on account of absence of sufficient evidence of donative intent.
In Hudgens v. Tillman, 227 Ala. 672, where Hudgens had 60 shares of stock reissued in the name of his daughter and retained possession of the certificate, it was held the mere transfer of the stock on the books of the corporation was ineffectual to perfect the gift inter partes in the absence of proof of donative intent and constructive delivery.
In Jones v. Jones, 201 S.W. (Mo.), 557, where a father had certificate of shares of stock issued in the name of his son but retained the certificate, questions of donative intent and delivery were raised and these were decided by the jury in favor of the donee. While affirming the result the Court said it was not a sufficient delivery of stock for a party merely to have the stock transferred to the name of transferee, but in addition to this an actual or constructive delivery of the stock to the transferee was necessary to be shown.
In Getchell v. Bank, 94 Me. 452, where the husband had certificate for shares of stock issued in name of his wife, but kept the certificate, drawing the dividends, it was held this was not a gift made effectual by delivery. To the same effect is the holding in Bowles v. Rutroff,216 Ky. 557.
From an examination of the record in the case at bar we are of opinion, and so decide, that the facts agreed, upon which the ruling appealed from was predicated, were insufficient to support the conclusion reached by the learned trial judge that Rossie Mae Barnes was the sole owner of the 70 shares of stock and that the executors had no interest therein. Nor can her claim be upheld as an attempted testamentary disposition of this property.Stevenson v. Earl, 65 N.J. Eq., 721. The transaction did not constitute a gift causa mortis, nor create a trust. Manning v. U.S. Bank,148 P.2d 255. *Page 322
We note that the appellants concede that Rossie Mae Barnes was entitled to one-half interest in the 70 shares of stock, upon the view that the statute (G.S., 41-2) converted the joint tenancy into tenancy in common, and that by virtue of his right to partition under G.S., 46-42, the testator retained control over the property to the extent of his interest therein.
The action of the executors in exchanging these shares of stock for another issue of preferred stock of the Carolina Power Light Co., as tending to the advantage of those who should be adjudged the owners of the stock, was approved by the trial judge. No exception was taken to this ruling.
2. The testator purchased 15 additional shares of stock in the Carolina Power Light Co. through a broker and directed the broker to have new certificate issued in the same manner and form as the 70 shares hereinbefore referred to, but died before the transaction was completed. The agency of the broker was revoked by the death of his principal, and the broker thereafter was without authority to direct the transfer agent to issue the certificate to Rossie Mae Barnes so as to divest the beneficial title of the executors to those shares which had been purchased by the testator. The transaction never reached the stage where the testator was in position to make a gift and the consummation of his expressed desire and the fulfillment of his instructions were prevented by his death. The executors were entitled to have the certificate for the 15 shares delivered to them by Rossie Mae Barnes. 38 C.J.S., 804.
3. The ruling of the trial judge that the Federal Estate tax should be paid out of the general funds of the estate is affirmed. Riggs v. DelDrago, 317 U.S. 95. The general rule, in the absence of contrary testamentary provision, is that the ultimate burden of an estate tax falls on the residuary estate. 142 A.L.R., 1137, and cases cited.
4. Appellants' fourth exception is taken to the ruling of the court below that the cost of installations and repairs to real property devised under the will should be paid by the executors out of the general funds of the estate. This ruling was based on the ground that these repairs had been ordered prior to the death of the testator. In the facts agreed it is stated merely that these repairs were "ordered." But an inspection of the pleadings shows the orders for repairs were alleged to have come from R. Carlton Stuart, now one of the executors, who contended he had been authorized by the decedent. It appears that the construction of sidewalk and driveway to the property at corner of Harrington and Jones Streets, the repairs to roof of house on Lane Street, the furnishing of some materials for repairs to roof of home on Bloodworth Street, at an aggregate cost of $306.70, were all ordered and completed before the death of testator, and may be presumed to have been done with his consent *Page 323 and for his benefit. But the cost of repairs to real property which had then vested in the devisees, made after his death, in the absence of a finding or evidence that the work had been contracted for by the testator or by one authorized by him to do so, would not be chargeable to the executors, but to those to whom the title to the property had descended. The court's ruling on this point is to this extent modified.
We conclude that the judgment below as modified in the respects and as to the particulars herein pointed out should be affirmed, and it is so ordered.
Modified and affirmed.