Fesmire v. FIRST UNION NATIONAL BANK OF NC

148 S.E.2d 589 (1966)

267 N.C. 589

Doris J. FESMIRE, Plaintiff, v. FIRST UNION NATIONAL BANK OF NORTH CAROLINA, Executor of Jesse Burns Earle, Deceased, Defendant.

No. 850.

Supreme Court of North Carolina.

June 16, 1966.

*592 Barber & Holmes, Pittsboro, for defendant appellant.

Moody & Moody and T. F. Baldwin, Siler City, for plaintiff appellee.

LAKE, Justice.

The burden of proof was upon the plaintiff to show each element of the gift inter vivos under which she claims. Cartwright v. Coppersmith, 222 N.C. 573, 24 S.E.2d 246; Duckworth v. Orr, 126 N.C. 674, 36 S.E. 150. These elements are: (1) The intent by Dr. Earle to give to her the shares of stock so as to divest himself immediately of all right and title to and control of the stock; and (2) the delivery, actual or constructive, of the stock certificate endorsed by him. G.S. § 55-75; Smith v. Smith, 255 N.C. 152, 120 S.E.2d 575; Scottish Bank v. Atkinson, 245 N.C. 563, 96 S.E.2d 837; Buffaloe v. Barnes, 226 N.C. 313, 38 S.E.2d 222, rehear. den., 226 N.C. 778, 39 S.E.2d 599; Cartwright v. Coppersmith, supra; Patterson v. Greensboro Loan & Trust Co., 157 N.C. 13, 72 S.E. 629; Newman v. Bost, 122 N.C. 524, 29 S.E. 848.

Delivery of an endorsed stock certificate is constructive delivery of the shares which it represents, and possession of such certificate by the endorsee establishes prima facie the fact of delivery. Scottish Bank v. Atkinson, supra. The act relied upon to establish the delivery must be unequivocal and must deprive the donor of his right to dominion over the thing given. Cartwright v. Coppersmith, supra; Handley v. Warren, 185 N.C. 95, 116 S.E. 168. It is not essential, however, that the article be placed beyond the physical power of the donor to retake it, as is illustrated by the case of a gift of coins to a child by dropping them in a container recognized as the property of the child though the container, itself, remains in the home of the donor and thus subject to his physical control. Patterson v. Greensboro Loan & Trust Co., supra. Furthermore, when there has been an actual transfer of possession with the requisite intent, the gift is not defeated by the subsequent return of the article to the possession of the donor for safekeeping, or its return to a container or place of deposit owned and controlled by the donor. Bynum v. Fidelity Bank of Durham, N.C., 221 N.C. 101, 19 S.E.2d 121; Swindell v. Swindell, 153 N.C. 22, 68 S.E. 892. In the Swindell case, the gift of a horse by a husband to his wife was not defeated by the subsequent return of the horse to the stable or pasture of the husband and the use of it by the husband. In the Bynum case, the donor delivered to the donee a tin box and the keys thereto with intent to make a gift of the documents in the box, and then instructed the donee to return the box to its former resting place in the donor's closet. Again, in Zollicoffer v. Zollicoffer, 168 N.C. 326, 84 S.E. 349, a retaking of a stock certificate by the donor and placing it in her Bible for safekeeping did not defeat the gift of the stock.

The testimony by the brother of Dr. Earle that Dr. Earle said he "had given" 500 shares of his stock in the First Union National Bank to the plaintiff and that the stock was kept for her in his safety deposit box in the bank, to which box she had a key, is ample evidence to show a delivery of the certificate by him to her. Zollicoffer v. Zollicoffer, supra; Gross v. Smith, 132 N.C. 604, 42 S.E. 111. To this testimony there was no objection by the defendant and it was clearly competent.

There is no merit in the exception by the defendant to the admission in evidence of the inventory of the contents of the safety deposit box made by its officer, or in its exception to the testimony of such officer as to the contents of the box. This evidence shows conclusively that the certificate in question was endorsed by Dr. Earle, no other certificate in the box was so endorsed, and this certificate was physically separated from the remaining certificates *593 by being enclosed in an envelope, on which was typed the name of the plaintiff, and in which was another document of value admitted to be her property.

The defendant's major contention is that there was prejudicial error in permitting the plaintiff, herself, to testify that the stock certificate came into her possession on 13 March 1964, that she then placed it in the envelope and typed upon the envelope her name, whereupon she placed the envelope in the drawer of her own desk at the office and kept it there approximately one week. The defendant also contends that there was error in permitting the plaintiff to testify that she had the keys to the box in her possession at the time the stock certificate came into her hands, and that for a long period prior to that date she had been keeping her own valuable papers in this safety deposit box. The admission of this testimony was not forbidden by G.S. § 8-51 since it is not testimony by the plaintiff of a personal transaction between her and the defendant's testator. It is testimony concerning independent facts. Lister v. Lister, 222 N.C. 555, 24 S.E.2d 342; Jones v. Waldroup, 217 N.C. 178, 7 S.E.2d 366; Thompson v. Onley, 96 N.C. 9, 1 S.E. 620; Stansbury, North Carolina Evidence, § 73, Note 45. In the Lister case, this Court, speaking through Winborne, J., later C.J., said:

"Where in the trial of this action plaintiff produces paper writings, in the form of negotiable notes purporting to be payable to him and to be signed by intestate of defendants, administrator and administratrix, upon which the action is based, and testifies to his possession of them since certain dates, even though such dates correspond with the purported dates of such paper writings, and identifies the purported signatures thereto to be in the handwriting of said intestate, are such paper writings admissible in evidence? Yes."

Since the admission of this testimony by the plaintiff was not error, the defendant's exception to those portions of the court's instruction to the jury summarizing and referring to this testimony are also without merit.

We have examined each of the defendant's assignments of error and find no basis therein for a new trial of this action.

No error.

MOORE, J., not sitting.