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Reed v. OopebuuL

Other shai^s of this stock, would aoceptanoe of the provis-
ions of the will bar her claim to such property ? Clearly not

Q: A. Fay^ for the defendants.

1. A will speaks from the death of the testator, and not
from its date. 1 Wms. Exrs., 221 ; 2 id., 1489 ; 1 Redf. on
Wills., 879; 2 id., 688.

2. The bequest of " ten shares of the capital stock of the
iBtna Life Insurance Company," is a general and not a
specific legacy, and the stock dividend afterwards declared
did not pass as accessory to the ten shares. 2 Redf. on
WUls, 466, 478 ; 2 Wms. Exrs., 1489 ; CKlliat v. Qaiiat, 28
Beav., 481 ; Tifft v. Porter, 8 N. York, 616.

3. The object of this proceeding is to control the provis-
ions of Mr. Tyler's will. The plaintiff claims " a correction
of the mistake in the will." As this is not a case of latent
ambiguity, parol evidence is not admissible. 1 Redf. on
WUls, 689; 2 id., 498, 745; 1 Jarman on Wills, 408, 417;
2 Wms. Exrs., 1199, note ; Avery v. Ohappel, 6 Conn., 270,
274; Barrett v. Wright, 13 Pick., 46; Hex v. Seller, 58
Wis., 416.

4. Viewed as a gift, the transaction cannot be supported,
for a gift of a chattel must take effect at once and delivery
is absolutely essential. 1 Parsons on Cont., 284 ; 2 Kent
Com., 489; Brown v. Brown, 18 Conn., 416; Shurdeff y.
Francee, 118 Mass., 165 ; Cumminge v. Bramhall, 120 id.,
662; Noble v. Smith, 2 Johns., 62; Curry v. Powers, 70
N. York, 212; Trow v. Shannon, 78 id., 446; Young v.
Toung, 80 id. 422; Trough's Fstate, 76 Penn. St., 115;
2!immerman v. Streeper, id., 147 ; Bond v. Bunting, 78 id.,
210 ; Olney v. ffowe, 89 111., 666 ; Brewer v. Harvey, 72
N. Car., 176 ; Trimmer v. Banby, 26 L. Jour., Equity, 424.

6. Viewed in whatever light, there never was any legal
transfer of the forty shares of insurance stock from the
testator to the plaintiff, as the charter and by-laws of the
company provide that said " stock is transferable only at the
office of said company by said Tyler or his certain attorney,
on surrender of this certificate." Shipman v. jEtna Lu.

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JANUARY TERM, 1888. 486

Beed o. Copeland.

Co., 20 Conn., 246; Minor v. Rogers^ 40 id., 619; 8 Wait's
Actions and Defenses, 491. " The settled law of Connecti-
cut is, that where such clauses are found in the charter and
by-laws or either (i. e. regulations de transfer of stock), the
transfer is invalid, and of no effect for any purpose, unless
made or registered on the books of the company.'' Field
on Corp., § 308. See also Marlboro* Maf\f. Co. v. Smithy 2
Conn., 679 ; Northrop v. Newtown ^ Bridgeport Tump. Co.,
8 id., 644 ; Northrop v. Curtis, 6 id., 246 ; Oxford Tump.
Co. V. Bunnell, 6 id., 662 ; Howe v. Starkweather, 17 Mass.,
243 ; Palmer v. Merrill, 6 Cush., 286 ; Ang. & A. on Corp.,

6. Viewed in the light of a contract to transfer these forty
shares in consideration of services, parol evidence is not
admissible as being within the statute of frauds. North ¥.
Forest, 16 Conn., 404 ; Tisdale v. Harris, 20 Pick., 9 ; Bole
V. Stimpson, 21 id., 387 ; Story on feales, §§ 263, 276. If
any part of the supposed contract is within the statute, the
whole is. Browne on Frauds, § 140, et seq.; Atwater v.
Hough, 29 Conn., 508, 616 ; Howard v. Brower, 37 Ohio St.,
402. Part performance will not take this case out in law or
equity. Browne on Fi-auds, §§ 118, 448, 462; Hall v.
Rowley, 2 Root, 166 ; North v. Fortst, 16 Conn., 406.

7. While at common law no delivery is necessary between
the parties in the sale of a chattel, yet that rule does not
prevail in cases of shares of stock or choses in action.
Howe V. Starkweather, 17 Mass., 243.

8. The plaintiff's supposed agreement cannot be sustained
as a declaration of trust. Potter v. Yale College, 8 Conn.,
61 ; Curry v. Powers, 70 N. York, 212 ; Young v. Young^
80 id., 422 ; Zimmerman v. Streeper, 76 Penu. St., 147 ;
Richards v. Balbridge, L. Reps., 18 Eq. Cas., 11, 13 ; Jones
V. Lock, L. Reps., 1 Ch«. App., 26.

9. Whatever the nature of this supposed agreement is,
it was not to take effect until the testator's death, and was
therefore void, as being in the nature of a testamentary dis-
position, and required by our stiitute to be in writing. Gen.
Statutes, p. 369, § 2 ; Perry on Trusts, § 92 ; Frost v. Frost's
Admr.y 33 Verm., 646 ; Crispin v. Winkleman^ 67 Iowa, 623.

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Reed v. Copeland.

10. The plaintiff having accepted the provisions of the
will so far as beneficial, the doctrine of election applies, and
she is estopped from claiming anything inconsistent with
the will. " It is a principle of equity that a person who
accepts a benefit under an instrument, must adopt the whole,
giving full effect to its provisions, and renouncing every
right inconsistent with it." 2 Wms. Exrs., 1441 ; 1 Lead.
Cas. in £q., 803 ; 2 Smith Lead. Cas., 653 ; 2 Jarman on
Wills, 7; 2 Redf. on Wills, ch. 14, § 69; 2 Story Eq. Jur.,
§§ 1077, 1086, 1087 ; Hyde v. Baldwin, 17 Pick., 808 ; Smith
V. Smith, 14 Gray, 682. As the title of record at the death
of the testator was in his name, both on the certificate of
the forty shares and also on the books of the company, and
as the will provides that the ^* devises and legacies given to
the plaintiff " (not including these forty shares) " are in lieu
of all claims upon my estate," and " all the rest, residue
and remainder, of every name, nature and description, which
shall belong to me in law or equity at the time of my
decease " is given to " my three brothers," it follows as a
necessary sequence that the title to these forty shares passed
by the will to the three brothers, and therefore by these
proceedings the plaintiff is not, as regards the will, " giving
full effect to its provisions." iShe should therefore be
estopped from claiming in derogation of the will.

LoOMis, J. Our view of the facts renders unnecessary
a discussion of several interesting questions presented by
the arguments of counsel. We think the plaintiff's case
may well rest upon the contract relations which the finding
shpws existed between her and the late Mr. Tyler in his life
time. The plaintiff evidently made a great personal sacri-
fice and rendered most valuable services, relying upon the
testator's promise to compensate her amply. It will be
seen that the original contract contained no reference to a
will. The plaintiff did not agree to wait till the testator's
death. She accepted the proposal and commenced render-
ing services under the inducements held out of full com-
pensation, without any mention of the time and mode of

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JANUARY TERM, 1883. 487

Reed v. Copeland.

More than five years elapsed, during which services were
performed under this agreement before the testator sug-
gested the making of his will, and then, after informing the
plaintiff of certain specific bequests in her favor, he added
that " he should do more for her from time to time " ; and
the assent of the plaintiff, which he then sought and
obtained to this mode of compensation, had reference not
only to the proposed bequests, but to the additional promise
as well, and the latter clearly had reference to further com-
pensation in the life time of the promiser, otherwise it
could not be "from time to time." The transaction in
question therefore was not void, as claimed by the defendr
ants, because it was in the nature of a testamentary dispo-

In recognition of and in part fulfilment of his promise,
the testator, about a year after the execution of his will,
took the certificate for ten shares of the -Stna Life Insur-
ance Company's stock, and handed it to the plaintiff, say-
ing, " I give this to you," and when she tried to thank him
he interrupted her by saying, "Show your thanks by doing
for me." The plaintiff took the certificate and deposited it
in the drawer of the safe, where she kept her own valu-

Afterwards, in November, 1878, forty additional shares
having been assigned to Mr. Tyler as the proportion of the
surplus funds of the insurance company belonging to the
ten original shares, he took the certificate for these forty
shares and delivered it to the plaintiff, saying: "This
JEtna Life Insurance stock of yours is good stock ; it is all
right ; they give forty shares for ten ; it is all the same, all
the same as the ten shares ; it is only a change in form and
that is all ; they have watered the stock ; I paid nothing for
it." The plaintiff took the certificate and deposited it in
the drawer with the other. The court then, after finding
the facts relative to the plaintiff's custody of the key to the
safe, in the drawer of which these certificates were kept,
adds, "that the said Tyler intended to vest in the plaintiff
the ownership of the said ten shares and of the said forty

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Reed v. Copeland.

shares of ^tna Life Insurance stock, and that both said
Tyler and the plaintiff understood and from and after that
time supposed that the plaintiff was the owner thereof, and
the plaintiff received and retained possession of the certifi-
cates. And both parties supposed the said certificates of
stock were in the plaintiff*s possession while in the drawer
of the safe. And I find that they were in fact. The plain-
tiff was ignorant of the details of business, and did not
know that any steps were necessary to be taken to vest the
legal title to the stock in her."

Now, is there any good reason why the plaintiff should
be deprived of that which both parties intended she should
have and for which she rendered an equivalent ? It must
of course be conceded that the legal title could not pass
without a formal transfer on the books of the company, but
we see no good reason why the equitable title as between
the parties could not vest in the plaintiff under the circum-
stances referred to. The fact that one of the parties has
deceased is no objection to the remedy sought, for it is a
settled rule that equitable remedies exist to the same extent
against executors and administrators as they did against
the decedent. 2 Redfield on Wills, chap. 10, § 40.

The defendants claim that, under the law that obtains in
this state, where the charter and by-laws of the corporation
as in this case provide for a transfer only at the office of the
company by the person named or his attorney on surrender
of the certificate, no assignment can be valid, or have any
effect for any purpose, unless made as prescribed ; and in
support of this proposition they cite Marlborough Manf. Co.
V. Smithy 2 Conn., 579; Northrop v. Newtown^ 8 id., 644;
Northrop v. Curtis^ 5 id., 246 ; and Oxford v. Bunnell^ 6 id.,

In some of these cases statements may be found that
furnish some support for the claim. But the scope and
effect of these earlier decisions are explained and limited in
the later case of Colt v. lve%^ 31 Conn., 25, where HiNitfAN,
C. J., in giving the opinion, says : " The attaching credit-
ors, who are the real parties in interest in this cause,

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JANUARY TERM, 1888. 489

Reed v, Copeland.

assume that, by a course of decisions in Connecticut, stock
in a coi*poration is held to be so peculiai* in its nature and
character that no transfer can be made of it, or even any
equitable interest acquired in it, as against attaching credit-
ors, unless by an actual transfer made upon the corporation
books, or recorded in them, in the mode prescribed by the
charter or by-laws of the institution." Then, after citing
the above cases, he adds : **' These cases, and others to the
same effect, being actions at law, conversant only with
what at the time was considered the strict legal title to cor-
porate stock, have necessarily no controlling force in a case
depending upon equitable instead of legal principles."

If the equitable title could prevail, as it did in the case
cited, as against the rights of attaching creditors, with
much stronger reason, as it seems to us, should it prevail as
between the ijnmediate parties to the transaction and their
representatives. We submit therefore that there is noth-
ing in the present state of our law that prevents the adop-
tion of the principles that obtain in other jurisdictions
relative to the matter in question. These principles are
well stated in Morawetz on Private Corporations, § 826, as
follows : " While the consent of both parties to a contract
is necessary in order to effect a novation, yet either party
may bind himself by assigning to a stranger the right of
enjoying his claims under the contract; and the interest of
the assignees will be protected in equity as a trust, and
may be enforced through the assignor. This principle has
been applied in case of an assignment of shares in a corpo-
ration. A novation of the contract of the shareholders can
be effected only in the manner prescribed by the charter ;
and an assignment of shares not executed in the manner
required does not alter the relations existing between the
assignor and the other members of the company. But the
beneficial interest of a member may be transferred by any
agreement which is binding between the parties to the
assignment. A trust is thus created, and the equitable
rights of the beneficiary will be protected and enforced by
a court of equity."

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Reed v. Oopeland,

The following are eome of the cases cited by the author,
and they well sustain the above proposition: Quiner v.
Marblehead Im. Co.^ 10 Mass., 476 ; United 'States v. Outte^
1 Sumner, 183; Stebbins v. Phoenix Ins. Co.^ 3 Paige, 350;
Oilbert v. Manchester Iron Co,^ 11 Wend., 627 ; Nesmith v.
Washington Bank^ 6 Pick., 824 ; Sa^in v. Bank of Woodstock^
21 Verm., 863; Conant v. Reed, 1 Ohio St., 298; Baltimore
^e. R. R. Co. V. Sewelly 36 Maryl., 262 ; Ferpettud Ins. Co.
V. O-oodfelloWy 9 Misso., 149.

In Morgan v. Malleson, L. Reps., 10 Equity Cases, 476,
the testator gave to his medical attendant the following
memorandum: "I hereby give and make over to Dr.
Morris an India bond. No. 606, value «£ 1,000, as some token
for all his very kind attention to me during my illness.
Witness my hand this 1st day of August, 1868. John
Saunders.^' Now, although the legal title to this bond
could be transferred only by delivery, and although it
remained in the possession of Saunders and there was no
consideration, yet the court, through Lord Romilly, M. R.,
said : " I am of opinion that the writing signed by Saun-
ders is equivalent to a declaration of trust in favor of Dr.
Morris. If he had said, ' I undertake to hold the bond for
you,' or if he had said, *I hereby give and make over the
bond in the hands of -4,' that would have been a declara-
tion of trust, though there had been no delivery. This
amounts to the same thing ; and Dr. Morris is entitled to
the bond, and to all interest accrued ttiereon."

If such instances are sufficient to constitute valid declara*
tions of trust, it is difficult to see why the testator's expres-
sion — " This iEtna stock of yours is good stock ; it is all
right " — ^is not equally effective for that purpose.

But in the case at bar, in addition to declarations of trust
we have an actual delivery of the certificates of stock with
intention to pass the title, and for a valuable consideration.
In 3 Wait's Actions & Defenses, p. 491, it is said: — "The
delivery of a note, bond, or certificate of stock, to a third
person, with the intention to vest the right of property in
the don^e, (see Dunbar v. Woodcock^ 10 Leigh, (Va.,) 628;

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JANUARY TERM, 1888. 491

Reed v, Copeland.

McNuUy V. CoQftT^ 8 Gill & J*, 214 ; Qrover v. Q-rover^ 24
Pick^ 261 ; Stewart v. Hidden^ 13 Minn., 48 ;) or the execu-
tion of an instrument declaring an intention to make a
present gift to him, or a declaration of trust in his favor, is
enough to constitute a gift which a court of equity will
uphold and enforce."

Our own court recognized the same principles in Caanp^u
Appeal from Probate^ 86 Conn., 88, by holding that the
delivery of a savings bank book under the circumstances of
that case constituted a complete gift of the deposits of the
money therein referred to.

But it may be suggested that the principles invoked in
favor of the plaintiff can only apply where there is a valid
agreement between the parties established by competent
evidence, and that the agreement relied upon in this case
rests entirely on parol evidence, which was objected to and
ought not to have been received.

Under the authority of North v. Forest^ 16 Conn., 404,
we concede that the statute may apply to a contract for the
sale of shares of stock in a dbrporation, although the con-
trary is now the established doctrine of the English courts,
where it is placed on the ground that the shares, being
choses in action, are incapable of delivery. But, while
adhering to our former decision, we may well recognize the
peculiar nature of the property, and hold with courts of
other jurisdictions, that the delivery of the certificate is a
symbolical delivery of the stock, whereby the contract be-
comes executed, so as to vest the equitable title. Ang. &
Ames on Corporations, § 664; Eime v. Starkweather^ IT
Mass., 244 ; Sargeant v. Franklin Jne. Co.^ 8 Pick., 98 ; WiU
eon V. Little^ 2 Comjstock, 448.

But there is an additional answer to the objection in this
case arising out of the equitable grounds on which it rests.
It is the accepted construction of. the statute in courts of
equity that, inasmuch as its design was to furnish protec-
tion against fraud, a party cannot take shelter behind its
provisions, and thereby perpetrate a fraud on the other
party, either actual or constructive.

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BoQd V. Copeland.

In this case not only did the testator vest the equitable
title in the plaintiff, but he must be held to have agreed to
give her the legal title as well. While he held it it was in
trust for the plaintiff^ and at his death the same trust was
cast upon his personal representatives now before this
court. Any attempt on the part of the testator in Ufe to
deprive the plaintiff of this stock would have been in fraud
of her rights, and it is equally so on the part of his per-
sonal representatives.

But it is said that the plaintiff having accepted the pro-
visions of Mr. Tyler's will so far as beneficial, the doctrine
of election applies, and she is estopped from claiming any-
thing inconsistent with the will. The principle that under-
lies this proposition is well settled, but we do not think it
applies to the case under consideration.

The true test is, whether the provisions in the will are
plainly inconsistent with the claims in this suit. This
stock is not specifically devised to any other person. The
view we have taken shows that it is no part of the estate of
the deceased. The beneficiAl interest was wholly in the
plaintiff before the will took effect. It does not therefore^
as claimed, sink into the residuum of the estate, to enhance
the portion of the testator's brothers. The plaintiff does
not diminish the estate by taking back her own, and so this
suit is not inconsistent with that provision in the will that
makes certain legacies a bar to all claims upon the estate.

For these reasons the Superior Court is advised to render
judgment that the defendants execute a transfer of the
fifty shares of stock to the plaintiff.

In this opinion the other judges concurred.

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JANUARY TERM, 1883. 493

Tolland County Ins. Co. v. Underwood.

The Tolland County Mutual Fibb Insurance Com-
pany v8. Emily C. Underwood and others.

A testator made the following bequest to his wife: — ^*I give to my wife C
all the income of my estate, and so much of the principal as may be nec-
essary for her support and the maintenance and education of my five
daughters, during her natural life.*' The testator died two years later.
A part of the property bequeathed was real estate of the value of $3,400.
Eight years later the plaintiffs obtained a judgment against C, the widow,
for $418, and recorded a judgment lien upon the real estate, and now
sought to foreclose the lien. At this time the personal property had been
exhausted and nothing remained but the real estate, which yielded an in-
come of but $200.^ Two of the daughters were dead, one was married,
and two with the widow were dependent on the property for support.
Held :—

1. That the widow took a life estate only in the land.

2. That she took this estate in trust.

3. That her interest, being inseparable from that of the daughters, and all
the property being needed for her and their support, could not be taken
upon a judgment against her.

Suit to foreclose a judgmerffc lien ; brought to the Su-
perior Court in Tolland County. The facts were found by
the court and the case reserved for advice. The case is
fully stated in the opinion.

M. jB. Weit and D. Marcy^ for the plaintiffs.

1. By the act of 1878 any real estate subject to an execu-
tion is subject to a judgment lien. The interest vested in
the judgment creditor by such a lien is as permanent as a
mortgage and of the same nature. Beardsley v. Beecher^
47 Conn., 408. And the lien may be foreclosed in the same
manner as mortgages. Sec. 6 of the act. Goodman v. White^
26 Conn., 317. It is of no consequence just what the inter-
est of the judgment debtor is, the court will foreclose it
without defining it. Williams v. JRobinson^ 16 Conn., 617 ;
Wooden v. Haviland, 18 id., 102 ; Mill v. Meeker, 23 id., 692.

2. Mrs. Underwood took a life estate in the land. Larned
V. Bridge, 17 Pick., 839. And under the provision with
regard to the use of the principal of the estate so far as

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Tolland County Ins. Co. «. Underwood.

necessary, she took a fee in so much of the laud as should
be thus needed. Perry on Trusts, §§ 113, 114, 117, 119;
Qilhert V. Chapin^ 19 Conn., 842 ; Harper v. Phelps^ 21 id^
257; Kellogg v. Mix, 87 id., 243; Foou v. Whitmart, 82
N. York, 406.

8. But if the court should regard a trust as created by
the will, then Mrs. Underwood's interest could still be
taken for her debts. Perry on Trusts, § 116 ; Davenport v.
Lacon, 17 Conn., 278 ; Johnson v. Connectieut Bank, 21 id.,
148 ; Eaiterly v. Keney, 86 id., 18 ; Sparhawk v. CUxm, 125
Mass., 263 ; Daniels y. Eldredgey id., 356 ; Nichols v. Eatcn^
91 U. S. Reps., 716.

C. Phelps, contra.

Carpenter, J. A testator by a wiU executed in 1870,
gave property to his wife as follows : — *' I give and bequeath
to my beloved wife, Emily C. Underwood, all the rents,
profits and income of my estate, both real and personal, and
so much of the principal as may be necessary for her sap-
port and maintenance, and the support, maintenance and
education of my daughters, Ellen J., Lizzie G., Ada J^
Annie H., and Miriam L. Underwood, for and during the
natural life of my said wife Emily C.'.' The testator died
in 1872. A part of the property bequeathed was real estate.

The plaintiff in 1880 recovered a judgment against the
said Emily C. Underwood for $418.88, and filed a lien to
secure the same, under the statute, upon the real estate
devised to her. This suit is a proceeding to foreclose that
lien. The Superior Court found the facts and reserved the
case for the advice of this court. In the finding it appears
that the personal property is practically exhausted and that
the real Estate remaining is now worth about $3,400, Of
the daughters named two are dead, one is married, and two
remain dependent for their support and education upon the
property so given.

The first question is, — what estate did the widow take in
the property ? We think she took a life estate only. Such

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JANUARY TERM, 1888. 495

Tolland County Ina. Co. v. Underwood.

appears to be the clear intention of the testator. It is given
for life expressly. A life estate in express terms is not a
fee simple in the lands remaining unsold. Lems v. Palmer^
46 Conn., 454.

Did she take an estate in her own right, or in trust?
In Bristol v. Austin^ 40 Conn., 488, it was hfld that similar
language, but identical in substance and meaning, raised a
trust. A reference to that case and the authorities cited is
all that is now necessary. The cases are not entirely
harmonious, but the current of the authorities seems to be
in that direction.

The next and principal question is, — did Mrs. Under-
wood take an attachable interest in the property? The

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