
    Artie F. Richards, Individually and as Administratrix with the Will Annexed of George C. Porter, Deceased, Respondent, v. Wells Fargo Express Company and Others, Appellants.
    First Department,
    April 18, 1913.
    Stock—action to establish ownership—evidence—presumptions.
    The owner of shares of corporate stock indorsed them in blank. He lived with his mother and brother until after his mother’s death, when the ' house was closed. His brother then went to live at his daughter’s house and took with hirn trunks containing various papers. He also had some securities which, while he lived with his daughter, he kept in a locked box, all of which he transferred to his daughter sometime before his death. The other brother, owning the stock of the express company, continued regularly to receive the dividends to the time of his death, "although he had stated after he left the house where his mother died that he had lost or mislaid the certificate. His executor applied for and received a "duplicate certificate, which he sold. Later, the daughter of his brother discovered the shares of stock of the express company, indorsed in blank, but they were not in the box in which the. securities transferred to her were kept.
    In an action by the daughter to establish the ownership of the stock, evidence examined, and held, that the presumption that the stock remained the property of the original owner until his death outweighs the presumption that it was transferred to his brother through whom the plaintiff claims, and was his property when he died, and the complaint should be dismissed. ' '
    Appeal by the defendants, Wells Fargo Express Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of December, 1912, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Charles W. Pierson, for the appellant Wells Fargo Express Company.
    
      A. S. Gilbert, for the appellants Porter and Drost.
    
      Robert M. Boyd, Jr., for the respondent.
   Scott, J,:

This controversy involves the question of the ownership of certain shares of the stock of defendant Wells Fargo Express Company. On June 30,1884, one Albert G. Porter, now deceased, was the owner of and in possession of five shares of stock in the defendant express company. On that date he indorsed the blank transfer on the back thereof, but without inserting the name of any transferee.- At that time Albert G. Porter was employed at Lowell, Mass. He had a brother, George C. Porter, through whom the plaintiff claims, who resided at Springfield, Vt., where he was the assistant cashier of a bank. The mother of Albert and George Porter also lived at Springfield.' Albert G. Porter seems to have acquired intemperate habits and in 1888 returned to Springfield, where he" and his mother and brother lived together until the mother died in 1889. After her death the brothers closed the house and left Springfield. Albert Porter went somewhere in the South, where he apparently lived until his death in 1907. George Porter went to .live with a married daughter in Hew Jersey, with whom he lived until he died, also in 1907, a few months later than his brother. George Porter took with him to his daughter’s house one or more trunks containing, as his daughter testified, All sorts of things; papers of various kinds, estate papers and individual papers, and other effects of various kinds.” George Porter had also some securities of various kinds which he kept, while he lived with his daughter, in a locked box in a closet in his room. All these securities he transferred to his daughter some time before his death, although he retained them in his own possession. Albert Porter continued to regularly receive the dividends on the express company stock down to the time of his death, although it is in evidence that he stated to the defendant Drost, after-wards his executor, some time after he had left Springfield, that he had lost or mislaid the certificate. After Albert Porter’s death his ■ executor applied for and received from the express company a duplicate certificate, "which he sold and which is now held by the defendant Catherine 0. Porter. In June, 1910, plaintiff, the daughter of George Porter, was about to move her residence and she or her husband came upon the box containing a lot of papers, among which were a number of stocks and bonds of no value, and the certificate of five shares of stock of defendant express company standing in the name of Albert G. Porter, indorsed by him in blank. The box in which these papers were found was not the box in which George Porter had kept, the securities which he transferred to his daughter.

Upon these facts the judgment appealed from awards the ownership of the stock to plaintiff tipon the theory that the possession of the indorsed certificate by George Porter raised the presumption that he was. the owner of it. Undoubtedly there is room for such a presumption unless it is- rebutted by the stronger presumption of continued ownership by Albert Porter. We are of opinion that it is "so rebutted.

It is easy.to understand that when the brothers broke up their home and left Springfield the certificate of stock might by mistake have found aplace among the papers which George Porter took with him. The circumstances that Albert Porter, while he was still living away from home indorsed the blank transfer, may indicate that he intended at some time to part with the stock, but as no name of a transferee is inserted, it is impossible to say to whom he intended to make the transfer.

On the other hand, George Porter, who appears to have been a person of methodical habits, would scarcely, if he owned the stock, have allowed it to remain in a box with a quantity of worthless papers,, or have permitted his brother, for twenty-one years, to receive the dividends upon it. Surely, if he had owned it, and knew that it was among his papers> he would have kept it in a box in which he kept his valuable securities, and would have transferred it to his daughter when he made over to her all his other property. It is a case of presumption against presumption, and we think that; upon all the facts, the presumption that the stock remained the property of Albert G. Porter until his death far outweighs the presumption that it has been transferred to George 0. Porter and was his property when he died.

The judgment appealed from must, therefore, be reversed and the complaint dismissed upon the merits, with costs in this court and at Special Term to each of the defendants separately appearing and answering.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed and complaint dismissed on the merits, with costs in this court and at Special Term to each of the defendants separately appearing and answering. Order to be settled on notice.  