{ "id": 4939359, "name": "Charlotte Nolan, Appellee, v. American Telephone and Telegraph Company, Appellant", "name_abbreviation": "Nolan v. American Telephone & Telegraph Co.", "decision_date": "1945-06-15", "docket_number": "Gen. No. 42,229", "first_page": "328", "last_page": "358", "citations": [ { "type": "official", "cite": "326 Ill. App. 328" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "323 Ill. 468", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5176730 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/323/0468-01" ] }, { "cite": "359 Ill. 419", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5278530 ], "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill/359/0419-01" ] }, { "cite": "307 Ill. App. 519", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3186160 ], "opinion_index": 0, "case_paths": [ "/ill-app/307/0519-01" ] }, { "cite": "145 U. S. 285", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3562259 ], "opinion_index": 0, "case_paths": [ "/us/145/0285-01" ] }, { "cite": "49 F. (2d) 516", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1828264 ], "opinion_index": 0, "case_paths": [ "/f2d/49/0516-01" ] }, { "cite": "98 F. (2d) 298", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 990217 ], "opinion_index": 0, "case_paths": [ "/f2d/98/0298-01" ] }, { "cite": "157 Mass. 180", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 803819 ], "opinion_index": 0, "case_paths": [ "/mass/157/0180-01" ] }, { "cite": "116 Mass. 490", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 719929 ], "opinion_index": 0, "case_paths": [ "/mass/116/0490-01" ] }, { "cite": "266 Ill. 76", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4784708 ], "opinion_index": 0, "case_paths": [ "/ill/266/0076-01" ] }, { "cite": "339 Ill. 530", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241265 ], "opinion_index": 0, "case_paths": [ "/ill/339/0530-01" ] }, { "cite": "303 Ill. 31", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5006975 ], "opinion_index": 0, "case_paths": [ "/ill/303/0031-01" ] }, { "cite": "332 Ill. 126", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5212603 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/332/0126-01" ] } ], "analysis": { "cardinality": 1300, "char_count": 53294, "ocr_confidence": 0.52, "pagerank": { "raw": 2.749891181486495e-07, "percentile": 0.832644490084171 }, "sha256": "a3f120476900b664a373d666ce0e476f7a21fd622d06e0b322db2bb6c17f1f82", "simhash": "1:99877ba1ea41a137", "word_count": 9220 }, "last_updated": "2023-07-14T16:38:23.119053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Charlotte Nolan, Appellee, v. American Telephone and Telegraph Company, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Sullivan\ndelivered the opinion of the court.\nThis appeal by defendant, American Telephone and Telegraph Company, seeks to reverse a decree which directed it to issue to plaintiff, Charlotte Nolan, a certificate for 100 shares of its capital stock and to pay her $4,275 in dividends and $633.22 interest on such dividends.\nPlaintiff\u2019s complaint alleged substantially that on June 12, 1936 certificate 0102232 for 100 shares of American Telephone and Telegraph Company stock was issued to her in her name and that she had been the legal and equitable owner of such 100 shares of stock since said date; that some time between June 12,1936 and September 2, 1936 \u201csome unknown person obtained possession of the said certificate\u201d without her consent or permission and forged her name to an irrevocable stock power without her authority; that said forgery did not come to her knowledge until on or about July 1, 1937; and that some unknown person or persons presented said certificate of stock along with the forged irrevocable stock power to the American Telephone and Telegraph Company and demanded the issuance of a new certificate in exchange and that defendant accepted plaintiff\u2019s forged signature on the irrevocable stock power as genuine and wrongfully and unlawfully issued and delivered to some person other than plaintiff a new certificate for 100 shares of its stock in lieu of certificate .G102232.\nThe complaint concluded with a prayer that defendant be ordered to issue and deliver to plaintiff a certificate for 100 shares of its capital stock and to pay her all dividends declared payable to stockholders of record since July 15, 1936 and interest on such dividends.\nDefendant filed an amended answer which specifically denied all the material allegations of the complaint, including the averment that \u201cthe irrevocable stock power was forged,\u201d and alleged that the signature appearing on said stock power was signed by plaintiff. The amended answer also contained the following allegations:\n\u201cDefendant denies that the plaintiff was at any of the times mentioned in plaintiff\u2019s complaint, or that the plaintiff now is the equitable owner of one hundred (100) shares of the capital stock of the American Telephone & Telegraph Company, a corporation, represented by stock certificate numbered G102232. Defendant admits that certificate numbered G-102232 for one hundred (100) shares of the par value of One Hundred Dollars ($100.00) per share was issued by American Telephone & Telegraph Company to Miss Charlotte Nolan, the plaintiff, on June 12, 1936, but alleges the fact to be that the said certificate and the shares of stock represented thereby were at said time and during all the times thereafter, until September 2, 1936, owned by and the property of John J. Nolan, the father of plaintiff, and alleges that plaintiff, during all of said period, held the said stock as the nominee of and for the exclusive benefit of said John J. Nolan.\u201d\nIn her reply to the amended answer plaintiff denied all of the matters affirmatively alleged therein by way of defense and averred that she \u201cacquired the stock in her own right and for her own benefit as a gift from her father on June 12, 1936.\u201d\nDefendant\u2019s theory as stated in its brief is that \u201cplaintiff\u2019s father furnished the consideration for which certificate G102232 was issued in plaintiff\u2019s name on Jime 12, 1936; that he did not give or intend to give the stock to plaintiff, but that on the contrary, he merely caused the certificate to be issued in. her name that she might hold it as his nominee for his exclusive benefit; and that in September 1936 plaintiff\u2019s father caused the stock to be sold and received the proceeds of sale. The defendant also contends that the signature on the irrevocable stock power is the genuine signature of plaintiff.\u201d\nPlaintiff\u2019s theory is that her father made a gift to her of 100 shares of American Telephone and Telegraph Company stock on June 12, 1936 by causing certificate G102232 to be issued in her name and that she did not sign the irrevocable stock power pursuant to which defendant cancelled said certificate on September 2, 1936.\nThe cause was referred to a master in chancery to hear the evidence and to report his conclusions of law and fact to the court.\nIt appears from the evidence that Charlotte Nolan was a daughter and one of four children of John J. Nolan and Josephine Nolan; that her father and mother were divorced in 1927 and in 1931 her mother married Joseph E. Taglia; that from 1928 to May 1936 John Nolan and Josephine Nolan Taglia were engaged in litigation involving 200 shares of American Telephone and Telegraph Company stock; that Nolan was represented in that litigation by Attorney John F. Higgins and his former wife was represented by Attorney Branko M. Steiner and that as the result of the settlement of that controversy Nolan received a certificate, numbered G-101868, for 100 shares of American Telephone and Telegraph Company stock, issued in the name of Josephine Nolan Taglia and indorsed by her in blank; that this certificate was delivered by Attorney Steiner to John F. Higgins, Nolan\u2019s attorney, on May 26,1936; that Nolan caused this certificate to be cancelled and another certificate, numbered 0102232, to be issued by defendant on June 12, 1936 in the name of plaintiff; that her father caused the 100 shares' of stock represented by certificate 0102232 to be sold and he received the proceeds of the sale; and that certificate 0102232 was cancelled by defendant on September 2, 1936.\nThe evidence presented on defendant\u2019s behalf before the master also disclosed the following further facts and circumstances. Nolan had been at one time a comparatively wealthy man. When he received the certificate for 100 shares of American Telephone and Telegraph Company stock in the latter part of May 1936 as the result of the settlement of the litigation with his former wife, his financial affairs were in a precarious condition and he was worried about his creditors. At the time Attorney Higgins delivered this certificate to Nolan, the latter told Higgins that he was going to have it \u201ctransferred into the name of his daughter, Charlotte,\u201d who had agreed \u201cto let me use her name and when the certificate is made out she will endorse that certificate over to any one and in any 'way and at cmy time I ash her to do it.\u201d\nIn the first part of June 1936 Nolan showed certificate G-101868 to S. P. Tomaso, vice president of the Prairie State Bank, and stated to him that he wanted it transferred out of the name of Josephine Nolan Taglia as quickly as-\u2019 possible in order to prevent Mrs. Taglia from receiving a dividend due about that time. Nolan also told Tomaso at that time that \u201che was going to transfer the certificate into the name of Charlotte,\u201d who was living with his sister, Mrs. Agnes McCue, and that \u201che would not have any trouble with her.\u201d Thereafter, on June 8, 1936, Nolan brought the certificate to Tomaso at the Prairie State Bank and stated to him that he had decided to put it in Charlotte\u2019s name \u201cfor the time being\u201d and that he wanted it transferred to her. Nolan delivered the certificate to Tomaso for transfer and in lieu of certificate G-101868 the American Telephone and Telegraph Company on June 12,1936 issued certificate G-102232 in the name of \u201cMiss Charlotte Nolan. \u2019\u2019 This new certificate was .delivered by the defendant to the bank and by the bank in turn to Nolan. Charlotte never had it in her possession nor even saw it until it was shown to her at one of the hearings before the master. In the latter part of June 1936 Nolan applied to Tomaso for a loan from the Prairie -State Bank upon certificate G-102232. It was understood between Tomaso and Nolan that the latter was making the loan and the question arose as to the manner in which the loan would be made, since the stock certificate Vas in Charlotte\u2019s name. Tomaso told Nolan that the bank would make the loan if the proper instruments were executed and he gave Nolan a form of irrevocable stock power, a form of power to hypothecate and a form of collateral note with instructions that if he decided to make the loan in Charlotte\u2019s name it would be necessary to have her execute the note and the form of stock power and if he decided to sign the note himself, Charlotte would have to execute the stock power and the power to hypothecate. In the early part of July 1936 Nolan brought to the bank stock certificate G102232, the collateral note and the power to hypothecate, the two latter instruments apparently executed by Charlotte Nolan. Nolan did not at that time bring back the stock power executed by Charlotte and when told by Tomaso that he had made a mistake and that it was necessary to have Charlotte execute the stock power, Nolan said that he would have that done and left the bank with all the documents. On July 7, 1936 Nolan returned to the bank with the irrevocable stock power, the authority to hypothecate and the collateral note signed with plaintiff\u2019s name and on that date the bank made a 90-day loan of $2,551.31, delivered that amount to Nolan and received certificate G102232 as collateral.\nShortly before September 2,1936 Nolan told Tomaso that he needed more money and that he was undecided as to whether he would make an additional loan or sell the stock. He then decided to sell the stock and instructed the bank through Tomaso to sell the 100 shares of stock represented by certificate G102232, the bank caused the stock to be sold and the net proceeds of the sale amounting to $17,465.65, less the principal and interest due on the loan, were turned over to Nolan by the bank. Pursuant to the sale, certificate G102232 and the irrevocable stock power were sent to the American Telephone and Telegraph Company and said certificate was cancelled on the records of the defendant and a new certificate was issued to the purchaser of said stock. The loan having been paid to the bank, it returned the collateral note to Nolan. The Prairie State Bank guaranteed plaintiff\u2019s signature on the stock power .and Tomaso signed same as a witness to her signature. Plaintiff had an account in the Prairie State Bank and upon opening same had signed her name on a signature card. Before plaintiff\u2019s signature on the irrevocable stock power was guaranteed by the bank and witnessed by Tomaso, it was compared with her signature on her account signature card and accepted as \u00e1uthentic.\nMrs. Agnes Me Cue testified that she was Nolan\u2019s sister and Charlotte\u2019s aunt; that he lived at her home during the period involved herein and until he died June 29, 1937 and that Charlotte lived with her from March 1935 until the latter part of July 1936, during which period she attended college a short distance from her home in River Forest; that in the latter part of May 1936 \u201cMr. Nolan told me that he had settled the Telephone stock case, that he was going to get 100 shares of it and for the time being he thought he would put it in his daughter Charlotte\u2019s name; that the stock was low, and as soon as the stock went up he intended to sell it\u201d; that subsequently, in the early part of June 1936, in her home and in her presence Nolan \u201ctold Charlotte that he was going to put stock in her name temporarily because his creditors were pressing him and he did not want to have it in his name; that as soon as the stock went up he intended to sell it\u201d; that Charlotte made no reply to this statement of her father in his presence but that after, he left she \u201ccomplained to me that she did not-like the idea of her father putting stock in her name because she was afraid she may get in trouble with the Government on income tax or on inheritance tax. \u2019 \u2019\nMrs. McCue testified further that plaintiff told her about July 5, 1936 that she was going to move from her home and live with a girl friend named Bessie Scully; that Nolan came home later that evening and she informed' him concerning Charlotte\u2019s contemplated change of residence; that about two days later she had another conversation with Nolan in her home, at which time he gave her the irrevocable stock power form and some directions in reference thereto; that this took place about \u201c10 or 11 in the morning\u201d before plaintiff had made her appearance downstairs that day; that she took the irrevocable stock power form to plaintiff\u2019s room and told her that her father wanted her to sign the stock back to him; that \u201cas long as plaintiff was leaving, he wanted to have the stock signed back so that when it was up he could sell it\u201d; that plaintiff told her that \u201cshe would gladly sign the stock, that she did not want her name connected with anything belonging to her father\u201d; that Charlotte then signed the stock power in her (Mrs. McCue\u2019s) presence; and that after Charlotte signed the stock power she (Mrs. McCue) took it downstairs and handed it to plaintiff\u2019s father.\nHerbert J. Walter, a handwriting expert, called as a witness by defendant, testified that in his opinion the signature \u201cMiss- Charlotte Nolan\u201d on the irrevocable stock power was signed by the same person who signed numerous admitted standards of plaintiff\u2019s handwriting.\nCharlotte Nolan testified on direct examination that she did not at any time pledge, sell, transfer, encumber or authorize any other person to sell, pledge, transfer or encumber the stock represented by certificate Gl02232; that she did not indorse said certificate or authorize anybody else to do so at any time; and that she never executed any instrument authorizing anybody else to transfer it.\nShe testified on cross-examination that she did not sign \u201cMiss Charlotte Nolan\u201d on the irrevocable stock power; that she never saw that document before it was shown to her at the hearing before the master; that she did not know who signed it; and that she had never seen stock certificate G102232 before it was shown to her at the same hearing and that it had never been in her possession.\nAfter defendant\u2019s amended answer was filed, she testified further on cross-examination that \u201chow I first even knew that I owned the stock, the mailman came and I got the mail that day and there was an envelope and ... on the top it had \u2018American Bell Telephone Company\u2019 ... it was addressed to me . . . and pay father was in the dining room . . . I told him it was addressed to me. In fact, I was rather mystified, and I opened it. It was a dividend check. My father smiled and he said, . . . \u2018T wanted to surprise you . . . You did not know that you were the owner of stock?\u2019 And up until that time I didn\u2019t. And he also informed me that he wanted to give it to me and he wanted me to keep it . . . and he told me that he wanted me to have it. That was about all the conversation in regard to it. Previous to that he had mentioned, while that stock was tied up, that if things turned the way he hoped they would he would see that I never had to worry about anything. But I never did question him from that time on . . . I have had conversations with my father but I did not know that he had definitely given it to me . . . until the check came.\u201d\nShe then testified that she placed her indorsement \u201cMiss Charlotte Nolan\u201d on the back of the dividend check and that her father cashed same and returned the proceeds thereof to her; that the first time that her father ever told her that he had given her the stock was after the arrival of the dividend check, which was dated July 15, 1936; that he told her then that he \u201ckept the certificate for safekeeping for me . . . he said he had a box and would keep it there \u2019 \u2019; that no one was present except her and her father when he told her he had given her the stock; that prior to her conversation with her father at the time the dividend check arrived about the middle of July, she had numerous talks with him concerning the stock, commencing in January and February 1936; that on one occasion her father came home from Kankakee at \u2018 \u2018 2:00 o \u2019clock in the morning ... he was very worried. He said he wished this would get straightened out . . . if things turned out the way he wanted them to he would see I never had to worry about anything\u201d; that he spoke to her about the stock several times but that she \u201ccould not tell . . . exactly when ... it all related to the same thing, that he wanted me to have it . . . my dad did mention several times . . . - that if things turned out right he wanted me to have it. I don\u2019t know whether he was just talking about it or whether he had changed his mind. And as I say, when the dividend check came he told me he had definitely given it to me\u201d; that no one was present at any of the conversations that she had with her father about the stock; that she did not \u201creceive any dividends on this stock except the dividend represented by the check dated July 15th, 1936\u201d; and that \u201cshe did not know that she was supposed to receive any further dividends. \u2019 \u2019\nCharlotte Nolan further testified that her father did not at any time in or out of the presence of Agnes McCue tell her that he was going to put the stock in her name temporarily because his creditors were pressing him and because he did not want to have it in his own name; that she never told' Mrs. McCue at any time that she did not like the idea of her father putting the stock in her name \u201cbecause she was afraid she might get into trouble with the Government on income tax or inheritance tax\u201d; that Mrs. McCue never asked her to execute any documents with reference to the stock; that she did not tell Mrs. McCue that she would very gladly sign the stock back to her father; that on July 15,1936, when she got the dividend check, she and her father were talking and Mrs. McCue came in and \u201ctold my father he was a fool, in plain English, and she said he could put the stock in her name, and my father told Mrs. McCue at the time he wanted to give it to me \u2019 \u2019; that after this conversation she did not have any further conversations with Mrs. McCue with respect to the stock; that she left her father\u2019s home the week of July 20, 1936, \u201cbecause I thought they were very intolerable\u201d; that \u201cMrs. McCue made it very miserable\u201d and they could not agree on anything; that prior to July 15, 1936 she had no intention of leaving Mrs. McCue\u2019s home; that she made up her mind to leave Mrs. McCue\u2019s home the week of July 20, 1936; that she then went to live with her mother in Bridgman, Michigan; and that she never told Mrs. McCue that she was going to live with the Scully girl.\nJames E. Murphy was called as a handwriting expert by plaintiff but he was not asked and he did not give his opinion as to whether the signature on the stock power was the genuine signature of plaintiff. He did testify, however, that in his opinion the \u201cSignature Guaranteed\u201d stamp which crossed the signature \u201cMiss Charlotte Nolan\u201d was placed on the stock power prior to the writing of the signature.\nA. F. Adams, who signed the signature guaranty in behalf of the Prairie State Bank and S. P. Tomaso, were called as witnesses by defendant in rebuttal and they both testified that the signature \u201cMiss Charlotte Nolan\u201d was on the stock power before the bank\u2019s \u201cSignature Guaranteed\u201d stamp was placed thereon.\nOn October 26, 1940 the master filed his report, wherein he found: (1) that John J. Nolan was the beneficial owner of the stock and that he received the proceeds of the sale, and (2) that the signature on the irrevocable stock power was the genuine signature of plaintiff; and recommended that plaintiff\u2019s complaint be dismissed for want of equity. Plaintiff filed objections to the master\u2019s report which were ordered to stand as exceptions. Several .hearings were held by the chancellor on these exceptions and after he had indicated that he was going to enter a decree in conformity with the findings and recommendation of the master, plaintiff filed a petition asking that the cause be re-referred to the master for two reasons: (1) that plaintiff\u2019s attorneys had just learned that Branko M. Steiner had a conversation in August 1937 at the Prairie State Bank with S. P. Tomaso (who had testified for defendant on the original reference), wherein Tomaso had told Steiner that he knew nothing about the American Telephone and Telegraph Company stock received by Nolan as the result of the settlement with his former wife; and (2) that her attorneys desired to further interrogate plaintiff\u2019s handwriting expert, who had not been asked his opinion as to the genuineness of plaintiff\u2019s signature on the stock power, when he testified on the original reference. The chancellor allowed plaintiff\u2019s motion and ordered that the cause be re-referred to the master in chancery for further hearing.\nOn the hearings on the re-reference plaintiff presented the testimony of Attorney Steiner, her sister and her stepfather for the purpose of showing that S. P. Tomaso, vice president of the Prairie State Bank, had told Steiner in effect on August 5, 1937 that he knew nothing about the American Telephone and Telegraph Company stock received by Nolan as a part of the settlement with his wife. This testimony introduced on plaintiff\u2019s behalf was so completely refuted by evidence presented by defendant that it would serve no useful purpose to either recite or discuss it.\nThe only other evidence presented by plaintiff on the re-reference was the testimony of James E. Murphy, her handwriting expert, that in his opinion the signature, \u201cMiss Charlotte Nolan,\u201d on the irrevocable stock power was not signed by plaintiff.\nThe master filed his report on re-reference and in his findings therein he, did not even mention any of the evidence presented thereon except the testimony of plaintiff\u2019s handwriting expert, Murphy, which he stated he was unable to reconcile with the testimony of Walter, defendant\u2019s handwriting expert, given on the original reference. He further stated in his repprt that the testimony of Walter and Murphy was so hopelessly contradictory and conflicting \u201cas to have been of no aid to the master in determining the question of the genuineness of the signature of plaintiff on the irrevocable stock power.\u201d It was then stated in the report that the master had disregarded the testimony of Tomaso because \u201cof his general demeanor as a witness and because of his false statement in writing that the instrument [stock power] was signed and delivered in his presence.\u201d Tomaso did appear as a witness on the re-reference but his testimony was confined to a denial of his alleged conversation with Steiner on August 5, 1937. As already stated, the testimony introduced on plaintiff\u2019s behalf as to this purported conversation was so completely refuted that the master did not even mention, it in any finding in his report and therefore nothing occurred on the re-reference to justify any adverse finding by the master as to Tomaso\u2019s general demeanor as a witness or as to any testimony given by him on the original reference.\nThe master also found in his report on re-reference that \u201cthe witness Agnes McCue gave indication on the witness stand and during the proceedings as being quite biased and hostile toward her niece, Charlotte Nolan\u201d; and that \u201cplaintiff was just past twenty-three years of age at the time her testimony was given and appeared to be a frank and truthful person and gave her testimony in a frank and straightforward manner, and her frankness was just as evident during a severe cross-examination as it was when questioned by her own attorneys.\u201d Neither Mrs. McCue nor Charlotte Nolan testified ,on the re-reference and the record discloses nothing that occurred on the re-reference that could possibly account for the master\u2019s change of opinion as to the credibility, demeanor, bias or hostility of Mrs. McCue or of Tomaso or of the frankness or truthfulness of Charlotte Nolan since he filed his report on the original reference.\nThe master then found that the signature appearing on the irrevocable stock power was not the genuine signature of plaintiff. He did not, however, change his finding contained in his report on the original reference that plaintiff\u2019s father was the beneficial owner of the stock in question and had received the proceeds of the sale thereof and he did not change the recommendation made in his original report that plaintiff\u2019s complaint be dismissed for want of equity. Objections filed by defendant to the master\u2019s report on re-reference and by plaintiff to his report on the original reference were ordered to stand as exceptions. The trial court overruled defendant\u2019s exceptions to the report on re-reference, sustained plaintiff\u2019s exceptions to the report on the original reference and entered the decree in favor of plaintiff from which this appeal is taken.\nThere were two questions before the chancellor for determination: (1) whether or not Nolan during his lifetime made a gift of the 100 shares of stock involved herein to his daughter, Charlotte, and (2) whether or not plaintiff signed the irrevocable stock power, authorizing her father to pledge and sell such stock. Since Nolan was unquestionably the owner of this stock when he caused it to be transferred to plaintiff on the books of the defendant company and a new certificate issued in her name on June 12, 1936, such transfer constituted a constructive or symbolic delivery of the stock to her (Chicago Title & Trust Co. v. Ward, 332 Ill. 126), and since it is presumed that when a father transfers or delivers property belonging to him to his daughter a gift of same is intended, the burden was on defendant to prove that Nolan did not intend to make a gift of the stock to plaintiff. On the second question it was incumbent upon plaintiff to prove that her signature was forged on the irrevocable stock power.\nDefendant first contends that the trial court \u201cerred in rejecting the master\u2019s recommendation that plaintiff\u2019s complaint be dismissed for want of equity and in decreeing, contrary to the master\u2019s finding, that plaintiff is the equitable owner of the stock,\u201d because (1) \u201cthe finding in the decree that plaintiff is the equitable owner of the stock is against the manifest weight of the evidence, which shows beyond doubt that plaintiff\u2019s father caused the certificate to be issued in plaintiff\u2019s name merely as his nominee\u201d and (2) \u201cthe absence of intention on the part of plaintiff\u2019s father to make a gift of the stock in question prevents the transaction from constituting a gift.\u201d\nAs heretofore indicated, the facts disclosed by the evidence heard by the master on the original reference and the findings in his report in respect thereto convinced the trial court that Nolan was the equitable owner of the stock when he caused it to\u201d be sold and that he caused the certificate to be issued in Charlotte\u2019s name merely as his nominee. It was only because the chancellor was so convinced that plaintiff sought the re-reference. Not a particle of evidence was presented to the master on re-reference that could or did actuate him to change or modify the finding in his report on the original reference that Nolan was the equitable owner of the stock at the time he sold it.\nWhile it is true that when a father delivers property of his to his daughter a presumption of fact arises that a gift of same was intended, it is also true that such presumption is not conclusive and may be rebutted by proof. Intention to give being just as essential to a completed gift as delivery of the subject matter thereof and defendant claiming that Nolan did not intend to make a gift of the stock in question to Charlotte, it was incumbent upon it to show Nolan\u2019s absence of intention to make a gift of the stock to her by clear and convincing evidence. We are satisfied that defendant met its burden and that the evidence shows unmistakably and beyond doubt that Nolan did not intend to make a gift of the stock to plaintiff but that he intended to and did place it in her name merely for the purpose of having her hold it as his nominee and for his benefit.\nJust what is the factual picture presented here? Nolan\u2019s financial affairs were in bad shape and he was worried about his creditors. After 8 years of litigation with his former wife he received in settlement a certificate for 100 shares of defendant\u2019s stock, which had been issued to Josephine Nolan Taglia and indorsed by her in blank. Between the time he received this stock certificate in the latter part of May 1936, and June 12, 1936, when he caused it to be cancelled and a new certificate issued in plaintiff\u2019s name, Nolan told Attorney Higgins, Tomaso, his banker, and Mrs. McOue, his sister, that he intended to place the stock in Charlotte\u2019s name as his nominee and for his benefit. According to Attorney Higgins, Nolan also told him that Charlotte had agreed to hold the stock for him until he (Nolan) wanted to sell it. According to Mrs. McCue, Nolan told Charlotte in her presence prior to June 12, 1936 that he was going to put the stock in her (Charlotte\u2019s) name until its price went up and he desired to sell it. After the certificate was issued in Charlotte\u2019s name on June 12, 1936 it was delivered through the bank to Nolan. He continued to treat the stock as his own and, requiring funds in the early part of July 1936, he applied to the bank for a loan on the stock. He procured this loan on July 7, 1936 by delivering the certificate of stock to the bank as collateral along with a stock power, a power to hypothecate and a collateral note ostensibly executed by plaintiff. According to Charlotte, she did not even know on July 7, 1936, when her father made the loan at the bank, that the stock certificate had been issued in her name. Nolan still continued to treat the stock as his own, when he caused it to be sold by the bank on September 2, 1936 and received the proceeds of the sale.\nPlaintiff\u2019s claim is based solely on her uncorroborated testimony that when the dividend check arrived through the mail about July 15, 1936, made out in the name of \u201cMiss Charlotte Nolan,\u201d she told her father that she was \u201cmystified\u201d and that then he said, \u201cI wanted to surprise you . . . You did not know that you were the owner of stock\u201d; and that he also said that he wanted to give it to her, wanted her' to keep it and wanted her to have it. It must be remembered that prior to the time of this purported conversation on July 15, 1936, her father, in making the loan on July 7,1936, had already pledged the stock certificate and no longer had it in his possession and that, according to plaintiff, he had forged her signature or caused it to be forged on the stock power, the power to hypothecate and the collateral note.\nHer counsel attempt to portray plaintiff as an inexperienced school girl and unfamiliar with business affairs in June and July 1936. However, she had a bank account of her own for a considerable period prior to that time and, according to her own testimony, she knew when the check arrived on July 15,1936 that it was a dividend check. Although plaintiff\u2019s father did not die until June 29, 1937, she admitted that she made no inquiry of him concerning the certificate of stock in question or dividends payable thereon subsequent to July 15, 1936 and that she made no inquiry of defendant in relation to same prior to August 1938.\nPlaintiff\u2019s testimony that her father told her on July 15, 1936 that he had made a gift of the stock to her stands alone and uncorroborated by a single fact or circumstance in evidence. On the other hand a reputable lawyer, a reputable banker and plaintiff\u2019s aunt testified positively that Nolan told them on separate occasions between the latter part of May and June 12, 1936 that he intended to have certificate G101868 transferred and a new certificate issued in plaintiff\u2019s name for the purpose of having her hold same for him. None of these witnesses have any personal interest in the ease and their testimony stands uncontroverted and unimpeached. Certainly there is no reason disclosed by the record why Attorney Higgins, Tomaso or Mrs. McCue would commit perjury to aid the defendant and to injure plaintiff. Aside from the direct testimony of these witnesses that Nolan told them that he did not intend to make a gift of the stock to plaintiff, in the light of all the other facts and circumstances in evidence it is highly improbable that Nolan would litigate eight years to obtain this stock and then immediately give it to plaintiff, and this is especially true when it is considered that Nolan\u2019s financial affairs were in a precarious condition at the time and he had manifested worry about his creditors. The fact that it would have been improvident for Nolan to have given away the stock is a strong indication of his intent not to make a gift of it to plaintiff. It is also highly improbable that plaintiff\u2019s father would inform her that he had made a gift of the stock to her after he had already pledged it as collateral for a loan, and certainly he would not have so informed her if, as plaintiff claims, he had already forged her signature or caused it to be forged in connection with the loan. It is neither plausible nor credible that plaintiff would make no inquiry with reference to dividends on the stock during the year her father lived after the certificate was issued in her name and almost for an additional year after he died, if she understood on July 15, 1936 that the stock had been given to her by her father. It is not plausible that Attorney Steiner, who then represented plaintiff and her sisters and brother, would have made a search for the certificate of stock in question as an asset of her father\u2019s estate in August of 1937, if plaintiff believed that she owned the stock.\nIn sustaining plaintiff\u2019s exceptions to the original report of the master and in finding that she was the beneficial owner of the stock, the chancellor held that the statements of his intention in regard to the stock made by plaintiff\u2019s father to Attorney Higgins, Tomaso and Mrs. McCue out of the presence of plaintiff were incompetent as being hearsay and should therefore be disregarded. Defendant insists that Nolan\u2019s statements of intention to the foregoing witnesses \u201cmade contemporaneously with or shortly prior to his causing the certificate to be issued in plaintiff\u2019s name were admissible and that it was error to eliminate such testimony as hearsay.\u201d\nThe statements of Nolan to these witnesses shortly prior to or contemporaneously with the issuance of the certificate in plaintiff\u2019s name, even though made out of her presence, were unquestionably competent and admissible to show that he did not intend to make a gift to her of the certificate or of the stock represented by it. The rule applicable to evidence such as that under consideration is clearly stated in Restatement of the Law of Trusts, vol. II, sec. 443, at p. 1357:\n\u201ca. Admissibility of parol evidence to rebut the inference of a gift. Where one person pays the purchase price for property which is transferred at his. direction to another who is a natural object of his bounty, parol evidence is admissible to show that the payor intended that the transferee should not have the beneficial interest in the property, even though the property transferred was an interest in land and the Statute of Frauds is in force. The intention of the payor not to make a gift to. the transferee may be shown not only by oral declarations of his intention, bnt also by the circumstances under which the transfer is made. Thus, the fact that it would be improvident for the payor to make a gift to the transferee is an indication that he did not intend to make a gift. So also, the fact that the circumstances are such that the payor would have a reason for taking title in the name of another other than' an intention to give him the beneficial interest is an indication that he did not intend to make a gift; as, for example, where the payor had reasons for wishing that it should not be known that he was purchasing the property.\u201d\nIt has been repeatedly and uniformly held in this and other jurisdictions that prior or contemporaneous declarations of an alleged donor are admissible to show that a particular transaction was not intended as a gift, intent being a distinct and essential element of a gift (O\u2019Donnell v. O\u2019Donnell, 303 Ill. 31; Herrin v. McCarthy, 339 Ill. 530; Dodge v. Thomas, 266 Ill. 76; Whitney v. Wheeler, 116 Mass. 490; Commonwealth v. Trefethen, 157 Mass. 180; Lee v. Mitcham, 98 F. (2d) 298; Chichester Chemical Co. v. United States, 49 F. (2d) 516; 28 C. J., sec. 80, p. 675; and McKelvey on Evidence, Third Ed., sec. 154, p. 306).\nIn Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, a leading case on this subject, the court said at p. 295:\n\u201cA man\u2019s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.\n\u201cThe existence of a particular intention in a certain person at a certain time being a- material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he then had that intention would be. After his death there can hardly be any other way of proving it; and while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander\u2019s' recollection of what he then said . . . .\u201d (Italics ours.)\nPlaintiff\u2019s counsel, apparently convinced the trial court that the case of Chicago Title & Trust Co. v. Ward, 332 Ill. 126, was of controlling importance on the question of Nolan\u2019s intention to make a gift of the stock to plaintiff, since in a written opinion filed by the chancellor in deciding this case, he seemed to rely strongly on the Ward case. That case has no application to any controverted issue in this case. It is controlling only on the proposition that causing a stock certificate to be transferred on the books of a corporation constitutes constructive or symbolic delivery to the transferee. The constructive delivery of the stock certificate to plaintiff is admitted here but defendant insists that Nolan in making such delivery had no intention of making a gift of the stock to her.\nThe numerous authorities cited clearly establish the competency and admissibility of the testimony of Attorney Higgins, S. P. Tomaso and Mrs. McCue as to Nolan\u2019s statements to them of his intention in respect to the stock in question and, in our opinion, if the chancellor had not erroneously disregarded this testimony as hearsay, he could not have reached any other conclusion than to confirm the finding of the master in his report on the original reference that Nolan was the beneficial owner of the stock and as such properly received the proceeds of its sale.\nPlaintiff\u2019s counsel argue at length that defendant is not relieved of an admission made in its original sworn answer to the complaint because of the fact that it later filed an amended answer in which the admission was not made. The complaint alleged that plaintiff \u201cis and was at all times since June 12, 1936, the legal and equitable owner\u201d of the stock in question. The first paragraph of the original answer was in part as follows:\n\u201cDefendant denies that plaintiff is now or has been at any time since on or about September 2, 1936 the legal and equitable owner of the 100 shares of capital stock of defendant represented by certificate G102232.\u201d\nIt is true that the allegation of the complaint that plaintiff was the beneficial .owner of the stock at all times since June 12, 1936 was not specifically denied by the original answer but neither was it specifically admitted that plaintiff was such beneficial owner during the period alleged. The defendant did not intentionally and explicitly admit that plaintiff was ever the beneficial owner of the stock and the most that can be said of the claimed admission is that by reason of the defendant\u2019s failure to specifically deny plaintiff\u2019s beneficial ownership, such beneficial ownership was constructively admitted by operation of section 40 of the Civil Practice Act (par. 164, ch. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.040]). After it had been shown to the trial .court that, when defendant filed its original answer, it did not have knowledge of the facts in connection with the issuance of the stock certificate in plaintiff\u2019s name on June 12, 1936, and that it first learned the facts in reference thereto in March 1940, it was granted leave to file an amended answer, wherein it specifically denied that plaintiff was the beneficial owner of the stock at any time. Plaintiff did not offer the original answer in evidence. In City Nat. Bank & Trust Co. of Chicago v. Oberheide Coal Co., 307 Ill. App. 519, we said at p. 522: \u201cThe better rule would seem to be that an abandoned pleading should be offered in evidence by the party wishing to have it considered an admission.\u201d In any event, defendant\u2019s admission in its abandoned original answer was not conclusive but merely adverse evidence and it was entitled to little, if any, consideration, inasmuch as the evidence considered in its entirety shows conclusively that plaintiff was never the beneficial owner of the stock.\nWe are impelled to hold that the finding in the decree that plaintiff is and was at the time her father sold it the beneficial owner of the 100 shares of American Telephone and Telegraph Company stock involved herein is against the manifest weight of the evidence and that the chancellor erred in failing to confirm the finding in the report of the master on the original reference that Nolan was the beneficial owner of the stock in question and in rejecting the master\u2019s recommendation that plaintiff\u2019s complaint be dismissed for want of equity.\nSince under the law a beneficial owner of stock may use it as his own (Gahagan v. Whitney, 359 Ill. 419, 423) and since the stock was issued in plaintiff\u2019s name merely-as the nominee of her father and he, the beneficial owner, received the proceeds of the sale, she is not entitled to a decree in her favor, even though she did not sign the stock power. However, we will consider defendant\u2019s contention that \u201cthe signature on the irrevocable stock power is the genuine signature of plaintiff and the decree and master\u2019s report on re-reference, wherein said signature is found to be a forgery, are against the manifest weight of the evidence.\u201d\nIt will be recalled that the master\u2019s report on the original reference found that \u201cthe signature on the irrevocable stock power was the genuine signature of plaintiff,\u201d that in his report on the re-reference he found that \u201cthe signature appearing on the irrevocable stock power was not the genuine signature of plaintiff\u201d and that he reached the latter conclusion by disregarding the testimony of the handwriting experts for both parties as being irreconcilable and hopelessly contradictory and conflicting, by disregarding the testimony of Tomaso because \u201cof his general dem\u00e9anor as a witness and because of his false statement in writing that the instrument [stock power] was signed and delivered in his presence, \u2019 \u2019 by disregarding the testimony of Mrs. McCue because she appeared to be \u201cquite biased and hostile toward her niece\u201d and by finding that plaintiff \u201cappeared to be a frank and truthful person.\u201d\nAs already shown, neither Mrs. McCue nor plaintiff testified at all on the re-reference and, while Tomaso did appear as a witness on the re-reference, his testimony consisted solely of a denial of a purported conversation Attorney Steiner claimed to have had with him. Attorney Steiner\u2019s testimony as to this conversation was completely refuted by evidence presented by defendant. Therefore nothing occurred in respect to Tomaso or his testimony on the re-reference that warranted the master in disregarding his testimony on the original reference because \u201cof his general demeanor as a witness.\u201d Tomaso testified on the original reference that plaintiff did not sign the stock power in his presence but that after comparing her signature on the stock power with her signature on her signature card on file at the bank in connection with her savings account he accepted it as authentic. Tomaso also testified on the original reference that in his opinion the signature on the stock power was the genuine signature of plaintiff. Mrs. McCue testified on the original- reference that she saw plaintiff sign the stock power under the circumstances herein-before related. Obviously the master believed the testimony of Tomaso and Mrs. McCue on the original reference as to the genuineness of plaintiff\u2019s signature on the stock power, since he found in his report on the original reference that \u201cthe signature on the irrevocable stock power was the genuine signature of plaintiff.\u201d\nWhile the master found in his report on re-reference, upon which plaintiff did not testify, that she was frank and straightforward in her testimony on the original reference, he obviously was not so favorably impressed with her frankness when he found in his report on the original reference that she did sign the stock power, notwithstanding her testimony that she did not sign it. We might add that, after a careful examination of the complete transcript of plaintiff\u2019s testimony, we are not impressed with her frankness.\nIncluded in the record are twelve admitted signatures of plaintiff and her disputed signature on the stock power. As to the comparison of signatures it was said in Fekete v. Fekete, 323 Ill. 468, at p. 482: \u201cIn arriving at a conclusion by comparison we are in as good a position to arrive at a correct result as the chancellor . . . . \u201d During the course of the hearings on plaintiff\u2019s exceptions to the report of the master on the original reference the chancellor after comparing the signature on the stock power with plaintiff\u2019s admitted signatures made this statement: \u201cI have' been looking at the signatures and you admit this is her signature, and not being a handwriting expert but at least having a layman\u2019s experience and observation, I would say they were one and the same. \u2019 \u2019 Five of plaintiff\u2019s twelve admitted signatures were written by her before she conceived the idea of instituting this suit and the signature on the stock power is strikingly similar to those five signatures. The other seven admitted signatures were written by plaintiff after she decided to bring this action \u2014 two of them were signed to her complaint and the other five were written by her at the suggestion of defendant\u2019s counsel at one of the hearings before the master on the original reference. All seven of these signatures, in our opinion, show a deliberate effort on the part of plaintiff to disguise her handwriting. At least four of the specimens of plaintiff\u2019s signature that were written before her complaint was filed and the signature on the stock power were written with a so-called ball pen or one that was rather stub nosed. Unquestionably appreciating this fact, when plaintiff was asked to sign her name before the master, she insisted on writing her signature with a sharp pointed pen. We think that, notwithstanding plaintiff\u2019s obvious attempt to disguise these seven signatures, the signature on the stock power resembled them in general appearance and has numerous characteristics in common with them. At least it can be said that these seven signatures are no more dissimilar to the signature on the stock power than they are to her other admitted signatures.\nThis brings us to the consideration of the testimony of the handwriting experts which the master disregarded and which contains a mass of minute details too extensive to set out in an opinion. We have carefully examined all of the testimony of Walter, defendant\u2019s handwriting expert, and find that it was of the type aptly characterized by the Supreme Court in Fekete v. Fekete, supra, where it was said at p. 483: \u201c ... the opinion of an expert may be of great value where it calls the attention of the court to facts which are capable of verification by the court which the court otherwise would probably have overlooked, and the opinion of the expert is based upon such facts and is in harmony therewith.\u201d We think that the master in his report on re-reference and the chancellor in passing upon such report improperly disregarded Walter\u2019s testimony that in his opinion \u201cthe signature \u2018Miss Charlotte Nolan\u2019 on the irrevocable stock power was signed by the same person who signed numerous admitted standards of plaintiff\u2019s handwriting. \u2019 \u2019\nIn addition to the foregoing there are numerous circumstances in evidence that would seem to preclude the total lack of necessity on the part of Nolan to forge plaintiff\u2019s signature on the stock power or to cause it to be forged. Charlotte was on good terms with her father on July 7, 1936, when he made the loan, and, according to her testimony, she did not know at that time that the stock -had been issued in her name. Certainly Nolan in that situation would have had no fear of plaintiff refusing to comply with his request to sign the stock power and would not have elected to forge her signature or cause it to be forged rather than to request her to sign that instrument.\nIt was incumbent upon plaintiff to prove that her signature was forged to the stock power and again we find that the only direct evidence presented by her in support of such charge was her own uncorroborated testimony as an interested witness. The only other evidence presented by her was the opinion evidence of her handwriting expert, Murphy, who' should not even have been permitted to testify on the re-reference, because it is admitted that the omission of plaintiff\u2019s counsel to ask his opinion on the original reference as to the genuineness of the signature on the stock power was not inadvertent but deliberate and intentional. In any event, we have carefully examined his testimony and find that it was based principally upon hypothesis. It was therefore of little value and we are not impressed with it.\nIt is difficult to understand why the master in his report on re-reference reversed the finding in his report on the original reference that the signature on the stock power was plaintiff\u2019s genuine signature, since nothing occurred on the re-reference that could possibly justify such reversal, even though the testimony of both of the handwriting experts was eliminated from consideration.\nIt is interesting to note that the theory of fact of plaintiff\u2019s verified complaint was not that her father owned the stock and made a gift of it to her but rather that some unknown person obtained possession of the stock certificate without her permission, forged her signature to the stock power and sold the stock. It was not until defendant\u2019s investigation disclosed her father\u2019s ownership of the stock and the circumstances under which he caused the stock certificate to be issued in her name and alleged such facts and circumstances in its amended answer that plaintiff was driven to take the position in her reply to the amended answer that her father made a gift of the stock to her.\nAfter plaintiff\u2019s reply was filed there was no longer any question in this case of an unknown person obtaining possession of the stock certificate without her permission and forging her name to the stock power. She was then confronted squarely with the proposition of admitting that she signed the stock power or accusing her father of forging her signature thereon or causing it to be forged. Plaintiff chose the latter course and did not hesitate to brand her dead father as a felon in her attempt to recover on what has been shown to be an unjust claim.\nWe are compelled by the facts to hold that the finding and adjudication in the decree that the signature on the stock power was not the genuine signature of plaintiff are against the manifest weight of the evidence.\nOther points are urged and numerous authorities cited, which we have considered', but in the view we take of this case we deem it unnecessary to discuss them, since, to do so, would only serve to further lengthen this already long opinion.\nFor the reasons indicated herein the decree of the superior court of Cook county is reversed and the cause is remanded with directions to enter a decree dismissing plaintiffs complaint for want of equity.\nDecree reversed and cause remanded with directions.\nFriend and Scanlan, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice Sullivan" } ], "attorneys": [ "Dent, Weichelt & Hampton, of Chicago, for appellant.", "Joseph R. Roach and Edward M. Keating, both of Chicago, for appellee." ], "corrections": "", "head_matter": "Charlotte Nolan, Appellee, v. American Telephone and Telegraph Company, Appellant.\nGen. No. 42,229.\nHeard in the second division of this court for the first district at the April term, 1942.\nOpinion filed June 15, 1945.\nReleased for publication June 27, 1945.\nDent, Weichelt & Hampton, of Chicago, for appellant.\nJoseph R. Roach and Edward M. Keating, both of Chicago, for appellee." }, "file_name": "0328-01", "first_page_order": 354, "last_page_order": 384 }