tors of the company, she took out the box, and, having placed it on a table, called into the room Mr. Scholey, an officer of the company. She told Mr. Scholey that she was giving to her nephew the box and contents, and that she wished him to witness the gift. She was then seated at the table where the box was. Some of the securities were still in the box, while others were out upon the table. Mr. Scholey examined the securities sufficiently to see their general character, and told Mrs. Pomeroy that, inasmuch as some were registered and some were coupon bonds, something more was necessary to complete the gift, and inquired whether he should send someone in to prepare powers of attorney for her to execute. He accordingly sent into the room Mr. Pierce, a clerk in the bank, with blank powers of attorney, which were there signed by Mrs. Pomeroy and witnessed by Pierce. Among the securities were the certificates and bonds which are the subject of the present controversy. These were (1) two stock certificates issued by the Pennsylvania Railroad Company, one for twenty and one for three shares; (2) three stock certificates issued by the Lehigh Coal & Navigation Company, one for three, one for four, and one for thirty-one shares, and (3) five mortgage bonds of the Philadelphia & Reading Railroad Company, each of the denomination of $1,000.

Assignments of these several securities in blank, with like blank powers of attorney, empowering the attorney to sell, assign, and transfer the same for assignee's use, were then and there signed by Mrs. Pomeroy and duly attested. These assignments were in the usual form, and had the effect to make the sureties marketable without anything further. This being done, the box from which the securities had been produced, being Mrs. Pomeroy's, was surrendered, and the securities were placed in a box or safe that had been that day rented by the nephew. The latter being about to return to California, as part of the same transaction, constituted in writing on the records of the trust company Mrs. Pomeroy, as his deputy, with authority expressed as follows: "To have access to my safe at all times, with the same powers that I could have if personally present." This ended the transaction. None of the securities were transferred on the books of the company, but with the powers of attorney executed as above Reese was in position to have this done at any time before the death of Mrs. Pomeroy, which occurred August 25, 1905. After Mrs. Pomeroy's death, appellant presented the above-mentioned securities, with the powers of attorney attached, to the several companies that had issued them, and requested transfers to be made. This was declined because of Mrs. Pomeroy's death. He then demanded of the executors that they execute new transfers. This demand being refused, he filed the bill in the present proceeding to require the executors to make the necessary transfers. The proceeding re

sulted in the dismissal of plaintiff's bill. This brief statement discloses the one question in the case: Can a valid, effective, irrevocable gift of these particular securities to the nephew be derived from what took place between Mrs. Pomeroy and the appellant on the occasion referred to?

To constitute a valid gift inter vivos, two essential elements must combine: "An intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject, and invests the donee therewith. We do not understand that the sufficiency of the delivery of these securities to the donee, if an immediate and irrevocable gift was intended, is questioned. They were placed, if not by the hands of the donor, by one she directed, in the box of the donee, which, notwithstanding the donor thereafter had access to it, was the donee's own exclusive property for the time being, which neither the donor nor any one else could interfere with except as allowed by him. This delivery was quite as unequivocal and pronounced as it would have been had the securities been placed in the donee's hand or pocket, and therefore just as effective. With respect to the donor's intention as to the kind and measure of the gift she intended to make, if regard be had to her previous expression of purpose, to what passed between the parties, and what occurred at the time of the making of the gift, and to these alone, there can be but one conclusion. What was there done, whatever its effect, was in fulfillment of a purpose the donor had previously expressed to several of her intimate friends. She had again and again avowed her purpose to turn over to her nephew the securities in her box. Her purpose, as expressed to Mr. Scholey, whom she had called in to witness the transaction, was to make a gift to her nephew of the contents of the box. The testimony of this witness was: "She said she was giving Mr. Reese the box and its contents, and would like me to act as a witness to the gift." In nothing that was said or done was there a suggestion of any qualification or restriction with respect to the gift. What therefore occurred on the occasion, while both parties were present, is not only consistent with a purpose to make an immediate and irrevocable gift, but inconsistent with any other. When her attention was called to what was necessary to make the gift effective-that is to say, powers of attorney to transfer the securities-she immediately executed them. The surrender of her own box to the trust company, and the placing of the securities made marketable by her blank transfers in the box rented by the nephew, which immediately followed, completed the transaction. Confining the inquiry to the immediate occurrence, can there be any question as to the legal effect of the transaction? There is present in the case a clearly expressed

as

purpose to make a present gift, followed by a sufficient delivery. Thus every requirement is met, and were we to stop the inquiry here, the gift would have to be sustained. It was because the court below extended the inquiry, and allowed what subsequently occurred to overcome the plain and obvious intendment of what was said and done when the gift was made, that a conclusion adverse to the plaintiff was reached. The evidence on this branch of the case was admitted for the purpose of showing that the parties themselves understood the transaction meaning something different from that indicated by the plain and natural meaning of their words and acts at the time. It is perfectly competent to show this, since the effort of the law always is to develop and give effect to the real purpose of the parties; but too great latitude was here allowed, and evidence was introduced which in no aspect can be considered as indicating a common and mutual understanding and purpose, but simply a purpose by the donor inconsistent with the facts of the transaction. It is never permitted a donor to impeach his gift. Therefore what was said or done by Mrs. Pomeroy, unassociated with her donee and unassented to by him, is wholly irrelevant to the issue, and cannot be considered. The court below placed much emphasis on the fact that Mrs. Pomeroy had at a later period inquired of an officer of the bank whether the power of attorney she had given "would put matters in proper shape so that if anything should happen to her Mr. Reese could transfer the securities." This inquiry may reflect some light on her understanding of the effect of the original transaction; but on its face the transaction was an executed gift in the donee, and it is wholly immaterial, limiting this inquiry to what is pertinent to the issue, what either thought in regard to it, except as the other is shown to have had the same understanding. The only relevant evidence on this branch of the case was that which related to the conduct of the parties with reference to the subject-matter. True, this was confined principally to the acts of Mrs. Pomeroy; but since these extended to at least a qualified control of the securities, and the actual conversion of a part, the knowledge and assent of the donee might be inferred in connection therewith. Immediately following the transfer of the securities the nephew returned to California. Mrs. Pomeroy, who had been deputized by him to have access to the safe, remained until November 10th of the same year, when she too went to California. Before removing she took from the safe Reading bonds to the amount of $3,000 and sold them. She also collected certain coupons, and left authority with the trust company to collect others as they matured; the proceeds to be credited on her account. After she had removed to California, she instructed the company to subscribe for an allotment of four shares of Lehigh Coal &

Navigation stock. On her return to Philadelphia in June, 1905, the authority she had given to the trust company was canceled. To allow this evidence the effect contended for, too much would have to be supplied. As it stands, it is wholly inadequate to the purpose. The selling of the $3,000 of bonds may very well have been within the implied power of the deputization, or in consequence of direct instructions from the principal. The burden in such case is upon the party setting up the fact relied upon to overcome the natural and obvious meaning of the transaction. This burden was not discharged so long as what Mrs. Pomeroy did with the proceeds of the sale of the bonds was left unexplained. She was a deputy in custody of the securities, and the presumption is that, if she converted any of them, it was in the course of her agency, and that she fully accounted for them. The law will not presume the contrary. As much may be said with respect to the coupons and dividends collected by her and carried to her credit in the bank. Giving these facts the utmost significance that can be claimed for them by the appellees, they are at least equivocal. If they may be regarded as indicating a continued ownership of the securities in Mrs. Pomeroy, with quite equal reason they may be referred to the agency she was invested. To allow such uncertain and ambiguous circumstances to defeat what the conduct of the parties in connection with the immediate transaction shows to have been intended as an absolute gift is to misapprehend the true force and significance of the evidence.

The decree of the court below is reversed; the plaintiff's bill is reinstated, and it is now ordered that a decree be entered directing an injunction mandatory in form to the Philadelphia Trust. Safe Deposit & Insurance Company, executor of the will of Anna K. Pomeroy, deceased, requiring it to sign as such executor such powers of attorney as may be required to transfer to William K. Reese the said recited securities. The cost of this proceeding to be paid by the executor of the will of Anna K. Pomeroy, deceased.

(28 R. I. 307)

PAINE v. PAINE et al. (Supreme Court of Rhode Island. May 22, 1907.)

1. TRUSTS-CONSTRUCTION.

* * *

No valid trust in corporate stock was created where it had been acquired by decedent through his wife's death as her individual property, and in 1890 he wrote his son: "Through your mother, whose wishes I have tried to follow, and shall continue to do, you to-day are entitled to quite a property. I have transferred a portion of it to you. Your mother's stock * * I have retained in such manner that the income goes to me, but so that neither your creditors can get it * nor can my creditors touch it." And on the same day the father transferred the stock to himself as attorney for the son; the certificate having never been delivered to the son. he having no knowledge of its existence until after his fa

*

ther's death, the father having in the meantime voted the stock and applied the dividends to his own use until he canceled the certificate and issued one without consideration to another to avoid "double taxation," she subsequently retransferring the stock to him in his own name, and it being so retained until his death, he having written the son in 1897: "I have no funds * belonging to you in trust or that have accumulated for your benefit from your mother's estate."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 42-46.]

2. WILLS-TRANSACTION CONSTITUTING.

Nor could the transaction be sustained as a testamentary disposition of the stock, though the father's subsequent dominion over the same, and his denial that he was in any manner trustee for the son, had never been made.

Exceptions from Superior Court, Providence County.

Bill by William H. Paine against William W. Paine, executor, and others. Respondents bring exceptions to findings and the opinion of the superior court. Reversed and remanded, with direction to dismiss the bill.

Argued before DOUGLAS, C. J., and DuBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

John Henshaw, for complainant. Herbert Almy and Dexter B. Potter, for respondents.

BLODGETT, J. The underlying question in this case is whether a valid trust was created by the late George T. Paine in favor of his only child, the complainant, by the terms of a communication which the father sent to the son on his attaining his majority on July 10, 1890, of which the material portion is as follows: "Through your mother, whose wishes I have tried to follow, and shall continue to do, you to-day are entitled to quite a property. I have transferred a portion of it to you, sufficient for you to build a fortune for yourself in later years, or if misfortune should come to you (it does to 19 out of 20 persons) you will then be glad you have no more to be lost, and that my foresight in retaining the balance for your future benefit will not leave you in want and penury. The two houses on Broadway, which were your mother's I retain under the law, being 'tenant by courtesy' and your mother's stock in the Akerman Company I have retained in such manner that the income goes to me, but so that neither your creditors can get it if you meet with disaster -nor can my creditors touch it if I am unsuccessful." On the same day the father transferred certain stocks to the name of the son and transferred the 110 shares of stock in the Akerman Company, which are the subject of the present controversy, and of which company George T. Paine was the treasurer, as follows: "George T. Paine, Atty. for W. H. Paine." It is conceded that the 110 shares in question were the individual property of Louise Mason Paine, the deceased wife of George T. Paine, that she deceased intestate in 1883, and that by the statutes of distribution then in force in this state said George

T. Paine thereupon became entitled to the stock in question as her husband by virtue of his right to administer upon her estate without account. It is conceded, also, that the certificate thus issued on July 10, 1890, was never delivered to the complainant, and that he had no knowledge of the existence of the same until after his father's death in 1903; that George T. Paine voted on the stock and collected and applied to his own use all the dividends thereon until June 3, 1891, when he surrendered and canceled said certificate, and issued, without consideration, another certificate for said 110 shares to one Caroline E. Jackson, his sister-in-law, then living in Massachusetts, in order, as he stated, to avoid what he called "double taxation" thereon, and that later, on June 13, 1896, upon the statement of George T. Paine that the question of taxation had been adjusted, and at his request, Mrs. Jackson retransferred the same without consideration to the name of George T. Paine, and a new certificate in that form was then issued, and remained outstanding in the possession of George T. Paine at the time of his decease in 1903.

"I

It is also conceded by the testimony that subsequent to 1890 an estrangement occurred between the complainant and his father, and that on January 9, 1897, the latter wrote a letter to his son in which he stated: have no funds of any kinds in my hands belonging to you in trust or that have accumulated for your benefit from your mother's estate. * * * The husband is the heir at law of all the personal estate of the wife, he paying all her personal bills." In Ellison v. Ellison, 6 Vesey, p. 661, the rule is thus stated by Lord Chancellor Eldon: "I take the distinction to be that if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust. as upon a covenant to transfer stock, etc., if it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant; but if the party has completely transferred stock, etc., though it is voluntary, yet, the legal conveyance being effectually made, the equitable interest will be enforced by this court." And in Milroy v. Lord, 4 De G. F. & J. 264-275, Lord Justice Turner observes: "I take the law of this court to be well settled that, in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him." In Richards v. Delbridge, 18 L. R. Chancery Cases, 11-15, Jessel, Master of the Rolls, approves Milroy v. Lord, supra, as does also Vice Chancellor Bacon in Heartley v. Lord Nicholson, 19 Eq. Cas. L. R. 233-242, and in Warriner v. Rogers, 16 Eq. Cas. L. R. 340

349.

See, also, In re Breton's Estate, 17 Ch. Div. L. R. 416, 421; Young v. Young et al., 80 N. Y. 422, 36 Am. Rep. 634.

We are compelled to the conclusion that George T. Paine did not create a valid trust in said 110 shares of stock in favor of the complainant. He did not even part with the present beneficial interest in the stock, inasmuch as he admittedly received all the dividends thereon. Indeed, the language of Lord Justice Knight Bruce in Milroy v. Lord, supra, at page 272, might be applied with almost literal exactness to the action of George T. Paine in the case at bar: "He was during the whole time, and when he died, the legal proprietor of them [certain bank shares], and unless so far, if at all, as the beneficial title was affected by that instrument, the absolute proprietor of them beneficially likewise. He might, however, have affected the legal title. It was in his power to make a transfer of the shares so as to confer the legal proprietorship on another person or other persons. But, as I have said, no such thing was done." Obviously this transaction could not be susstained as a testamentary disposition of the stock, even if his subsequent exercise of dominion over the same by his transfer and the retransfer of the same, and his denial that he was in any manner trustee for the son, had never been made, and it follows that the complainant's bill must be dismissed.

The decree of the superior court is reversed, and the case is remanded to the superior court, with direction to enter a decree dismissing the complainant's bill.

1. ATTORNEY AND CLIENT-FEES - PAYMENT OF MONEY COLLECTED.

An attorney does not disentitle himself to any claim he has against his client for making a collection for him, by acceding to the client's demand that he pay over the whole amount collected, less what he had paid another attorney for assisting him; he thereby simply releasing his lien.

2. SAME-EFFECT OF RECEIPT.

An attorney is not precluded from right to recover fees for making a collection from H. by the fact that when he acceded to his client's demand that he pay over the whole amount collected, less what he had paid another attorney for assisting him, he accepted and retained a receipt reciting receipt of that sum "in settlement of money collected of H."; that simply showing he had settled with his client for the money collected.

client, bad faith is not shown where a collection of $66 was made by an attorney after suit brought, $15 was retained by him. $10 given the attorney who assisted him, and the remaining $41 was sent to the client; and, on the client objecting to the attorney's charge of $15, the attorney finally told the client he would take $5 for what he had done, and pay the balance as soon as he could; and on delay by the attorney the client repudiated the agreement and demanded and received the $15; and the attorney then sent the client a bill for $10 for making the collection; and, it not being paid, he sued for and recovered that amount in justice court, and on appeal to the county court claimed $15, but recovered only $10.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 5, Attorney and Client, § 300.]

5. SAME-ACTION FOR FEES-EVIDENCE.

Evidence, in an action by an attorney against his client for fees, that he had sued defendant twice on the same matter, offered by defendant to show that plaintiff had harassed defendant, the offer not showing or indicating when the actions were brought or what became of them, or how they bore on any issue in the case, was properly excluded as immaterial. 6. WITNESSES CONTRADICTIONS AND COR

ROBORATIONS.

In an action by an attorney against his client for fees for making a collection, based on the debtor having, after suit brought against him, paid $25 to M., an attorney engaged by plaintiff to assist him in making the collection, and sent the money for the balance of the claim to defendant, and on M. having then retained $10 for his fees, and sent $15 to plaintiff, which plaintiff paid defendant, plaintiff after testifying how much he received from M., and what M.'s charge was, was asked on cross-examination whether at a certain time he did not tell defendant that M. had collected $40, instead of $25, and had kept $15 and sent $25 to plaintiff, and he denied having done so, but admitted having had a talk with defendant in which he told him the facts as he gave them in his direct testimony, and stated that at that time he showed defendant a letter from M., stating how much he had received, what he retained, and what he sent plaintiff. Held, that plaintiff was then entitled to introduce the letter as bearing on the question of what statement he made to defendant.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1287, 1288.]

Exceptions from Windsor County Court: John W. Rowell, Judge.

Action by Fred C. Davis against J. C. Farwell. Judgment for plaintiff. Defendant excepted. Affirmed.

Argued before TYLER, MUNSON, WATSON, POWERS, and MILES, JJ.

F. C. Davis, for plaintiff. Davis & Davis and F. H. Clark, for defendant.

MILES, J. This is an action in book account brought by the plaintiff, an attorney at law, against the defendant, to recover for professional services. The case was tried by an auditor, who reported, in substance, among other things unnecessary to state, that in September, 1898, the defendant employed the plaintiff to make a collection against one Hope, of Fitchburg, Mass. The plaintiff turned the matter over to J. E. McConnell, a Fitchburg attorney, to assist him in its collection, by whom a suit was shortly thereafter brought against the debtor, Hope. The

plaintiff retained the general charge of the matter, wrote several letters regarding it, and went to Fitchburg at least once to see about this and another demand which he held against Hope in favor of another client. About March 1, 1899, and after said suit was brought, Hope paid McConnell $25 on defendant's claim against him, and sent $40 or $41 direct to the defendant. The report does not show whether the sum paid to McConnell and the sum sent to the defendant settled the whole demand of the defendant against Hope; but in view of the fact that McConnell sent $15 of the $25 to the plaintiff, and retained $10 for his own fees in that suit, it is fairly inferable that the matter was then closed. However that may be, the auditor has found that the plaintiff never received on account of that collection more than the $15 so sent to him by McConnell. This sum he appropriated to his own use, and when called upon by the defendant to account for it, in the following June, he claimed to be entitled to it on account of services rendered in making that collection. The defendant objected to the plaintiff's charge, and thought that $5 was as much as the plaintiff was entitled to receive. Finally, the plaintiff told the defendant that he would take $5 for what he had done in the case, and promised to pay the balance as soon as he could. The defendant did not consent to this delay, and thence continued to dun the plaintiff from time to time until February 1, 1904, when he put the matter into the hands of G. A. Davis, an attorney of Windsor, Vt., who immediately wrote to the plaintiff demanding pay in full of the sum received by him. The plaintiff thereupon sent Davis his check for $10, which was immediately returned to the plaintiff in a letter declining to accept that sum in full, and insisting upon the plaintiff's paying the full sum which he had collected and then had in his possession. The plaintiff then sent Mr. Davis his check for $15, and in due time received from Mr. Davis a receipt, stating that he had received that sum "in settlement of money collected of Mr. Hope." This receipt was received by the plaintiff about February 6, 1904, and on the 11th day of the same month he sent to the defendant a bill demanding of him $10 for his services in making the Hope collection, and therein notifying the defendant that unless the same was paid within five days from that date suit would be brought. The defendant not paying within the time named, this suit was brought. In the justice court the plaintiff sought to recover only the sum of $10, and he recovered judgment in that court for only that amount and costs. In the county court his specifications were for $15, and he sought to recover that sum in that court.

The first claim made by the defendant is that the facts found by the auditor entitle him to a judgment, first, because the plain

tiff yielded to the defendant's demand, and paid the full sum collected without deducting anything for his services for which he now sues; second, because he kept the receipt sent to him by Mr. Davis; third, because the plaintiff never made any book charge of his account until he paid the $15, and then only charged $10; fourth, because his services were of no value to the defendant; and, fifth, because he was unfaithful to his client in not paying over the money on demand.

We do not think the plaintiff disentitled himself to any debt that the defendant owed him by acceding to the demand of the defendant to pay him the full amount of the sum collected. Where the attorney's lien upon the fund in his hands is denied, he may pay over the whole amount, and will then be entitled to a subsequent action against his client for his fees. Walton v. Dickerson, 7 Pa. 376. By turning the whole sum over to the defendant, the plaintiff simply released his lien upon the sum collected, but retained his debt against the defendant, secured only by his personal undertaking. When the money was collected and came into the possession of the plaintiff, he took it with the right to hold it until his fees were paid, as security for the payment of his debt against the defendant. Hutchinson et al. v. Howard et al., 15 Vt. 544; Hulbert v. Brigham, 56 Vt. 368. If the plaintiff saw fit to relinquish his right of lien, even under threat of the defendant's attorney, he relinquished no right to his debt secured by that lien, for the two debts stood distinct and independent of each other, subject to enforcement in independent suits. Walton v. Dickerson, supra. Therefore, when the plaintiff paid to the defendant's attorney all that he had received on the Hope collection, he still had his debt against the defendant for his reasonable compensation for services rendered, if not otherwise disentitled.

We think his right to recover was not affected by the retention of Mr. Davis' receipt. That simply shows that the plaintiff had settled with the defendant for the money collected. Neither is the plaintiff precluded from a recovery because he made no charge for his services at the time they were rendered. A charge is not necessary to a right to recover. The debt is not created by the charge. The charge as made, or the omission to charge, may serve as evidence of the existence or nonexistence of the debt and of the understanding of the party making it at the time it is made, and is proper evidence to be weighed by the trier of the fact for that purpose; but the debt always precedes the charge, and must exist before it is made, and the omission to charge will not extinguish it, nor will a mistaken charge affect it, only as the fact bears as a piece of evidence upon the fact of whether a debt ever existed.