Alampi v. Frye

11 N.W.2d 270, 306 Mich. 633, 1943 Mich. LEXIS 656

• Court: Michigan Supreme Court
• Decided: October 11, 1943
• Docket: Docket No. 76, Calendar No. 42,379.
• Status: Published

Opinions

Wiest, J.

September 27, 1933, John Alampi, a long-time employee of the Detroit Edison Company, purchased 20 shares of the par value- of $100 each of the capital stock of that company, and received a certificate to that effect. On December 29, 1933, he purchased 15 more shares of the stock of the company and received another certificate to such effect. Joseph Alampi, nephew of John, filed the bill herein claiming that he is the owner of the certificates by gift inter vivos from his uncle. In his bill plaintiff claims that after his uncle’s death, tvhich occurred on October 5, 19'40, he ran across the certificates in his personal effects and for the first time noticed that the certificates did not bear the indorsement of John Alampi, and seeks decree therein holding him to be the owner and requiring defendant, the Detroit Edison Company, to transfer the certificates to his name on the books and records of the company. Defendant Floyd Frye, administrator of the estate of John Alampi, deceased, claims the certificates were the personal property of John Alampi and constitute a part of his estate.

The issues were tried by the court, a finding made and decree entered to the effect that plaintiff had not established ownership of the certificates by gift inter vivos and the bill was dismissed. Plaintiff reviews by appeal, and we consider the case anew upon the evidence taken in the circuit court.

Plaintiff was also employed by the Detroit Edison Company as a workman, and he offered testimony that while he was engaged in work in an excavation his uncle appeared and called him to the surface and there handed him an envelope, stating in Italian, “Take this and save it well,” and also said there were shares in it (the envelope). Another witness in behalf of plaintiff testified: “He (John Alampi) walked around the hole and called Joe to come up, and he gave him an envelope for the stock. He said: ‘Joe, that is for you.’ He said: ‘It is some stock I am giving you.’ ” This occurred, it is claimed, in the month of February, 1934.

Up to the time of his death John Alampi received the dividends on the stock paid by the company and amounting to quite a sum.

Plaintiff in his bill also claims that his uncle sought his advice as to what to do with funds he was to receive from a closed bank and plaintiff sug gested that he invest some of the surplus money ' in the stock of the Detroit Edison Company.

It would seem that if the certificates were given to plaintiff by his uncle that it was rather an offhand way of giving $3,500, the value of the stock, and that plaintiff would have been sufficiently interested in the gift to have looked at the stock sometime previous to his uncle’s death, quite seven years later, and have sought the dividends. John Alampi did not live with plaintiff but had a room elsewhere and, inasmuch as he purchased the shares of stock at the suggestion of plaintiff who had a home, he may have handed the envelope to plaintiff for safekeeping. Such was the thought of the, trial judge and, under all the circumstances, we cannot avoid entertaining the same thought and this bars an affirmative finding of a gift inter vivos. The record has been read with care and we can readily discern why the circuit judge, who saw and questioned the witnesses, could not find a gift inter vivos, as claimed by plaintiff.

The niece of John Alampi testified that she was at the home of her mother, where Mr. Alampi lived for many years, and one morning he went out to get his hair cut and when he came back about 10 o ’clock he complained of a pain in his stomach and said to the witness, “don’t you forget to go over and get my stock,” and about five minutes later he died,.

We think the circuit judge reached the right conclusion and the decree in the court below is affirmed, with costs against plaintiff.

Chandler, North, Starr, Butzel, and Bushnell, JJ., concurred with Wiest, J.