Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1913-06-03
MERRIAM STOCK
GOES TO ESTATE
Justice Swayze's Dilemma Is
Solved by Vice-chancelIor
Howell in Chancery.

In an opinion filed by Viee-Chan-
cellor Howell. Supreme Court Justice
Francis j. Swayze, as executor, is
held responsible for 900 shares of
stock in the Merriam Shoe Company,
of Newton, N. J.. 100000 corpora
ton Of which the late Henry W. Mer-
Ram was president. Judge Swayze
himself. brought the suit as sole sur
viving executor and trustee under the
will of Mr.. Merriam, whose peculiar
manner of disposing of his stock led
the Supreme Court Justice to seek the
aid of the Court of chancery in de-
Gliding to whom he must deliver the
stock.
The proceeds of the stock. about
s47 600, is now in his hands as execu-
tor, and vice-Chancellor Howell has
decided that il belongs to the Mer-
Ram estate. inasmuch as Mr. Mer-
riam did not make a perfected trans
fer of the stock before his death.
Mr. Merrfam's Intention.
1t was Mr.. Merriam's intention be-
fore his death to distribute his stock
between nine benefciaries, but he
retained his interest in 1t until his
death. He placed the nine lots in
envelopes and marked on each en-
velope the name of the beneficiary.
Then he placed all the envelopes in a
large one, sealed 1t and placed il in
his safe.
One day in 1897 he called in his
sister, Mrs. Harriet NJ Huntington,
who previous TO coming to Newton
lived in Hyde Park Mass. He told
her that he had placed the stock in
envelopes and asked her to deliver
them to the parties designated, but
he would like to have 1t done quietly,
as he did not feel able to bear - a
great deal of excitement, and that she
should use discretion so as to avoid
any public comments that he might
be forced to listen to-
Among the beneficiaries were John
j, Merriam, a brother. 4S5 shares of
stock; Mrs. Huntington, sos shares:
Nellie ]. Merriam, 10 shares; DIN
j. Merriam, 10 shares; Maybelle Buff
ington, shares, and Francis and
Ralph Burlington, 10 shares; G. L.
butcher. J. E. warbase. 80 shares
and John Tozer. 50 shares.
Mrs. Huntington,s Act.
Mrs. Huntington, upon being in
formed by Mr.. Merriam that he had
divided the stock. took out the en-
velope, opened 1t and sealed it up
again. She retained possession of
the envelopes until Mr.. Merriams
death. in 1910, after which she turn
ed them over to Justice Swayze and
the other two executors who have
since died. They distributed them
under an indemnity agreement made
by majority of the legatees. Three
of the legatees found in their enve-
lopes promissory notes on which they
owed money to the deceased Mr..
Merriam.
The indemnity agreement was par
ticipated in by all the beneficiaries
except three minors, the two Lane
children and the butcher child. They
however profit at benefciaries under
the will
In his opinion Vice-Chancellor
Howell says: Il have no doubt OF
the donative intention which inf1u-
enced Mr.. Merriam in placing the
stock in question in the hands of his
sister. I think he undoubtedly meant
that the six persons whose names APP
peared upon the envelopes containing
the certificates of stock. and the three
persons whose names appeared upon
the envelopes containing their several
promissory notes, with certificates of
stock as collateral, were meant by
Mr.. Merriam to be his beneficiaries to
the extent indicated by the number
OF shares and the notes contained in
their respective envelopes.
This leaves open only the ques-
ton of delivery and the subsidiary
question whether the socalled donor,
in case there was a delivery, stripped
himself of all control and dominion
over the shares in question. feel no
hesitation in declaring that there was
no delivery of the certificates of
stock contained in the nine envelopes
either to Mrs. Huntington herself or
to the other eight persons whose
names appeared on the envelopes
{" It will therefore be seen
that the donor in this case, even il
there was a donative intention and
a symbolical delivery, did not strip
himself of all dominion and control
over the subject matter of the gift
nor indeed do L think that he meant
to do so. The case of the socalled
donees must therefore fail, and the
stock in question must be declared
to be an asset of the estate, for which
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