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Dierksen v. Albert

Decided: July 1, 1969.

HERMAN H. DIERKSEN AND JESSIE M. DIERKSEN, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
EVELYN ALICE ALBERT AND ANDREA J. ALBERT, JR., HER HUSBAND; PETER D. ALBERT, KATHERINE ALBERT AND JEANNE LOUISE ALBERT; AMERICAN CYANAMID COMPANY, A CORPORATION OF THE STATE OF MAINE; AMERICAN TELEPHONE & TELEGRAPH COMPANY, A CORPORATION OF THE STATE OF NEW YORK; CHAS. PFIZER & CO., INC., A CORPORATION OF THE STATE OF DELAWARE; CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., A CORPORATION OF THE STATE OF NEW YORK; GULF OIL CORPORATION, A CORPORATION OF THE COMMONWEALTH OF PENNSYLVANIA; AND SAFEWAY STORES, INCORPORATED, A CORPORATION OF THE STATE OF CALIFORNIA, DEFENDANTS-RESPONDENTS



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

Plaintiffs sue for a judicial declaration revesting full title in them to certain corporate securities previously placed by them in the name of their daughter, Mrs. Albert, who has disappeared and whose whereabouts are unknown. The Chancery Division refused the relief sought, but held that Mrs. Albert was a trustee of the stock, and directed the designation of a substituted trustee to carry on her duties as such.

In November 1962 plaintiffs contemplated transferring certain securities to their daughter and son, and expressed their intention in a memorandum to them reading as follows:

"ALAN AND EVELYN

As gifts of corporate stock are made, start a separate savings account with dividends from stock, and deposit all dividends in this savings account.

Dividends and bank interest in the account will be subject to income tax payments. All such payments to come from account.

During July of each year remit an amount in multiples of $100 so that balance in account is between $100 and $200. Remittances to be made to H.H.D. [plaintiff husband]. Upon death of H.H.D. remittances to be made to J.M.D. [plaintiff wife].

Make a will. One section of will to list the number of shares in each Company. These to be willed to H.H.D. and J.M.D. share and share alike. In case of death of either H.H.D. or J.M.D. all stock to be willed to survivor. Upon death of both H.H.D. and J.M.D., your ownership and control of stock become absolute.

However it is our wish that you give consideration to passing this stock on to your direct descendants as it has been done for 4 generations.

As additional gifts are made, revise will to list new additions. H.H.D. or J.M.D. may decide in future to dispose of some of the stock and or buy additional stock in same or different companies. All proceeds and charges to go thru account.

The remittances are to be accruances of dividends and bank interest only and not the proceeds of sale of ...


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