Opinion
Sept. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Duncan J. Cameron, Denver, for plaintiffs in error.
Wynn M. Bennett, Jr., Denver, for defendants in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiffs in error, plaintiffs below, Helen M. Wilhelm, R. Fred Harvey and Marian Harvey, widow of F. Carl Harvey, will be referred to in the same manner as they appeared at trial or by name. Defendant in error, Frank W. Hirth, will be referred to as defendant or by name. John Doe and Richard Roe are mere nominal parties to the appeal.
In 1954, F. Carl Harvey gave 100,000 shares of Calcium Company stock to his sister, Helen M. Wilhelm, and another 100,000 shares of the same stock to his brother, R. Fred Harvey. Subsequently, plaintiffs placed their 200,000 shares into a ten-year voting trust with F. Carl Harvey, defendant Frank W. Hirth, and a third party, named as trustees. The shares were then delivered to the trustees who delivered the same to the Calcium Company. The Calcium Company then reissued stock certificates in the name of the voting trust. In turn, the voting trust issued a voting trust certificate to each of the plaintiffs as evidence of their interest in this trust. Thereafter, F. Carl Harvey and the third trustee died, leaving the defendant as sole surviving trustee. Defendant, as surviving trustee, had the power to appoint trustees to replace those deceased, but this power was not exercised.
In 1964, at the termination of the ten-year period, plaintiffs demanded return of their shares in conformity with the trust agreement. Defendant claimed that the plaintiffs had transferred their interest in the trust to their brother, F. Carl Harvey, who in turn had sold it to defendant for $14,000. Defendant refused to convey the shares to plaintiffs who initiated this suit for specific performance.
The trial was to the court, which found in defendant's favor and dismissed plaintiffs' claim. Plaintiffs now appeal this decision, primarily on the basis that the trial court erred in finding that plaintiffs had transferred all of their interest in these voting trust certificates to their brother. The question before us is whether or not the factual determination made by the court below is supported by the evidence.
Since defendant was the trustee of the voting trust, plaintiffs argue that he was in a fiduciary relationship to the beneficiaries of the trust, and could not act in such a manner as would be detrimental to the beneficiaries. While this is a correct statement of the law, it avoids the issue. For if, as found to be true by the trial court, plaintiffs had transferred all interest in the voting trust to their brother, F. Carl Harvey, then the plaintiffs would no longer be the beneficiaries of this trust, and the trustee's duty to them would have ceased with this transfer. In such a situation, plaintiffs, not being the beneficiaries of the trust, would no longer have standing to assert that there had been a breach of duty between the trustee and the beneficiary.
We must, therefore, turn to the circumstances surrounding the transfer itself to determine if the trial court was correct in finding that plaintiffs had divested themselves of all interest in the voting trust.
Plaintiffs each executed an assignment entitled 'Assignment Separate from Certificate,' as follows:
'FOR VALUE RECEIVED I hereby sell, assign and transfer unto _ _ One Hundred Thousand (100,000) shares of the Voting trust certificates for the Capital Stock of The Calcium Company standing in My name on the books of said Company represented by Certificate No. _ _ herewith and do hereby irrevocably constitute and appoint Wynn M. Bennett, Jr. Attorney to transfer the said stock on the books of the within named Company with full power to substitution in the premises.'
These assignments, which left blank the name of the grantee, were delivered to their brother along with the voting trust certificates themselves. Armed with this evidence of ownership, their brother sold these certificates to defendant. The trial court held that the plaintiffs, having place all indicia of ownership in their brother's hands, had divested themselves of all interest in the voting trust and were estopped from denying the validity of the transfer. We agree with this finding.
Although the assignments were on printed forms designed to facilitate stock transfers rather than voting trust certificates, there is no denial of the fact that each plaintiff signed such an assignment. Although it is a form designed for stock transfers, the inclusion of the words 'voting trust certificates' indicates an intent to assign the voting trust certificates owned by the plaintiffs. Where written instruments are ambiguous or uncertain, the intent of the parties as to their meaning controls. Leach v. LaGuardia, 163 Colo. 225, 429 P.2d 623. In the present case, the trial court found that plaintiffs' intent in making these assignments and delivering them to their brother was to transfer all interest in the certificates to their brother. Plaintiffs argued that any transfers made were not intended to be irrevocable. However, there is evidence that these assignments of interest were designed to be complete and final. Since the trier of fact is in the best position to determine the true intent of the parties to any such agreement, its findings shall not be disturbed upon review, unless the evidence, taken in the light most favorable to the defendant, is insufficient to support the judgment. Hipps v. Hennig, Colo., 447 P.2d 700. The findings of the trial court as to the intent of the parties to these transfers are supported by the evidence and will not be disturbed.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.