Non-negotiable share certificates cannot transfer ownership through delivery alone. Furthermore, a declaration of trust where the owner constitutes themselves as a trustee does not constitute a "conveyance" of property and is invalid under the applicable civil code.

Lord Buckmaster:-

The question in this appeal relates to the ownership of 130 preferred shares and thirty-three ordinary shares of the capital stock of the Corby Distillery Company Limited, who are the second respondents. The shares are claimed by the appellant Mrs. O'Meare (hereinafter called the appellant), by virtue of a gift alleged to have been made in her favour by her mother Mrs. Mary M. Thomas, who was the rightful holder of the shares; this claim is disputed by the first respondent, Mrs. Constance Edith Bennett, who claims as a beneficiary under the will of Mrs. Thomas, the remaining respondents, the Royal Trust Company, being the executors of the Will.

The shares in question were originally held by Mrs. Thomas in her own right, and at the end of 1912 she formed the intention of disposing of them in favour of the appellant, who states - and her statement is not contradicted-that this intention was mentioned to her by her mother at an interview which took place some time before January, 1913. To use the appellant's own language, what took place was this :-

"The terms she used - as well as I can remember them - were that she had decided to give these shares to me as a gift and that she did not want them to form any part of her estate at death, or to be affected by her will, but that she intended to reserve to herself the dividends on the sharers during her own lifetime. She mentioned at the time that she had once intended this investment for her son Arthur, my brother, but as he was dead, she decided to give these shares to me. My mother also said either that she had, or that she would have, my father attend to having these shares transferred into my name. I accepted the gift from my mother and both my husband and I thanked her for it :" In order to carry out this intention, Mrs. Thomas communicated through her husband with the company, informing them of her desire that the shares should be regarded as held by her in trust for the appellant, but that the dividends should be forwarded to her as usual, and in accordance with their directions the certificates were sent to the company with an endorsed transfer on the back in these words :

"For value received I hereby sell, assign and transfer unto Mary M. Thomas in trust for Gertrude Mary O'Meara, shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint attorney to transfer the said stock on the books of the within named Company with full powers of substitution in the premises."

And this was duly signed by Mrs. Thomas and also by her husband. The original certificates were cancelled and in their place two new certificates were issued, dated 15th January, 1913. The one as to the ordinary shares was in this form :

" This certifies that Mrs. Mary M. Thomas, in trust for Mrs. Gertrude M. O'Meara is the registered holder of 33 common shares ;"

And the one for the preference shares was in similar terms. These certificates again contained transfers in blank upon their back, but neither of these transfers was ever executed. The certificates were handed to Mrs. O'Meara some time afterwards and have remained in her custody ever since, but the dividends were received by Mrs. Thomas during her life. The question is whether in these circumstances a valid gift of the shares was made in favour of the appellant.

This question falls to be determined exclusively by the consideration of the Quebec law, and this is contained in the Code, the construction of which is the real question in the action. By Articles 383 and 387 the shares in question are, by determination of law, regarded as moveable property. By Article 754 it is provided that a person cannot dispose of his property by gratuitous title otherwise than by a gift inter vivos or by will. Article 755 defines a gift inter vivos as an act by which the donor divests himself by gratuitous title, of the ownership of a thing, in favour of the donee, whose acceptance is requisite and renders t