Bynum v. Fidelity Bank

DeNNY, J. We have examined the exceptions to the admission of evidence. In some instances evidence of like import was admitted without objection. In other instances the evidence was not such as would likely affect materially the results of the trial. On the record as a whole these exceptions fail to point to prejudicial or harmful error. Neither can the exceptions to his Honor’s charge be sustained. The only serious question for our consideration is as to the sufficiency of the evidence on the question of delivery. The essentials of a gift causa mortis are set forth in Mordecai’s Law Lectures, Vol. 2, at p. 1285, as follows: “There are three essentials to such a gift: (1) The gift must be with the view to the donor’s death; (2) it must be conditioned to take effect only upon the death of the donor by his existing disorder; (3) there must be a delivery of the subject of the donation.” The appellant concedes that the plaintiff offered sufficient evidence to meet the 1st and 2nd essential requirements to establish a gift causa mortis. Therefore we must consider the evidence offered to prove the 3rd essential requirement of a gift causa mortis, namely, the delivery of the alleged gift. Mary Johnson testified that she was in the home of Joanna Leathers late in the afternoon the day before Joanna went to the hospital, where she died seven or eight days later. That Joanna told her she was going to the hospital. That while she was there Joanna called Mattie Bynum into the room and told her to sit down. That Joanna Leathers was propped up in bed. That Joanna Leathers said: “Mattie, I have something to tell you.” Mattie said: “Yes, Ma’am,” and Joanna said: “I have made up my mind to go to the hospital,” and Mattie said: “You have, Mamma?” and Joanna said: “Yes, I am going, but I am not coming back the way I am going.” *104 This witness further testified that Joanna Leathers then directed Mattie to get her pocketbook, which contained certain keys. That upon delivery of the pocketbook Joanna took out a bunch of keys and said, “Mattie, these are your keys, don’t you give these keys to nobody, don’t you let nobody have them.” Mattie Bynum was instructed in the presence of the witness to get a tin lock box out of the closet in the room which Joanna Leathers then occupied. The box was placed on Joanna’s lap and while the box was resting on her lap Joanna said: “Mattie, everything in this box is yours and this key unlocks this box and in this box it is that little box you sent to Pa, in that box is a little wooden box, the deed is in that, and in the box you sent to Pa, the big bank book and the little bank book is in there.” The keys were placed in Mattie Bynum’s hand by Joanna Leathers. Joanna still held the box on her lap when another neighbor, Estelle Cameron, came into the bedroom. Joanna told her of her plans to go to the hospital and stated that she had given Mattie her keys and that “Everything in that box is Mattie’s.” She then again described what was in the box. About that time Hr. Bowles rang the doorbell. According to this witness, Joanna said in a low tone, “Mattie, take the box and wrap it up and put it back in the closet.” Estelle Cameron testified that Joanna said: “Take the box and put it up.” Dr. F. N. Bowles testified that Joanna said on this particular occasion that she had decided she would go to the hospital and that “She wanted me to look after her and not to worry about my money, that she had given all of her things to Mattie and that Mattie would see that I got paid.” That Mattie had some keys but that he did not see the box. One of the leading cases in this State on the subject of gifts causa mortis is Newman v. Bost, 122 N. C., 524, 29 S. E., 848. In that case the donor gave the donee certain keys and said: “What is in this house is yours,” and at another time “What property is in this house is yours.” A bureau in which was found a life insurance policy after the death of the donor was present in the room when the keys were handed to the donee. The Court said in that opinion: “It being claimed and admitted that the life insurance policy was present in the bureau drawer in the room where it is claimed the gift was made, and being capable of actual manual delivery, we are of the opinion that the title to the insurance policy did not pass to the plaintiff, but remained the property of the intestate of the defendant. But we are of the opinion that the bureau and any other article of furniture, locked and unlocked by any of the keys given to the plaintiff, did pass and she became the owner thereof. This is upon the ground that while these articles were present, from their size and weight they were incapable of actual manual delivery, *105 and that the delivery of tbe keys was a constructive delivery of these articles, equivalent to an actual delivery if the articles had been capable of manual delivery.” Also: “The safe and box, in Thomas v. Lewis, supra (37 Am. St. Reports, 878), were not present, so that the contents could not have been taken out and delivered to the donee by the donor. The ordinary use of a stand of bureaus is not for the purpose of holding and securing such things as a life insurance policy, though they may be often used for that purpose, while a safe and box deposited in the vault of a bank are. A bureau is an article of household furniture, used for domestic purposes, and generally belongs to the ladies’ department of the household government, while the safe and box in Thomas v. Lewis are not. The bureau itself, mentioned in this case, was such property as would be valuable to the plaintiff.” As stated in the above ease, a bureau drawer is not ordinarily used for the purpose of holding valuable papers, but small tin lock boxes are, in fact they are used primarily for that purpose. The delivery of a lock box and the keys thereto by a donor to a donee, together with a recital of the contents of the box and the statement that “Everything in this box is yours,” would constitute delivery of the contents of the box, as required by the decisions of this Court. A discussion of the many cases cited in the very thorough and able briefs filed by the attorneys for the respective parties in this action we deem unnecessary. Whether or not there was a delivery by Joanna Leathers to Mattie Bynum of the Savings Bank Book No. 3375, issued by the Fidelity Bank of Durham to Joanna Leathers, which book was contained in the tin lock box, was a proper question to be submitted to the jury. Again, in Newman v. Bost, supra, the Court in discussing a gift of certain furniture to the plaintiff, as a gift inter vivos, said: “The intention to give this property is shown by a number of witnesses and contradicted by none. The only debatable ground is as to the sufficiency of the delivery. But when we recall the express terms in which he repeatedly declared that it was hers; that he had bought it for her and had given it to her; that it was placed in her private chamber, her bedroom, where we must suppose that she had the entire use and control of the same, it would seem that this was sufficient to constitute a delivery. There was no evidence, that we remember, disputing these facts. But if there was, the jury have found for the- plaintiff, upon sufficient evidence at least to go to the jury, as to this gift and its delivery.” And “It is held that the law of delivery in this State is the same in gifts inter vivos and causa mortis We think the plaintiff offered sufficient evidence on the question of the delivery of the keys to the lock box, the lock box and its contents to the plaintiff, to go to the jury on the question of the delivery of the *106 savings bank deposit in controversy, represented by a savings account book in tbe lock box. Tbe jury found for tbe plaintiff as to tbe gift and its delivery. Tbe other exceptions are not of sufficient merit to disturb tbe verdict of tbe lower court. In tbe trial below we find No error.