Bynum v. Fidelity Bank of Durham
| Decision Date | 18 March 1942 |
| Docket Number | 737. |
| Citation | 19 S.E.2d 121,221 N.C. 101 |
| Parties | BYNUM v. FIDELITY BANK OF DURHAM, N. C., et al. |
| Court | North Carolina Supreme Court |
This case was before this Court on the question of proper pleadings, at the Fall Term, 1940. Bynum v. Fidelity Bank reported in 219 N.C. 109, 12 S.E.2d 898.
Joanna Leathers, a widow, 70-odd years of age, died intestate in Durham County on September 15, 1939. She had no lineal descendants. She left surviving her certain collateral kin. Mattie Bynum, the plaintiff, wife of Will Bynum, is 43 years of age and was born to Zilphia Sears, a niece of Frank Leathers, in the home of Frank and Joanna Leathers. Two weeks after plaintiff's birth Zilphia Sears left her child with Frank and Joanna Leathers, who reared her. Plaintiff's name was changed to Mattie Leathers and she was grown before she knew that she was not the child of Frank and Joanna Leathers. She was supported and educated by them and treated by them as their child until her marriage in 1916. After plaintiff's marriage she and her husband went North to live. At the request of Frank Leathers she and her husband returned to Durham in 1931 and lived in the home of Frank and Joanna Leathers until the death of both of them. Frank Leathers died in February, 1932, and in his will he made certain provisions for the plaintiff and referred to her as his adopted daughter. The plaintiff, however, was never legally adopted by Frank and Joanna Leathers.
Prior to the death of Joanna Leathers, she had a savings account in the Fidelity Bank of Durham, N. C., in the amount of approximately $10,000. This savings account was represented by Savings Bank Book No. 3375. The plaintiff claims these funds by reason of an alleged gift causa mortis. The defendant, Fidelity Bank of Durham, is merely a stakeholder and has no interest in this controversy.
Plaintiff introduced evidence tending to prove her allegations of a gift causa mortis of the funds held by the defendant Fidelity Bank of Durham, represented by the Savings Bank Book No. 3375, issued by the Bank to Joanna Leathers.
Defendant Leon W. Powell, administrator of the estate of Joanna Leathers, filed an answer and denied the material allegations of the complaint, and by way of further answer and defense cross-complaint and cross-action, alleged the plaintiff was not entitled to any of the property belonging to the estate of Joanna Leathers; further alleging that the plaintiff wrongfully and unlawfully took possession of an automobile, household goods and kitchen furniture, jewelry, personal effects and other personal property of an alleged value of $2,000, owned by Joanna Leathers at the time of her death; and that if plaintiff obtained possession of any property of Joanna Leathers, deceased, it was by wrongful, coercive, improper and unlawful means, and as a direct result of undue influence exerted by the said Mattie Bynum upon her.
The Court submitted the following issues:
From the judgment on verdict defendant, Leon W. Powell, administrator of the estate of Joanna Leathers, deceased, appealed to the Supreme Court and assigns error.
Fred C. Owen, John D. McConnell, and Victor S. Bryant, all of Durham, for plaintiff.
Hedrick & Hall, C. V. Jones, and R. M. Gantt, all of Durham, for defendant, Leon W. Powell, adm'r.
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 first and second essential requirements to establish a gift causa mortis. Therefore we must consider the evidence offered to prove the third 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."
This witness further testified that Joanna Leathers then directed Mattie to get...
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