Parker v. Mott

• Decision Date: 03 June 1921
• Docket Number: 358.
• Citation: 107 S.E. 500,181 N.C. 435
• Parties: PARKER ET AL. v. MOTT ET AL.
• Court: North Carolina Supreme Court

107 S.E. 500

181 N.C. 435

PARKER ET AL. v. MOTT ET AL.

No. 358.

Supreme Court of North Carolina

June 3, 1921

Appeal from Superior Court, Forsyth County; Finley, Judge.

Action by R. G. Parker, administrator of the estate of Rebecca Ellis, deceased, against Mildred E. Mott and others. Judgment for defendants, and plaintiff appeals. Affirmed.

An actual or a constructive delivery with the present intent to pass title is essential to a valid gift causa mortis, the principal distinction between such a gift and one inter vivos being that the former is made in contemplation of death from a present illness or some immediate peril, and is revocable during the life of the donor, and is revoked by his recovery or escape, or by his surviving the donee.

The action is to recover the amount of two promissory notes under seal, of $1,000 each, of date May 17, 1912, payable to Rebecca Ellis, plaintiff's intestate, due two years after date, signed by defendants T. A. Mott and Mildred E. Mott his wife, same being secured by a mortgage on real estate of the obligors situated in the town of Hickory, N. C., duly registered in Catawba county. Defendants the obligors and Annie E. Simpson registered recovery, claiming that the amount due on the notes had been given by the payee in her lifetime to defendants Mildred E. Mott and Annie E. Simpson her nieces, and there was nothing due thereon to the estate. Plaintiffs put the notes in evidence with proof that the same were found among the valuable papers of the deceased on her death at her home in Winston, N. C., where plaintiff had qualified as her administrator. Defendants offered evidence tending to show that some time before her death Rebecca Ellis, the payee, was on a visit to the home of Mr. and Mrs Mott at Hickory, N. C., and expressed her desire and intention to give these two notes and the amounts they represented to her nieces, Mildred E. Mott and Annie Simpson and with that view sent for a lawyer, Mr. M. H. Yount, who came to her home and undertook to draw papers so as to carry out the purpose and intent of the payee, Mr. and Mrs. Mott being also present. The testimony of the attorney as to the occurrence is as follows:

"In 1912 and 1915 I was living at Hickory, N. C., practicing law, I wrote the indorsement on the back of the notes which have been introduced in evidence and marked 'Plaintiff' Exhibits 1 and 2,' and Miss R. S. Ellis signed them.

Q. At whose request did you make those assignments on the notes? A. At the request of Miss Ellis.

Q. Where were you when these assignments were made? A. I was in the home of Capt. T. A. Mott in Hickory.

Q. What did Miss Ellis say to you when you went down there to the house? A. Miss Ellis told me, after I went into the room where she was sitting, that she wanted to give $1,000 to each of her nieces--I think she said they were nieces--Mrs. T. A. Mott and Mrs. R. E. Simpson. She then produced two notes which she had, and she said, 'I want to give them at this time, each one of them, this amount as evidenced by these notes, and I want you to make such indorsements on the notes as will show it.' She says 'The only thing I want on the notes is the interest; I want Mr. Mott to pay me the interest on the amount during my lifetime.'

Q. What did you say to her there about it at the time? A. I told her why not make a will of her entire property if she was going to distribute it at that time, and she replied, 'I don't want to make a will, but I do want to give this to my nieces at this time, and my other property I wish to be distributed as the law will distribute it at my death. I don't want any litigation or trouble over my estate, and if I make a will there might be such trouble.'

Q. Did she say anything further about when this gift was to take effect? A. She said that she wanted to give this amount at that time; that she wanted Capt. Mott to pay her the interest on the principal during her lifetime; that she did not need the principal, but she could live on the interest of her investments.

Q. Did she say anything about having other investments? A. Yes; she said she had other property the interest from which was sufficient to maintain her.

Q. Who else was in the room when she was saying this? A. T. A. Mott and his wife, Mildred Mott.

Q. Mrs. Simpson was not there? A. No, sir.

Q. Was there anything said as to whether or not she would retain the notes, or what would be done with them? A. She said there would be no trouble about it. I don't know just what remarks she made about the other part, but she said, 'There will be no trouble about this at my death, I am sure.'

Q. Did she say anything about the notes in connection with the interest, anything of that sort? A. I don't recall just what she said about that. I know she said she wanted to give them the amount of these notes, and she wanted something to show the interest on this amount, this principal, was to be paid to her as long as she lived.

Q. Did you see Miss Ellis after that time? A. No; I don't think I ever saw her after that, not that I recall.

Q. You simply went there in the capacity of attorney to make these assignments? A. Yes.

Q. Did she say anything to you when you went in about why she sent for you? Do you recall just what she said when you went in? A. Yes; she said she wanted to make a gift of $1,000 to each of her nieces, and then she produced two notes, and she said, 'I want you to make such indorsements on these notes as will show I have given one to Mrs. Mott and one to Mrs. Simpson, and I want to retain some evidence of the fact that Mr. Mott was to pay me the interest,' and the different indorsements on the notes were made because Mrs. Simpson was not there."

Cross-examination:

"T. A. Mott and his wife are not in the courtroom now. I have not seen them here this week. Neither have I seen Mr. Simpson or his wife here this week. I think Mr. Mott came to my office to get me to go and write the transfer of these notes, and I went down to Mr. Mott's house in Hickory, and there is where the transfer was made. After I made the transfer or indorsement on the back of notes, I laid the notes on a table in the room where I was making the indorsement, and I don't know whether Miss Ellis took the notes or not; I didn't have anything to do with that. I didn't see the notes any more until after the death of Miss Ellis and this controversy came up."

There was testimony also from T. A. Mott that after Miss Ellis returned home she sent the mortgage to him marked across the face, "This mortgage is satisfied," June 30, 1915, signed by R. S. Ellis, and admitted to be her signature, with the request that the mortgage be canceled and record what had been done.

The defendant Mott further testified:

"I paid the interest on the notes sued on up to the date of Miss Ellis' death. At the time she died I owed interest from May, 1917, and payment was made after her death. The interest was paid annually. The interest became due on May 5th of each year, I think, and at the time of her death I owed interest back to the previous May 5th, and I paid that. The mortgage was sent to me some time in the latter part of July, 1915, and I kept paying interest right along up to the time of her death. I paid May 5th of the year preceding her death to the date of her death. Miss Ellis died in February, 1918, I think. After her death I paid the interest to the date of her death. She died in February, and I paid the interest up to date of her death. I paid it from May 5th up to the date of her death."

The indorsements written on the back of these notes by the attorney and signed by Miss Ellis, the payee, in the presence of these parties, are respectively as follows:

"At my death this note is to be delivered to Mrs. Mildred E. Mott, as a gift to her from me, and the mortgage securing the same to be canceled, and the same is hereby assigned to her, the interest to be paid to me during my life.

This June 29, 1915. R. S. Ellis.

Witness: M. H. Yount."

"At my death this note is to be delivered to Mrs. Annie E. Simpson, as a gift to her from me, and the mortgage securing the same to remain in force until she is paid the amount of the note by the makers, and the same is hereby assigned to her under these conditions, the interest to be paid to me during my life.

This June 29, 1915. R. S. Ellis.

Witness: M. H. Yount."

The court submitted the question of a gift of these notes to the jury, ruling in effect that, if the payee indorsed the notes and the written assignment appearing thereon to the defendants Mildred E. Mott and Annie E. Simpson, under the circumstances as stated by the attorney, and with the intent and purpose of passing the present ownership of the notes to these parties, that would constitute a valid gift of the notes and the principal of the same, and their verdict would be for the defendants. Verdict and judgment for defendants, and plaintiffs appealed, admitting that the payee indorsed the notes under the assignment appearing thereon with the view of presently passing the ownership of the notes to the assignees. Assigned for error that as a matter of law there was no such delivery of the notes as would constitute a valid gift.

E. B. Jones, of Winston-Salem, for appellant.

Manly, Hendren & Womble, of Winston-Salem, for appellees.

HOKE, J. (after stating the facts as above).

The authorities in this state have...