Cappler v. Cowan

[631]

KERRIGAN, J.

This is an appeal from a judgment in favor of plaintiff quieting her title to a certain lot of land situated in San Francisco and canceling a deed through which Mary A. Cowan, defendant and appellant, claims to deraign title to said lot.

In regard to the facts of the case, the testimony of the plaintiff showed that in the year 1899, just prior to the making of the deed sought in this suit to be canceled, she had suffered several severe attacks of “heart failure,” and, fearing that a recurrence of such attacks might prove fatal, concluded to make arrangements for the disposition of what little property she owned; that desiring to avoid the expense and delay necessarily incident to the orderly probate of her estate, she executed a bill of sale of some mining stock, indorsed the certificate thereof, and executed the above-mentioned deed in favor of her mother, with whom she was then living, and placed these papers in an envelope, upon which she wrote: “To be delivered to Mrs. Mary A. McElwee [the name of her mother] immediately after my death. Kate G. McE'lwee”; that the execution of these documents and the placing of them in the envelope as described was done upon the advice of a notary public, before whom the execution of the deed had been acknowledged, and who was a friend of the plaintiff and her mother; that she placed the sealed envelope containing said documents in a drawer in a cabinet in their home in which were kept all her papers and those of her mother while they were living together; that she explained to her mother what she had done, and that her mother understood that the property was to be hers only in the event of plaintiff’s death; that no delivery of the documents was ever made; that in the year 1903 she married, and was absent from California during four years; that upon leaving she placed the sealed envelope in her trunk, which she kept at her mother’s home, and explained to her sister (the appellant) that in the event of her death she had made provision for their mother in the manner above described; that while she was absent from California the deed, through the occurrence of a fire, had come into her mother’s and appellant’s possession ; that upon her return to the state, being much improved in health, she at one time concluded to destroy the documents, and they were handed to her for that purpose by her sister, but later, upon reflecting that her mother might still survive