Adams v. Atherton

THE COURT.

— Suit to revoke a gift

causa mortis.

The plaintiff appeals from the judgment upon the judgment rolL

[165]

The property which is involved in the action, and which was the subject oí the gift, consisted of a note and mortgage of the value of nine hundred dollars, and household furniture, and some jewelry, watches, wearing-apparel, etc., of the value of four hundred dollars, constituting together all the property of the donor, Mary Jane Calder. The donee was the defendant Emma M. Atherton, a niece of the donor, of the age of about fifteen years, who had lived with her said aunt from infancy. The donor was a widow without children.

On May 5, 1898, during her last illness, and in view of death, Mrs. Calder executed an assignment of said note and mortgage, and a bill of sale of the other property, to her said niece. These instruments were taken charge of by the attorney who prepared them for her, and were by him delivered to the guardian of the person and estate of the niece, by whom they were recorded in the office of the county recorder.

This action to revoke said gifts, and to cancel said assignment of the note and mortgage and said bill of sale, was commenced by the donor, Mrs. Calder, on July 16,1898. Prior to the commencement of the action she executed a will, disposing of the whole of her property for the benefit of her niece. This will was executed on July 8th, and is set out in full in the answer. After her death, said will was duly probated, and the present plaintiff, having been duly appointed and qualified as executrix of said will, was substituted as plaintiff herein, and filed an amended complaint.

The fifth, sixth, and seventh findings are as follows: —

“ 5. That on the fifth day of May, 1898, and during her last illness, and in view of death, the said Mary Jane Calder made a gift of all her property to the defendant Emma M. Atherton. Said property is described in paragraph 3 of the plaintiff’s amended complaint. And said Mary Jane Calder was of sound and disposing mind at the time she made said gift.

“6. That on or about the thirtieth day of June, 1898, said Mary Jane Calder was removed from her home to the Christian Hospital, a charitable institution in Los Angeles City, California, and thereafter, on or about the fifth day of July, 1898, she was taken from said hospital to the county hospital of Los Angeles County; that thereafter, on the eighth day of July, 1898, and while a patient at said county hospital, she made her last will and testament, hereinbefore mentioned.