Mellor v. Bank of Willows

This action was brought by Dora Mellor, the plaintiff and respondent, to recover from the Bank of Willows the sum of $5,162.50, representing a certificate of deposit for five thousand dollars, and the interest thereon, issued by the defendant bank and payable to George Mellor, the deceased husband of the plaintiff, or order. The plaintiff claims that she received the money as a gift causa mortis from her husband. By leave of the court, a complaint in intervention was filed on behalf of certain heirs of the decedent who are contesting the plaintiff's claim. The defendant bank deposited the money in court to be delivered to the successful *Page 456 party in accordance with the decree. The case was tried without a jury, and judgment was rendered for the plaintiff. The interveners interposed a motion for a new trial, which was denied, and from such order this appeal is prosecuted.

The sole question presented is whether Dora Mellor acquired title and right of possession to the funds represented by the certificate of deposit. The court found: "That on the twenty-fifth day of November, 1911, George Mellor, early in the morning of that day, became violently ill, and later, to wit, on or about 8 o'clock P. M. of that day, died; that during said last illness the said George Mellor, while in great pain, and believing that he was about to die, and in the fear and peril of death, delivered into the possession of, and gave to plaintiff, Dora Mellor, with intention to make a gift of the same to her, the certificate of deposit . . . and the said George Mellor died without having revoked said gift of said certificate of deposit."

1. It is insisted by the appellants that the evidence is insufficient to support the finding that the gift was made by the decedent in view of impending dissolution from the effect of his last illness. For more than seventeen years Mellor had suffered from a serious ailment involving the kidneys. The malady grew worse as time wore on, and in later years was frequently accompanied by attacks during which stones would pass from the kidneys to the bladder, causing intense pain. He was admonished by Doctor Randolph, who had attended him for nearly twenty years, that he was likely to die very suddenly in one of these attacks. The physician, testifying for the appellants, on cross-examination said: "People die suddenly in those cases; I do not know whether or not he had been suffering a number of weeks prior to that time; I had not called upon him and he had not called me. Mr. Mellor always thought that he would pass away in one of those spells; he thought they would finally kill him; he said that to me often; I have had conversations with him and have told him that it would not be more than two or three years that he had to fix up his business. I said, 'George, you are going to quit on the sidewalk and you had better fix up your business.' I told him that from the very nature of his ailment." His wife said that he was impressed by these warnings. She testified: "He had talked about it more than once, and he said if he ever got a rough one he wouldn't live, *Page 457 as he was getting older it worried him more." Mellor's attorney testified to like effect. In the early morning of the day of his death, Mellor was again stricken with "one of his old spells." He suffered intensely but recovered sufficiently to go to the garage, of which he had charge, only to return a few moments later in a condition of great agony. "When he first came home," his wife testified, "he looked agony and seemed to have a death pallor on his face, and he said, 'it is a rough one.' " She assisted him to undress and helped him to bed. It was at this time he handed her a purse containing $150 in cash and three certificates of deposit, including the one involved in this action. Subsequently he repeated the remark, which must be regarded as significant: "It is a rough one, Dora." After getting into bed he laid over on his side and said, "Dora, the taxes are due Monday. See that they do not become delinquent if I do not awake." Although the physician made several visits to Mellor during the day, he did not recover from the attack and died about 8 o'clock in the evening. It is provided in the Civil Code that "a gift made during the last illness of the giver, or under circumstances which would naturally impress him with an expectation of speedy death, is presumed to be a gift in view of death." (Sec. 1150.) But unaided by this presumption the evidence is amply sufficient to support the finding of the court that the decedent acted in contemplation of death.