Broderick v. Koehler

WHITE, P. J. At the time of the death of John Koehler on October 10, 1946, plaintiff and appellant, Ethel Broderick, was in possession of two cashier’s checks issued by the Bank of America, dated August 5, 1946, and August 30, 1946, for the sums of $600 and $500 respectively, payable to the order of John Koehler, and not indorsed. Plaintiff brought an action to quiet title to the checks, basing her claim upon an asserted gift causa mortis. Trial before the court without a jury resulted in a judgment that plaintiff take nothing by her complaint; that the checks constituted property of the estate of John Koehler, deceased; and that plaintiff deliver the checks to the administratrix of said estate. From the judgment plaintiff has appealed.

It is urged that the evidence does not support the judgment and that the judgment is against the law. Both contentions are founded upon the premise that the trial court was bound to accept the assertedly uncontradieted and unimpeached testimony of plaintiff and her daughter whereby a prima facie case including every element of a gift causa mortis was allegedly established.

The plaintiff testified: “I had known John Koehler for about eight years before he died; he lived in an apartment house I managed. Mr. Koehler went to the hospital October 3, 1946, and my daughter and I went to visit him every two or three days. He was operated on October 7 and died October 10. On the Sunday before the operation, my daughter [815]and I went to see him at the hospital. He said he was not feeling good, in fact feeling worse. He asked me to get Ms trousers out of the closet and to hand him his wallet. He told me to take the checks out of the wallet and said, ‘Those are yours, Mrs. Broderick, I want you to take and keep them, and in case anything happens to me, they are yours. . . . They are not indorsed but I am too weak to indorse them. The bank knows all about it.’ ”

Plaintiff’s daughter testified to substantially the same effect. An assistant cashier of the Bank of America testified that he had known John Koehler some five years prior to his death. He issued both the cashier’s checks in question and had a conversation with Mr. Koehler in August about the checks. Mr. KoeMer said he was having marital difficulties and did not want to keep money in his account. He said if anything happened to him he would like the money to go to Mrs. Broderick. The witness told him he couldn’t do that with the cashier’s checks, but should make a will. The witness knew Mrs. Broderick as a customer of the bank, and told her, after Mr. Koehler died, that he had said he wanted the money to go to her.