Bynum v. Fidelity Bank

219 N.C. 109

• Court: Supreme Court of North Carolina
• Decided: January 31, 1941
• Status: Published

Opinions

ClaRKSON, J.

The record discloses that the Fidelity Bank of Durham, N. C., did not appeal from the order and decree of the court below. The defendant Leon W. Powell, administrator of the estate of Joanna Leathers, deceased, alone appealed.

The first question involved, as stated by defendant Powell, administrator, is as follows: “1. Did the Court err in overruling substituted defendant’s motions to strike from the complaint paragraphs 3 through 15, or any of them?” We think not.

Mattie Bynum, the plaintiff, brought this action against the Fidelity Bank of Durham, N. C., alleging a donatio mortis causa, made by Joanna Leathers to her in her last fatal illness and impending death, of some $10,166.85 in the said Fidelity Bank.

This motion of defendant Powell, administrator, is premised on the statute — N. C. Code, 1939 (Michie), sec. 537, which is as follows: “If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted. When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.”

Section 506 provides: “The complaint must contain: . . . (2) A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation must be distinctly numbered.”

The motion of defendant Powell, administrator, was made in apt time.

Section 535 is as follows: “In the construction of a pleading for the purpose of determining its effect its allegations shall he liberally construed with a view to substantial justice between the parties.”

The action of plaintiff is bottomed on a donatio mortis causa. “A gift made by a person in sickness, who, apprehending his dissolution near, delivers, or causes to be delivered, to another the possession of any personal goods, to keep as his own in cáse of the donor’s decease. 2 Bl. Comm., 514.” Black’s Law Dictionary, p. 612.

In Thomas v. Houston, 181 N. C., 92-3, is the following: “To constitute a gift causa mortis not only is an intentional transfer and actual or constructive delivery necessary, but it must he made in view of impending dissolution, or in contemplation of death from a present illness or some immediate peril. 12 R. C. L., 962; Patterson v. Trust Co., 157 N. C., 13; Newman v. Bost, 122 N. C., 524; and Wilson v. Featherston, 122 N. C., 747. As very tersely and succinctly stated in McCord v. McCord, 77 Mo., 166: ‘To constitute such a gift, it must be made in the last illness of the donor, or in contemplation and expectation of death. There must be a delivery of the subject by the donor, and it is “defeasible by reclamation, the contingency of survivorship, or delivery from peril.” (2 Kent. Com., 444.) It must be a delivery as a gift, and sueb a delivery, as in ease of a gift inter vivos, would invest the donee with the title to the subject of the gift.’ ”

In 28 Corpus Juris, sec. 137, at pages 703-4, under the section dealing with gifts causa mortis, we find the following language: “Where there is a controversy as to the fact of making a gift of this kind, evidence tending to show a motive and reason for making it is always admissible, especially where the declarations of the donor, or the acts performed which are relied upon to show delivery, are ambiguous. Evidence showing the donor’s affection and regard for the donee is admissible. In the ease of a gift by a married woman to a person other than her husband, evidence of his ill-treatment of her is admissible as tending to show a reason and motive for making the gift and so preventing the property from descending to her husband.” Section 138: “Prior declarations of the donor constituting part of the res gestee, and showing an intent to give the property in dispute to the donee are admissible as tending to show quo animo the act was done, and as corroborative evidence of a gift. A writing signed by the donor, declaring or showing an intention to make a gift of the property in dispute, is admissible. So also his statements showing a state of mind and purpose inconsistent with an alleged gift are admissible to show that no gift was made. Subsequent declarations of the donor in the nature of admissions against interest are admissible in evidence as tending to show that he had given the property in question to the donee. But such declarations are not admissible to defeat a gift consummated by delivery. It has been held that an admission of the donor that he had delivered the property to the donee is competent evidence on the question of delivery.” Riggs v. Strank, 89 W. Va., 575, 110 S. E., 183; Bank v. O’Bryne, 177 Ill. App., 473; Young v. Anthony, 104 N. Y. Supp., 87.

In proving a gift causa mortis an intentional transfer and actual or constructive delivery is necessary and must be made in view of impending death from present illness. To show the intention of the donor it is proper to allege the setting. As was said in In re Westfeldt, 188 N. C., 702 (711) : “The setting surrounding the testatrix when the paper-writings were signed, the home conditions and family relationship, when shown, as was proper and done on the trial below, makes it clear as to the disposition of the property — the persons taking and the things taken.”

It is proper for the plaintiff, in order to show the intention of the donor, to allege, as she has in paragraphs 3 through 15 of the complaint, the surrounding circumstances of her relationship to the donor. In order to show the transfer and constructive delivery of the corpus of the gift she must allege facts to show this transfer and delivery. It is also proper for the plaintiff to allege facts concerning the state of the health of the donor and the circumstances surrounding the donor’s death.

We have read the complaint .with care — it is prolix, but gives a consecutive story, leading up to the alleged donatio mortis causa. We cannot hold that the allegations were irrelevant or redundant, but construing them liberally “with a view to substantial justice between the parties” we think the court below correct in refusing the motion to strike.

In Poovey v. Hickory, 210 N. C., 630 (631), it is written: “The motion under the provisions of C. S., 531, concedes that there are facts alleged in the complaint which are sufficient to constitute a cause of action. Only the propriety, relevancy, or materiality of the allegations sought to be stricken from the complaint are brought in question by the motion, which ought to be allowed only when the allegations are clearly improper, irrelevant, or immaterial. Ordinarily, the plaintiff has the right to state his cause of action in his complaint, as he sees fit or as he may be advised. The allegations may be admitted or denied by the defendant in his answer.”

In the recent case of Scott v. Bryan, 210 N. C., 478 (482), Devin, J., for the Court, said: “While an appeal will ordinarily lie from the denial of a motion to strike from the pleadings material allegations of matters which are incompetent or irrelevant and prejudicial, it has been well said in recent opinions by the Court that the questions involved could he better determined by rulings upon the competency of the evidence if and when offered, than by undertaking to chart the course of the trial by passing upon allegations as yet undenied. Hardy v. Dahl, 209 N. C., 746; Pemberton v. Greensboro, 205 N. C., 599.

“While nothing ought to remain in a pleading, over objection, which is incompetent to be shown in evidence, the matter can be determined with greater certainty after consideration of all the pleadings and the evidence adduced on the hearing. Pemberton v. Greensboro, 203 N. C., 514.”

The second question involved, as stated by Powell, administrator, is as follows: “2. Did the Court err in reversing the order of the Clerk Superior Court for substitution of Powell, Administrator, as defendant in the place and stead of The Fidelity Bank,'in the absence of a finding by the Court that the Clerk Superior Court had abused his discretion or committed error of law in signing the order of substitution?” We think not.

Exceptions and assignments of error 15, 16, 17, and 18, made by Powell, administrator, cannot be sustained. We think the order of the court below contains all necessary facts to be found.

N. 0. Code, supra, section 637, is as follows: “Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to bear and determine all matters in controversy in such action, unless it appears to him that justice would he more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.”

In construing the above statute, Hoke, J., in Williams v. Dunn, 158 N. C., 399 (402-3), said: “This well-considered statute, which has done so much to facilitate the efficient administration of justice, has always received the liberal interpretation that would best promote its beneficent purpose (Roseman v. Roseman, 127 N. C., 494; Faison v. Williams, 121 N. C., 152; Capps v. Capps, 85 N. C., 408), and whether the present ease comes strictly within its terms or not, it is well understood that the clerk is but a part of our Superior Court, and when a motion of this character is brought before the judge in term, all parties having been duly notified, there is no good reason why the principle expressly established by this law in all civil actions and special proceedings should not prevail here and the court have full jurisdiction.” Hall v. Artis, 186 N. C., 105; Spence v. Granger, 207 N. C., 19 (22).

N. 0. Code, supra, section 460, is as follows: “The court either between the terms, or at a regular term, according to the nature of the controversy, may determine any controversy before it, when it can be done without prejudice to the right of others, but when a complete determination of the controversy cannot be made without the presence of other parties, the court must cause them to be brought in. When in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in its subject matter, applies to the court to be made a party, it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract or for specific real or personal property, upon proof by affidavit that a person not a party makes a demand against him for the same debt or property without collusion with him, may at any time before answer apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property or its value to such person as the court directs. The court may make such an order.”

Under this section the vice-president of the Fidelity Bank of Durham made affidavit before the clerk (after due notice to plaintiff) “that Leon W. Powell, Administrator of the Estate of Joanna Leathers, and who is not a party to this action, has made a demand against said defendant for the money sued for in this action without collusion with said defendant; that the amount of money which is the subject of this action, together with interest thereon to April 1, 1940, is $10,218.10. That this affidavit is made in support of the petition and application of the above named defendant to substitute said Administrator as defendant in its place, and to discharge it from liability to the plaintiff and said Administrator upon paying into Court the money which is the subject of this action.” The clerk granted the petition of the bank over the objection and exception of plaintiff, who appealed to the Superior Court. See sections 633, 634, 635, 636, and 637.

In In re Estate of Wright, 200 N. C., 620 (629), we find: “As we are of the opinion; that Judge Grady acquired jurisdiction of the entire matter, by virtue of the appeal from the orders of the clerk, and therefore had power, in his discretion, to retain the consolidated causes and to appoint a receiver of the estate of E. H. Wright, deceased, the judgment is affirmed.”

The last question involved, as stated by defendant: “3. Did the Court err to the prejudice of Powell, Administrator, in retaining the Fidelity Bank as a party defendant, under the facts disclosed in this record?” We think not.

By reference to the order and decree heretofore set forth by the court below, we think the court below fully protected the rights of the appealing defendant. The Fidelity Bank of Durham seems to be satisfied with the order and decree, and does not appeal. We see nothing prejudicial in the judgment. It is just, as it protects all the litigants. The order and decree of the court below is

Affirmed.