Allcorn, Kole and Ard. Allcorn, J.A.D. (dissenting).
Defendant, administrator of the estate of Catherine Wagner (hereafter "Wagner"), deceased, appeals from a summary judgment entered in favor of plaintiff Robert Scherer declaring that Wagner had made a valid gift causa mortis to plaintiff of a $17,400 check, its proceeds and the interest thereon. The court also denied defendant's motion for summary judgment.
The undisputed facts in the record before us and the court below, including affidavits, police reports and depositions, follow.
On January 23, 1974, the date of her death, Wagner, age 58, and plaintiff, age 65, had lived together for about 15 years. They resided in an apartment leased by plaintiff for which he paid the rent.*fn1 They were not married, since plaintiff had a wife from whom he was separated, although not
through any legal proceedings. Plaintiff and Wagner both worked, earned incomes and shared the household chores and expenses.
In 1970 Wagner was involved in an automobile accident, apparently in Pennsylvania. Plaintiff was driving the auto in which she was injured. As a result of this accident, Wagner's hip was broken and she received facial wounds. Soon thereafter she was unable fully to perform her household responsibilities, to return to work or to earn any income. Plaintiff assisted her both physically and financially in these respects. As a result of a settlement from this automobile accident, Wagner was to receive $17,400. While she attempted to function to the best of her ability, she was dissatisfied with her condition and on January 9, 1974, two weeks prior to her death, unsuccessfully attempted suicide by slashing her wrists.
On January 23, 1974, she received the $17,400 settlement check. She was the payee. The drawer was Michael Shehadi, a Pennsylvania attorney who represented her in the accident claim. She had her own savings and checking accounts. She and plaintiff had no joint bank accounts. At approximately 11:30 A.M. that day, plaintiff telephoned Wagner from work. He noticed nothing unusual in her voice or behavior during the telephone call. She informed him that she had received the check and that either (1) they would purchase a certificate of deposit in both their names the next day at the bank or (2) he should not then come home to deposit it but he should "wait until tomorrow" to make the deposit. Both of these versions of this conversation were given by plaintiff. They are not necessarily inconsistent; but even if they are, such inconsistency, in view of the other written evidence of Wagner's donative intention, is of no significance on the issue of delivery here involved. Whichever statement was then made by her, it is plain that she later had concluded to make a gift of the whole check and its proceeds to plaintiff.
Thereafter on the same date she prepared two handwritten notes. One note read as follows:
I bequeath all my possessions to Robert Scherer. These include the check for $17,400.00 from Michael R. Shehadi. My checking account, a savings account, both at First National Bank, Kearny. The money in Otis Elevator Credit Union and all other residue of my estate including insurance. Bob has taken good care of ...