Unger v. Atkinson

SULLIVAN, PJ. It is our judgment that the court below was correct in his view of the case after having heard the witnesses and observed their conduct during the trial. We think our view of the record is in accordance with Flanders v. Blandy, 45 OS. 108, 113, that the record does not show that there was any intention of retaining control and custody after the gift, whether made in the presence of the parties as above set forth, and instead of that authority being against our views, we think it is in favor of affirming the judgment of the court below. We have the same view in reference to the other authorities cited, as follows: O’Brien v. O’Brien, 112 OS. 202, 206; Ambler v. Boone, 3 OA. 87; 34 O.C.C. 512; Stark v. Kelly, 113 S.W. 498; 132 Ky. 376. We are well aware that in cases like the one at bar, that great caution should be taken to scrutinize the record to ascertain whether there was fraud to deprive the owner of the property upon his death of what might belong to his estate, and we have endeavored to follow the rule, in our interpretation of the record, as laid down in the Flanders case, supra. In the consideration of this case it is well to keep in mind that after the decedent made a gift of the rings and delivered the same in (^¡¿grinity with the gift to the plaintiff, that she became vested with the title to the property, and it would take the same solemnity of conduct as characterized the gift in the first place on the part of the plaintiff, in order to pass title to the decedent. The evidence is lacking in conduct of this character. It is our judgment that the judgment of the court below should bé, and the same is hereby affirmed. Vickery, J., concurs. (Levine, J., not sitting.)