The opinion
Steinert, J.
(concurring) — While I concur in the result of the majority opinion, I do not subscribe to its initial and primary theory.
The opinion holds (1) that exhibit 50 became in-, effectual because it indicated merely an intention to
confirm
a gift made in the past, rather than an intention to make a gift
in
praesenti, and (2) that exhibit 52 did not operate to cancel Brown’s obligation to repay the loan or advance which he had obtained from Mrs. Smith.
The substance of the opinion with respect to exhibit 50 is contained in the following sentence:
“A document which purports to confirm a gift to someone, made in the past and of which there is no evidence, and not to make a then present gift, cannot be held to be effective in transferring the title to the property.”
In my opinion, a document signed and sealed in the presence of a witness, and acknowledged by the subscriber as her free act and deed, is, of itself, on delivery of the instrument, conclusive evidence of the facts therein alleged and operates, not as a present vehicle of conveyance or transfer, but as a solemn acknowledgment that such transfer has actually been made in the past and a confirmation of its binding effect upon the subscriber. It thereafter estops the affiant and her representative from asserting the contrary.
With reference to exhibit 52, the majority propounds a rule of law as contained in the following sentence:
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“A gift of a chose in action, not having such tangible body as to be chattel 'property, ‘including a gift of a simple debt, cannot be made effective without a deed, the execution of an adequate release or transfer in writing, or the performance of some other act placing the debt beyond the legal control of the creditor’.”
Accepting this as a correct statement of the law, I am of the opinion that the document, so far as its
execution
was concerned, fully complied with the requirements of the rule, in that it was, in form, an adequate release in writing. In the concluding lines of the instrument, and just preceding her signature, Mrs. Smith made a sworn declaration affirming her former statement under oath that Brown was not indebted to her, in view of the fact, as she says, “that I had heretofore made to him a present of said funds and
have released and cancelled his obligation to repay the same ”
(Italics mine.)
From and after the delivery of that instrument, Mrs. Smith herself would have been estopped to deny that she had released the obligation, and her representative is, of course, in no stronger position.
These two documents verify and confirm, with accuracy and precision, transactions that took place in the past, together with the results intended thereby. The majority opinion, however, holds that these instruments have no valid legal effect. The law does not require the doing of a vain or useless thing. If a man has made a gift or forgiven a debt, but in a manner which the law, according to precedent, does not recognize, and he thereafter desires to give his act subsequent legal effect, the law should not require him to undo that which he has intentionally done and compel him to do it over again, when a sufficiently legal and ready way is afforded by the execution and delivery of a formal written confirmation of his prior act. I
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am unable to adopt the theory or follow the reasoning of the majority.
However, I am convinced that the ultimate result at which the majority has arrived is right. My reasons, founded upon the record, may be stated briefly.
Prior to the time of the execution of the two documents in question, in October and November, respectively, of 1930, Mrs. Smith had delivered to Brown (1) over a half-million dollars in United States currency and gilt-edge securities valued at nearly an equal amount, all of which was received and was to be held by Brown in trust for Mrs. Smith, and (2) the sum of $485,000 as a loan to Brown, without security and without written evidence thereof. From 1929, and prior to the delivery to him of these moneys and securities, to the day of Mrs. Smith’s death in July, 1932, Brown acted as her confidential adviser and manager of all her business and financial affairs. The mutual relations of Mrs. Smith and Brown with respect to the money and securities entrusted or loaned by her to him never changed, unless it be held that a radical and vital change was effected by the two instruments under consideration.
Respondents’ affirmative defense to the appellant’s complaint was that the property belonged to Brown as a gift from Mrs. Smith. The burden was, therefore, upon respondents to prove the affirmative issue raised by them.
One asserting title by gift must prove it by evidence which is “clear, convincing, strong, and satisfactory.” Proof, of the required degree, must be made of every element relied upon to constitute or establish the gift.
The principal links in respondents’ chain of proof were the two documents designated exhibits 50 and 52. It was, therefore, incumbent upon respondents to prove the execution and delivery of those documents, by evi
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dence that was clear, convincing, strong, and satisfactory.
I am convinced, from a reading of the record, that the proof of execution of the instruments fully met the requirements of the rale. Although there was an insinuation that Mrs. Smith’s signatures to the instruments were forgeries, the evidence is overwhelmingly, and almost conclusively, • to the contrary. The genuineness of the signatures was established by the testimony of those who had seen her sign them, also by comparison with admittedly genuine signatures and by expert testimony. The identity of Mrs. Smith as the person who signed the instruments was likewise established to the absolute satisfaction of the trial court.
I am equally convinced, however, that the proof of the
delivery
of the instruments by Mrs. Smith to Brown failed to meet the requirements of the rule. According to the witnesses who were present at the time that the instruments were signed and who assisted Mrs. Smith in their execution, the instruments, on completion, were handed to Mrs. Smith; Brown was not present at the time. According to the testimony of Mrs. Brown and her son, the instruments were discovered by one of them nearly four years later in a desk in their home; this was eighteen months after Mrs. Smith’s death and a month or two after the death of Brown. There is no evidence whatever as to when or how or why the documents went out of the physical possession of Mrs. Smith or came into the possession of Brown. There is no evidence as to whether Brown was the custodian of the instruments for Mrs. Smith, as he had been of all her other papers and securities, or whether, on the contrary, he held them as his personal property in consequence of a delivery to him by Mrs. Smith.
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All that we have in the way of proof, or the equivalent of proof, with respect to delivery of the documents, is a presumption of law arising from possession. But that presumption only served to make a
prima facie
case on the particular issue. It was still the burden of respondents to establish the facts showing a gift, by evidence that was clear, convincing, strong, and satisfactory.
One of the elements necessary to a completion of the chain of proof was the
delivery
of the documents by which the gift was confirmed. So far from meeting the burden, the inferences to be drawn from the evidence were decidedly to the contrary. If, as contended by respondents, title to the property had passed, or could be considered to have passed by confirmation, from Mrs. Smith to Brown by virtue of the execution and delivery of the confirmative instruments in 1930, it was wholly unnecessary thereafter to secrete Mrs. Smith in a foreign country to escape investigation by local Federal authorities.
In addition to that, the record is replete with evidence to the effect that Brown continued to represent, and to assert that he represented, Mrs. Smith in the conduct of her financial affairs, and, further, to the effect that, on frequent occasions throughout the lifetime of Mrs. Smith, he declared that she was an exceedingly wealthy woman. His whole conduct was consistent only with the theory that title to the property had not passed to him, and that his possession of the documents in question was merely that of a custodian for Mrs. Smith and not that of a holder in his own right. The presumption arising from possession was utterly shattered by the evidence bearing upon the subject, and restored to the respondents the burden originally assumed by them. Since that burden was
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not met, the affirmative issue raised by respondents was not supported and the case of the defense falls. Upon this theory, I concur in the result.
Robinson and Simpson, JJ., concur with Steinert, J.