The opinion
George Rose Smith, J., dissenting. I am unable to agree with the majority’s conclusion that “there is insufficient testimony to show that appellant intended to make a gift of $500 to Ivory Littrell.” On the record there is no sound reason for drawing any distinction among the various gifts.
All the transfers were made at the same time, in the Clark County Bank. In addition to depositing $2,500 in savings accounts for the children the appellant handed Ivory Littrell $300 and deposited $200 in a savings account in her name. The appellant kept the rest of the insurance money for himself; so the transactions in the bank resulted in a complete division of the funds.
The fact of delivery is unquestionably the strongest indication of a gift, since the requirement that a gift be delivered brings home to the donor the realization that he has parted with his property. Here the proof is undisputed that the appellant delivered $500 to his mother-in-law and that she retained the money for more than a year. The majority opinion leaves unanswered the obvious question: If the transfer to Ivory Littrell was not a gift, what was it? It was certainly not a loan or a payment under mistake, and the charge of fraud has rightly been rejected. In my opinion the only alternative is to uphold the validity of the gift.
Ward, J., joins in this dissent.