I cannot agree with the conclusions reached and expressed in the majority opinion prepared after argument on rehearing granted.
If the alleged gift of the money involved was a gift at all, it was a gift inter vivos. The rule as to such gifts is correctly enunciated in 28 C.J. 621, as follows:
"A gift inter vivos as its name imports, is a gift between the living. It is a contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee gratuitously, and the donee who accepts and acquires the legal title to it. It operates, if at all, in the donor's lifetime, immediately and irrevocably; it is a gift executed; no further act of parties, no contingency of death or otherwise, is needed to give it effect."
On page 622 of the same volume we find the text, as follows:
"Strictly speaking all gifts between living persons, whether made in expectation of death or not, are of course gifts intervivos; but a gift causa mortis, while resembling what is known technically as a gift inter vivos in some respects, presents also several important points of difference. It is essential in both that there be a donative intent, and the gift be completely executed by delivery. Furthermore, neither gift is good as against the donor's creditors where there is a deficiency of assets. On the other hand, a gift causa mortis differs from a gift inter vivos in that it resembles a legacy, and is made in view of expected or impending death. The vital distinction, however, between a gift inter vivos and a gift causa mortis is that the latter is revocation by the donor and does not pass an irrevocable title until the death of the donor, while a giftinter vivos vests an irrevocable title on delivery.
"The test whether the gift is one inter vivos or one causa *Page 396 mortis is not the mere fact that the donor is in extremis, and expects to die, and does die of that illness, but whether he intended the gift to take effect in praesenti, irrevocably and unconditionally, whether he lives or dies. A gift, made with intent that it shall take effect immediately and irrevocably, and fully executed by complete and unconditional delivery, is good and valid as a gift inter vivos, although at the time the donor is in extremis, and dies soon after."
In the case of Garner v. Bemis, 81 Fla. 60, 87 So. 426, we said:
"Where a life insurance policy is claimed as a gift without assignment to one not the beneficiary designated therein, proof of the actual or constructive delivery of the policy with intent to pass the title irrevocably must be clear and convincing. A sufficient delivery or a complete and absolute surrender of all legal power and dominion over the policy, with an intent on the part of the donor to part absolutely with the title, must be affirmatively shown by evidence. Where the insured has a right to change the beneficiary in a policy on his life, and expresses an intent to make such change, but in fact does not do so, the intent alone is ineffectual. Merely expressing an intent to change the beneficiary and notifying the insurer of such intent is insufficient. Where the policy is not assigned to or duly delivered or surrendered as a gift the title thereto remains in the assured."
And again in that case we said:
"When the claim of a gift is not asserted until after the death of the alleged donor, it should be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift."
Citing 12 R.C.L. 932 and 973.
In Thomas v. Tilley, 147 Ala. 189, 41 So. 854 the same rule was enunciated. *Page 397
In the case of Szabo, et al., v. Speckman, et al., 73 Fla. 374, 74 So. 411, Mr. Justice ELLIS, speaking for the court, said:
"And in the case of Powell v. Leonard, supra, Mr. Chief Justice DUPONT said that what constitutes a good delivery is a question of great difficulty. Its proper solution can only be arrived at by considering not only the locality of the thing donated, but also its nature and kind, and that the delivery of keys as in the case of goods in a warehouse or trunk has even been held to be a sufficient delivery; he also thought that a delivery of a conveyance as in the case of vessels at sea was sufficient. Giftscausa mortis, as the Chancellor said in this case, `leaves too much room for fraud with relation to the estates of deceased persons.' For that reason, and the numerous attempts to sustain such gifts by fraud and perjury led to the enactment of the statute for the prevention of frauds and perjury."
In 28 C.J. 681 the rule is enunciated that: It is a general and well established rule that the burden of proof is on one claiming to be the donee of property to establish all facts essential to the validity of the gift. 28 C.J. 669, and cases there cited under note 36 thereto appended.
I do not think there is any legal evidence in this case establishing delivery of the money to the party claiming to be the donee thereof. It is true that the alleged donee testified that the money involved was given to him and delivered to him by the donor during her lifetime but, in my opinion, that evidence could not be considered because the donee was not a competent witness in this case under the provisions of Section 2505 R.G.S., 4372 C.G.L. See Knowles v. Boylston, 103 Fla. 20, 137 So. 6; Monroe v. Carroll, 80 Fla. 206, 86 So. 193; Holmes v. Kilgore,89 Fla. 194, 103 So. 825; Madison v. 95 Fla. 321, 116 So. 31.
It, therefore, follows that although the evidence is abundantly *Page 398 sufficient to establish the fact that it was the wish of Mrs. Furlough that such property as she might have at the time of her death should become the property of the alleged donee, the evidence is entirely insufficient in law to establish the fact that she did deliver as a gift the money involved to the alleged donee. If she did not deliver such property to the alleged donee as a gift, then at her death it became the property of her heirs at law, her wishes to the contrary notwithstanding, and when it became their property the courts are without power to divest them of their property rights under the law, regardless of how convincing the evidence might be that such result was not desired by the deceased owner during her lifetime.
For the reasons stated, I think the decree appealed from should be reversed.
ELLIS, C.J., concurs.