The judgment of the Probate Court should be affirmed because:
(1) There are no errors of law prejudicial to the rights of the appellants; and
(2) The judgment is not contrary to the manifest weight of the evidence but is sufficient in quantum and quality to meet the test of clear and convincing evidence as set forth in the opinion of the Probate Court Judge.
This is the third time that some branch of this litigation, which began in 1951, has been before this court for review, once on appeal from the Court of Common Pleas and now, for the second time, upon appeal from Probate Court. The previous appeals were on questions more or less technical in nature and now, when for the first time we have a judgment on the merits, a reversal is to be entered on the weight of the evidence. Such a reversal is entirely unjustified by the evidence in this record.
A reading of the record discloses that the Probate Court Judge presided at the trial with commendable fairness and impartiality during the latter part of October and first part of November 1954 and, after due deliberation, entered judgment for the plaintiff, accompanied by an opinion, filed January 6, 1955, setting forth cogent reasons for his decision.
This appeal is on questions of law only, consequently, we *Page 43 do not have the case for review as in chancery, for trial denovo. Therefore, this court is not free to analyze the evidence in such a manner as to substitute its judgment for that of the Probate judge who tried the case.
This proposition is well stated in 3 Ohio Jurisprudence (2d), 807, "Appellate Review," Section 818, as follows:
"The weight to be given to the conclusions of the triers of the facts and of the trial court passing upon motion for new trial is coupled with the usual presumption which must be indulged in favor of the correctness of the judgment and proceedings under review, and, in determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts; if the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment."
The Probate Court Judge, having heard the testimony of the witnesses at first hand, and having seen and considered their manner, demeanor and appearance on the witness stand, their intelligence or lack of intelligence, their powers of memory, the consistency of their testimony with other known facts, their candor or want of candor, their interest in the cause and the weight or value to be given to their testimony, was in a much better position to consider these factors than this reviewing court which has before it only the cold print of the record. This proposition is well stated, also, in 3 Ohio Jurisprudence (2d), 808, Section 818, as follows:
"One of the basic reasons underlying the principles relating to review on the weight of the evidence is the great advantage possessed by the jury and the trial court in judging the accuracy, candor, and credibility of witnesses and the weight to be given their testimony, from the fact that they see the witnesses testifying and hear what they say at first hand with full opportunity to observe their appearance, conduct, demeanor, the inflections of the voice, accompanying gestures, etc., while the reviewing court has before it only the written record of what was said." *Page 44
The record herein contains the testimony of 15 witnesses favorable to the plaintiff, which, in a substantial manner, tends overwhelmingly to support the conclusions of the Probate Court Judge, as set forth in his opinion at page 10 as follows:
"From the foregoing, it is the opinion of the court that the requisites of a valid gift inter vivos were met, that Walter [Knoedler] intended to make an immediate gift to Mabel [Renee] and that he did make a gift with the relinquishment of all his dominion and control over the key to the safety deposit box in the bank and to the metal box (Plaintiff's Exhibit 13) and the contents thereof, insofar as the contents of the metal box could be the subject matter of a gift."
The fourteenth witness to take the stand in favor of the plaintiff was Peg Wilkinson, the sister of the plaintiff. Her testimony may be regarded as the key testimony, as the plaintiff was not permitted to testify to events preceeding the death of the donor by reason of the provisions of Section 2317.03, Revised Code. The testimony of Peg Wilkinson stands uncontroverted and uncontradicted in the record. With her testimony, all the essentials of a valid gift inter vivos orcausa mortis were demonstrated beyond any question of doubt. The trial judge believed in the truth of her testimony as he had a right to do, and able counsel for the defendant did not attempt to cross-examine her with respect to the gift.
However, in addition to her testimony, the record discloses the testimony of 13 other witnesses (exclusive of the plaintiff) which quite definitely and logically supports the conclusion of the Probate Court Judge that the decedent intended to and actually did make a gift to the plaintiff of the personal property in question and that he had every good reason to regard the plaintiff as one of the natural objects of his bounty. The evidence in this respect, when considered together with the evidence of the key witness, certainly was most clear and convincing. Reason dictates that one who has been the recipient of loyal, devoted service during many years, and particularly during times of stress and trouble, including a long and lingering last illness, is naturally inclined to appreciate such devotion and service and is bound, in nature, to exemplify that appreciation in some substantial manner within his means. *Page 45
The evidence here shows approximately 16 years of dedicated service by the plaintiff to the decedent in such a manner as to help him build up his business and then to carry it on successfully for a period of time during his illness, and finally, 24 hours a day in nursing services during approximately the last eight months of his illness. The evidence further indicates that the gift to the plaintiff was approximately one-third of his estate, leaving a balance of approximately $100,000 to his next of kin. On the other hand, the record shows, according to the testimony of witnesses whom the trial court evidently deemed worthy of belief, that his next of kin manifested very little interest in him or his welfare during his lifetime but became intensely interested in his estate upon his decease.
It is claimed that the failure of the plaintiff to take the stand in rebuttal of testimony given by Attorneys J. J. Fuerst, Jr., and M. H. Sanders, concerning the events of October 30, 1951, required the trial court to accept their testimony as substantive evidence against the plaintiff. This contention is not sound because it does not in any way controvert or contradict the positive evidence adduced by plaintiff. This testimony refers to incidents occurring at the home of Peg Wilkinson on Euclid Heights Boulevard when Mr. Sanders, accompanied by Mr. Fuerst, came to make a list of the property held by the plaintiff, the subject of the gift in question. I have no doubt that the attorneys told the truth about what occurred upon that occasion. The testimony of the attorneys is generally to the effect that when they came there on the first day, the plaintiff did not assert her claim to the property as a gift except as to the automobile, and that it was not until the second day, on the advice of counsel, that she declined to proceed further with the listing of the property. Consequently, there was no issue of veracity drawn between the plaintiff and these witnesses. The plaintiff is a layman, not skilled in the law, and there was no good reason why she should confide in the attorneys for the defendant as they were obviously not acting in her interests or representing her in any manner whatsoever. In addition to this, the record shows clearly that she was low physically and mentally, suffering from nervous shock and physical exhaustion due to her unremitting labors in continuous attendance upon the deceased *Page 46 during his last illness, furnishing sufficient reason, if any were needed, not to be so alert to her own interests as to assert her rights immediately in the presence of these witnesses. Consequently, there was no reason why she should take the stand in rebuttal of their testimony which must be considered as true but which was, at best, only collateral, indirect and inferential, having little or no probative value as bearing upon the principal issue. This testimony presented by them was negative in character as against overwhelming positive testimony establishing the gift. Furthermore, the trial judge heard all this evidence and was entitled to draw his own conclusions therefrom.
In the instant case, the gift of the personal property was made in the presence of plaintiff's sister, together with the keys, both of which she then and there accepted. The decedent never returned from the hospital. The fact that she placed the box with the securities back in the same room does not negate the gift or the completion of the gift because at the time, the plaintiff's occupancy of the room in her sister's house was as complete as the decedent's. Under the circumstances, the decedent, leaving for the hospital from which he never returned, the transaction was such that "in conformance with the donative intention," he completely stripped himself of dominion of the thing given.
The majority opinion raises an issue not presented by the briefs and cites in support thereof the case of Parker v.Copland, Admx., decided in 1906, 70 N. J. Eq., 685, 64 A. 129, wherein the decree advised by the Vice Chancellor was against a claim "to an entire estate by the production of a bare preponderance of parol proof." The facts in that case are not analogous to the facts in the instant case. Furthermore, in that case, the trier of the facts advised against allowance of the gift and his advice was followed by the court. In the instant case, the trier of the facts found in favor of the gift, which finding should be sustained by this court. A reading of the case discloses many other factual differences whereby the New Jersey case must be distinguished from the instant case.
Facts and circumstances bearing upon gifts, both inter vivos and causa mortis, vary considerably as shown by the many *Page 47 cases on the subject. Cases having some reasonable analogy to the instant case may be cited as follows:
Bolles v. Toledo Trust Co., Exr., 132 Ohio St. 21,4 N.E.2d 917; Bolen v. Humes et al., Exrs., 94 Ohio App. 1,114 N.E.2d 281; In re Swade, 65 A.D. 592,72 N. Y. Supp., 1030.
In conclusion, I wish only to state that I concur with the opinion of Kovachy, P. J., wherein he holds that the Probate Court had jurisdiction to entertain and determine this cause.
For the foregoing reasons and for the reasons set forth in the opinion of the Probate Court Judge, I believe the judgment of the Probate Court should be affirmed.