Ordinarily, the decision of the trial court upon conflicting facts ought to be controlling upon this court. However, this is not an ordinary fact case. It is a question of mixed law and fact.
The majority concede that (1) property assumes a separate or community character as of the date of its acquisition; and (2) that a husband alone cannot make a gift of community property under our statutes and decisions. The majority also concede that the general rule is that support and services rendered by members of a family are gratuitous in the absence of a contract, express or implied, to pay.
The majority then deduces the illogical inference that, owing to the physical condition of the deceased son of respondents and husband of appellant, there was a consideration for the change of the beneficiary in the policy from the wife to respondents because of those services; contrary to a conclusion drawn in the prevailing opinion that a pecuniary recompense was contemplated by respondents on the one hand and their son on the other. Respondent, the father, testified, as shown by the record, that the son offered to make the changes of the beneficiary from his wife to respondents so that, in case anything happened, they could pay the funeral expenses and have something left for their *Page 577 trouble; that it was purely voluntary on the son's part, and that respondent did not particularly want it.
The record also discloses that, when the bills for the medical expense were presented, they were mailed in the name of the son, Jesse Johnston, and the father presented those bills to appellant for her to pay, which, of course, she was unable to do.
The most conclusive fact against the opinion of the trial court is the testimony of John Bruff, an attorney, who is also a notary, who was obtained by the brother of the deceased to act as notary, who testified in great detail as to his examination of deceased to ascertain his mental condition and the reason why he wished to change his beneficiary in the policy, whether he had been coerced or over-persuaded by his father or mother, which deceased negatived; and when asked for his reasons for making it over to his father and mother alone, the son said that his father and mother raised him, gave him birth, to the exclusion of his wife; that she was not good to him; that she left him, and that his father and mother had been good to him in his sickness, and then stated "I am going to give it to my father." That was purely a gift, based on love and affection.
The above evidence by a competent and entirely disinterested witness almost conclusively establishes a gift without consideration. Parenthetically, it may be stated that appellant had been driven from the home of respondents by unkind treatment on the part of the mother of deceased, who slapped her several times.
Upon the facts in this case, the judgment should be reversed and appellant granted recovery on the policy.
For these reasons, I am compelled to dissent. *Page 578