I am willing to accept the version of the evidence as believed by the trial court, and the findings as made by him. My own predilections about the matter, one way or the other, should be of no significance. Notwithstanding considerations of logic, either as to what ought to be, or what one might naturally suppose to be, the fact is that human beings do things at times which seem to others strange and illogical. However, I personally have no difficulty in accepting as a fact that a father desired to forgive a note owed by his son, nor that he so indicated in writing. Especially so, because the brother Joseph, whose pecuniary interest could only be adversely affected, so testified under oath; and there is nothing to refute it, except for someone to say that to him it does not seem "reasonable." It is submitted that in view of that testimony, the determination as to whether it happened, and whether it is "reasonable" or not, is absolutely and incontestably the prerogative of the trial court.
Upon competent evidence the trial court found:
The Court further finds that the said Promissory Note and the said financial arrangement was terminated and cancelled during the lifetime of the father, William Bert Cluff. That there was a complete discharge and satisfaction of the note by William Bert Cluff and a delivery of the Note marked "paid in full" by the payee. The Court further finds from the only credible evidence respecting the said note that the father, William Bert Cluff, mailed it to a son, Joseph L. Cluff, after having written on the face of the note "paid in full, Bert Cluff" and directed the son, Joseph L. Cluff, to either deliver the Note to Verne B. Cluff or to destroy it.
[Emphasis added.]
If we accept the facts as believed and found by the trial court, as the universally accepted rule requires us to do, the father Bert Cluff acknowledged in writing that any obligation his son Verne had under the note was fully satisfied and discharged; *Page 298 and he delivered the note to his other son Joseph. This acknowledgement and delivery without any reservation could certainly be regarded by the trial court as indicating present intention of Bert Cluff to divest himself of any ownership or control and as constituting Joseph as an agent, not for the father, but as an agent for his brother Verne to so deliver the note.
It is the well settled and invariable rule that such an unconditional delivery of an instrument of ownership during one's lifetime can constitute a completed gift, and divest the donor of ownership. This court so held in an analogous situation in the case of Losee v. Jones,1 where a mother delivered a deed to her daughter for delivery after the mother's death. In a case similar in principle the Kansas Supreme Court held that a deed that conveyed property to the decedent's grandson, which was given to a friend with instructions to retain the deed until decedent's death, and then deliver it to the grandson, was a good conveyance and took precedence over a subsequently executed will devising income from the same property to decedent's wife.2 In another case applying this sound and universally accepted rule, the Arizona Supreme Court held that where there is an unconditional delivery of property to a third person, though not to be delivered to the donee until after the donor's death, if there is no intention to revoke, the gift is effective and valid as of the time of delivery, though the enjoyment may be postponed.3
On the basis of what has been said above, and in deference to the traditional rules of review respecting the prerogatives of the trial court and according verity to its findings and judgment,4 I would affirm its finding that the father, Bert Cluff made a completed gift to his son defendant Verne B. Cluff.