specially concurring and dissenting.
PART I.
Because of my acceptance of prior case law precedent, In re Estate of Chase, 82 Idaho 1, 348 P.2d 473 (1960); In re Estate of Cooke, 96 Idaho 48, 524 P.2d 176 (1974); Idaho First Nat’l Bank v. First Nat’l Bank of Caldwell, 81 Idaho 285, 340 P.2d 1094 (1959); and Ashe v. Hurt, 117 Idaho 266, 787 P.2d 252 (1990), it is my opinion that the summary judgment should be reversed. The evidence in the record failed to establish a gift at the time claimed, then presently and irrevocably made. The burden of proof upon the daughters was to establish such a then present gift, and their proof fell far short of meeting the requisite standard of clear and convincing evidence.
PART II.
I cannot see that Lillie Parker’s complaint is a damage action. It does not read like a damage action, it does not smell like a damage action, it was not designated as a damage action, and it was not a damage action. Paragraphs IV, V, VI, and VII of the Complaint succinctly stated the nature of the action:
IV.
Pursuant to paragraph IV of the Will, Plaintiff, LILLIE B. PARKER, was bequeathed ‘During her lifetime, the interest income from all my investments, in particular, all funds invested with Foster & Marshall, Coeur d’Alene, Idaho.’ Further, the Will directs decedent’s Personal Representatives to ‘establish a trust and place my investments, particularly all sums in my account at Foster & Mar-shall, Coeur d’Alene, Idaho, in the trust for the benefit of my wife, Lillie, for the duration of her life.’
V.
Upon decedent’s death there was a balance of approximately $93,381.00 in the Foster & Marshall account.
VI.
From October 10, 1984 through January 14, 1986, Defendants, MARILYN KOKOT and JANE TOFARI, as Personal Representatives of the Estate of JOHN RICHARD PARKER, paid the sum of approximately $11,000.00 for the support of Plaintiff, LILLIE B. PARKER. Since January 14, 1986 the Defendants, MARILYN KOKOT and JANE TOFARI, as Personal Representatives of the Estate of JOHN RICHARD PARKER have refused and failed to pay Plaintiff, LILLIE B. PARKER, any amounts whatsoever for her support.
VII.
Defendants, MARILYN KOKOT and JANE TOFARI, as Personal Representatives of the Estate of JOHN RICHARD PARKER, have failed to establish a trust with the balance of the account at Foster & Marshall not paid to Plaintiff, but instead paid the balance of the account to themselves individually.
Paragraph 3 of the prayer asked:
3. For an Order of this Court ordering Defendants, MARILYN KOKOT and JANE TOFARI, to pay the sum of $98,-728.00 into trust for the benefit and sup*971port of Plaintiff, LILLIE B. PARKER, for the remainder of her life.
By erroneously describing the action as a damage action, which it assuredly is not, the district court led itself astray, and has unintentionally misguided some members of this court to the erroneous conclusion that this is not a case triable to the court, but to a jury. See majority opinion at 967, 793 P.2d at 199:
However, disputed facts exist in the instant case, and it is not a court trial because a demand for jury trial had been filed. Although the estate proceeding was obviously a court trial, the answer filed in the damage action by the daughters contained a written demand for jury trial. Accordingly, for purposes of summary judgment and our review, the consolidated cases must be considered as one scheduled for jury trial requiring a factual determination of disputed facts by the trier of fact.
The probate proceeding, Kootenai County Case No. 60103, was anything but a jury case. Rather it was a run-of-the-mill probate. The equitable action, Kootenai County Case No. 66719, was not triable to a jury (unless the presiding judge chose to impanel an advisory jury). Lillie Parker did not ask for a jury. Rather the mistake, if one was made, was that of the daughters in filing their answer, wherein they added a motion to dismiss. The daughters’ pleading made no demand for a jury trial. A prayer of the answer, unlike any ever seen before, prayed for a “dismissal of Paragraphs I, II, and III of the complaint for the grounds above set out and/or upon so failing for a trial by jury on all issues triable as of right by a jury.”3 If a majority of this Court is willing to recognize that strange and incomplete language as amounting to a demand for a jury trial, the trial bar may well look ahead to hard times.4
*972Thereafter, counsel for the daughters joined in stipulating for joinder of the probate action with Lillie Parker’s equitable action, with no mention by them ever again of a jury trial. True, the district court did calendar the case for a jury trial, but equally true, it was either error or inadvertence which guided the court’s pen in signing a printed form which had spaces for inserting words, which words presumably had been inserted by a clerk of the court. The daughters moved for summary judgment, and that was, should have been, and still should be, the end of any further thought of a jury trial, depending of course upon the clarity with which the Court membership sees the undisputed facts and comprehends well-established case law.
PART III.
Our opinions in Ashe v. Hurt, 117 Idaho 266, 787 P.2d 252 (1990), have recently reviewed the case law attendant to the issue of establishing a gift by clear and convincing evidence. Although the majority’s application of precedential case law has gone awry generally, it does correctly set aside the summary judgment which the trial court awarded to the daughters. With a proper understanding of the true nature of Lillie Parker’s claim, and the applicable case law, it is much hoped that the majority will not continue to insist on visiting upon the litigants the nuisance of submitting jury instructions in a purely equitable controversy, where the inevitable result is readily apparent at this time.
PART IV.
There is good reason to believe that this controversy is presently ripe for a decision. The action is equitable in nature. In the summary judgment proceedings both parties have presented the available facts and sufficiently cited the applicable law. The issue, based on the law heretofore made in the cases cited, supra, is (a) the source of the fund in question, and (b) whether Parker in setting up the Foster & Marshall account had at that time a present donative intent which then and there made his daughters owners, one-third to each, of that fund. The answer is found in the existing case law which requires that burden of proving a gift to them is that of clear and convincing evidence. There simply is no such evidence of that category in the record.
PART V.
The evidence before us is the same as that which was laid before the district court. The most logical inference which can be drawn from the evidence as to the occurrence of setting up the fund is that Parker had in mind at that time that at his demise, the account would then belong to his daughters. The most natural thing in the world is for a father to do that, any father. An equally natural intention on the part of aging fathers is to avoid probate taxes, expenses, and delays. Presumably, had Parker died with the Foster & Mar-shall account in place, his estate planning which favored the daughters would have been a success.
But, when his actions brought about the change in the account whereby, with the daughters’ signed acquiescence (which may or may not have been required), he was at liberty to take all or any part of the fund on his own request, such evinced an understanding on the part of all three that the account which he had set up with his funds was entirely his. Thereafter, he married Lillie and made a new will, paragraph IV of which provided:
I give to my beloved wife, LILLIE, during her lifetime, the interest income from all my investments, in particular, all funds invested with Foster & Mar-shall, Coeur d’Alene, Idaho. (This bequest is subject to paragraph VI below.)
Further, I give my wife the right to use my personal property during her lifetime, or until her remarriage, or until she moves from our residence at 702 Walnut.
I give all the rest, residue and remainder of my estate to my children in equal shares, share and share alike, to be distributed after LILLIE’s death. If either child has predeceased me, I give her share to her children in equal shares.
*973There should be no doubt that the terms of his will manifested what was already the fact. Unless the daughters could muster clear and convincing evidence of a gift to them, application of the source doctrine was conclusive that the fund had been his and was his at the time of his death. The daughters would eventually share in the corpus of the trust fund, but only after Lillie’s death.
Idaho law is quite clear that on consideration of a motion for summary judgment, the court is allowed to enter judgment in favor of the other, non-moving party. Rasmuson v. Walker Bank & Trust Co., 102 Idaho 95, 625 P.2d 1098 (1981). There appears to be no obstacle in the way of our directing the entry of a final judgment in favor of Lillie Parker. Instead, the Court does again that which has been its recent wont. It properly reverses the summary judgment, but then gives directions on remand which will prolong litigation which clearly should be brought to a finish. From that I register my dissent.
. The full text of the motion to dismiss probably should be exposed for consideration:
MOTION TO DISMISS
6. THAT the Plaintiff fails to state a cause of action against the Defendants as set forth in Paragraphs I and II of her Prayer for Relief, in that:
Paragraph IV of the Complaint sets forth the only relief to which the Plaintiff can otherwise be entitled, to wit the establishment of a trust as referenced in the Last Will and Testament of the Decedent, John Richard Parker. That by virtue of said Paragraph as pled by the Plaintiff, no individual personal interest of the Plaintiff can he forthcoming outside the hounds set forth in the said Last Will and Testament of John Richard Parker, and as specifically pled in said Paragraph IV; and
THAT No basis for attorney’s fees has been made or shown either by a contract or by law and that therefore no cause of action for attorney’s fees can be made to stand; and
THAT Paragraph III of the Plaintiffs prayer fails to state a cause of action unless the same be limited to the trust as a referenced in the Estate of John Richard Parker and then only under the provisions as stated in the Parker will.
R. 9-10. Paragraph 2 of the Answer states unequivocally: ‘That they [defendants] admit the allegations of Paragraphs I, II, III, IV, V, and VI of the Complaint." Paragraphs IV, V, VI, and VII of Lillie Parker’s Complaint are hereinabove set out. The first three paragraphs of the Complaint state only:
I.
Plaintiff, LILLIE B. PARKER, is a resident of Kootenai County, State of Idaho, and was the wife of JOHN RICHARD PARKER, Deceased, at the time of his death.
H.
Defendant, MARILYN KOKOT, was a resident of and residing in Kootenai County, Idaho, at all times material hereto, and Defendant, JANE TOFARI, was a resident of and residing in Wisconsin, at all times material hereto. Said Defendants are also the duly appointed Personal Representatives of the Estate of JOHN RICHARD PARKER pursuant to appointment by this Court on or about October 18, 1984.
III.
On or about October 18, 1984, this Court informally probated decedent’s Will dated March 28, 1984 (Hereinafter referred to as "Will”). The Will is a valid and probatable Will pursuant to the laws of the State of Idaho.
R. 4-5. The final paragraph, VIII, stated only that the daughters had appropriated the account funds for themselves and had not set up the trust for Mrs. Parker, as Mr. Parker had directed. R. 6.
. The daughters, in their brief filed in this Court, state a clear concession that a jury trial had not been demanded, or if made by them, at the least was waived when the stipulation was entered into. “This being a non-jury case, the judge is entitled to resolve inferences in that he is trier of fact.” See Pointner v. Johnson, 107 Idaho 1014, 695 P.2d 399 (1985); I.R.C.P. 52(a). Respondents’ Brief at 9.