While concurring in the result of Mr. Justice FOLLETT’S opinion, I canot concur in the reasons which he has assigned therefor. It is undoubtedly true that, in order to support a gift such as is claimed in this proceeding, the proof should be reasonably clear and satisfactory; but the fact that the witness by whom it is sought to establish the gift may be said to be interested in the result should not preclude a finding that the gift had been established by the evidence of such a witness. If the question as to the gift was being tried before a jury, the mere fact that the witness proving the gift was the wife of the donee would not permit the court to take the question from the jury; and if the jury, under proper instructions, believed the wife, and there was nothing which made it manifest that the story of the wife was incredible, the verdict could not be disturbed. So, in the case at bar, the mere fact that the respondent sought to establish the gift by the testimony of his wife did not prevent a finding in his favor, notwithstanding that she may have had a large interest in his success. Upon an examination of the evidence in this case, it seems to me that the wife is singularly supported by the affidavit which she made, and which it is claimed upon the part of the appellants is a contradiction of her testimony in this proceeding.
It is further insisted that the conduct of the respondent in placing in the inventory the subject-matter of the gift which is claimed in this proceeding, also tends to weaken the testimony which was *100given in support thereof. It appears from the evidence that the respondent consulted an attorney. What advice the attorney gave we do not know, but thereafter the respondent and wife made the affidavit referred to, and the money in bank was included in the inventory, which inventory was sworn to by him. Now, the fair inference to be drawn from these facts is that the respondent was advised that the facts which are now claimed to have constituted a gift of the moneys in bank were not sufficient to transfer the title, and, this being the condition of mind of these parties, the affidavits in question were sworn to by the respondent and his wife. In her affidavit she says that she saw the deceased hand her husband six savings bank books, and heard him tell her husband that he was a very sick man, and that if he should die all that was in the bank he would give to her husband, as he had no relations living as he knew; that deponent and her husband had taken care of him, and had been good friends to him; and that he wanted him and his wife to have what little he had saved, if he should die. This affidavit was made at a time when these parties evidently believed that such a transaction was insufficient to transfer the title. The only variation from this story in the evidence she gave upon the stand perhaps is the failure to identify the books as clearly as they are in the affidavit, and the testifying to the statement of the deceased that the witness and her husband had taken care of the deceased, and been good friends to him, and that he wanted him and his wife to have what little he had saved, if he should die. This variation was entirely immaterial, because it is manifest, taking the whole statement together as contained in the affidavit, that the gift was to be to the husband; and that the statement that the deceased wanted him and his wife to have what little he had saved applied to the assumption upon the part of the deceased that the wife would enjoy what was given to her husband. It seems to me that if the wife was a credible witness her evidence could be and was sufficient to make out a complete gift causa mortis. The result of holding that such a gift cannot be predicated upon the testimony of the wife is adding a new rule to the law of evidence, viz. that to establish a fact in reference to a gift causa mortis evidence of parties entirely indifferent is necessary. But I think, however, that upon the proof as it stands there was one fact which was insufficiently established; and that is that the bank books which are now claimed by the husband were all handed over to him at the time testified to by the wife. All that she saw was a package which the husband put in his pocket, and she did not see what she supposed to be that package for hours thereafter, and it was then in her husband’s possession, and he opened it, and showed to her some bank books. But there is no evidence that she ever then knew how many there were, or that they were the bank books in question; and there was ample opportunity upon the part of the husband to put into that package anything he pleased; and as a result the probative force of the testimony of the wife was fatally defective in her not being able to identify that which was handed to the husband at the time of the alleged gift, and for this reason it seems to me the gift was not established.