delivered the opinion of the court:
Appellant assigns sixteen errors, but the only contentions argued are, that the transaction had between Fritz Hagemann and appellee' at the time the written instrument of October 5, set out in the statement, was executed, does not constitute a sale, as there was no consideration, neither did said transaction constitute a gift inter vivos or causa mortis, and that the notes in question have never been sufficiently identified as the notes with reference to which the paper of October 5 was executed.
We think it clear that the intention of the donor, in cases of this character, is a controlling factor, and from the facts herein we are of the opinion that the chancellor was justified in decreeing that Fritz Hagemann “did in his lifetime transfer, assign and deliver, as a full and complete gift inter vivos to Michael Hagemann,” the notes, etc.; “that said notes were put into an envelope, which envelope was endorsed ‘Notes owned by Michael Hagemann, ’ which endorsement was signed ‘Fritz Hagemann.’ ” We are of the opinion that the above findings are in accord with the weight of the evidence and were properly sustained by the Appellate Court. Michael Hagemann was poor; the donor, his brother, well to do. The brothers had always been friendly. Michael had assisted his brother during times of illness. Mr. Hatterman, in whose presence the transaction of October 5, 1896, took place, states that deceased said that he gave the notes in question to Michael. The language of the writing executed at that time imports a transfer and delivery. Michael was given a key to the box containing the said notes. This alone has been held to be a good symbolical delivery. (Stephenson v. King, 81 Ky. 425; Telford v. Patton, 144 Ill. 611.) Michael could, and the evidence shows that he did, go and take the said envelope from the box in the vault and take it to his home, and the maker of one of the notes stated that he saw it there several times when he paid his interest, the last time being only a short time before the death of the donor. The witness Reimer testified that deceased told him that the notes belonged to Michael. The fact that the deceased took the notes to his house for some purpose, but without any manifest intention of re-investing himself with the title to them, does not militate against the theory of ownership by appellee. (Martin v. Martin, 170 Ill. 18.) If there was ever a valid delivery of the notes to appellee, the fact that the donor was again found to be in possession of the notes could have no tendency to establish title in him, especially where there are no circumstances showing that such act manifested an expression or intention on the part of the donor that he had never relinquished control or ownership of the notes.
Other grounds are urged by appellee for affirming this case, but it is not necessary to consider them, as, for the reason already stated, we are of the opinion that the judgment of the Appellate Court should be affirmed.
Judgment affirmed.