(dissenting) : The trial court, as well as the jury, found that there was a completed gift of the stock by Dewey to Barnhouse, and in the prevailing opinion it is stated that the proof tends to sustain the finding of a donation and delivery of the stock. The only question left for determination is whether the stock, which was in the possession of Dewey when he died, had been sold and transferred to him by Barnhouse, or whether he was only holding it as trustee for Barnhouse. The trial court made a finding, based on supporting testimony, that Dewey constituted himself a custodian, or • trustee, for the safe-keeping of the certificate of stock. The decision of this court that •he was not holding the stock as trustee rests only upon the blank indorsement on the back of the certificate and his possession of the same. The indorsement and delivery of a certificate may operate as a transfer of the stock if that was the intention of the parties. The intention of the pax-ties here depends not on the indorsement alone, but upon all of the testimony, The blank indorsement is not inconsistent with the theory that Dewey took the cer*23tificate in order to hold the stock as trustee for Barn-house. From the evidence it appears that Dewey-stated to the secretary of the association that Barn-house, who was his manager, was only receiving a small salary and that he intended to take care of him. After making inquiry of the secretary as to the plan on which the stock was issued and sold, Dewey again stated that he wanted to do something for Barnhouse, and asked the secretary to write up twenty-five shares for Barnhouse and arranged that the monthly payments on them should be charged to him. He receipted for the shares in Barnhouse’s name, and when the pass book was issued he turned it over to Barn-house, saying “Here is your pass book.” The shares stood on the books in the name of Barnhouse, the accounts were kept in his name, and no transfer of the stock was ever made in the presence of the president or secretary, as the by-laws of the association required. It is conceded that there was a consummated gift to Barnhouse. The stock actually became his property. When did he lose it? Although the blank indorsement is not explained, the testimony is that he never sold the stock to anyone, and the trial court found that he did not indorse it for the purpose of selling it back to Dewey. An indorsement of a certificate is some evidence of' an intention to transfer ownership of the stock, but it is not conclusive evidence of such a transfer. As was said in Culp v. Mulvane, 66 Kan. 143:
“The stock is something apart from the certificates. These but evidence a fact which otherwise exists. They are but paper representations of an incorporeal right, and, as such, resemble other muniments of title. The right of stock may exist entirely separately and independently of the certificates.” (p. 151.)
The ownership of the stock is not determinable absor lutely by either the indorsement of the certificate or the possession of the same. On all the facts and circumstances brought out in the evidence the trial court *24found that Dewey took the stock with the intention to hold it as trustee for Barnhouse. This court can not weigh the evidence or determine which of the items of testimony is the most worthy of belief. In the prevailing opinion it is said that the contention of the defendants that the indorsement of the certificate indicated an intention to transfer title “does not seem to be unreasonable,” but to the trier of the facts it did seem unreasonable. On the other hand, the trial court found that the inference is entirely reasonable. In another part of the opinion it is said “the conduct of both parties seems more consistent with the conclusion that the indorsement of Barnhouse was intended to effect a transfer of the certificate to Dewey than to accomplish any other or different purpose,” but the trial court, after balancing the manifestations of intention, drew a different inference and reached the conclusion, as it had a right to do, that the conduct of the parties was more consistent with the theory that Dewey accepted and was holding the stock as the trustee for Barnhouse. In the opinion on the first review this court stated with some particularity what was necessary to be proved in order to establish, a gift and a trusteeship in Dewey, and the plaintiff appears to have met these requirements. In my view the mere circumstance that there was a blank indorsement on the certificate which was in the possession of Dewey does not overcome all the other testimony on the subject, nor overthrow the finding of the trial court.
Mr. Justice Mason concurs in this dissent.