specially concurring.
Having concurred in the opinion of Chief Justice Bakes, I write only to add that the “clear and convincing” rule of Bogert was not original to that case, as pointed out therein:
In past cases we have required that the intent to make a gift under similar circumstances be shown by clear and convincing evidence. In the case of In re Estate of Cooke, supra, [96 Idaho 48, 524 P.2d 176 (1974)] we held that the intent of a decedent-depositor to a joint bank account to have made a gift must be proved by clear and convincing evidence.
In these cases in which family members have been claiming that the decedent left them certain property as a gift effective at or near death, we have required that the decedent’s intention to make such a gift be demonstrated by a quantum of proof greater than a preponderance of the evidence.
We thus conclude that the magistrate applied the correct rule of law when he required that the survivor to the joint account show by clear and convincing evidence that the deceased party to the account intended that the stock in the account pass to the survivor by right of survivorship. ‘In this jurisdiction, whether a “clear and convincing” burden of proof has been met is a question for the trier of facts to decide in the first instance.’ In re Estate of Cooke, supra, 96 Idaho at 55, 524 P.2d at 176 [(1974)]; Vaughan v. First Federal Savings & Loan Association, supra [85 Idaho 266, 378 P.2d 820 (1963)]. The magistrate had the primary responsibility for weighing the evidence. He alone observed the witness testify, and for that reason his finding that the plaintiff’s claim was not shown by clear and convincing evidence is entitled to great weight on appeal.
In re Estate of Bogert, 96 Idaho 522, 526, 531 P.2d 1167, 1171 (1975). In re Estate of Cooke involved two adult children of decedent Cooke by a former marriage who were almost the beneficiaries of the clear and convincing rule.
The claim of Nelson Cooke’s two children by a prior marriage was “that the decedent-depositor’s donative intent was not proven by clear and convincing evidence.” In re Estate of Cooke, 96 Idaho 48, 55, 524 P.2d 176, 183 (1974). The majority opinion in Cooke carefully avoided giving any clue as to the nature of the evidence which sustained the trial court in deciding that, whatever it was, it was clear and convincing. This extremely important issue was avoided by the all-purpose cliche that “a review of the record in this case supports the trial court’s holding that the evidence was sufficient to sustain a finding that the decedent-depositor’s donative intent was proven in a clear and sufficient manner.” 96 Idaho at 55, 524 P.2d at 176. None of that evidence surfaced in the opinion.
Justice Bakes, to his credit, did not join the majority in Cooke. Instead, while agreeing to the applicable burden of dona*270tive intent being that of clear and convincing evidence, he concluded that it had not been met: