(concurring in part and dissenting in part).
I agree generally with the analysis of the majority opinion, particularly the rule that a person claiming the right of survivorship in a joint tenancy bank account must prove by clear and convincing evidence the donative intent of the person who deposits his separate property in that bank account. In my opinion, the administrator did not carry that burden of proof, and the court should have held that the bank account and the real property were the separate property of Nelson Cooke, thereby giving the pretermitted children an intestate share in those items of property. Any relaxing of the requirement of clear and convincing evidence to prove a gift in joint tenancy bank account situations will only succeed in compounding the legal problems inherent in estate planning and dispositions.
96 Idaho at 59, 524 P.2d at 187 (underlining added).
Had Chief Justice Bakes found the time to do what the author of the majority’s opinion would not bother to do, both initially and even after rehearing, namely point out the evidence which the majority had so readily described as clear and convincing (but without setting forth even a scintilla of information of what that evidence consisted), it was perhaps likely that the three other members of the Court who signed on to the author’s opinion would have entertained second thoughts as to what they had joined.
The record, transcript, and briefs in that case are available in the office of the clerk, Mr. Lyon, in the Supreme Court Law Library, and also in the library of the College of Law, University of Idaho. With curiosity renewed because of the differing views in Cooke as to whether the evidence of donative intent amounted to clear and convincing evidence, it was in order to make a review of that appeal record.3 The evidence in Cooke was even of less clarity, and less convincing than the evidence in Hall. Before proceeding to illustrate the extremely poor quality and short quantity of “clear and convincing evidence” in the Cooke case, it first should be mentioned that a gross error in the Court’s opinion was the statement at 96 Idaho at 55, 524 P.2d at 183, that: “[T]he children’s contention [that the surviving wife was a party to the action, and hence could not testify under the provisions of I.C. § 9-202(3) ] must fail for two reasons: First, the testator’s wife [sic, widow] is not a party to this action____”
Sad to say, a notice of appeal which was filed after proceedings concluded in district court, dated November 4, 1970, unequivocally shows otherwise:
You and each of you will please take notice that Raymond T. Greene, Jr. Administrator of the estate and Vera Darlene Cooke, widow of said decedent, hereby appeal to the Supreme Court of the State of Idaho____
Notice of Appeal, Clerk’s Transcript at 86 (emphasis added). That notice of appeal was signed: “Greene & Hunt, by: James E. Hunt, Of counsel for cross-appellants and respondent” (address stated). Mr. Greene had processed the probate proceeding on behalf of Yera Darlene Cooke, having been retained by her. As pointed out in the petition for a rehearing filed after the Supreme Court’s decision, when a contest to Vera Darlene Cooke’s claims in the probate proceeding was made by the children, a stipulation for continuance was entered and filed. Clerk’s Transcript at 36. *271It was executed by counsel representing the contesting children with Greene & Hunt, by James E. Hunt, for administrator, C.T.A. executing it as attorneys for Vera Darlene Cooke.
According to the opinion filed by Justice Bakes in Cooke, ”... the administrator did not carry that burden of proof [clear and convincing evidence ], and the Court should have held that the bank account and the real property were the separate property of Nelson Cooke, thereby giving the pretermitted children an intestate share____” 96 Idaho at 59, 524 P.2d at 186. The majority opinion did show that Nelson H. Cooke died in California on February 20, 1966, and it did show that Cooke married Vera Darlene on March 14, 1964. The majority opinion did show that the children relied on In re Chase, 82 Idaho 1, 348 P.2d 473 (1960). It also showed that both spouses deposited their separate funds and then their community funds in joint bank accounts. It did show awareness of the rule of Chase:
(4) Where one party deposits money in a joint account and thereafter a question of the depositor’s intent arises, the party asserting the gift must prove all the elements of a gift, except irrevocable delivery, by clear and convincing evidence.
96 Idaho at 55, 524 P.2d at 183 (citation omitted). It also showed that the bulk of all deposits was the separate property of Nelson T. Cooke from a sale of his California business enterprise.
What the majority opinion did not discuss was a district court finding that “both the testator and his wife deposited their separate funds and their community income into their joint bank accounts with the intent of conferring a gift upon the other ... that upon deposit in these accounts the funds deposited became property owned in joint tenancy with right of survivorship.” Cooke, 96 Idaho at 54, 524 P.2d at 181 (emphasis added). The majority’s opinion made no mention of the district court’s observance that Vera Darlene Cooke, in initiating the probate proceeding, signed the petition to the effect that Cooke’s estate at his death consisted only of real estate in Bonner County valued at $25,000. The majority opinion did not disclose that after Mr. Greene was appointed administrator of the Cooke estate, he prepared and filed an inventory and appraisal which showed the real property as “community property of decedent and Vera Darlene.” 4 Clerk’s Transcript at 69.
The district court also made this monumental finding:
Mr. Cooke made it very clear in his conversations with Mrs. Cooke and in his conversations with one Lee Carter that he wanted everything fixed so that if he died, she was to get everything.
Clerk’s Transcript at 72-73. What the majority opinion ignored totally was Claunch v. Whyte, 73 Idaho 243, 249 P.2d 915 (1952), a unanimous opinion by the Court (comprised of Justice Taylor (author), and Justices Givens, Porter, Keeton, and Thomas) which in speaking of oral testimony to prove a gift, declared that: “[sjufficient here that it is regarded as the weakest kind of evidence,” citing to, inter alia, Herbert v. Lankershim, 9 Cal.2d 409, 71 P.2d 220 (1937), “[o]ral evidence, of which there is no satisfactory independent corroboration, is the weakest kind of evidence known to the law.”
The Cooke majority opinion concluded with the overworked cliche, “[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 convincing manner.” 96 Idaho at 55, 524 P.2d at 183. It is no wonder that Justice Bakes was brought to worry that, “[a]ny relaxing of the requirement of clear and convincing evidence to prove a gift in joint tenancy bank account situations will only succeed in compounding the legal problems inherent in estate planning and dispositions.” 96 Idaho at 59, 524 P.2d at 186 (emphasis added). In all probability there never was a case where the evidence *272required by Chase, 82 Idaho 1, 348 P.2d 473, was as deficient as it was in Cooke.
It would be one thing for an appellate court to “review” the record and then declare the evidence insufficient, but quite another thing to declare that the evidence sustains the trial court’s decision and findings without giving an iota of indication of the nature of the evidence. Actually, in both instances the litigants are entitled to have the evidence disclosed and to be directed to the insufficiencies (if declared insufficient) or to what the Court determines the evidence to be and to some extent why it is considered sufficiently clear and convincing.
The Idaho Supreme Court performed that function in Claunch v. Whyte, and also in the Chase case, but it failed magnificently in the Cooke case, it failed again in this case, and so far it appears to be failing in the recent case of South Fork Coalition v. County Commissioners of Bonneville County, 117 Idaho 857, 792 P.2d 882 (1990).5
. This issue brought to mind the recent case of Hall v. Hall, 116 Idaho 483, 777 P.2d 255 (1989), wherein it was also a contention raised on appeal that a gift was not proven by clear and convincing evidence. That issue was not addressed in the Court of Appeals opinion and it was not addressed in this Court’s opinion for the reason that the controversy was decided on other grounds, which need not be delved into here. The opinion in that case is readily available to the interested reader. After making a thoughtful perusal of the Hall record on appeal, carefully scrutinizing the evidence which was alleged to prove a gift, it was readily seen and said that the evidence adduced to prove a gift did not tend to approach a preponderance. My special concurring opinion in Hall v. Hall is also readily available.
. The district court ruled that Vera Darlene Cooke should not be bound by the statements of Mr. Greene, notwithstanding that he was her attorney, and, also at her request was appointed administrator of the Cooke estate.
. In South Fork the quantum of evidence was not an issue, and was implicitly seemed to have considered under the preponderance standard. The case as it progressed from an initial decision by the Board of County Commissioners became thereafter mis-styled as South Fork Coalition v. Board. This resulted from use of that styling when South Fork Coalition filed a petition in district court requesting that the district court assume jurisdiction and conduct a judicial review of the Board’s final decision under provisions of the Administrative Procedures Act. On completion of the district court review and order reversing, the case was more correctly restyled in proceedings in this Court as J.R. Hays & Sons, Inc. v. South Fork Coalition, 112 Idaho 89, 730 P.2d 1009 (1986). The Board of County Commissioners was not involved as a party on the appeal. The adversarial parties at all times were South Fork Coalition against Hays. Strangely, in South Fork II, Hays did not appear, although it was the only appellant in South Fork I. Rather it was in South Fork II, the Board, the initial decision maker, through its counsel appeared and argued against South Fork Coalition.