(dissenting).
This case involves the ownership of various articles which had been delivered to Mrs. Cooper, the deceased, and were in her actual custody at the time of her *13death. By prenuptial contract all property acquired by Cooper or Mrs. Cooper before or during the marriage was to be the separate property of each. Mr. and Mrs. Cooper separated on or about May 27, 1952, and Mrs. Cooper obtained a judgment of separation from bed and board. At the time of Mrs. Cooper’s murder they had been living separate and apart for approximately six months, and Cooper had made no claim to the possession or ownership of the articles in question, which had remained in Mrs. Cooper’s possession.
The trial judge, who saw and heard the witnesses testify, said : “ * * * I resolve the questions of fact in favor of the deceased wife’s estate in view of all the facts and circumstances attending the transactions from the very beginning.” He further stated: “ * * * the issue in the case is one of fact only and the facts were satisfactorily proved by a preponderance of the evidence * * *. ” The case therefore presents only this question of fact: Did Cooper make a manual gift of the articles in question to his wife? I cannot say that there was manifest error in the trial judge’s conclusion on this question of fact. At the trial Cooper denied that he had given these articles to his wife, and, had the trial judge believed him, this of course would have ended the case, and judgment would have been rendered in his favor. Obviously the trial judge did not believe or accept Cooper’s testimony.
I respectfully dissent.