I can not concur with the majority of the court in holding that the evidence in this case is sufficient to sustain the finding of the jury that the insurance policy, which is the subject matter of the suit, was given by Richard Lord to the appellee. The opinion of the majority of the court is predicated upon the assumption that the law requires proof of delivery either actual or constructive *Page 147 of the thing given to support a gift inter vivos, though it intimates that the decision of the Supreme Court in the case of Cowen v. National Bank, 63 Southwestern Reporter, 532, might authorize the holding that mere proof of the parol gift of the policy of insurance unaccompanied by any proof of delivery would be a completed gift of the proceeds of the policy. I do not think the decision in the Cowen case can be so construed, for in that case a written order for the certificate of deposit was shown to have been actually delivered to Cowen by the donor, and the Supreme Court merely held that the delivery of the order for the certificates operated to pass title to the funds in the bank just as the delivery of the certificates would have done.
The majority of the court also decline to pass upon the issue as to whether the facts are sufficient to show that Richard Lord held the policy in controversy in trust for his sister, and do not require that the judgment of the court below should be sustained on this ground regardless of whether there was any delivery of the policy. The appellee in his brief presents this trust theory with much force, but I am of opinion that his contention is not sound and that a trust can not be established by evidence merely showing an incomplete gift. I think it is well settled that equity will not interfere to perfect a defective gift by declaring a trust which the donor himself did not declare. There is nothing in any of the declarations of Richard Lord in evidence in this case from which it can be inferred that he regarded himself as holding the policy in trust for his sister. That he intended at the time he took out the policy and when the various declarations shown in the evidence were made to give this policy to his sister I think is unquestioned, the only question being whether this intention was ever carried out in the manner required by law, and as a court of equity has no authority to render a gift perfect which the donor has left imperfect, neither can it convert an imperfect gift into a declaration of trust merely on account of the imperfection. To hold otherwise would be to nullify and destroy the universal rule that delivery of possession is essential to the validity of a parol gift. The only question in my opinion which arises upon the facts of this case is whether the evidence is sufficient to sustain the finding of the jury that Richard Lord delivered the policy to the appellee or to some person for her. The charge of the court makes the plaintiff's right to recover depend upon an affirmative finding of this fact by the jury, and the verdict of the jury in favor of the plaintiff is a finding by them that such delivery was shown.
I fully appreciate the importance of a strict adherence by the courts to the rule that upon all issues of fact the verdict of the jury is conclusive unless it is unsupportable by any evidence legally sufficient, or is so against the great weight and preponderance of the evidence as to be clearly the result of passion, prejudice, or undue influence. But the very statement of the rule implies that the verdict of a jury must not be an arbitrary one, and the duty devolves at last upon the court to pass upon the sufficiency of the evidence in all cases. Mere possibility can *Page 148 never establish the existence of a fact requisite to be proven. To so hold is to say that verdicts can rest upon surmise and conjecture. Whenever a judge concludes that a verdict is without sufficient evidence to support it, that is, that the existence of facts found by the jury is not a reasonably probable conclusion from the evidence in the case, it becomes not only the right but the duty of the court to disregard such verdict. If this duty is evaded by our courts, then our system of jurisprudence can not be maintained consistent with well defined rules of justice and right.
Applying these principles to the case at bar, I am of opinion that there is no evidence in this case which makes it reasonably probable that the policy in question was ever delivered by the deceased to the appellee. The evidence upon this issue is fairly and accurately stated in the opinion of the majority of the court with one omission, which is probably of slight importance, but which I think should be given some weight. The fact not stated in that opinion is that the policy in question was not an ordinary life policy payable only on the death of the insured, but was what is known as an accumulation policy, which had a cash surrender value which Richard Lord might have withdrawn at any time. I think this fact has some weight as tending to show that notwithstanding Lord's repeated declarations that he intended to take out the policy for his sister and that said policy was for her, he made the policy payable to himself so that he might surrender it at any time and withdraw its cash value and make such other provision for his sister as the circumstances and his judgment might suggest. In order to draw a proper conclusion from the various declarations of Lord set out in the opinion of the majority of the court, all of said declarations should be considered together and in connection with all of the circumstances shown by the evidence.
Lord was a man of large business experience, well acquainted with all of the details as to the issuance of insurance policies and the method by which the beneficiary named in the policy might be changed or the policy assigned. He had supported and provided for his sister from her infancy, and managed and controlled all of her business affairs. Before the insurance policy is taken out he tells Mrs. McLellan that he intends to provide for his sister with life insurance and some time after the policy is issued he tells her that he had taken out a policy for her. Shortly after the issuance of the policy he hands to his friend Anderson a bundle of papers in a sealed package and asks him to keep them for him, telling the witness that among the papers is a policy for his sister. Subsequently he tells Mr. Vidor that he has this policy for the benefit of his sister Kate. In 1898 he tells the witness Green that this policy is his sister Kate's. In 1899 he makes the same statement to the witness Wortham, and also tells the witness Irwin that he has this policy for Kate. The three witnesses last named were insurance agents, and the statements to them by Lord in regard to the policy were made during conversations in which they were soliciting him to take out life insurance. After his marriage with the appellant, Margaret G. Lord, he *Page 149 takes out an accident policy payable to his sister Kate, and makes his will giving all of his property of every description to his wife. The policy claimed by the appellee in this suit is payable to Richard Lord, his assigns, executors, or administrators, and was not assigned or transferred in the manner designated by the insurance company nor by any written assignment of any kind. It is not shown that said policy was ever at any time in the possession of the appellee or was ever seen in any receptacle to which she had access. I think these facts and circumstances, considered together, lead the mind to the irresistible conclusion that the statement of Richard Lord that the policy was his sister's meant nothing more than that his object in taking it out was to provide for her support in event of his death, and that he made it payable to himself so that he could retain absolute dominion and control over it, and in event he should change his mind as to its final disposition he could do as he pleased in regard to it. The evidence fails to show that he ever changed his intention to make his sister the beneficiary of said policy, and I think it also utterly fails to show that he took the steps necessary to carry this intention into effect.
It matters not how clearly the intention of the donor may appear, if he fails to do that which the law requires to complete his intended gift no court can do it for him, and his intention, however praiseworthy, must fail.
The majority of the court have reached the conclusion that the declarations of Lord, taken in connection with other facts in the case, are sufficient to support the finding of the jury, and they say that there is no fact in evidence inconsistent with this conclusion. To my mind such conclusion is contradicted by every fact in the record. It is inconceivable that a man of the intelligence, business experience, and knowledge of affairs which Lord is shown to have possessed, with a desire to make the gift to his sister of this policy or its proceeds absolute and complete, would not have assigned the policy to her or had her named as its beneficiary, or so disposed of it in his will. He must have known that in case of his death, with the policy in his possession and payable to his estate, her title to it would be very difficult of establishment, and his failure to assign the policy, which was a simple act, can only be reasonably accounted for on the assumption that while he may have had the intention to at some time complete his gift, the time never came when he was ready to surrender dominion and possession of the property so as to make the gift absolute.
I do not think the testimony of Anderson can be held sufficient to show that the policy in question was given him by Richard Lord to hold for his sister. The statement of Lord was to the effect that the policy was for his sister. He did not ask Anderson to hold the policy for his sister, and I think no such construction can be given to his language, and Anderson did not so construe it. The policy was in a sealed package containing other papers belonging to Lord, and was held by Anderson for Lord and delivered to him on his reque The evidence fails *Page 150 to show that it was the understanding either of Lord or of Anderson that the latter should hold the policy in trust for Miss Lord, and it can not be said that the delivery of the policy to Anderson under these circumstances was a delivery to him for the benefit of Miss Lord. The Pennsylvania case cited by the majority of the court to sustain their opinion, as shown by the statement of the case, arose upon facts materially different from the case at bar. That policy was seen in a drawer to which the wife had equal access with the husband, and the declaration of the husband was that he had "given" the policy to his wife, and while I do not assent to the soundness of the decision in that case, the facts in support of that opinion are much stronger than in the case at bar. This seems to be the only case which counsel for appellee or my associates could find which tends to sustain the conclusion reached by the majority of the court.
In direct conflict with the decision in the Malone case is the opinion in the case of Chambers v. McCreery, 106 Federal Reporter, 364. The plaintiff in that case claimed certain bonds as a gift from her deceased husband. The bonds had been kept for some years by her husband before his death in a box in a safe deposit vault, and after his marriage he stated to the custodian that he wished his wife to have access to the box, and a statement to the effect that she was authorized to have access to the box and control its contents was placed therein. After his death, complainant had both keys to the box in her possession, but there was no evidence that her husband had given her this key with the intent to divest himself of the title to or possession of the bonds. Four witnesses testified that Edward Prince said in their hearing he had given to his wife for her own use some bonds he had in the deposit vault, that no one knew he had such bonds, but he made her a present of them, that he gave her the key to the box or drawer, and had introduced her at the bank, so that she could have access to the box any time she saw fit to go to it, and so that she would not be dependant upon his children after his death, he had provided her with some bonds which she kept in the Third National Bank in Cincinnati, put there in her name.
Upon this state of facts, which are much stronger in favor of showing a delivery than the facts in the case at bar, the court uses the following language: "We search the record in vain for any testimony showing that Edward Prince ever delivered the possession of the bonds in controversy to the complainant, Lockey F. Chambers. On this point the evidence should be clear and positive, and in the absence of proof of absolute possession of the subject of the gift by the donee, free from the control of the donor, the mere declarations of the latter will not be sufficient to establish a delivery." And again: "A gift inter vivos goes into immediate effect, is absolute and irrevocable, and to render it complete there must be an actual delivery of the subject matter of the gift, the manner of delivery being to a great extent governed by the character of the thing delivered, but without such delivery the title does not pass. The effect of the delivery is that the donor parts not only with the possession *Page 151 but with the dominion over and control of the property so delivered." And again: "The declarations of Prince that he had given the bonds in the box to his wife will not aid her in her claim to them, unless they are accompanied with the proof of such absolute delivery as divested him of his title to them and rendered it impossible for him to have again exercised control over them. It is now well settled that the declarations of the donor, that he had given the thing in controversy to the claimant, will not perfect a gift incomplete for want of actual delivery, and the fact of delivery must be shown by other evidence than the mere declarations of the donor. A number of authorities we have cited refer to cases causa mortis, but they are nevertheless applicable, for, in so far as the question of delivery is concerned, there is no difference between gifts of that character and gifts inter vivos, as actual delivery is absolutely essential in both cases."
The soundness and wisdom of the rule which requires proof of delivery of possession to complete a parol gift can not be more forcibly shown than by quoting the language of Judge Hemphill in the case of Chevallier v. Wilson, 1 Tex. 161. In this case the plaintiff sued for a negro girl which she claimed had been given her by her deceased mother. After deciding that plaintiff could not recover because the facts showed that possession of the girl had never been delivered to her, the court says: "Here the parties are of full age, and no doubt can be entertained of the intention of the mother that the petitioner should be the recipient of her bounty; but if the necessity of delivery or change of possession of property be dispensed with in one instance, it must in all. If the rule be relaxed, how easy would it be, out of the most unimportant circumstance from the slightest acknowledgment, to frame evidence of donations which could be buried or brought to light as occasion might require; and which might strip the heirs at law, and in natural affection, of all the property of a deceased relative; or which among children equally beloved might produce the most odious discrimination in the distribution of the parent's property. In moments of playfulness or anger, or of excited feelings, parents may make loose declarations of their having given property to this or that one of their children, and those ebullitions of sportiveness or temporary feeling may, after being concealed for years, be set up as a bona fide disposition of property; and, if sustained, may operate the highest injustice and produce discord and animosities among those whom the ties of policy and nature combine to unite together. As a general rule those verbal gifts should be watched with jealousy by the courts. They are frequently supported on a very flimsy foundation; and being concocted in secret, they are difficult to be resisted and can only be effectually restrained by establishing the rule that there must be delivery and change of possession, or some notorious change of property, where the possession still remains with the donor."
Believing that to sustain the verdict of the jury in this case upon the evidence disclosed by the record is to virtually destroy the rule which requires proof of delivery of possession to complete a parol gift, I am *Page 152 constrained to respectfully but earnestly dissent from the conclusion reached on this issue by the majority of the court, and am of opinion that the judgment of the court below should be reversed and here rendered for the appellant, Margaret G. Lord.