Sawyer v. Mabus ( 1917 )

The opinion of the Court was delivered by

Mr. Justice Gage.

Let the opinion of the Circuit Court be reported.

One determinative issue in the case, so made by the testimony and the judgment below, is this: Do the certificates of deposit mean what they declare, or was it Paul Mabus’ intention that Sallie should only have the money evidenced by them at his death? Six witnesses testified that Paul plainly declared to them before his death that his intention was that Sallie should have the money at his death if she survived him. There was no objection before the referee or before the Circuit Court to the competency of that testimony, vital as it was.

The Circuit Court gave heed to the testimony, and concluded from it as a fact that Paul had no intention to give in the present time, but his intention was that Sallie should have the money at his death if she should survive him.

There is no exception that the Court considered incompetent testimony, and no argument to that effect, and no exception to the finding of the Court, had such an exception availed.

1 It is plain we may not review in a law case the Court’s conclusion on an issue of fact, where two reasonable deductions from the testimony may be made, and two such deductions might have been made in the instant case.

2 It is also plain that we may ordinarily only consider on appeal questions which were made in the trial Court.

3 It is also plain that if it be true Paul only intended Sallie should have the money at his death, then there was no gift to her while he had a chance to give; that is to say, in his lifetime.

For these reasons the judgment below must be affirmed; it is so ordered.

Mr. Chief Justice Gary and Mr. Justice Watts concur in the opinion of the Court. Messrs. Justices Hydrick and Fraser concur in affirming the judgment of the Circuit Court for the reasons stated by the Circuit Judge.

Footnote. — As to right of parties to joint deposit in bank, see notes in Ann. Cas. 1916d, 519.