#### ADA CHESTNUTT v. ISAIAH DURHAM, DALE RAYNOR, Administratrix of the Estate of MARY ELIZA McCULLEN, Deceased, and DALE RAYNOR, Individually, and ED RAYNOR, Administrator of IDA RAYNOR, Deceased.

(Filed 22 March, 1944.)

1. Gifts §§ 1, 2—

An owner of personalty may make a valid gift thereof, *inter vimos,*with the right of enjoyment in the donee postponed until after the death of the donor, if the subject of the gift is delivered to a third person to be *150given to clonee on donor’s death, the donor thereby intending to part with all control over the property.

3. Evidence § 15—

Statements on cross-examination, which conflict with and contradict the testimony of the witness made on direct examination, affect only his credibility and do not warrant a withdrawal of the case from the jury.

Appeal by defendant, Dale Raynor, individually, and as administra-trix of tbe estate of Mary Eliza McOullen, from *Burgwyn, Special Judge,*'at September Term, 1943, of WayNe. No error.

Some time about 1928 Mary Eliza McOullen, wbo lived on or near tbe land of defendant, Isaiab Durham, carried to bis borne a fruit jar containing $1,000.00 in currency. She and Durham buried tbe jar near an outhouse on bis land, and she requested him to look after it and at her death to give it to her two sisters, plaintiff and Ida Raynor.

About five years later she went back and inquired about tbe money. She and Durham then dug it up, and she examined it to see if it was damaged. Finding it in good condition, they reburied it. Shortly thereafter she moved some fifteen miles away and made no further inquiry about it. She died 25 April, 1943. Durham then told the plaintiff about the money and stated he would give it to her and Ida but her brother objected and he would have to turn it over to the administrator.

Durham delivered the money to the defendant, Dale Raynor, Admin-istratrix, and plaintiff instituted this action to recover same. On motion, Ed Raynor, Administrator of Ida Raynor, deceased, the other sister, was made party defendant. Defendant, Dale Raynor, Administratrix, admitted the receipt of the money but denied there was any valid gift *inter vivos*and asserted ownership as administratrix. She likewise pleaded a cross action against Durham, alleging that he, Durham, received $2,000.00 and had accounted for only $1,000.00.

At the trial below, when plaintiff rested, defendant Dale Raynor, Administratrix, admitted she had no competent evidence to support her cross action. Thereupon, judgment of nonsuit as to Durham was entered by consent. Appropriate issues were submitted to and answered by the jury in favor of plaintiff. From judgment thereon defendant, Dale Raynor, individually and as Administratrix, appealed.

*Faircloth & Faircloth for plaintiff, appellee.*

*J. Faison Thomson for defendant Dale Raynor, individually and as Administratrix, appellant.*

BaRNHill, J.

A person may make a valid gift *inter vivos*with the right of enjoyment in the donee postponed until the death of the donor. *151Tbe rule governing sucb gifts is stated in American Jurisprudence as follows :

> “It is, of course, competent for an owner of personal property to make, and be may make, a valid gift thereof, with tbe right of enjoyment in tbe donee postponed until tbe death of tbe donor, if tbe subject of tbe gift is delivered to a third person, with instructions to deliver it to tbe donee on tbe donor’s death, and if tbe donor parts with all control over it, reserves no right to recall it, and intends thereby a final disposition of tbe property. In sucb a case, where tbe gift is absolute, postponement of tbe delivery and enjoyment of tbe gift does not necessarily prevent tbe passing of a present interest, even though possession by tbe donee is not obtained until after tbe donor’s death.” 24 Amer. Jur., 149.

This rule has been approved and adopted in this jurisdiction. *Parker v. Ricks,*53 N. C., 447; *Handley v. Warren,*185 N. C., 95, 116 S. E., 168. See also Anno. 3 A. L. R., 902; 60 A. L. E., 1055.

Durham testified in part that Mary Eliza McCullen, at tbe time she delivered tbe money to him, said: “I want you to take this money and keep it until I die, and when I die I want you to give it to my two sisters.” This evidence, together with tbe other facts and circumstances appearing from tbe testimony, when considered in tbe light most favorable to tbe plaintiff, is amply sufficient to require tbe submission of appropriate issues to tbe jury.

It is true that Durham, on cross-examination, made statements which are in conflict with and tend to contradict bis testimony given on direct examination. These statements were in large measure an attempt on bis 'part to give bis interpretation of tbe effect of bis transaction with tbe donor. At most they only tend to weaken bis former testimony. They do not warrant a withdrawal of tbe case from tbe jury. It must determine tbe weight and credibility of tbe evidence. *Hadley v. Tinnin,*170 N. C., 84, 86 S. E., 807; *Tomberlin v. Bachtel,*211 N. C., 265, 189 S. E., 769, and cases cited.

Appellant, Administratrix, is custodian of tbe fund. She must account to tbe true owners. Hence, evidence tending to show ownership in plaintiff and tbe administrator of her deceased sister was competent.

Tbe case is one of fact, and tbe jury has weighed tbe evidence and rendered its verdict in a trial free from error. Its verdict is conclusive.

No error.