#### Keifer, Admx., Appellant, *v.*Schuneman et al., Appellees.

(No. 20758

Decided February 25, 1948.)

*Messrs. Crossen dt Hurd,*for appellant.

*Mr. A. F. Gallagher,*for appellee Fred Schuneman.

Matthews, P. J.

The plaintiff as special administratrix appointed under authority of Section 10509-14, *286General Code, to collect and preserve the effects of the decedent, filed this action to recover the amount of a deposit in the defendant South Side Federal Savings & Loan Association to the credit of the defendant Schuneman and $700 held by him, and also 33 shares of the common stock of the Duquesne Brewing Company, the certificate for which he held, all of which it was alleged constituted assets of the decedent’s estate. An injunction was also sought.

The trial court found in favor of the plaintiff to the extent of $130, held by defendant Schuneman, and also held in her favor as to the Duquesne Brewing Company stock, but found against the plaintiff as to the deposit in the South Side Federal Savings & Loan Association, and rendered judgment in accordance with its findings. The plaintiff appeals on questions of law from that judgment to this court.

It was admitted at the trial that the decedent had owned all those items of personal property shortly before her death, and that all of them were under the control of the defendant Schuneman at her death and at the time of trial. The plaintiff having established recent ownership, that ownership would be presumed to continue until such time as it appeared from the evidénce that the decedent had been divested of it by her own act or by operation of law. 17 Ohio Jurisprudence, 94 *et seq.;*20 American Jurisprudence, 205 *et seq.*In the syllabus to *In re Estate of Wohleber,*320 Pa., 83, 181 A., 479, as reported in 101 A. L. R., 829, it is said:

*“*Ownership of personal property is presumed to continue unless a transfer by word or act is shown.”

The effort of the defendant Schuneman at the trial was to prove a transfer of title by the decedent in her lifetime, and by the plaintiff to disprove any such transfer.

*287There was introduced in evidence a document, dated December 9, 1946, in decedent’s handwriting, . captioned “hear is my will.” However, the decedent’s signature was not attested by' any witness and, of course, it could not be given effect as a will. In this document, the decedent wrote:

“Dec. 9 -1946

“Hear is my will

“I give my niece Amanda Heman Five Hundred dollars after I died

“I give my niece Hazel Pierona Five Hundred dollars'

“I give my nephew Fred Jr Schuneman Five Hundred dollars

“I give my sister Rosie Schuneman Five Hundred dollars for taking care of my that is wages

“I give Fred Schuneman S.R. my brotherlaw for taking care of everthing 1 hundred

“I give my nephew Fred Schuneman Jr. 33 shares of common stock Duquesne Brewing Co. of Pittsburg, Pa.

“If there is anything left devied the rest to my nieces children

‘ ‘ Anna Milliman. ’ ’

Having composed that document, the decedent placed it in an envelope, sealed it, endorsed on the back of the envelope “Rosie open this when I am dead” and then deposited it in her “strong” box, which she locked. Rosie, who was a sister of the decedent and wife of defendant Schuneman, knew nothing of this at the time and learned of it only after decedent’s death. Likewise, according to the evidence, the plains tiff, who also was .a .sister of decedent, and the defendant Schuneman learned for the first time of the existence of the document after decedent’s death. No one other than decedent knew of its existence during her lifetime.

*288On December 21,1946, on the same day that she was taken to a hospital, where she died three days later, the decedent prepared and signed the following document :

“Dec 21 - 1946

“I at the hospital sick and I want to close my account will you Please give my Brotherlaw my mony, Mr. Fred Schuneman

‘ ‘ Anna. Milliman

“Thank you.”

The decedent' immediately delivered this document together with her savings account book of the South Side Federal Savings & Loan Association to the defendant Schuneman, who, during decedent’s lifetime, had the amount of the deposit, which was $2,706.92, transferred to his credit upon the books of the South Side Federal Savings & Loan Association. He withdrew between $500 and $600, most of which he used to pay debts of the decedent. The balance remained to his credit at the savings association at the time this action was filed. The defendants were enjoined from distributing the deposit pending the action.

The defendant'- Schuneman claimed in his answer that the decedent had made a gift *inter vivos*of all this property to him. /

The trial court found against the defendant Schuneman as to the Duquesne Brewing Company stock and as to the money to the extent of $130 and rendered judgment therefor in favor of the plaintiff. The defendant Schuneman did not appeal from that judgment.

As to the deposit in the South Side Federal Savings & Loan Association, the court found that by her action on December 21, 1946, the decedent had divested herself of the legal title and vested the title thereto in the defendant Fred Schuneman, as trustee for the *289donees mentioned in the writing of December 9, 1946, captioned “hear is my will.”

To determine whether the court was justified in holding that the title to this bank deposit passed to Fred Schuneman on December 21, 1946, as trustee, it is necessary to analyze the actions and utterances of the decedent on that date to determine whether there was any such intent as found by the trial court.

The only item of .evidence coming from the decedent is the written document, quoted heretofore, which she prepared and signed on that date. That instrument purports to be a direction or authorization to the bank to deliver or hand over the money to Schuneman. It is true that the word “give” is used, but reference to any standard dictionary discloses that the word has many meanings other than-to make a donation, and a reference to “Words and Phrases” is sufficient to convince that its meaning is equally flexible under judicial interpretation. It is frequently used in the sense of “to deliver” or to “hand over” without any intent to transfer title. To determine its meaning in a given context the surrounding circumstances must be considered.

The evidence shows that the decedent had some sort of a stroke a year or so before her death. The plaintiff contended that her mind was affected, but whether it went to the extent of rendering her incompetent is not clear. It is clear that her speech was affected to such an extent that it was difficult at times for her to make herself understood.

On December 21, 1946, when she delivered the writing and the savings account book to Fred Schuneman, he and his daughter were the only persons present and their testimony is substantially the same. Schuneman testified that:

*290“I went in and she hands me the bank book with that note, and she mumbled, and went like that * * *.

“Q. At this particular time what impression did she leave with you when she gave you the book and that note? A. Just as I told you, she made that motion, and she gave me the bank book and the note. She done it three or four times. She smiled ‘That’s yours. That’s all I can say.’ ”

Then, on cross-examination, he.testified:

“Q. A few weeks 'after that when she handed you the book, she could not say anything? A. Absolutely not, I will be frank with you too, she could not. She was mumbling. You could get a word or two, but you couldn’t- understand her right.”

He also testified that after he learned of the existence of the document captioned “hear is my will” he concluded to carry out its provisions.

Sehuneman’s daughter testified as follows as to ■what was said and done when the bank book and writing were handed to Sehuneman:

“Q. Will you tell Judge Kovacky just what was ■said as you understood it? A. Well she wa¡3 sitting in — should I tell him all ? — She was sitting in the front room when she wrote the note, and I was sitting there, and she asked — mumbled to me to call my dad. I called dad and she handed him the note and the bank book.

“Q. What was said, if anything, between your aunt, now deceased, Anna Milliman, and your father? Did any conversation take place when she handed' it to him? A. No, just a mumble like ‘This is yours.’ ” ;

When that transaction took place, Fred Sehuneman knew nothing of the existence of the document captioned ‘ ‘ Hear is my will. ’ ’ His daughter who was present had never heard of it. Only the decedent knew ■about it and she said nothing on the subject.

*291Now accepting as credible the testimony as to the-actions and inarticulate or semi-articulate utterances-of Anna Milliman on that occasion, do they have any tendency to prove that she intended to make an immediate and irrevocable transfer of the title to the-bank account to Fred Schuneman, as trustee for the-benefit of those named in the document captioned' “Hear is my will”? Certainly, she said nothing indicating any such intent. Whatever else her actions and utterances on that occasion may show, there is nothing to indicate the creation of a trust. ■

It is claimed that because the decedent had stated in the document, dated December 9, 1946, captioned' '“Hear is my will” that “I give Fred Schuneman, Sr.,, my brotherlaw for taking care of everthing, 1 hundred,” it can be inferred that what she did on December 21, 1946, is referable to the same intent. As they emerge from this record, the two incidents are completely unrelated and independant. Assuming, however, that the trier of the facts would be justified in attributing to the decedent the same intent on December 21st that she had on December 9th, that would have-, no tendency to prove that on December 21st she had the intent to make an immediate and irrevocable transfer on that date because that was not her intent on-December 9th. The intent which she manifested on December 9th was to make a will to take effect on her death and revocable at any time during her life, and if that was her intent on December 21st, what she did on that date would be ineffective for failure to-comply with the legal requirements in the making of' a will, just as what, she did on December 9th was ineffective.

In effect the trial court found that Schuneman was the agent or trustee of the legatees named in the defectively executed will, without any evidence of any *292such intent. In *O’Brien, Admx.,*v. *O’Brien,*112 Ohio St., 202, 147 N. E., 4, the court stated in the second paragraph of the syllabus, that:

“Delivery of a paper writing, describing personal property, and indicating an intention to give such personal property to the alleged donee, to a third person by an alleged donor in the presence of the alleged donee, without any direction or instruction from either, does not constitute a delivery to the alleged donee.”

We find no evidence'to support the finding that the decedent intended' to transfer this bank account to Fred Schuneman, as trustee, and that the court erred in so finding. No other error appears in the record.

The issue was raised by the pleadings as to whether the decedent intended by her actions and utterances on December 21st to make a gift to Fred Schuneman personally. His claim in his answer was that the decedent had that intent and delivered the bank book to him in pursuance of that intent. That issue has not been determined by the trial court.

We are of the opinion that the record contains evidence from which conflicting inferences may be drawn as to the decedent’s intent, when she delivered the bank book to Fred Schuneman. She may have intended to constitute Schuneman as her agent to receive and account to her without any intent to transfer title. On the other hand, she may have intended to give the account to him, which, of course, would effect the absolute transfer of title to him.

The decision of that issue requires a weighing of the evidence, the determination of the credibility of witnesses, and the drawing of inferences, and whether the burden of proof has been sustained, all appropriately done by the court of first instance, rather than by a reviewing court.

*293For these reasons, the judgment is reversed; and the cause remanded for further proceedings according to law.

*Judgment reversed.*

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.

Matthews, P. J., Ross and Hildebrant, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate .District.