WADE, Justice.
This case involves certain claims by Mrs. Nellie A. Lovett, who was friend and personal attendant to Mrs. J. U. Giesy, against the latter’s estate. The claims are opposed by the executor bank in the interest of two cousins who, as residuary legatees, take the bulk of the estate of about $60,000.
Plaintiff’s first count claimed that certain jewelry had been given her by Mrs. Giesy prior to her death; her second count sought compensation for personal services she had rendered for Mrs. Giesy. The defendant bank sought to defeat both counts; the first on the ground that plaintiff had failed to show a completed gift of the jewelryand the second on the ground that the services rendered by Mrs. Lovett were “a gratuity in expectation of a legacy.” The bank also counterclaimed for a diamond ring which Mrs. Lovett had received from Mrs. Giesy and which she claimed the latter had given her.
The jury returned verdicts favorable to the plaintiff on all counts, awarding her the jewelry, allowing her $3,300 for personal services, and dismissing defendant’s counterclaim for the diamond ring. Defendant’s motion for a new trial or for judgment notwithstanding the verdict was denied’ and defendant appealed.
[78]*78I.We first direct attention to the attack on the jury’s finding that there was a completed gift of the jewelry.
It is elementary that an irrevocable delivery with the intention to pass immediate ownership is a necessary requisite of a completed gift. Defendant urges here that the jury was not correctly instructed on the necessity of delivery Instruction 6, to which defendant excepts, is not as clear as it might be on that requirement, but the jury was adequately apprised of the applicable law in another instruction, Number 5, which read:
“Delivery, as used in these instructions, means that there must be an actual transfer by the donor of the possession, dominion and control of the property to the donee. A manual transfer of the property by the owner, or by a person authorized or directed to do so by the owner to the donee, is a sufficient delivery. * * * ”
If the instructions are considered together as they must be, the jury would not fail to understand the nature and necessity of delivery.
Defendant next urges that the evidence does not support a finding of completed gift. We agree that the plaintiff’s burden of proof is greater than in the ordinary civil action. It has been said in this jurisdiction:
“ * * * One who asserts title by gift inter vivos has the burden of proving that a gift was made including all of the elements essential to its validity. (Citing authorities.) The rule is that ‘A clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite of a gift inter vivos.’ * * * ”1
Many adjectives have been used to describe the degree of proof required to establish the elements of a gift,2 probably the most common of such expressions is that the evidence must be “clear and convincing.” 3 Courts recognize three different categories of fact each of which must be established by different degrees of proof; they are that the facts must he established (1) by a “preponderance of the evidence,” (2) by “clear and convincing evidence” and (3) “beyond a reasonable doubt.” It might aid to understand these concepts if they were described, as is sometimes done, in terms of the comparative degrees of certainty that the existence of the facts under each category must be established in the minds of the triers of the facts to the effect that the evidence must convince the trier of the facts, (1) that the existence of the disputed facts are more probable than their nonexistence, (2) that the existence of the disputed facts are very highly probable, and (3) that there [79]*79is-no reasonable doubt of the existence of such facts.4 We have said that “ ‘clear, unequivocal and convincing evidence', is a higher degree of proof than a mere ‘preponderance of the evidence,’ and approaches that degree of proof required in a criminal case, viz., ‘beyond a reasonable doubt,’ ”5 and that a mind “which entertained, not a slight, but a reasonable doubt as to*the correctness of its conclusion, would seem to be in a state of confusion.” 6 These statements were made to emphasize the high degree of proof required under this category and in the Jimenez case we required a very high degree of proof,7 but although the statement quoted from the Greener case seems to indicate that if the evidence left a reasonable doubt it could not be clear and convincing, other statements in the explanation of the evidence in that case seems to indicate a strong doubt of the existence of the disputed facts. It seems to be generally recognized that “clear and convincing evidence” requires a lesser degree of proof than “proof beyond a reasonable doubt,” although it may approach such requirement. It may be that this Court requires a higher degree of proof under this category than is sometimes thought for that reason in describing this category above we used the term “very highly probable.”
The concept of comparative degrees of certainty realistically recognizes that findings of fact by a court rest on probabilities and not on absolute certainties. There seems to be some doubt as to all genuinely disputed issues of fact. This does not mean that merely speculative evidence is sufficient, in all cases a finding of fact in favor of the party having the burden of persuasion must be supported by evidence which is consistent with the existence of and which tends to prove such facts and must convince the trier of the facts of the existence of such facts to the extent of the degree of proof required. It must also satisfy the court that the evidence is reasonably sufficient to prove such facts or sustain such findings. However, unless it is also the trier of the facts, the court need not be convinced that the facts found exist. Its problem is to determine whether the evidence is reasonably sufficient to sustain the findings. In so doing it should consider all of the testimony and the inferences therefrom in the light most favorable to the existence of the facts as found.
It requires a higher degree of proof to sustain a finding of a fact which must be established by “clear and convincing” evidence or “beyond a reasonable doubt” than where mere proof by a preponderance of the evidence is sufficient. To conclude other[80]*80wise would be unreasonable, for where a higher degree of evidence is required to establish a fact á proportionately greater degree of proof is required to sustain a finding of the existence of such fact. We agree with the statement of Mr. Justice Traynor of the Supreme Court of California8 on this question:
“ * * * While it rests primarily with the trial court to determine whether the evidence is clear and convincing, its finding is not necessarily conclusive, for in cases governed by the rule requiring such evidence ‘the sufficiency of the evidence to support the finding should be considered by the appellate court in the light of that rule.’ Sheehan v. Sullivan, 126 Cal. 189, 193, 58 P. 543, 544; see, also Moultrie v. Wright, 154 Cal. 520, 98 P. 257.
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WADE, Justice.
This case involves certain claims by Mrs. Nellie A. Lovett, who was friend and personal attendant to Mrs. J. U. Giesy, against the latter’s estate. The claims are opposed by the executor bank in the interest of two cousins who, as residuary legatees, take the bulk of the estate of about $60,000.
Plaintiff’s first count claimed that certain jewelry had been given her by Mrs. Giesy prior to her death; her second count sought compensation for personal services she had rendered for Mrs. Giesy. The defendant bank sought to defeat both counts; the first on the ground that plaintiff had failed to show a completed gift of the jewelryand the second on the ground that the services rendered by Mrs. Lovett were “a gratuity in expectation of a legacy.” The bank also counterclaimed for a diamond ring which Mrs. Lovett had received from Mrs. Giesy and which she claimed the latter had given her.
The jury returned verdicts favorable to the plaintiff on all counts, awarding her the jewelry, allowing her $3,300 for personal services, and dismissing defendant’s counterclaim for the diamond ring. Defendant’s motion for a new trial or for judgment notwithstanding the verdict was denied’ and defendant appealed.
[78]*78I.We first direct attention to the attack on the jury’s finding that there was a completed gift of the jewelry.
It is elementary that an irrevocable delivery with the intention to pass immediate ownership is a necessary requisite of a completed gift. Defendant urges here that the jury was not correctly instructed on the necessity of delivery Instruction 6, to which defendant excepts, is not as clear as it might be on that requirement, but the jury was adequately apprised of the applicable law in another instruction, Number 5, which read:
“Delivery, as used in these instructions, means that there must be an actual transfer by the donor of the possession, dominion and control of the property to the donee. A manual transfer of the property by the owner, or by a person authorized or directed to do so by the owner to the donee, is a sufficient delivery. * * * ”
If the instructions are considered together as they must be, the jury would not fail to understand the nature and necessity of delivery.
Defendant next urges that the evidence does not support a finding of completed gift. We agree that the plaintiff’s burden of proof is greater than in the ordinary civil action. It has been said in this jurisdiction:
“ * * * One who asserts title by gift inter vivos has the burden of proving that a gift was made including all of the elements essential to its validity. (Citing authorities.) The rule is that ‘A clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite of a gift inter vivos.’ * * * ”1
Many adjectives have been used to describe the degree of proof required to establish the elements of a gift,2 probably the most common of such expressions is that the evidence must be “clear and convincing.” 3 Courts recognize three different categories of fact each of which must be established by different degrees of proof; they are that the facts must he established (1) by a “preponderance of the evidence,” (2) by “clear and convincing evidence” and (3) “beyond a reasonable doubt.” It might aid to understand these concepts if they were described, as is sometimes done, in terms of the comparative degrees of certainty that the existence of the facts under each category must be established in the minds of the triers of the facts to the effect that the evidence must convince the trier of the facts, (1) that the existence of the disputed facts are more probable than their nonexistence, (2) that the existence of the disputed facts are very highly probable, and (3) that there [79]*79is-no reasonable doubt of the existence of such facts.4 We have said that “ ‘clear, unequivocal and convincing evidence', is a higher degree of proof than a mere ‘preponderance of the evidence,’ and approaches that degree of proof required in a criminal case, viz., ‘beyond a reasonable doubt,’ ”5 and that a mind “which entertained, not a slight, but a reasonable doubt as to*the correctness of its conclusion, would seem to be in a state of confusion.” 6 These statements were made to emphasize the high degree of proof required under this category and in the Jimenez case we required a very high degree of proof,7 but although the statement quoted from the Greener case seems to indicate that if the evidence left a reasonable doubt it could not be clear and convincing, other statements in the explanation of the evidence in that case seems to indicate a strong doubt of the existence of the disputed facts. It seems to be generally recognized that “clear and convincing evidence” requires a lesser degree of proof than “proof beyond a reasonable doubt,” although it may approach such requirement. It may be that this Court requires a higher degree of proof under this category than is sometimes thought for that reason in describing this category above we used the term “very highly probable.”
The concept of comparative degrees of certainty realistically recognizes that findings of fact by a court rest on probabilities and not on absolute certainties. There seems to be some doubt as to all genuinely disputed issues of fact. This does not mean that merely speculative evidence is sufficient, in all cases a finding of fact in favor of the party having the burden of persuasion must be supported by evidence which is consistent with the existence of and which tends to prove such facts and must convince the trier of the facts of the existence of such facts to the extent of the degree of proof required. It must also satisfy the court that the evidence is reasonably sufficient to prove such facts or sustain such findings. However, unless it is also the trier of the facts, the court need not be convinced that the facts found exist. Its problem is to determine whether the evidence is reasonably sufficient to sustain the findings. In so doing it should consider all of the testimony and the inferences therefrom in the light most favorable to the existence of the facts as found.
It requires a higher degree of proof to sustain a finding of a fact which must be established by “clear and convincing” evidence or “beyond a reasonable doubt” than where mere proof by a preponderance of the evidence is sufficient. To conclude other[80]*80wise would be unreasonable, for where a higher degree of evidence is required to establish a fact á proportionately greater degree of proof is required to sustain a finding of the existence of such fact. We agree with the statement of Mr. Justice Traynor of the Supreme Court of California8 on this question:
“ * * * While it rests primarily with the trial court to determine whether the evidence is clear and convincing, its finding is not necessarily conclusive, for in cases governed by the rule requiring such evidence ‘the sufficiency of the evidence to support the finding should be considered by the appellate court in the light of that rule.’ Sheehan v. Sullivan, 126 Cal. 189, 193, 58 P. 543, 544; see, also Moultrie v. Wright, 154 Cal. 520, 98 P. 257. In such cases it is the duty of the appellate court in reviewing the evidence to determine, not whether the trier of facts could reasonably conclude 'that it is more probable that the fact to be proved exists than that it does not, as in the ordinary civil case where only a preponderance of the evidence is required, but whether the trier of facts could reasonably conclude that it is highly probable that the fact exists. When it holds that the trial court’s finding must be governed by the same test with relation to substantial evidence as ordinarily applies in other civil cases, the rule that the evidence must be clear and convincing becomes meaningless.”
The difficult problem is in applying these rules to the facts in the particular case for there is often great difference of opinion ón whether the evidence reasonably sustains the findings. Sometimes three justices constituting a majority of the court hold that the conclusions of the two dissenting justices, the trial judge and all members of the jury are wholly unreasonable. This demonstrates that the test of the sufficiency of the evidence to sustain a finding is whether the evidence is reasonably sufficient and not, ás sometimes stated, whether reasonable minds could so conclude.
We turn then to an evaluation of the evidence in the light most favorable to plaintiff to see if the jury could reasonably conclude that a completed gift, or a transfer of the jewelry to Mrs. Lovett in payment for her services was shown by clear and convincing evidence. Only the question of whether there was a completed gift was submitted to the jury, but if the evidence sustains a finding of such gift it was ample to show a transfer of the jewelry in satisfaction of an agreement that she would be well paid. In considering this evidence we must keep in mind that plaintiff was under the disability of the “dead man’s statute” and had to rely on the testimony of others to. prove her case.9
[81]*81From May, 1950, until Mrs. Giesy’s death in March, 1953, plaintiff Mrs. Lovett, spent several hours each day with her doing housework, personal beauty work, and acting as a companion for Mrs. Giesy, who was a semi-invalid in her 70’s. Mrs. Giesy owned certain jewelry, stated to be worth about $5,000, which she kept in a jewel box, and which the plaintiff claims was given to her.
There is evidence that Mrs. Giesy made prior declarations of intent to give or transfer the jewelry to Mrs. Lovett. Both Mr. Lovett and a Miss Garrison, a nurse, testified to having heard Mrs. Giesy voice such intention some months prior to the claimed gift or transfer.
There is also direct evidence that Mrs. Giesy carried out her declared intention. Mrs. Maddocks, a private nurse for Mrs. Giesy, and an apparently disinterested witness, testified as follows: On March 13, 1953, Mrs. Giesy became seriously ill and on the 15th her physician, Dr. Smith, directed that she go to the hospital. When Dr. Smith inquired what should be done with the jewels Mrs. Giesey said, “I want Nell [Mrs. Lovett] to have them; they are hers.” Mrs. Giesy then handed the jewel box to the nurse and said, “These are for Nell; give them to Nell.” When Mrs. Mad-docks attempted to follow the ambulance to the hospital one of the tires of her automobile blew out and she called the Lovetts to come and take her to the hospital. When the Lovetts arrived at Mrs. Giesy’s apartment Mrs: Maddocks handed the jewels to Mrs. Lovett, relaying to her Mrs. Giesy’s designation that she was to have them; Dr. Smith’s version of this incident was to the effect that Mrs. Lovett was to hold the jewelry for safe keeping and that Mrs. Giesy instructed Mrs. Maddocks “to call Mrs. Lovett and have her come so she could turn the jewelry over to her.”
Further, supplementing the foregoing evidence of the declaration to make the gift or transfer and the delivery of the jewelry to Mrs. Lovett, there is evidence that Mrs. Giesy later confirmed it. Mrs. Maddocks asserted that when Mrs. Lovett arrived at the hospital she heard her ask Mrs. Giesy whether she should turn the jewelry over to the bank, to which Mrs. Giesy replied, “No, those jewels are yours, Nell.” Mr. Lovett corroborates this, relating that in the evening when he accompanied his wife to the hospital to visit Mrs. Giesy the subject of the jewels was again mentioned and that Mrs. Giesy stated to his wife, “I want you to have them.”
Two days later, on March 17, Mrs. Giesy died. Her will, made more than two years before, had the effect of leaving this jewelry with the bulk of her estate to two cousins as residual legatees.
There is some testimony which would tend to dispute and to discredit plaintiff’s evidence, had the jury so regarded it. In addition to the statement of Dr. Smith above referred to, Mr. D. A. Skeen, attorney for Mrs. Giesy, stated that a few days after the [82]*82latter’s death Mrs. Lovett had told him “she had a box containing Mrs. Giesy’s jewelry and asked what she should do with it [and] that she had taken it because she didn’t want to leave it in the home after Mrs. Giesy went to the hospital.” And Mr. O’Meara, trust officer of the bank, and Dr. Smith each testified that when Mrs. Lovett was advised to turn the jewelry over to the bank she expressed a willingness to do so and did not then assert ownership to either of them. Defendant advisedly places great emphasis on this evidence, but it seems to have been viewed by the jury in a different light than by the defendant bank.
It is almost banal to repeat that where the evidence is in conflict its weight, including the credibility of these witnesses, was for the jury. It would not be unreasonable for the jury to have thought Mrs. Lovett’s willingness to turn the property over to the executor was not necessarily inconsistent with her claim of gift or transfer. A layman may be uncertain of legal rights and willing to cooperate in peaceful adjudication rather than to stubbornly insist upon a claim. The fact is that her counsel made an agreement with the bank that Mrs. Lovett would turn the jewelry over to it, but that such surrender would not prejudice her claim of ownership, and then commenced this action in order that the court might adjudicate the claim.
We are not prepared to say that it was unreasonable for the jury to find that the plaintiff met the degree of proof required, to establish the essential elements of a gift.
II. The next question presents a different problem. The jury by their verdict not only found an implied contract of employment between Mrs. Giesy and Mrs. Lovett and awarded Mrs. Lovett the reasonable value of her services in the sum of $3,300, but also found that Mrs. Giesy had given to her property worth greatly in excess of that amount.
The evidence showed that in May of 1950, Mrs. Giesy’s attendant quit, whereupon she called Mrs; Lovett, asking her to come and “help her with her housework, beauty work and such.” She further said, “I don’t want you to be concerned about the pay, because you’ll be well paid for your services.” In accordance with this request, during the nearly three years until Mrs. Giesy’s death, Mrs. Lovett spent a number of hours each day and often in the evening performing all sorts of personal services, including preparation of meals, keeping the house clean and in order, tending Mrs. Giesy’s beauty work, handling correspondence and acting as a friend and companion. Other witnesses affirmed hearing Mrs. Giesy say of Mrs. Lov-ett that “she would be well paid one day,” and “she would be well taken care of.” The only evidence that the work was being done not for pay was a reported statement by Mrs. Lovett that she was caring for Mrs. Giesy “as a friend * *• * because she loved her.”
[83]*83Thus the evidence is ample to support a finding of an implied contract to pay Mrs. Lovett the reasonable value of her services if she had failed to fulfill her express promise that she would be well paid. The evidence strongly suggests an understanding that payment for such services would be made and accepted by a transfer of property or by legacy and not by regular cash payments. The fact that although Mrs. Giesy was amply able to pay in cash, she asked Mrs. Lovett not to be concerned about the pay, assuring her that she would be well paid but offering her no regular payments for her services, clearly indicates that such was the understanding. Accordingly the evidence indicates and the jury found that Mrs. Giesy during her lifetime gave or transferred to Mrs. Lovett about $5,000 worth of jewelry. This is substantially in excess of the reasonable value of the services and fits in with the agreement that one day she would be well paid. This is clearly what the evidence indicates the parties contemplated and shows that the obligation was by these so called gifts completely discharged. There is a complete lack of evidence which tends to indicate that the parties intended a payment in cash of the reasonable value of the services in addition to making these transfers to her of property in excess of such value. These transfers of jewelry worth about $5,000 and the diamond ring worth about $2,000 had prevented an implied contract for the reasonable value of such services from coming into effect. In view of these facts the finding by the jury that there was an implied contract to pay the reasonable value of the services in addition to making these gifts or transfers is unreasonable and not supported by the evidence.. The award of $3,300 is reversed and set aside.
The case of Burton v. McLaughlin10 is different from this one in that there the deceased made no gift or transfer in payment for the services and the court properly awarded the employee the reasonable value of her services where as here the evidence shows that Mrs. Lovett was paid in accordance with the understanding of the parties.
III. Finally we turn to the counterclaim upon which defendant sued plaintiff for a diamond ring. With respect to it the defendant claims that the court erred in giving this instruction to the jury:
“The burden is upon the plaintiff to prove by a preponderance of the evidence * * * the allegations of the * * * complaint * * *; and the burden is upon the defendant to so prove the allegations of its counterclaim. * * *”•
The argument defendant makes is that instead of requiring Mrs. Lovett to establish the gift by clear and convincing evidence, the actual effect of the instruction was to [84]*84clothe Mrs. Lovett with a presumption of ownership, and compel the defendant to prove its right to the ring by a preponderance of the evidence, which involves placing the defendant in the impossible burden of proving a universal negative, that no gift of the ring was ever made. It is appreciated that, with Mrs. Giesy unavailable to testify, the defendant was in a very difficult predicament as to proving the latter fact.
The evidence shows that in November, 1950, Mrs. Giesy bought a large diamond ring which, according to the salesman, she said she planned to give to Mrs. Lovett. In November, 1952, Mrs. Giesy handed the ring to Mrs. Lovett, explaining, “Nell, my large ring- is getting to large for me * * * so now I want you to have it.” Thereafter Mrs. Lovett kept the ring as her own for the several months until Mrs. Giesy’s death, during which time Mrs. Giesy knew of Mrs. Lovett’s possession and asserted no claim to the ring. These facts being established by undisputed collateral evidence we believe it can be regarded as sufficient to prove the gift of the ring by clear and convincing evidence as the jury had been instructed and to establish Mrs. Lovett as the owner. Under such circumstances, the defendant as counterclaimant was in the position of challenging her ownership, and did have the final burden of proof to establish by a preponderance of the evidence that the ring belonged to the estate. In any event, no prejudice inured to defendant because the evidence supporting the gift of this ring was credible, and undisputed, and would have supported a directed verdict in favor of plaintiff and against the defendant on the counterclaim.
The judgment for plaintiff on the first count and in dismissing the counterclaim is affirmed, and is reversed on the second count. Each party to bear his own costs.
McDonough, c. j., concurs.