Bjrown, J.
The Citizens Bank and Trust Company ot Quincy, Florida, filed its bill of interpleader in the Circuit Court for Gadsden County. It appears from the bill that two deposits were made to the account of R. B. McDonald and his wife- IVIinnie Lee McDonald; one for $500.00 was deposited two days after Mrs. Fannie Furlough’s funeral, and the other deposit was for $1000.00 and was made on October 30, 1935, about a week after the funeral. Notice of two claims were filed with the bank. Mrs. Furlough's daughters were claiming the fund as heirs of Mrs. Furlough,1 and Onzie Tindeil claimed the funds as a gift from Mrs. Furlough. It appears that the fund in question was part of a larger amount, in currency, which had been placed in the custody of the McDonalds by Tindeil during the night following the day of Mrs. Furlough’s death, which was on October 19, 1935.
A final decree of interpleader was entered directing the bank to pay the money into the registry of the court and allowing it attorney’s fees and costs. The' court having thus allowed the bank to withdraw the case now became a controversy to settle the two adverse claims and to determine to whom the money should go.
After the filing of considerable pleadings, the taking of testimony, the propounding of interrogatories and answers thereto, and the arguments of counsel, the court entered its final decree, finding that Onzie Tindeil, defendant, by virtue of a gift made to him by the late Fannie Furlough, was entitled to the balance of the fund, after costs of the suit, as
agreed to by counsel, were first paid, and it was ordered that the clerk pay over the balance of the fund now in custody, or that might come into his custody in this cause, to the said Onzie Tindell. The above mentioned sum was augmented by the deposit into court before the final decree was entered of the further sum of $1,530.00, deposited by Dr. B. F. Barnes of Chattahoochee, such sum having been turned over to Dr. Barnes by Onzie Tindell some time prior to the commencement of these proceedings.
Appeal was taken from this final decree and six assign-' ments of error propounded. They are, however, reducible to two assignments: (1) That the Court erred in finding that the money was the property of the defendant Tindell, based upon a gift, rather than the property of the daughters as heirs of Mrs. Fannie Furlough. (2) That the Court erred in not striking from the record the testimony of Mrs. Minnie Lee McDonald as to conversations and transactions with Mrs. Furlough, deceased.
The first assignment above raises the question of whether or not the evidence is sufficient to establish a completed gift. As was said in the opinion by Mr. Justice Strum in the case of Farrington v. Harrison, 95 Fla. 769, 116 So. 497:
“We also bear in mind the oft-reiterated rule that, while the findings ol the Chancellor on the facts where the evidence is heard by him, and the witnesses are before him, are entitled to more weight in the appellate court than where such findings are made in a cause where the testimony was not taken before the chancellor, yet in either case the chancellor’s findings should not be disturbed by an appellate court unless shown to be clearly erroneous. Sandlin v. Hunter Co., 70 Fla. 514, 70 So. 553; Travis v. Travis, 81 Fla. 309, 87 So. 762; Lucas v. Wade, 43 Fla. 419, 31 So. 231.
“On the other hand, where a decree is manifestly against
the weight of the evidence, or contrary to, and unsupported by, the legal effect of the evidence, then it becomes the duty of the appellate court to reverse such decree. Carr v. Lesley, 73 Fla. 233, 74 So. 207; Florida National Bank v. Sherouse, 80 Fla. 405, 86 So. 279; McGill v. Chappelle, 71 Fla. 479, 71 So. 836; Lithtsey v. Washington Park Properties (Fla.) 112 So. 555.”
Expressed in. other words, where there is a clear lack of proof to establish some necessary element which is essential to the finding of the chancellor, then this Court will reverse such decree.
In the case at bar, Onzie Tindell claimed the fund in question by virtue of a gift from Mrs. Furlough, deceased. All of the essential elements of a gift must be proven. As was said in 12 R. C. L.
‘‘In the case of a gift
causa mortis,
the intention to make a gift must be shown by clear and precise evidence, and it must also clearly appear that there was an actual gift perfected by delivery.”
Delivery by the donor is an essential element in the establishment of a gift. This may be proven either by direct or circumstantial evidence. Under section 4372 of Comp. Gen. Laws the court correctly struck the testimony of Onzie Tindell in regard' to any transaction with or communication between such witness and Mrs. Furlough the deceased. Therefore there was no direct evidence, to establish a delivery, and the question to be determined is whether the circumstantial evidence is sufficient to establish this necessary element of a gift.
Evidence was introduced tending to prove that Mrs. Furlough had, on numerous occasions, said that she was. going to leave all her property to Onzie; that Mrs. Furlough’s attitude to Onzie Tindell, who had lived with and waited on her for a large part of some ten or eleven years, was
that of mother to son; that she was not on friendly terms, with her daughters and had made the statement a number of times that she did not want them to look upon her dead face; that Onzie Tindell had possession of the money immediately after Mrs. Furlough’s death; and that he was seen with a package under his arm a day or so before Mrs. Furlough’s death, which he testified had' the money in it.
Taking the evidence introduced by the defendant Tindell (Appellee) as true, the most that is established is that Mrs. furlough intended to leave everything to him, and that he ^had possession of the money and exercised control over it immediately after her death.
Circumstantial evidence must as a general rule be of such a conclusive nature that it is not reasonably susceptible of two equally reasonable inferences.
“The value of circumstantial evidence consists in the conclusive nature and tendency of the circumstances relied upon to establish any controverted fact. Such evidence is always insufficient where assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof. Whetson v. State, 31 Fla. 240, 12 So. 661.” Florida East Coast Ry. Co. v. Acheson, 135 So. 511, 102 Fla. 15, 87 L. R. A. 905.
A later case modifies the rule in civil cases as follows:
“Where circumstantial evidence is relied on in a civil case to prove an essential fact or circumstance essential to recovery, the rule is that the particular inference of the existence of the fact relied on, as arising from the circumstances established by the evidence adduced, shall outweigh all contrary inferences to such extent as to amount to a preponderance of all the reasonable inferences that might be drawn from the same circumstances. This is a less rigid
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Bjrown, J.
The Citizens Bank and Trust Company ot Quincy, Florida, filed its bill of interpleader in the Circuit Court for Gadsden County. It appears from the bill that two deposits were made to the account of R. B. McDonald and his wife- IVIinnie Lee McDonald; one for $500.00 was deposited two days after Mrs. Fannie Furlough’s funeral, and the other deposit was for $1000.00 and was made on October 30, 1935, about a week after the funeral. Notice of two claims were filed with the bank. Mrs. Furlough's daughters were claiming the fund as heirs of Mrs. Furlough,1 and Onzie Tindeil claimed the funds as a gift from Mrs. Furlough. It appears that the fund in question was part of a larger amount, in currency, which had been placed in the custody of the McDonalds by Tindeil during the night following the day of Mrs. Furlough’s death, which was on October 19, 1935.
A final decree of interpleader was entered directing the bank to pay the money into the registry of the court and allowing it attorney’s fees and costs. The' court having thus allowed the bank to withdraw the case now became a controversy to settle the two adverse claims and to determine to whom the money should go.
After the filing of considerable pleadings, the taking of testimony, the propounding of interrogatories and answers thereto, and the arguments of counsel, the court entered its final decree, finding that Onzie Tindeil, defendant, by virtue of a gift made to him by the late Fannie Furlough, was entitled to the balance of the fund, after costs of the suit, as
agreed to by counsel, were first paid, and it was ordered that the clerk pay over the balance of the fund now in custody, or that might come into his custody in this cause, to the said Onzie Tindell. The above mentioned sum was augmented by the deposit into court before the final decree was entered of the further sum of $1,530.00, deposited by Dr. B. F. Barnes of Chattahoochee, such sum having been turned over to Dr. Barnes by Onzie Tindell some time prior to the commencement of these proceedings.
Appeal was taken from this final decree and six assign-' ments of error propounded. They are, however, reducible to two assignments: (1) That the Court erred in finding that the money was the property of the defendant Tindell, based upon a gift, rather than the property of the daughters as heirs of Mrs. Fannie Furlough. (2) That the Court erred in not striking from the record the testimony of Mrs. Minnie Lee McDonald as to conversations and transactions with Mrs. Furlough, deceased.
The first assignment above raises the question of whether or not the evidence is sufficient to establish a completed gift. As was said in the opinion by Mr. Justice Strum in the case of Farrington v. Harrison, 95 Fla. 769, 116 So. 497:
“We also bear in mind the oft-reiterated rule that, while the findings ol the Chancellor on the facts where the evidence is heard by him, and the witnesses are before him, are entitled to more weight in the appellate court than where such findings are made in a cause where the testimony was not taken before the chancellor, yet in either case the chancellor’s findings should not be disturbed by an appellate court unless shown to be clearly erroneous. Sandlin v. Hunter Co., 70 Fla. 514, 70 So. 553; Travis v. Travis, 81 Fla. 309, 87 So. 762; Lucas v. Wade, 43 Fla. 419, 31 So. 231.
“On the other hand, where a decree is manifestly against
the weight of the evidence, or contrary to, and unsupported by, the legal effect of the evidence, then it becomes the duty of the appellate court to reverse such decree. Carr v. Lesley, 73 Fla. 233, 74 So. 207; Florida National Bank v. Sherouse, 80 Fla. 405, 86 So. 279; McGill v. Chappelle, 71 Fla. 479, 71 So. 836; Lithtsey v. Washington Park Properties (Fla.) 112 So. 555.”
Expressed in. other words, where there is a clear lack of proof to establish some necessary element which is essential to the finding of the chancellor, then this Court will reverse such decree.
In the case at bar, Onzie Tindell claimed the fund in question by virtue of a gift from Mrs. Furlough, deceased. All of the essential elements of a gift must be proven. As was said in 12 R. C. L.
‘‘In the case of a gift
causa mortis,
the intention to make a gift must be shown by clear and precise evidence, and it must also clearly appear that there was an actual gift perfected by delivery.”
Delivery by the donor is an essential element in the establishment of a gift. This may be proven either by direct or circumstantial evidence. Under section 4372 of Comp. Gen. Laws the court correctly struck the testimony of Onzie Tindell in regard' to any transaction with or communication between such witness and Mrs. Furlough the deceased. Therefore there was no direct evidence, to establish a delivery, and the question to be determined is whether the circumstantial evidence is sufficient to establish this necessary element of a gift.
Evidence was introduced tending to prove that Mrs. Furlough had, on numerous occasions, said that she was. going to leave all her property to Onzie; that Mrs. Furlough’s attitude to Onzie Tindell, who had lived with and waited on her for a large part of some ten or eleven years, was
that of mother to son; that she was not on friendly terms, with her daughters and had made the statement a number of times that she did not want them to look upon her dead face; that Onzie Tindell had possession of the money immediately after Mrs. Furlough’s death; and that he was seen with a package under his arm a day or so before Mrs. Furlough’s death, which he testified had' the money in it.
Taking the evidence introduced by the defendant Tindell (Appellee) as true, the most that is established is that Mrs. furlough intended to leave everything to him, and that he ^had possession of the money and exercised control over it immediately after her death.
Circumstantial evidence must as a general rule be of such a conclusive nature that it is not reasonably susceptible of two equally reasonable inferences.
“The value of circumstantial evidence consists in the conclusive nature and tendency of the circumstances relied upon to establish any controverted fact. Such evidence is always insufficient where assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof. Whetson v. State, 31 Fla. 240, 12 So. 661.” Florida East Coast Ry. Co. v. Acheson, 135 So. 511, 102 Fla. 15, 87 L. R. A. 905.
A later case modifies the rule in civil cases as follows:
“Where circumstantial evidence is relied on in a civil case to prove an essential fact or circumstance essential to recovery, the rule is that the particular inference of the existence of the fact relied on, as arising from the circumstances established by the evidence adduced, shall outweigh all contrary inferences to such extent as to amount to a preponderance of all the reasonable inferences that might be drawn from the same circumstances. This is a less rigid
rule than applies in a criminal case, where the inference drawn must not only be consistent with the fact sought to be proved, but wholly inconsistent with any other reasonable inference to the contrary.” Ring v. Weiss-Patterson Lumber Company, 124 Fla. 272, 168 So. 858.
Under the facts established by the testimony in this case, it appears that Tindell stayed in the Furlough home alone while Mrs. Furlough was in the hospital in Dothan, Alabama. It also appears that Tindell had access to Mrs. Furlough’s suit case and handbag, immediately after her death. He was the only person with her at the time of her illness that she could depend upon. He made no claim of a gift of the money until after her death.
As was said in the case of Maxler v. Hawk, 233 Pa. St. 316, 82 Atl. 251, Ann. Cas. 1913 B 559:
“The mere fact that a person claiming property as a gift has it in his possession after the death of the alleged donor .has little if any weight on the question of a gift,
where the claimant has had access to the properiy and effects of the alleged donor during his last sickness, or after his death.
14 Am. & Eng. Ency. of Law (e ed.) 1050, and cases cited in note.”
See also 28 C. J. 679.
Tindell’s possession of the money, then, of itself, is not evidence of a conclusive nature. It has -little if any conclusive weight
per se
on the question of a gift, as the inference that Mrs. Furlough entrusted it to him for safe keep•ing, or that he took possession of it while she was very ill or after her death, is just as reasonable as the hypothesis that there was a completed gift. Possession, under the facts in this case, was of itself consistent with a mere custody or agency.
Nor is proof of the mere intention to make a gift sufficient. There must also be a delivery, either actual or
constructive, and the Court is of the opinion that there is no direct or positive evidence in this case sufficient to establish this essential element of a completed gift.
In 12 R. C. L. 973, the rule, is stated:
“When the claim of a gift is not asserted until after the death of the alleged donor, it should be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift, and somewhat the same degree of proof should be produced when the gift is to be supported, if at all, not on direct proof, but on mere circumstantial evidence.”
To like effect, sec 28 C. J. 681.
This Court recognized the rule in the case of Garner v. Bemis, 87 So. 426, 81 Fla. 60:
“When the claim of a gift is not asserted until after the death of the alleged donor, it should be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift.”
While neither the intention of Mrs. Furlough that Onzie Tindell should have everything that she left at the time of her death, nor the further fact of his possession of the money immediately after her death, if considered separately, would be sufficient to sustain an inference that she actually delivered the money to him before her death, yet it is contended that when both facts are considered together, they are sufficient to sustain the chancellor’s findings and decree. See 28 C. J., 672-3, 678. And as there was ample evidence of Mrs. Furlough’s intention, in addition to Mrs. McDonald’s testimony, the refusal to strike her testimony is not reversible error.
Taking the testimony as a whole, while there are some portions of it which throw suspicion on just how Tindell acquired possession of this money (which he says in his-claim amounted in all to some $5,500.00), we do not con
sider that this Court would be justified in setting aside the chancellor’s conclusion as to the material facts. The decree will be, and is hereby, accordingly
Affirmed.
Whitfield, P. J., and Chapman, J., concur.
Ellis, C. J., and Terrell and Buford, J. J., concur in the opinion and judgment.