¶1I think that the judgment should be reversed. The defendant admits that he received $4,000 from the testator in the year 1896, and the evidence upon which he claims the right to retain it is the letter referred to in the prevailing opinion, which was not delivered to him until after the death of the testator, and his own testimony as to what trail spired between .him and the testator at the time he received the money, which is as follows: “ he made me a donation — the sum of $4,000 in the year 1896. I paid interest thereon during his lifetime, at 4 per cent twice a year, during the months of December and June in each year. Mr. De Comps gave me the $4,000 in 1896, when I needed money for church decorations. He said to pay him interest during his lifetime to dispose of afterwards according to his instructions which he would leave in a private letter. In case he should not have time to do that, the money should be given to the church.”
¶2. The fair and reasonable inference from this evidence is that the money was loaned to defendant during the life of De Comps. It was not a gift either inter vivos or causa mortis. De Comps was not ill and he lived many years thereafter. He reserved semiannual interest to himself and the right to dispose of the principal. He contemplated.disposing of the principal by letter instead of by will, and he attempted to carry such intention into effect. That attempt destroyed the condition upon which defendant was to give the fund to the church. Without regard to this, however, the only theory upon which the judgment can be satisfied is that it was a gift in prmsenti to the defendant individually. The learned father makes no such claim as that. He does not seek to hold it for himself nor could he lawfully on his own evidence. He claims the fund for the beneficiaries named in the letter. The difficulty with that contention, and with any claim that the church is entitled to it, *282is that there was to be and was no gift to him as trustee or to the beneficiaries until the death of the testator, and a gift then could only be valid when evidenced by an instrument executed as a will, which concededly this was not.
¶3I, therefore, vote for reversal.
¶4Judgment affirmed, with costs.