¶1 concurring in part and dissenting in part.
¶2 I concur in overruling the first assignment of error, but I dissent on the second. I would sustain that assignment of error and reverse the judgment of the trial court.
¶3 The majority perceives the issue in this case as a weight of the evidence question on which we should defer to the judgment of the trial court. I believe it is a question of law where the trial court imposed an improper, and indeed impossible, burden of proof.
¶4 The record is clear, and nobody questions the fact that Mr. Frazier intended to make a gift of his shares to his employees. Although this solely owned corporation was a substantial asset, he made no provision for it in his will. He consulted with his attorney, discussed the number of shares needed to be given for majority control, and the number of shares to be given to each person based on Frazier’s evaluation of what would be proportionate. He carefully selected various amounts, ranging from two percent to fifty-three percent, to be given to the various employees. He executed the assignments and had Destocki prepare new certificates in the names of the donees in those varying amounts. He had Destocki bring the new certificates to him so he could see that it had been done, and then returned them to Destocki who was secretary of the corporation. After Frazier had done all of these things, the question facing the court becomes: Should this donor’s gift be frustrated by the court’s application of hyperteehnical formalism?
¶5 As noted by the majority, to make a gift there must be intent followed by delivery. The requirement for delivery is obvious. It is the acid test used to distinguish real gifts from promises to make a gift, or future gifts, or testamentary gifts, etc. Delivery indicates a relinquishment of possession and control. It makes the gift irrevocable, a done deed, if you will.
¶6 As a practical matter, the requirement of delivery makes the court’s task much easier. What a person intends lies entirely within his own mind, and the courts cannot be mind readers, but what a person does — his conduct — can be readily established by evidence. Therefore, to prove a gift one must prove the act of delivery.
¶7 In this case, great weight is given to the fact that there was no formal delivery. To my mind, this is imposing too great a standard on Frazier, who was a businessman, not a practicing lawyer. He executed assignments, had new certificates prepared, checked them out, and returned them to the secretary of the corporation. Appellee gives emphasis to the fact that Destocki was not instructed to deliver the certificates, but that task of delivery was administrative, one expected to be done without further instructions. Had there been any *669 reservation of interest, control or dominion, Destocki would have been instructed to withhold the certificates from the donees. Lack of specific instructions about delivery is not proof that delivery was not made; rather, it is proof that delivery was made and that Frazier, in his own mind, realized he no longer had control or dominion over the certificates which he had just given to his employees.
¶8 The trial court applied an impossible standard, insisting that delivery be a formalized event. The trial court held that for there to be delivery, there had to be a formal ritual, something like the old medieval livery of seisin where a clod of earth is passed to indicate transfer of dominion. I do not believe such formalism should be used today since it elevates form over substance.
¶9 This is where I disagree with the majority. It would defer to the trial court on the grounds that the evidence can be construed to find that a delivery did not take place. To my mind, there is absolutely no evidence that delivery was not accomplished, only a misconstruction of the principle of delivery and its purpose in the law of gifts.
¶10 For example, App.R. 22 says the judgments of this court shall be in the form of a journal entry signed by a judge and “filed with the clerk.” But no judge files his entries -with the clerk. Instead, they are given to a staff person with the full confidence the entries will be filed and the case completed. Surely no judge has to instruct his staff every time he signs an entry that it be taken to the clerk and filed. In fact, much as happened in this case, it is only when the entry is not to be immediately filed that the staff is given instructions about holding it. If, under the formalistic standard of the trial court, there was no delivery here then this court has been quite remiss over the years.
¶11 I think we are losing sight of what happened here. Mr. Frazier made a gift of his shares to his employees. Acting as the businessman that he was, he did all those acts necessary to accomplish his gift including delivery of the certificates to the corporate secretary in the names of the donees. It was his property and he had the right to do with as he willed and this court has a duty to respect his decision. We ought not use a hyper-inflated construction of the principle of delivery in the law of gifts to frustrate his decision. I would sustain assignment of error two and reverse the judgment of the trial court.
¶12 Thus, I concur in part and dissent in part.