
    John Parkhurst BOOTH, Betsy R. Booth and Jessie McRae, Appellants, v. Lillian A. CURETON, as Administratrix of the Estate of Lillian A. Davol, Deceased, Appellee (two cases).
    Supreme Court of Florida. Special Division A.
    April 13, 1955.
    On Rehearing July 22, 1955.
    
      Gramling & Gramling and J. Carrington -Gramling, Miami, for appellants and petitioners.
    L. J. Cushman, Miami, for appellee and respondent.
   PER CURIAM.

Appellee, as administratrix of the Estate of Lillian A. Davol, brought four actions in replevin to recover possession of furs, jewelry and other personal property alleged to be in possession of defendants, appellants here. Defendants countered with a suit in equity by which they secured an injunction restraining further proceedings in the re-plevin suits. The cause in equity proceeded and an answer and a counterclaim were tendered by the defendants who were the plaintiffs in the law actions, in which it was contended that a confidential relation existed between appellants and the deceased, that appellants were in possesson of the furs, jewelry and large sums of money but that none of said articles were gifts to them by deceased during1 her lifetime. The counterclaim sought return of a large ■ emerald (15 or 16 carats) alleged to be in possession of Mr. and Mrs. Booth. • •

' At final hearing, after eyidence, the Chancellor entéred a final decree bn February 12, 1954, in which he found-(1) that the administratrix did not waive the “Dead Man’s Statute”, Section 90.05, F.S., F.S.A. He limited the evidence offered by excluding testimony of interested persons as to transactions or communications with the deceased. (2) The court, also found that while Mrs. Davol was addicted to the use of alcoholics and drugs or sleeping pills, such addiction was not such as to dethrone her reason and render her unbalanced or incompetent. (3) He imposed the burden of proving title to the articles in question on defendants in the replevin suits, who were in possession of them. This ruling is one of the most vigorously controverted here. (4) The Chancellor further found that defendant John Parkhurst Booth was attorney for Mrs. Davol, and stood in confidential relation to her. (5) The final decree found that Mrs. Booth failed to prove a gift of the five pieces of jewelry she claimed to have been made to her by Mrs. Davol, including the emerald, a punch bowl, and an ermine evening wrap, and authorized the administratrix to secure possession of them. (6) The Chancellor further found that the housekeeper, Jessie McRae, stood in confidential relation to Mrs. Davol, and that the evidence failed to show that a platinum bracelet, a sapphire ring, and a fur wrap piece were gifts to her by Mrs. Davol, and authorized their recovery by the adminis-tratrix. He did find that the evidence supported the gift of a 7.91 carat diamond ring to Jean Hungerford and the money gifts to Richard Booth. From the final decree of the Chancellor, we are confronted with an appeal and a petition for certiorari under the rules of this court; the latter being addressed to a rule to show cause why the Booths should not be held in contempt for failure to deliver the large emerald or its value to the administratrix, said to be $2,-850.

Numerous questions are urged for determination. They rest on whether or not the administratrix waived the “Dead Man’s Statute”, Section 90.05, F.S., F.S.A., and whether or not the trial court committed error in requiring those in possession of the articles in litigation to go forward with proof of their title. The other questions go to the admission or the rejection of evidence, some of it in the light of the challenge to the “Dead Man’s Statute”.

There is a wealth of argument about whether or not the “Dead Man’s Statute” was waived. It is contended that by filing “requests for admissions” on May 26, 1952, appellee waived the “Dead Man’s Statute”, in that such requests pertain to the effect of transactions and conversations with the deceased. It is also contended that the effect of these “requests” was supported by pretrial depositions secured by the Booth family which, taken together, waived the “Dead Man’s Statute”. The record does not reveal any response to the “requests”, neither is it in such condition that we could venture to explore the point. When this is the case, we should not pit our judgment against that of the Chancellor.

We have examined the other questions carefully and while we are convinced that as to some of them procedural errors may have been committed, we do not think that in view of all that took place they were harmful, because the gist of the controversy before the court was whether or not Mrs. Davol, the testatrix, made a gift of the articles in litigation to those in possession of and claiming title to them. They appear to have been made a few weeks before her death. Whether they were gifts inter vivos or gifts causa mortis is not necessary to determine. On this question, the competent evidence overwhelmingly supports the finding and decree of the Chancellor, which required return of most of the alleged gifts to the Estate.

The judgment appealed from is accordingly affirmed and the petition for certio-rari to review an order of the Rule to show cause entered in same action May 4, 1954, is denied.

It is so ordered.

MATHEWS, C. J., TERRELL and SE-BRING, JJ., and KANNER, Associate Justice, concur.

On Petition for Rehearing Granted.

TERRELL, Justice.

On petition for rehearing granted this cause has been thoroughly re-examined, “including certain factual matters which were conclusively shown in the record.” The part of the decree appealed from with which we are concerned has to do with mental capacity and is as follows:

“3. On the matter of capacity, I find that the deceased, Mrs. Davol, did not lack capacity in the premises; that while she was addicted to drink, and to drugs in the form of sleeping pills, the preponderance of the evidence shows rather clearly (1) that she was not addicted to the point of having become unbalanced or incompetent; (2) the periods or times when she overindulged, to an extent which might be considered to have rendered her incompetent or incapable of understanding what she was doing, were not of long duration and were not frequent; (3) in general, when drinking heavily or using the drugs to excess, these influences were limited to portions of the day, usually the latter part, and she seems regularly to have been clear, lucid and competent, and capable of attending to her business in a determined and strong-willed manner, during parts of the day (and according to the evidence during all day a major part of the time) ; that even if she was drunk, drugged or incompetent during part of the time or part of each day, there was no showing that the transactions involved did not occur during the other parts of the day when she was not so affected.
“4. The parties claiming a gift, in such a case, have the burden of establishing the legal requirements for validity and effectiveness of the gifts, not only by preponderance of evidence, but by clear, positive and satisfactory proofs.”

In other words, when reduced to concise or unequivocal statement, the court held that while Mrs. Davol was addicted to the use of liquor and drugs in the form of sleeping pills, she was not incompetent or unbalanced; that there may have been brief periods in which she was incompetent or incapable of understanding what she was doing because of overindulgence. The burden was on those claiming gifts from her to show that they were not acquired during said periods by clear, positive and satisfactory proof.

Under the circumstances we do not think this was an unreasonable requirement in view of the showing as to Mrs. Davol’s frequent indulgence in practices that may have dethroned her mentality for the time being. Much of the petition for rehearing is devoted to the manner in which this court and the court below “missed the boat” in applying the law to the facts of this case but after all is said, we are confronted with the simple proposition of whether or not those claiming gifts from Mrs. Davol established their giving by preponderance of clear and convincing evidence. The pleadings made this issue and the chancellor decided it against appellants.

Appellants overlook the fact that we are confronted solely with the decree of the chancellor wherein they are required to point out the commission of error. It is not a question of what appellants think the chancellor should have decided or what they think the law is; it is a question of error in the chancellor’s decree, and in this case that question is reduced to the simple one of whether or not his decree was supported by clear and positive proof.

The gifts involved are shown to be expensive. Except the ermine wrap and the emerald ring of IS or 16 carats alleged to have been given to Mrs. Betsy R. Booth in the spring of 1950, they were all given within 90 days or thereabouts of Mrs. Davol’s death, February 13, 1952. This was the period in which she was shown to have imbibed heavily. The ermine wrap and the emerald ring of 15 or 16 carats were given to Mrs. Booth about two years before Mrs. Davol’s death and then there is evidence that Mrs. Booth wore them at cocktail parties in Mrs. Davol’s presence and spoke of them as having been gifts from her.

Account of these facts we have reached the conclusion that the judgment appealed from be quashed as to the ermine wrap and the emerald ring of 15 or 16 carats. In all other respects our judgment filed April 13, 1955 is adhered to.

DREW, C. J., SEBRING, J., and KAN-NER, Associate Justice, concur.  