
    LEACH v. CALIFORNIA SAFE DEPOSIT AND TRUST COMPANY et al.
    
    S. F. No. 2369;
    November 23, 1901.
    66 Pac. 786.
    Appeal.—Where There is No Substantial Conflict in the evidence, but it is all against the finding by the court, such finding will be set aside on appeal.
    APPEAL from Superior Court, Sonoma County; S. K. Dougherty, Judge.
    Action by Ivy Leach against the California Safe Deposit and Trust Company and others. Judgment for defendants. Plaintiff appeals. Reversed.
    A. G. Booth and J. T. Campbell for appellant; J. P. Rodgers, R. F. Crawford, W. B. Haskell, F. A. Meyer and M. V. Samuels for respondents.
    
      
      Rehearing denied December 24, 1901.
    
   PER CURIAM.

This is an action to determine the ownership of two hundred and twenty-five shares of the capital stock of defendant trust company. Plaintiff claims the property as a gift from Priscilla Wilson in her lifetime. The cause was tried by the court, and judgment passed for defendant Pierce, as administrator, the trial court finding that there was no gift. The sufficiency of the evidence to support that finding of fact is the only matter raised upon this appeal.

It is only in exceptional cases that this court will reverse the trial court upon its findings of fact. If there be a substantial conflict in the evidence, it will never he done. At the same time, if there be .no substantial conflict in the evidence—if the evidence is all one way, and that way is against the finding—then it is the duty of the co.urt to set aside the finding, and it will do so without hesitation. The court has concluded that such a ease is presented by this record. The evidence of all the witnesses has been examined with care, and that evidence points unequivocally to the fact that this personal property constituted a gift to plaintiff from the deceased, Priscilla Wilson, prior to her death. If the evidence of disinterested witnesses is to be believed, then such is the fact. There is no evidence contradictory to the testimony of those witnesses, and we find nothing in that testimony inconsistent in itself. Theories and conjectures cannot take the place of evidence, and, measured by the record, the finding of fact to the effect that there was no gift has no support in the evidence.

For the foregoing reasons the judgment and order are reversed and the cause remanded.  