Martin v. McCullough, Administrator.

divided, or the proceeds thereof, as they might prove to be solvent and collectible."

By this exercise of dominion the donees not only signified an acceptance of the gift, but they so far became possessed of the subject of the gift not only to hold in their own right and possession a large proportion thereof, but to constitute said George their trustee to hold, collect, and distribute any further sums which might thereafter be realized from said notes and securities. This act, on the part of the donees, was as effective in completing the delivery to them of the notes and securities as if they had constituted a stranger their representative, and George had made a physical delivery of them to such stranger.

The five thousand dollars' distribution in December, 1890, consisting of notes and cash, was long after the agreement quoted as above from the special finding, and after the said several acts of dominion over the notes and securities so exercised by the donees before the donor's death.

In this view of the findings, it is immaterial whether the appellant was chosen by the donor as an agent or a trustee, as nothing remained for him to do in executing his office, when the father died, and which such death could revoke.

The mere conclusion of the court, as a finding of fact, that George Martin was the agent of the donor for the purpose of executing his gift, is not warranted, and the conclusion of law, evidently drawn from such finding, is without support. The facts very clearly show that the donor parted with all dominion over the notes and securities to George, imparting to George an absolute and unconditional interest in them in his own behalf and as trustee for Polly. The only restraint upon the interests VOL. 136-22

Martin c. McCullough, Administrator.

of the several donees was that George should take possession of the securities, and that the donees should own them in equal porportions after being made equal in their advancements from the donor. No word is found to have been uttered by the donor retaining to himself an interest in, possession of, or dominion over, the securities; on the contrary, the intention is apparent that the ownership was to pass to the children at once, and that George was but their trustee to hold the securities for division on the basis directed by the father. After the custody passed to George, the donor exercised no dominion over any portion of the securities, and sought to recall no interest in them.

We do not deny the rule contended for, that an unexecuted gift is revocable by the death of the donor, as held in Smith, Admr., v. Ferguson, 90 Ind. 229, and other cases. Nor do we ignore the rule that a mere agent of the donor, holding the naked possession, only to execute the direction of the donor, can not defeat such revocation by acts performed after the donor's death. But our holding is that where one "clearly and intelligently manifests an intention to make a present gift of personal property, to another, and in consummation of his intention makes such a delivery to a third person for the use of the intended donee, as he is then capable of making, considering the character and situation of the property, the person to whom delivery is thus made will be presumed, in the absence of countervailing circumstances, to take the property as trustee of the intended donee, and not merely as the agent of the donor." Shackleford v. Brown, 89 Mo. 546; Michener v. Dale, 23 Pa. St. 59; Sessions v. Moseley, 4 Cush. 87; Devol v. Dye, 123 Ind. 321.

And we maintain that when it appears, in addition to these circumstances, that the person to whom such delivery is made is one of the immediate beneficiaries, and

Ferguson et al. v. Hull et al.

receives the deposit coupled with an interest, there can be no reasonable doubt that his possession is that of a trustee for the donees.

This conclusion would defeat the contention of the appellee, even if we were in error in assuming that the gift was completed by a delivery to the donees in the donor's lifetime by the exercise of dominion over the subject of the gift by the donees in the manner found, but of the correctness of such assumption we have no doubt.

As further sustaining our conclusions, we cite Wyble v. McPheters, 52 Ind. 393, a case, in its essential features, much like the present, also Gammon Theological Seminary v. Robbins, 128 Ind. 85; Haxton v. McClaren, 132 Ind. 235; Miller v. Billingsly, 41 Ind. 489.

The judgment of the lower court is reversed, with instructions to restate its conclusions of law and render judgment for the appellant in accordance with this opinion.

Filed Sept. 27, 1893; petition for rehearing overruled Jan. 25, 1894.

No. 16,448.

FERGUSON ET AL. v. HULL ET AL.

RECORD.-Presumption.—Burden of Proof.-The presumption is always in favor of the correctness of a record, and, when it is challenged, the onus is cast upon the person who seeks to show that it does not speak the truth. JUDGMENT.-Review of.-Causes for.-Execution.-Levy of.-Irregularities in.-Void or Voidable.-Misjoinder of Causes of Action.-In an action to review a judgment, only the errors committed prior to, and in connection with the judgment can be considered. If there were anything irregular as to the issuing of the execution, or in the levy to satisfy the same, or if, for any cause, the execution, or the levy thereunder, was void or voidable, such matters are not cause for, and can not be considered in, an action to review the judgment.

Ferguson et al. v. Hull et al.

The court may review any of its proceedings that enter into, or are connected with, and form part of, the judgment rendered by it, but not the acts of an officer, after judgment, in trying to enforce the collection of the same. For such irregularities a separate remedy exists, which can not be joined with an action to review.

HARMLESS ERROR.-Demurrer.-Conclusions of Law.-Error in the overruling of a demurrer may be cured by the conclusions of law upon the facts found.

SUPREME COURT PRACTICE.-Complaint.-How Questioned on Appeal.— Only the entire complaint can be questioned for the first time on appeal.

SAME.-Presumption.-Correctness of Decision.-Where the evidence is not in the record, and there is no showing as to what paragraph the judgment rests upon, this court will presume everything in favor of the correctness of the decision of the court below.

PLEADING.-Complaint.-Exhibits Referred to.-Failure to Set Out.Where a complaint refers to exhibits, and fails to set them out, such failure is not fatal to the pleading, where the exhibits referred to are not the basis of the action. SAME.-Complaint.— Demand, When Sufficiently Alleged.-Waiver.— Where a demand is a prerequisite to a right of action, an allegation "that the defendants refused to pay" is sufficient, as such allegation impliedly shows a demand, or, if the refusal was without a demand, it was a waiver of demand.

From the Lawrence Circuit Court.

M. F. Dunn, for appellants.

J. A. Zaring and M. B. Hottel, for appellees.

DAILEY, J.-This is an action on a complaint to review a judgment, brought by the appellants against the appellees, in the Lawrence Circuit Court at its December term, 1890.

The complaint in this case, and in each paragraph thereof, charges, in substance, that a judgment was rendered in favor of the appellees, Hull and Boswell, on the 3d day of May, 1890, for the sum of $2,500, and that on the 20th day of said month an execution was caused to be issued by said plaintiffs, against the defendants therein, and placed in the hands of the defendant Day, sheriff of said county.

Ferguson et al. v. Hull et al.

It is also averred that an appeal was prayed from the said Lawrence Circuit Court, to this court, and that twenty days from May 3d, 1890, were granted these appellants, who were plaintiffs below, within which to file. their appeal bond.

It is also shown, that within said twenty days the execution was issued, and, before the expiration of said time, placed in the hands of the said sheriff; that by virtue of this execution the sheriff levied upon the property described in the return thereon.

It is further shown in each paragraph of the complaint, that said execution was issued upon the judgment against Marion Ferguson, William Ferguson, and Oliver Ferguson, and that the names of all the Fergusons were, originally and at the time of the issuing of the execution, upon the face of said execution and upon the face of the judgment; that subsequently, without the consent or knowledge of any of the defendants-appellants—and in vacation, court having adjourned to court in course, both the execution and the judgment record were altered and changed without the order of the court, so as to make said judgment and said execution to read as a judgment and execution against Marion and William Ferguson alone.

To each paragraph of the complaint a demurrer was overruled as to the defendant Day, and sustained as to the defendants Hull and Boswell; Oliver Ferguson not being found, no further proceedings were taken against him.

The defendant Day subsequently filed his answer in two paragraphs, to each paragraph of the plaintiffs, complaint.

To the second paragraph of this answer plaintiffs filed their demurrer, which was overruled by the court, and to this ruling the plaintiffs at the time excepted.