There is no showing in the record that Linda, the deceased wife of plaintiff and sister of defendant, had any other property than that represented by the note and mortgage of $6,000 of December 26, 1922, representing her half interest in the home farm.

Just what was her real purpose in declaring over her signature on January 23, 1923, that such was “paid,” is left very indefinite and uncertain by the testimony. It stands *456certain, however, from defendant’s admissions and his mother’s testimony that $1,200 and no more was paid to Linda at the time. That of course disposes, absolutely and adversely, of defendant’s plea of payment in full. Defendant on his adverse examination was challenged time and again to give a full and complete statement as to the transactions and at first refused, under advice of counsel, to testify, on the ground that such concerned a transaction with the deceased, but‘after being so directed, on application to the circuit court, he did answer, but could give nothing definite or certain in that regard.

In spite of and without any offer to amend the verified answer, which unequivocally asserted a payment in full of the $6,000 mortgage by the defendant not only in defense of plaintiff’s claim to foreclosure of the mortgage but in asserting in the counterclaim the grounds for the affirmative relief of having the mortgage declared canceled and discharged, it is now urged here, as in the court below, that there was a valid gift to defendant by his sister at the time of the payment of the $1,200 to her on January 23d of the balance due on said mortgage. This position, it is claimed, is substantiated by her indorsing the word “paid” on the note and leaving with him the note and mortgage, together with the sister’s expressed intention of subsequently executing and delivering a satisfaction of the mortgage which had been recorded the day after its execution.

It is not only urged that there was a valid gift causa mortis, but also that such was free and clear from any trust for the benefit of the now living and then unborn child of Linda.

While the writing on the note that it was paid and the then delivery of the note and mortgage, the sole evidences of the defendant’s indebtedness, by her to defendant might, if such stood alone, be quite persuasive for, if not compelling, a conclusion that there was a gift of the balance due on such obligation at that time, nevertheless the surrounding circum*457stances give ample support for the contrary conclusion reached by the trial court upon his consideration of the entire record. Among these is the fact that there was, under defendant’s own testimony, something more to be done by Linda in order to complete the transaction, namely, that she was to subsequently execute and deliver to him a satisfaction of the recorded mortgage. This was never done, nor is there any showing in the record of her having tried so to do between January 23d and her death in April following. Again, defendant remained silent as to his possession of the note and mortgage after several proper demands had been made upon him for information concerning the same or their production, and although he was bound to know of the substantial title and interest that there would be in his nephew, Linda’s son, who survived the mother, and all this while he asserted no claim of a gift.

Again, promptly upon the commencement of the foreclosure suit, by his verified pleading, answer, and counterclaim, he directly asserts payment in full and accord and satisfaction, but nowhere asserts that there was made such a substantial gift of almost $5,000 to him, a gift for which no apparent good reason is given, and without any satisfactory explanation for his having asserted by pleading in substance the contrary.

His own testimony, evasive and contradictory as it was, nevertheless fully warrants the conclusion of the trial court that there was no absolute parting by Linda of all control and direction over this balance of the $6,000 obligation, for, as is the import of defendant’s testimony, if Linda did not find it satisfactory to continue to live with her husband and she returned to the home farm then other papers were to be made out, and in case of her death consequent upon the expected delivery of a child then some arrangement was to be made with reference to the child, but just what such arrangement was to be is left, by defendant’s own testimony, in a very unsatisfactory situation. Again, and of consider*458able importance, is the very unnatural attitude that would be exhibited in Linda so turning over the large balance still due on the obligation and apparently all she had to the brother as against her husband, to whom she shortly returned and with whom she continued to live, and, so far as the record discloses, in apparent harmony until her death, and still more, so as to entirely exclude any provision for the child she was then bearing.

No express findings having been made on the suggested features of probable undue influence exerted by the brother and mother, or of such a confidential relationship as placed a burden of proof on the defendant, we deem it unnecessary to here discuss those features.

We are satisfied, therefore, from this record that there was no effective and valid gift, either present or in contemplation of death, by what was done between Linda and her brother on January 23, 1923. That at most the transaction can be considered as intended by her to be testamentary only, and which purpose, of course, was ineffectual for want of proper execution.

By the Court. — Judgment affirmed.