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Action to recover possession of certain two horses, two sets of harness and a buggy, alleged to be the property of plaintiff and wrongfully withheld by defendant.

The cause was tried by the court without a jury, and plaintiff had the judgment, from which defendant appeals on bill of exceptions.

The findings are made up largely of probative facts. The ultimate facts found which are controverted are the following: That deceased, on November 4, 1906, “being in contemplation of death, but of clear and sound mind, did give and grant to the said plaintiff the said property” (describing the property mentioned in the complaint); that “at the time the gift of said property was made to the plaintiff, as aforesaid, the said personal property was in the possession of said C. C. Carlton, and was situated in a barn and corral jointly used by him and one T. J. Kennedy.” There is no finding that plaintiff took possession of the property prior to the death of decedent, or at all, but there is a finding of certain facts which the court probably treated as equivalent to taking possession of or relieving plaintiff from the necessity of taking actual possession. This finding is as follows:

As…