This section contains the nature of the case and procedural background.

Thomas Smith died on May 20, 1883. A nephew was living with him at that time by the name of Thomas Smith Kelly, 13 years old. The nephew continued to reside with the testator's family after his death and until 1887. In January 1882, the testator purchased coupon bonds of the Pensacola & Atlantic Railroad Company. After his death, a box in the trust company's vault was opened with an envelope endorsed as follows: 13 bonds, $1,000 each, held for Tom Smith Kelly T.S. Pensacola & Atlantic Railroad Mortgage bonds. The bonds were in the envelope. Entries into Smith's financial diary supported the contention that the bonds were given to Thomas. The will of the testator bequeathed his residuary estate to his executor to be held upon certain trusts. During an audit of the estate, the auditing judge ruled that a valid estate had been established in favor of the claimant and awarded the bonds and accrued income to the guardian of Thomas Smith Kelly. That decision was appealed.

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