133 Wis. 555 | Wis. | 1907
Respondent established title to the property in himself, if the deed to his wife was delivered to her as a conveyance according to its import. The uncontroverted evidence that he was her sole heir at law proved his succession to whatever title she had. He was not called upon to show negatively that she did not die testate. As the primary right of succession is by the law of inheritance, plaintiff was entitled to rest on the legal presumption of intestacy until that was rebutted by evidence. McClanahan v. Williams, 186 Ind. 30, 35 N. E. 897.
It is conceded that if the deed was not delivered till after the grantor married and the property in question was a homestead, or part of one, the instrument was void, but there was no evidence that such was the chai’acter of the property.
The court in deciding the motion to direct a verdict rightly rejected the evidence as to what Julius E. Woodruff said to Frank about having delivered the deed to Jennie for safe-keeping. That declaration, if made, was of a self-serving character and so was clearly not provable to defeat the deed which years before had passed into Jennie’s possession. The rule on that subject is elementary. Welch v. Sugar Creek, 28 Wis. 618; Jilsun v. Stebbins, 41 Wis. 235; Fay v. Rankin, 47 Wis. 400, 2 U. W. 562.
With the evidence above referred to out of the record there is only left circumstantial proof impeaching the .prima facie case made by the undisputed fact of Jennie’s possession of the deed. Whether such proof was sufficient to raise a jury question must be decided as an original proposition. The ordinary rule that the conclusion of the trial court should not be overruled unless it appears to have been clearly wrong on the question of fact does not apply because the court’s •conclusion was reached by applying a wrong rule of law.
As indicated by the statement, the court held that the prima facie case referred to should prevail unless the contrary was established beyond all reasonable controversy. Kercheval v. Doty, 31 Wis. 476, 491, was relied on by the learned court. Counsel for respondent, now relying thereon,
As indicated in the statement, there are these circumstances throwing some doubt upon whether the deed was delivered to Jennie so as to place the same beyond the control of the grantor and with the purpose of vesting the title to the property therein described in the grantees. No claim was made-under the deed by respondent’s wife during her lifetime, covering a period subsequent to the making of the deed of thirty-four years. It is, at least, quite doubtful whether she had possession of the instrument till some twenty years after it was made. It was made when she was a child, and the indications are that the property was treated by the grantor up to the time of his death regardless of its existence. His failure to recall the instrument, if it were subject to recall, after his daughter died, is explained by the circumstance that respondent disclaimed having any knowledge of the whereabouts thereof. The father’s conduct in treating the property as he did, and, after waiting some three years subsequent to his daughter’s death for the production of the old deed with an assertion of title thereunder, conveying the
By the Court. — The judgment is reversed, and the cause remanded for a new trial.