144 Wis. 171 | Wis. | 1910
This is a suit by the administrator of Delia I. Russell, deceased, to recover from the defendant certain property which the latter claims as a gift from deceased. The administrator recovered, and it is contended that the findings of the circuit court are not supported by evidence.
Tbe question is whether there was a constructive delivery •equivalent to an actual delivery. Tbe case in this state most in point is Crook v. First Nat. Bank, 83 Wis. 31, 52 N. W. 1131. Tbe case last mentioned, so far as it concerns tbe validity of tbe gift, was decided upon demurrer to an answer upon a situation where tbe pleadings taken together showed tbe form of tbe gift in writing, and an averment in tbe answer admitted by demurrer was to tbe effect that tbe donor by this writing intended to give and did give tbe fund in question to tbe donee. Tbe writing contained sufficient ambiguity to make this an averment of fact admitted by tbe demurrer rather than a conclusion of law. If tbe court below found in tbe instant case that tbe writing in question was intended to give and did give to tbe defendant tbe contents of tbe safety deposit box tbe cases would be parallel. Tbe court here found tbe contrary. This finding has tbe following evidence to support it: (1) Tbe defendant did not present tbe writing of surrender of lease of Mrs. Russell until after her death. (2) In requesting instructions from tbe safety deposit company she wished to know what form of an order would be necessary so that this company would feel authorized and let her brother have access to her box. (3) The in
In all such cases of constructive delivery a finding of the ■trial court against the intention to make delivery before death necessarily presents a very formidable obstacle in the way of recovery by the donee, where there is evidence to support •such finding.
Error is assigned on the refusal of the trial court to allow ■cross-examination of the mother of deceased as an adverse witness. If such error was made, the proper way to take advantage of it is to except to the ruling and proceed with the ■examination of the witness so as to disclose by her testimony whether the appellant was prejudiced by such ruling. As it :is, we cannot say that the ruling was prejudicial to appellant. Neither was there error in excluding the testimony of Mr. Griggs. . The court excluded this upon its determination of the preliminary question that deceased consulted Mr. Griggs as an attorney and the communication was privileged. State v. Russell, 83 Wis. 330, 337, 53 N. W. 441.
Error is assigned upon the refusal to grant a new trial upon newly discovered evidence consisting of the testimony of several inmates of Mrs. Russell’s house and that of a prospective buyer of her furniture to declarations made by her to the1 effect that she had given the furniture and the contents of the safety deposit box to defendant. This evidence was cumulative or corroborative of other evidence offered on the trial by defendant. It is much weakened by contradictory statements or admissions alleged to have been made by the proposed witnesses and in other respects, and we cannot say that the trial court erred in refusing to grant a new trial thereon within the rule of Jalie v. Cardinal, 35 Wis. 118; Hedger v. State, post, p. 279, 128 N. W. 80.
By the Court. — Judgment of the circuit court is affirmed..