167 Wis. 291 | Wis. | 1918
Lead Opinion
Tbe court below found tbat on January 14, 1914, Warren Gilbert, deceased, bad in bis possession tbe notes in question made by A. C. Gilbert payable to bim; tbat on said day Warren Gilbert delivered said notes to said A. C. Gilbert, and tbat at said time said Warren Gilbert was mentally competent; tbat said Warren Gilbert at said time intended to and did make a gift of said notes to bis son A. C. Gilbert; tbat A. ’ C. Gilbert bas been a resident of Minnesota since tbe execution of said notes, and tbat said Warren Gilbert was a resident of tbe state of Wisconsin from tbe time of tbe execution of said notes; and concluded as matter of law tbat at tbe tirpe of the death of Warren Gilbert there was nothing owing by A. C. Gilbert to Warren Gilbert on account of said notes.
On tbe part of appellants it is contended tbat there was not sufficient competent evidence to support tbe finding to tbe effect tbat said Warren Gilbert made a gift of said notes to A. 0. Gilbert; tbat said notes were not barred by tbe statutes of limitation.
On tbe part of respondents it is insisted tbat tbe evidence was sufficient to support a gift of said notes to A. 0. Gilbert, and further tbat tbe notes were barred by tbe statutes of limitation.
Tbe assignment of errors raises tbe questions (1) whether tbe court erred in refusing to strike out evidence relating to tbe gift, (2) fin finding tbat Warren Gilbert delivered the notes to A. 0. Gilbert intending to make a gift, and (3) in concluding tbat nothing was owing by A. 0. Gilbert to Warren Gilbert on said notes.
It is clear tbat if tbe findings of fact of tbe court below are supported by tbe evidence tbe judgment is right and must be affirmed.
It is insisted by appellants tbat tbe evidence of one Bros-
The argument on the point of competency of the evidence of Brossard is that it related to a transaction with deceased, Warren Gilbert, through whom A. 0. Gilbert claimed, and hence was not admissible, and that the statements of A. 0. Gilbert to Brossard were self-serving declarations and not competent. Counsel relies upon sec. 4069, Stats., relating to transactions with a deceased person, and Hilton v. Rahr, 161 Wis. 619, 155 N. W. 116. The infirmity in the argument of counsel on this point is apparent. The appellants put Brossard on the stand in making their case and by him proved declarations of A. 0. Gilbert to the effect that he got the notes in question from his father. The witness was put upon the stand by appellants to prove a conversation with A. C. Gilbert, and, having testified to a part.of the conversation, the respondents were entitled to the whole conversation. Sec. 4069, Stats.; Yeska v. Swendrzynski, 133 Wis. 475, 113 N. W. 959; Earley v. Winn, 129 Wis. 291, 109 N. W. 633; Fertig v. State, 100 Wis. 301, 75 N. W. 960; Smith v. Milwaukee E. R. & L. Co. 127 Wis. 253, 106 N. W. 829; 16 Cyc. 1041.
The case of Hilton v. Rahr, supra, is not in point, as will clearly appear from an examination of that case and Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140.
We are convinced that the evidence to the effect that A. C. Gilbert got the notes from his father was competent.
The conclusion of the court below upon the record is clearly shown from the following statement at the close of the evidence:
“It is plain, as I said before, that A. C. Gilbert got possession of these notes at that time, and there is nothing to*296 show that be got them wrongfully or that there was any insanity on the part of Warren Gilbert. I cannot presume any wrongful conduct. I am perfectly willing you should show Mr. Warren Gilbert’s state of mind at that time. If he was not competent, why, of course, your position is well taken. If he was competent to make a gift, and I must presume he was, then the gift is made.”
It appears from the record that no confidential relation other than father and son existed between A. C. Gilbert and his father; that A. C. Gilbert did not represent his father in any confidential or fiduciary capacity; that Warren Gilbert was a man of wealth and had taken notes from other sons for large amounts, which notes were, at the time proceedings were heard in county court, barred by the statutes of limitation; that the father was well advanced in years, and that the delivery of the notes to A. C. Gilbert was about seven months before his death. The deceased, Warren Gilbert, must have known that his demise was not far distant when A. 0. Gilbert got the notes.
A contention is made by respondents that the notes of A. C. Gilbert were barred by the statutes of limitation though he resided in Minnesota. This contention is denied by appellants, and interesting and able arguments are made by both parties upon the proposition. In the view we take of the case it is not necessary to decide, and we do not decide, whether the notes of A: 0. Gilbert were barred by the statutes of limitation.
Under the repeated decisions of this court the findings below cannot be disturbed unless clearly wrong. Mechanical A. Co. v. A. Kieckhefer E. Co. 164 Wis. 65, 159 N. W. 557. Many cases are cited by counsel for appellants from this and other courts which it is claimed sustain their contentions. But we are satisfied that the cases cited from this court are distinguishable from the ease at bar. Some are cases where the incompetency of the donor was involved; others where fraud, undue influence, overreaching of the donor, and un
The findings here are supported by abundance of evidence, and the judgment upon such findings and established facts is clearly right. Killops v. Stephens, 66 Wis. 571, 29 N. W. 390; Thornton, Gifts & Adv. secs. 248, 250, 251, 255, 262; Jenning v. Rohde, 99 Minn. 335, 109 N. W. 597; Lewis v. Merritt, 113 N. Y. 386, 21 N. E. 141; Vann v. Edwards, 128 N. C. 425, 39 S. E. 66; 6 Ency. of Ev. 227 and cases cited.
By the Court. — Judgment affirmed.
Rehearing
The following opinion was filed April 30, 1918:
A motion for rehearing was made in this case, and we are asked to decide whether the notes of A. C. Gilbert to his father, Warren Gilbert, and referred to in the original opinion in this court, were barred by the statute of limitation. This question was not decided on the former hearing because not necessary, since we held that such notes delivered by Warren Gilbert, during his lifetime, to A. C. Gilbert were a gift to A. O. Gilbert, therefore did not constitute a claim against A. C. Gilbert.
It appears that the question becomes material on settlement of the estate on the question of transfer tax, therefore we are asked to decide it. The last note was dated September 14, 1906, and fell due September 14, 1907, hence was not outlawed even if A. O. Gilbert were a resident of Wisconsin. But more than six years had elapsed from the time the cause of action accrued upon all.the other notes, hence they were barred by the statute of limitation unless the residence of A- C. Gilbert in Minnesota saved them. Warren Gilbert had resided in Wisconsin for more than fifty years
Sec. 4231, Stats., provides:
“If when the cause of action shall accrue against any person he shall be out of this state such action may be commenced within the terms herein respectively limited after such person shall return or remove to this state.”
This section clearly applies to a nonresident, and where a nonresident is in the state only temporarily and less in the aggregate than the statutory period after the cause of action accrues he cannot avail himself of the statute. Whitcomb v. Keator, 59 Wis. 609, 18 N. W. 469.
If a party in whose favor a cause of action accrues is a resident of the state at the time of the accrual of the cause of action and the debtor is a nonresident,,the statute does not run in favor of the nonresident while he continues to reside out of the state. Nat. Bank v. Davis, 100 Wis. 240, 15 N. W. 1005.
We think the statute above referred to, sec. 4231, controls this case, hence the notes were not barred by the statute of limitation. State v. Nat. Acc. Soc. 103 Wis. 208, 79 N. W. 220; Adkins v. Loucks, 107 Wis. 587, 83 N. W. 934; Arp v. Allis-Chalmers Co. 130 Wis. 454, 110 N. W. 386.
It follows that the notes were a valid subsisting obligation at the time they were surrendered to A. O. Gilbert.
By the Court.-r — The motion for rehearing is denied, without costs.