187 Wis. 629 | Wis. | 1925
As stated by the attorney for the appellant, “the sole question for decision is whether the evidence adduced by plaintiff is sufficient to establish the alleged trust.” The appellant contends that it fails to do so because it lacks that clear and specific character required to establish a parol trust; that it is altogether too vague and uncertain to satisfactorily show either that the trust was in fact created or intended to be created or what its terms and purposes were and who the intended beneficiary. The following is the principal oral testimony produced on behalf of the plaintiff to show that a trust existed in his favor. The administrator, 'a son of the deceased and a grandson of the plaintiff, testified as follows:
“I knew his [meaning the deceased] making remittances to my grandfather from time to time as he received the principal and interest from the Walter Brewing Company on this indebtedness. I did not get mixed up into it until the last two or three years. I know that since this money was received from the Walter Brewing Company, either principal or interest, it was remitted by my father to my grandfather, George Hart.”
James Hart, a brother of deceased and son of the plaintiff, testified as follows:
“Well, it was simply he had the thing and he told me he was taking care of it, and when the store building was sold,*632 or before it was sold, he was renting it,, and as fast as the rent came due he would go down and collect the rent and send it to my father. He, my father, lived on that" for years, and when the property was sold he told me he had the payments strung out so the old man could not get rid of it all at once and he would have enough to live on. I know that he made remittances from the Walter Brewing Company to my father. If father had this property he would get away with things and my brother kept it for him.”
He further testified that “Leonard was to take care of the property and handle it for my father and the rent was given to my father. He carried'that out as long as he lived.”
An officer of the Walter Brewing Company testified as follows:
“The payments were made in the size and at the time and at the request of Dr. Hart. We had a talk with him at that time. We told him that we would rather make the mortgage in one amount and pay it off, but he said ‘No.’ This is his father’s money, and he wanted it in these payments so that his father would not receive over $500 a year to live on. The way he told it to me, if his father got the money at one time he would go through it and would not have any money to live on. We said under those conditions we would accommodate him.”
In a letter dated January 10, 1922, the deceased wrote' to his father:
“inclosed draft for $500. Interest is not due until January 31st, which I will get at that time and forward to you. I would be careful of this money if I were you, especially as to investing in anything.”
In a letter dated February 7, 1922, he wrote:
“As to check or draft, the bank is a good place for saving. I am inclosing John Walter & Co. check for’ interest, that .you may know just what I got, also dates for future interest. The next note for $500 will not come due until July, 1924, and the interest on all notes January 31, 1924, so it will be well to guard what you have on hand. If anything should*633 happen that they paid up before due, will forward same to you when received.”
We think that the trial judge correctly found that the fund in question belonged to the plaintiff. The evidence, to our minds, is sufficiently clear and convincing to satisfy the rule of law that a parol trust must be proven by clear and convincing evidence as announced in Dewey v. Fleischer, 129 Wis. 591, 109 N. W. 525.
It is argued that the evidence is as consistent with the idea of a gift from the son to the fathey as with a trust. We do not think so. Both oral testimony and the letters carry to our minds the idea that the father had a right to what the son sent him. There is no suggestion of a charity anywhere in the evidence. An interest in a mortgage is an interest in personalty. Wis. Cent. R. Co. v. Wis. River L. Co. 71 Wis. 94, 36 N. W. 837; Wolf v. Theresa Village M. F. Ins. Co. 115 Wis. 402, 91 N. W. 1014. And the statute of uses and trusts has no application to trusts in personalty. McWilliams v. Gough, 116 Wis. 576, 93 N. W. 550.
By the Court. — Order affirmed.
