227 Wis. 415 | Wis. | 1938
At the time of the gift sought here to be set aside, plaintiff was eighty-five years of age, and was living in the city of Bloomer with her son, Albert Johnson, under a support agreement made in consideration of the conveyance by plaintiff of certain property to the son. Two or three days prior to May 27, 1936, plaintiff called upon her daughter, the defendant, bringing with her certain of her private papers. These included certificates of stock in the Bloomer Farmers Store Company, representing one thousand one hundred fifty-nine shares of the corporate stock of this corporation; one certificate of Bloomer Telephone Company stock for twelve shares; a note and mortgage to plaintiff in the principal sum of $1,000 executed by one Fink; a note of Albert Johnson payable to plaintiff in the sum of $1,000; and papers indicating a loan to Oscar Johnson of $200, and one to Albert Johnson of $600. Plaintiff had a talk with defendant, and whatever the import of it actually was, it is undisputed that defendant’s husband came home during this talk and suggested that the parties have legal advice to accomplish their purposes. Plaintiff handed the stock certificates to defendant’s husband, who took them to the office of Mr. Velten, an attorney, and explained to Velten that plaintiff proposed to give the Bloomer store stock to defendant, but wanted to reserve the income during her life. Velten instructed defendant’s husband as to the method of carrying out this purpose, and defendant’s husband brought the message home to plaintiff and defendant. Thereafter, defendant, in the presence of plaintiff, called Velten and told him to fix up the papers. Plaintiff then returned to her home, and Velten prepared the assignments. On May 27th, both Velten and plaintiff. came to defendant’s home, and Velten talked to plaintiff in the pres
Defendant’s first contention is that certain testimony of Mr. Velten was erroneously excluded. Velten testified to three transactions or occasions, and with respect to each of
It is next contended that the findings of fact are against the great weight and clear preponderance of the evidence. This contention must also be sustained. It will be remembered that the complaint charged that defendant had misrepresented that the papers signed by plaintiff constituted a will, and that plaintiff signed them under the impression that she was executing a will. There is not a scintilla of evidence to sustain this charge. Neither is there any evidence that the papers were brought to defendant for safekeeping. We discover no evidence whatever of undue influence. Plaintiff herself took the initiative in the transaction, and there is no evidence that defendant ever did anything to induce plaintiff to give her this property. The result of the transaction in view of the fact that the income was reserved to plaintiff during .her lifetime and that plaintiff’s son, Albert, had- already received as consideration for the
“Q. When you signed your name to these certificates of stock, seven of them, what did you think you were doing? A. I don’t think I think a bit. I think it over a little later and I know I done wrong.
“Q. When did you think that over? A. I was sorry I did it, that’s all. What could I do then ?
“Q. And you didn’t tell Jennie until in April, almost a year later that you wanted the stock back, is that right? A. Yes'. Maybe I waited too long. I thought there was not any wrong that she keep it.”
Plaintiff had the burden of proving some circumstance, such as fraud, mistake, undue influence, or mental incompetency, legally effective to upset this transaction which was fully executed so far as its formal aspects are concerned. It is our conclusion that she wholly failed to meet this burden. The evidence is rather to the effect that she regretted having made the gift because of later fears that she would need the principal at some time during her lifetime. This is not the sort of situation in which the law grants relief in the case of a fully completed gift. We are compelled to conclude that the trial court’s findings are not supported by the evidence and must be set aside.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss plaintiff’s complaint.