Kellogg v. Adams

51 Wis. 138 | Wis. | 1881

Oeton, J.

The testimony as to what was said by the plaintiff and her daughter Ida in respect to the gift and possession of the piano, was proper in connection with and as explaining their possession of the instrument, after its purchase by the mother and its gift to the daughter. "What is said by the person in the possession of property, explanatory of such possession, is a part of the res gestee. This is an elementary rule of evidence. 1 Greenl. on Ev., sec. 109. The other objections to evidence were solely on the ground of its immateriality; and if the evidence was immaterial, it would not be likely to affect the verdict, and its admission constitutes no ground for the reversal of the judgment.

On the instructions to the jury, the question is raised, whether 0. ~W. Kellogg, the mortgagor and father of Ida, could make to her a valid and irrevocable gift while she was a minor and member of his family. In order to raise this question, it must be assumed that the gift by the mother was, in fact and in law, the gift of the father; for the mother has not sought its revocation. This gift is not sought to be avoided by the existing creditors of Kellogg, the father, as having been made-in contravention of their rights, but by a subsequent mortgagee of the father, on the ground that the giving of the-mortgage was a revocation of the gift. Most of the questions-here raised were, in principle, recently decided by this court,. in the unreported case of Wambold v. Vick, referred to by counsel, and such a gift was held valid. In that case the-father gave to his minor son his time and services, by means of which the son purchased a piano, and then gave it to his sister. It is creditable to the father, in that case, that he did not himself seek to revoke or defeat his gift. In Knaggs v. Green, 48 Wis., 601, the validity of a similar gift to an infant is recognized.

It may be difficult to prove an actual delivery and change of possession in such case of gift between members of the same family, when the presumption in'all cases is strongly in.favor. of the continued possession of the father as the head of the family; hut it is not impossible; and when such a gift by the father to his child is fully executed by a delivery, it will be upheld. The case of Pierson v. Heisey, 19 Iowa, 114, is strongly in point, and nearly parallel in its facts as to the parties, the subject and the circumstances of the gift. See, also, Schouler’s Pers. Prop., 85; Kerrigan v. Rautigan, 43 Conn., 17, and other cases cited in brief of counsel. There may be authorities which hold that such a gift may be revoked, but they have not the weight of reason. It is so much more consistent with natural feeling, manly honor and paternal affection and fidelity, to uphold such a gift, and prevent a father from doing such an unworthy act as taking back his gift to his child, that we the more readily approve of those authorities which hold that it cannot be done.

The charge of the court was strongly in favor of the plaintiff, but no stronger than the facts seemed to warrant, and, on the whole, presented the case fairly to the jury. The plaintiff being in the possession of the property, and the defendant having taken it away without right, the plaintiff was entitled to recover. James v. Van Duyn, 45 Wis., 512.

By the Court. — The judgment of the circuit court is affirmed, with costs.