Miller v. Slater, 154 Wis. 35

154 Wis. 35 | Wis. | 1913

Maeshall, J.

The judgment must be affirmed. The appeal does not present any question for consideration which warrants particular consideration except as to whether the condition in the note, in terms extinguishing it in case of the payee predeceasing his brother, was intended to take effect as a gift in prcesenti. That was a question of fact determinable by inference in the light of the circumstances characterizing the origin of the paper. The court, as indicated in the statement, found in favor of the payors, — respondents here, — and the circuit court did the same.

Notwithstanding the rule that findings of fact should not be disturbed unless contrary to the clear preponderance of the evidence, does not apply to the particular instance with any great force, it is not without some efficiency. Moreover, the evidence, from an original standpoint, is quite persuasive in favor of the decision below.

It is conceded, as the fact is, that a gift, inter vivos, requires a completed transit of the subject of the transaction inter paries, and that the same is true in case of a donatio causa mortis. Schultz v. Becker, 131 Wis. 235, 110 N. W. 214. So it makes no difference about the class to which this belongs. It seems that the particular event was not, strictly speaking, either the one or the other. But it had more of the characteristics of the latter than of the former. In case of the one the transaction should have the element of unqualified completion and dominion, in prcesenti, without any element, necessarily, of contemplation of death; while in the other there is the element of such contemplation and of change of dominion, but with the incident of condition for divestment and reversion, as that of revocation by the donor before death, as illustrated by Henschel v. Maurer, 69 Wis. 576, 34 N. W. 926, of the donor predeceasing the donee, or vice versa. Here there was the condition of the one predeceasing the other, but it is quite evident that there was no particular thought of the event mentioned, occurring.

The evidence tends to show, and the court evidently found the fact to be, that the giving of the paper was the result of transactions of a pecuniary character or other mutual obligations which did not, as finally adjusted, require an unqualified payment, present or future, of the sum named in the paper. So it was agreed that the settlement should be, presently, completed by the giving of the note, conditioned that it should not be paid, in case of the payee predeceasing his brother. The settlement itself was a completed transaction. The giving of the paper was a part of it. The parties intended it to evidence the nature and condition of the settlement, — that is, that the makers of the paper should pay the payee tbe sum mentioned in five years in case of tbe latter surviving bis brother, otherwise not. They thus arranged tbe matter and created evidence of it in their own crude way, leaving tbe writing somewhat ambiguous. But we are unable to say that tbe court below did not give to it tbe proper construction, in view of all tbe circumstances.

A person may make a note supported by a sufficient consideration, good or valuable, conditioned upon its being extinguished by a condition subsequent specified therein. Whether be could do so for tbe purpose of making a mere gift, subject to be recalled upon condition, tbe note being regularly delivered, is not involved in this case, as tbe trial court understood tbe evidence and not so much without warrant that we feel at liberty to reverse its decision. ' Thus we reach tbe conclusion stated at tbe outset and will not go into tbe subject of tbe evidence in detail by discussing it in this opinion. We have examined it with care and are pretty well satisfied it shows tbe intention of tbe parties to tbe paper expressed therein to be vindicated by tbe judgment complained of.

By the Court. — Judgment affirmed.