Cоunsel for appellant concede, and we agree, that the facts in this case are undisputed, as the trial
It is elementary that a purpose to make a gift of proрerty can only he consummated hy the donor actually parting with possession of and dominion, as owner, over the subject by an absolute delivеry thereof to the donee, or some one for such donee, and an acceptance hy the latter. Counsel for appellаnt so contend and counsel for respondents do not contend to the contrary. Indeed the law in respect to the matter is so firmly settled that citations of authority in respect thereto seem unnecessary. The following are hut a few of the cases on the subject found in our own books: Wilson v. Carpenter,
Counsel for respondents rely, in part, on evidence given by Le Saulnier as to what occurred between him and Miss Vance at the time it is claimed she assigned the note and mortgage to Miss Caswell. Counsel for appellant contend that Le Saulnier was incompetent tо give such evidence, under sec. 4069, Stats. Waiving that question, which we may well do, he was competent to testify to what occurred between himself and Miss Gaswell.
So there was competent and, we must say, pretty conclusive evidence that Le Saulnier received an assignment, executed by Miss Vance, of the mortgage and debt secured thereby, to Miss Gaswell, from the hands of the latter, that he was directed to hold the securities as bailee for her, and that hе as
The declarations mаde by Miss Yance to third persons that she had given the property in question to Miss Caswell were proper. Pritchard v. Pritchard,
Without discussing the evidenсe in detail, it is our conclusion that Le Saulnier was made, by Miss Caswell, her bailee of the securities, Miss Yance to have the income so long as she lived and such of the principal as necessary for her support. If such be the fact, the circumstance that the latter was to have the benefit, as stated, would not defeat the purpose to make a gift, as will be seen from authorities hereafter cited, nor would what was subsequently done changе the situation.
The evidence of what occurred after delivery of the assignment to Le Saulnier is consistent with the idea that what occurred at first was for the purpose of making a gift. The declarations made by Miss Yance that she had given her $2,000 to Miss Caswell are quite significant, as is also the fact that when the note was paid, Miss Yance requested that the money be invested in bonds for Miss Caswell, and the further fact that the former received the paper, showing that such investment had been made, and held it until the time of her death, thus, impliedly, confessing that the bonds were held by Le Saulnier as the property of Miss Caswell. Taking all the circumstances into сonsideration, particularly that
So tbe case does not fall within tbe doctrine tbat tbe mere delivery of tbe assignment of а mortgage does not constitute delivery of tbe note secured thereby so as to pass title and execute a purpose to make a gift to tbe assignee. Tbe trial court properly considered all tbe circumstances and tbe evident intention. It was not essential to a delivery of tbe note tbat it should pass into tbe bands of Miss Caswell and then be delivered by ber to Le Saulnier to constitute an efficient change of control from Miss Vance to Miss Caswell. Le Saulnier having possession оf tbe note, and having accepted delivery of tbe assignment accompanied by instructions to bold all for Miss Caswell, and agreed to account to ber, but to let Miss Vance bave tbe income and sucb of tbe principal as necessary for ber support, tbat constituted a good dеlivery of tbe entire property to Miss Caswell, if sucb was tbe intention, as seems clearly to bave been tbe case.
Tbe circumstance tbat Miss Caswell consented to ber bailee using ber property for the support of Miss Vance, so far as needed, does not militate, necessarily, against an actual change of title. Tbat is consistent with Tobin v. Tobin,
Miss Caswell does not appear to bave been directly a party to tbe making of tbe paper which was delivered to Miss Vance after tbe investment in tbe bonds. If tbat departed from tbe
The conclusion reached by the trial court seems to be well supported by all the circumstances and by authority. McNally v. McAndrew,
In McNally v. McAndrew, the notes and mortgage were delivered by a father to his son, it being understood that the donor was to have the interest as long as he lived. Later the notes were delivered back to the donor, that he might collect the interest, and they remained in his possession up to the time of his death. Thоse circumstances, together with evidence that the donor stated to third persons that he had given the securities to his son, were held to be consistent with the delivery to the latter, having been intended to take effect, in. prwsenti, as a gift.
The fact that the property was to be held by Le Saulnier until Miss Vance’s death, but without control by her as owner, does not give the trаnsaction testamentary character, so long as the title actually passed to Miss Caswell. Jennings v. Neville,
In Davis v. Ney, A. delivered her bank book, accompanied
It follows that we cannot see our way clear to overrule the •conclusion of the trial court that the property in question belongs to Miss Caswell.
By the Court. — Judgment is affirmed.