| Wis. | Oct 10, 1939
Replevin begun July 13, 1938, by Max Roseman against William Sauber, executor of the will of Rebecca Roseman, to recover a note assigned to plaintiff by the payee but claimed *582 by the executor as property of the estate. Judgment was in favor of the defendant.
The case was tried to the court and the findings of fact are: That on March 26, 1930, Rebecca Roseman delivered to Anna Davidson the sum of $2,000 with directions to lend the money to the Green Bay Specialty Company and to take in return a note payable to the order of said Anna Davidson; that Rebecca Roseman told Anna Davidson that if anything happened to her she wanted the note to go to her stepson, Max Roseman; that on March 7, 1932, said Rebecca Roseman was in need of money and directed Anna Davidson to obtain for her a payment of $1,000 on the, principal of said note; that $1,000 was delivered to Rebecca Roseman, and Anna Davidson took a new note for the balance; that the interest was collected by Anna Davidson and remitted to Rebecca Roseman; that on November 26, 1937, the date of the last renewal of said note, Anna Davidson delivered the note to Rebecca Roseman; that some months after the death of Rebecca Roseman said Anna Davidson by a separate instrument executed an assignment of said note to Max Roseman.
As conclusions of law the court found: (1) That Anna Davidson was Rebecca Roseman's agent; (2) that the plaintiff did not have any right, title, or interest in said notes; (3) that the assignment to Max Roseman was of no force or effect; (4) that no valid trust of the notes or money was created; (5) that no valid gift inter vivos was completed to Anna Davidson or Max Roseman; (6) that the executor of the will of Rebecca Roseman is the lawful owner and holder of said note. The court ordered the dismissal of the complaint and awarded costs to defendant. From the judgment accordingly entered, plaintiff appeals. The plaintiff claims title to the $1,000 note in question under a written instrument dated June 18, 1938, and signed by Anna Davidson. That writing recites a consideration, the assignment, and sets over to the plaintiff all right, title, and interest in and to the note of said Anna Davidson. The defendant insists that the note belongs to him as executor of the will of Rebecca Roseman. It is his position that Anna Davidson's interest in the matter was that of agent of his testatrix. The trial court was of the opinion that the contemplated gift of the principal represented by the note was never completed and that the note is the property of the defendant.
The evidence shows that Mrs. Roseman intrusted the sum of $2,000 in the first instance to her friend Mrs. Davidson under an arrangement which left the title to the money in Mrs. Roseman. It appears that when she needed money she had Mrs. Davidson collect and return part of the amount to her. The interest on the money was received and used for her own purposes. Although it was remarked when the money was first placed in Mrs. Davidson's care that if anything happened Mrs. Roseman wanted it to go to her stepson, still no act of the owner occurred which moved the transaction out of the realm of a possibility of a future gift. That state of affairs left the money the property of Mrs. Roseman and did not result in the transference of any title to the plaintiff.Loper v. Estate of Sheldon,
In support of the conclusion of law that no valid trust was created, the defendant urges that the act of Anna Davidson returning to Rebecca Roseman her money as requested nullifies such a possibility. He cites the case of Warsco v. OshkoshSavings Trust Co.
"If the donor has full control and dominion over the trust property, so that according to the terms of the trust he can *584 use it as and when he pleases, the trustee becomes his mere agent to hold title to the property, invest, sell, and collect income for him and pay as he directs."
In any event a revocable transaction of a promissory nature is not a gift inter vivos. There are no facts showing a delivery to an alleged donee of the property nor a loss of control thereof by the donor. There is nothing to warrant a finding that Max Roseman ever had the dominion over the note or the money necessary to completion of the gift.Madison Trust Co. v. Skogstrom,
The history of the dealings show Anna Davidson the agent of Mrs. Roseman, and as to the point that evidence of Mrs. Davidson was improperly received upon the trial, it is only necessary to say that as she was the agent of Mrs. Roseman, she was a competent witness to testify concerning this transaction with her principal. Lowry v. Lowry,
By the Court. — Judgment affirmed.