Steuerwald v. Steuerwald

195 Wis. 589 | Wis. | 1928

Eschweiler, J.

The trial court found as a fact that there was a delivery by Mrs. Steuerwald of the deed in question to the defendant Fred C. Steuerwald and as a consequent conclusion of law that he became the owner of such premises- prior to the death of the mother, and that the plaintiff has no interest' in the property.

Plaintiff appellant urges that the testimony does not warrant such finding within the requirements of the law as to a sufficient present delivery of a deed to pass title, and that at most, especially in connection with the letter of the mother quoted above; the retaining control over the property; the collecting the rents during the balance of her lifetime, all indicated a testamentary disposition only of the property.

While the facts presented and the expressions in the .quoted letter might well support a reasonable inference that the mother intended to make as to this property but a testamentary disposition, which, of course, would have to fail for want of a proper manner of execution (Zimmerman v. Zimmerman, 165 Wis. 146, 150, 161 N. W. 369), yet, on the other hand, Van Meter’s testimony as to the transaction between the mother and son at the bank some seven years after the deed had been sent there, the recitals and omissions in her will, executed three years after the making of the deed, so evidently recognizing that she had already parted with the title to any real estate she might have theretofore possessed; the expression in the will as to having made a prior distribution of her property, well- support the conclusion reached by the trial court that there was, during her lifetime, an express and consummated intention to presently pass the title in this property to the defendant, and we feel that such conclusion cannot now be disturbed.

There is a clear distinction between the facts here and those shown in the case relied upon by appellant of Darling v. Williams, 189 Wis. 487, 207 N. W. 255, where the daughter there named as grantee objected to taking title and wanted'the deed left with the bank, and where it remained under the exclusive control of the mother. Neither does the cited case of Ward v. Russell, 121 Wis. 77, 98 N. W. 939, control, where, from the statements made by the grant- or, there was evidently an intention to retain dominion over the deed, making a gift causa mortis only, and therefore, for want of a present delivery, the deed was held ineffective.

The cases from other jurisdictions cited by the appellant are not in point here.

Where the question of . the intent of a grantor is of such controlling weight in transactions of the kind as held in many cases, such as Hamblyn v. Crase, 194 Wis. 628, 217 N. W. 311; Kolber v. Steinhafel, 190 Wis. 468, 471, 209 N. W. 595; Giblin v. Giblin, 173 Wis. 632, 636, 182 N. W. 357; Jones v. Caird, 153 Wis. 384, 141 N. W. 228; Cales v. Dressler, 315 Ill. 142, 149, 146 N. E. 162; Stalting v. Stalting (S. Dak.) 217 N. W. 386, and such intent is to be gathered from all the evidence, we are satisfied there was sufficient support in the record for the trial court’s conclusion, and it cannot be now overturned.

By the Court. — Judgment affirmed.