Tyler v. Stitt

127 Wis. 379 | Wis. | 1906

WiNsnow, J.

It is very apparent that the appellant has-no valid claim against the estate of the deceased. The instrument in question was without consideration. It was but a mere promise to make a gift in the future. A promise to-make a gift cannot be enforced. Actual delivery of the property is essential to the validity of a gift, and delivery of the promisor’s own note is not delivery of the property, but a-mere promise to deliver it. All this is familiar' law.

It is claimed that the evidence shows such conduct on the-part of the administrator and heir at law as will raise a constructive trust on his part, requiring him to carry out the attempted gift, under the principles laid down in Brook v. Chappell, 34 Wis. 405, or at least that be should now be es-topped from asserting that the gift was not valid. We are not called upon now to decide these questions. This is a ■ simple claim against an estate for a debt supposed to be due from the estate. The defendant is defending that claim in 'his representative character as administrator only. The estate is the real defendant; if there is no debt owing from the • estate there can be no recovery. If there be any estoppel or trust which can be invoked against Mr. Stitt, it affects him ■ only as an individual and not as administrator. Being sued as administrator in a pure action at law, he cannot be held •as an individual upon an entirely different cause of action in -equity. The two causes of action could not be joined. Hawarden v. Y. & L. C. Co. 111 Wis. 545, 87 N. W. 472. A fortiori one cannot be turned into the other.

By the Court. — Judgment affirmed.