Hudson v. Trustees, etc. 171 Wis. 238.

HUDSON, Administrator, Appellant, vs. TRUSTEES OF THE FUNDS AND PROPERTY OF THE PROTESTANT EPISCOPAL CHURCH IN WISCONSIN, imp., Respondents.

March 10-April 6, 1920.

Gifts: Absolute or to take effect in future: Gifts causa mortis: Reservation of interest on certificates of deposit: Effect: Evidence: Appeal: Discrepancies in testimony: Conclusion of trial court.

1. In an action by the administrator with the will annexed of the donor of three certificates of deposit to recover possession thereof from a defendant who claimed to hold them as trustee for a religious corporation, the evidence is held to show that the transfer to defendant was with the intention of relinquishing control and dominion over them.

2. It is the province of the trial court to reconcile, if possible, discrepancies in the testimony of a witness, and his conclusion will not be disturbed on appeal.

3. Where the defendant to whom testatrix had transferred the certificates of deposit during her lifetime made a notation thereon, as a result of a conversation had with those who assisted in drawing and executing her will, that testatrix "wishes the interest on this paid to her as long as she lives. She then wishes me to sign it over to" specified church trustees, the notation was not an admission by testatrix or the trustees that there was not a present, completed gift.

4. There being an absolute present gift of the certificates of deposit to the trustees of church property by means of the delivery of the certificates indorsed and the surrender by the donor of possession to the donee, reservation of the interest accruing on the certificates during her lifetime did not destroy the effect of the transaction as a present gift.

APPEAL from a judgment of the circuit court for Dane County: E. RAY STEVENS, Circuit Judge. Affirmed.

One Amelia B. Trener had lived for a great many years in the village of Mazomanie and was a member of and took great interest in the welfare of the Episcopal church in that village. For about thirty years she and the defendant Mrs. Martha E. Gleason were near neighbors and intimate friends.

Hudson v. Trustees, etc. 171 Wis. 238.

On January 4, 1919, Miss Trener, then being about eighty-three years of age and ill, was removed from her homestead to the home of Mrs. Gleason. At that time Miss Trener had certain certificates of deposit in her name and kept with her papers in a small tin box in her possession. On January 11th three of these certificates, one for $1,000 and two for $500 each, which had been issued to Miss Trener some months previously, were indorsed on the back by a Mrs. Kerr as follows: "January 11th, 1919, pay to the order of Martha E. Gleason," and each of such indorsements was then signed by Miss Trener and the three certificates so indorsed delivered to Mrs. Gleason and thereafter kept by her with her own papers and were never again in the possession of Miss Trener.

On January 21st Miss Trener executed her will, and as a result of conversation had at about that time with those who assisted in the drawing and executing of the will Mrs. Gleason further wrote on each of said certificates, with the intention of then stating her understanding of the situation in case of anything happening to her, the following state

ment:

"Amelia B. Trener wishes the interest on this paid to her as long as she lives. She then wishes me to sign it over to the Trustees of Funds and Property of the Episcopal Diocese of Milwaukee for the benefit of St. Luke's church, Mazomanie, Wisconsin."

On April 8th following Miss Trener died, and two or three days thereafter Mrs. Gleason added to the back of each of said certificates the following: "Pay to the order of the Trustees of Funds and Property of the Episcopal Diocese of Milwaukee," and signed the same "Martha E. Gleason."

Owing to questions arising as to whether the plaintiff, administrator of the estate of Miss Trener, or the trustees of the Episcopal diocese were entitled to them, Mrs. Gleason has retained possession, but expressly disavows any inter

Hudson v. Trustees, etc. 171 Wis. 238.

est in the same on her own behalf. Upon the trial without a jury in the court below, the circuit court found in effect that there had been an absolute gift in præsenti of the $2,000 represented by said certificates to Martha E. Gleason as agent for the defendant trustees and that such trustees were the owners thereof, and dismissing the plaintiff's complaint with costs. From such judgment the plaintiff has appealed.

For the appellant there was a brief by W. L. Woodward and Gilbert & Ela, all of Madison, and oral argument by Frank L. Gilbert.

For the respondents there was a brief by Mason & Stephens of Madison, and oral argument by Vroman Mason.

ESCHWEILER, J. The plaintiff, administrator with the will annexed of the deceased, Amelia B. Trener, insists that the evidence does not support the conclusion of the trial court that there was a valid and binding gift by Miss Trener to the defendant trustees.

Mrs. Gleason was examined in the county court with reference to the transactions between herself and Miss Trener, and later again examined on the trial in the court below. Much stress is laid by appellant upon the circumstance that in the examination in the county court Mrs. Gleason did not say, as she did in the circuit court, that she was told by Miss Trener, at the time the certificates were delivered to her, that she, Mrs. Gleason, was to hold them for the trustees, and also insists that proper and due significance was not given by the trial court to the recital quoted in the statement of facts placed upon the back of each of these certificates by Mrs. Gleason herself just after the execution of Miss Trener's will. That from these facts the appellant insists that the only proper conclusion to be drawn is that it was the intention of Miss Trener at the time of delivering the certificates to Mrs. Gleason that the title was not then to pass to the trustees, nor was her dominion over them intended to be relinquished until and after her death,

Hudson v. Trustees, etc. 171 Wis. 238.

and, that being so, there was no present gift. Further, that Mrs. Gleason remained the agent of Miss Trener only and not of the defendant trustees in holding such certificates during the lifetime of Miss Trener. Appellant also claiming that there is no evidence to warrant a conclusion that it was intended as a gift causa mortis in that it was evidently not made in view of impending death and that death did not result to the donor from any then impending danger.

We are satisfied, however, from all the testimony of Mrs. Gleason, particularly that to the effect that Miss Trener said at the time she delivered these certificates so indorsed by her that she, Mrs. Gleason, was to take them and hold them for the defendant trustees and to sign them over to them at her death and to pay her, Miss Trener, the interest accruing thereon during her lifetime, that the trial court was justified in holding that there was a present, absolute gift.

There are possible discrepancies between her statement of the transaction while testifying in the county court and in the circuit court and with the indorsement that she made in her own handwriting on the back of these certificates, from which it may be argued that there was possible confusion in her own mind as to what was the exact direction or expressed intention of Miss Trener; yet it was the province of the trial court to reconcile, if possible, such matters, and his conclusion cannot be overturned.

The notation by Mrs. Gleason appearing on the back of the certificates is not of course an admission by the donor and therefore not binding as against her or the defendant trustees and was a proper subject of explanation by Mrs. Gleason when testifying.

We are satisfied that there was an absolute present gift to the defendant trustees by the delivery of the certificates so indorsed and surrender of possession and control over them by Miss Trener, and that the reservation of interest accruing thereon during her lifetime did not destroy the effect of

Baraboo v. Excelsior Creamery Co. 171 Wis. 242.

the transaction as a present gift. Pirie v. Le Saulnier, 161 Wis. 503, 154 N. W. 993; Will of Klehr, 147 Wis. 653, 133 N. W. 1105; McNally v. McAndrew, 98 Wis. 62, 73 N. W. 315; Davis v. Ney, 125 Mass. 590; Bone v. Holmes, 195 Mass. 495, 81 N. E. 290; Meriwether v. Morrison, 78 Ky. 572; Ruiz v. Dow, 113 Cal. 490, 45 Pac. 867. By the Court.-Judgment affirmed.

CITY OF BARABOO, Appellant, vs. EXCELSIOR CREAMERY COMPANY, Respondent.

March 10-April 6, 1920.

Bridges: Running into bridge by automobile: Action by city for damage: Negligence: Defective condition of highway contributing to cause accident: Effect: Knowledge of city officers as to defect in highway: Ineffective repair by city: Evidence: Photographs: Purpose: Discretion of court: Trial: Special verdict: Statement of issues: Instructions: Appeal: Harmless error: Extending time to settle bill of exceptions: Courts: Policy to expedite final disposition of cases.

1. In order that a city may recover for damages to one of its bridges by being run into by defendant's automobile truck, it must appear not only that the driver of the truck was negligent, but that no defect in the highway contributed to produce the collision; and where the jury found against the city on both issues, any error as to the trial of one of them will not affect a judgment for the defendant, if the other was tried without error.

2. Photographs may be offered in evidence for the purpose of identifying persons, places, and things and to exhibit particular locations or objects, where it is important that the jury should have a clear idea of the same and where the photographs will better show the situation than will the testimony of witnesses.

3. The reception in evidence of a photograph rests largely in the discretion of the trial court; and where it was made clear to the jury that a photograph was offered by the defendant for the purpose of showing the manner in which the city had repaired the approaches to the bridge and not to show the