Miller v. Aram

LyoN, J. The claim of Mrs. Miller, presented to the commissioners and allowed by them, is for money loaned by her to her husband. The claim stated in the complaint is for money had and received by her husband in his lifetime, and by the administrator of his estate after his decease, for her use. The gravamen of the claim presented to the commissioners, and of the cause of action in the complaint, is for money due and owing to her and payable out of the estate of her deceased husband. These are but different forms of the same claim, for they arise out of the same transactions; and manifestly a recovery in one form would bar a recovery in the other. Although the grounds of Mrs. Miller's claim may not have been stated to the commissioners with technical accuracy, yet no one could be misled or injured thereby, and we think the circuit court ruled correctly that she might proceed in that court for money had and received. Had the administrator proved that the claim presented to the commissioners arose out of other transactions, and was a claim different from the one litigated in the circuit court, quite another question would be presented. The motion to dismiss the claim of Mrs. Miller, and for the reversal of the allowance thereof by the commissioners, is predicated upon an alleged want of proof of material facts. The bill of exceptions does not purport to contain all of the testimony, and it must be presumed, in support of the decision of the court denying such motion, that there was evidence tending to prove all such facts. [148] This brings us to consider the instructions given to the jury, to which several exceptions were taken. In giving those instructions the learned circuit judge assumed that there was testimony in the case tending to prove. a release or surrender by the deceased to his wife of the Fancher note and the proceeds thereof, and also tending to prove a gift of the same to her. Without recapitulating the testimony contained in the bill of exceptions, it is sufficient to say that we think it tends to prove both a release and a gift. If it does not so tend, we must, nevertheless, presume that such testimony was given on the trial. ' The ground for such presumption is, that all reasonable intendments will be made, to sustain the judgment, where the record is silent. If the deceased in his lifetime never asserted any claim to the Fancher note, but constantly treated it, and the proceeds of it, as the property of his wife, we entertain no doubt whatever that the same thereby became, or rather continued to be, her separate property. The facts that Miller had the'notes and proceeds in his hands, at times, and invested such proceeds in his own name, are by no means conclusive evidence that he did not relinquish his right thereto ; for he may have held the same and made the investments for his wife and as her agent. Moreover, had Miller taken possession of the Fancher note, claiming it as his own property, it is equally free from doubt that be could have made a gift of the note or proceeds to his wife, which would be valid as against his heirs, though perhaps not as against his creditors. Putnam v. Bicknell, 18 Wis., 333. In the present case the question of the rights of creditors is not involved. The instructions are founded upon, and seem to be in entire harmony with, these propositions, and it is believed they are fully sustained by the authorities cited in the able argument of counsel for the respondent. It should be observed that we have considered the case without reference to the law of 1850, concerning the rights of married women. [149] Upon the case presented by the record, we must affirm the judgment of the circuit court. By the Court. —Judgment affirmed.