Wilcox v. Matteson

Taylor, J. Upon this appeal the defendant alleges as error, that the evidence produced on the trial show’s affirmatively that the note upon which the action was brought was not owned by the plaintiff, but belonged to the estate of her deceased husband, and that the evidence offered for the purpose of showing a gift of the same by the deceased to the plaintiff during his life-time, failed to show such gift. We are constrained to agree with the learned counsel for the appellant that there is no evidence in the case which shows any delivery of the possession of the pocket-book and its contents during the life of the husband to the plaintiff, or to any other person, for her use. If we construe the language of the deceased [27] most favorably for the plaintiff, and that his request to the nurse Edgar was that she should immediately, and before his death, take the poeket-book into her possession and keep it for and deliver it to his wife when she came, as her property, still the evidence fails to show that the possession passed from the deceased to the nurse for the use of the plaintiff until after his death. The nurse states that she did nothing, after the deceased instructed her what to do with the pocket-book, until several hours after his death. Admitting that the nurse might have received the possession of the property for the plaintiff in her absence, and that the actual receipt of it by her, in the life-time of the deceased, would have been effectual to pass the title to the plaintiff, the fact remains that she did not take possession during his life. If this can be upheld as a gift, then it must be upheld on the ground that the possession of the property passed by force of the words of the deceased, expressing a desire that it should pass. We know of no case where a gift has been upheld when no act has been done tending to change the possession of the property which is the subject of the gift from the donor to the donee. The pocket-book was in the a^jual possession of the donor at the time when the conversation between him and the nurse took place, and it so remained until his death, without any change in its location, or any attempt to change the same. There is no doubt of the intent of the deceased to give- the property to his wife, but there is an entire absence of proof of any act done either by him or by the nurse standing in the place of the wife, which tends to show any surrender of the possession by the husband, or any taking possession thereof by the nurse during the life of the husband. To make a gift perfect, all the cases hold that the possession of the subject of the gift must pass from the donor to the donee. This has been so decided by this court, and it is therefore unnecessary to resort to the decisions of other courts to sustain our ruling in this case. See Wilson v. Carpenter, 17 [28] Wis., 512; Resch v. Senn, 28 Wis., 286. In the first'case cited, this court adopted tbe rule laid down by Chancellor Kent in his Commentaries, as follows: “Delivery in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam mate-riam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment or some equivalent instrument, and the transfer must be actually executed.” In the case at bar, the subject of the proposed gift was of such a character that an actual delivery could have been made, but none was made. The possession remained in fact exactly the same after the direction given to the nurse as it was before, and so continued until the death of the donor. . We think the evidence clearly shows that the title to the note remained in the deceased husband at the time of his death, and that the learned judge erred in directing a verdict for the plaintiff. Upon the argument in this court, the learned counsel for the respondent claimed that the judgment might be upheld upon the ground that the widow was entitled to the note under the provisions of subdivision 1, sec. 3935, E. S., which provides that, upon the death of her husband, the widow shall be allowed certain specified property, and, in addition thereto, household furniture not exceeding in value $250, and other personal property not exceeding in value $200, to be selected by her. The difficulty with this claim is, that the note in question is not one of the specific articles of property which the statute allows to her, and there is no evidence that she had selected the note as a part of the other property, not exceeding $200, to which she is entitled. In order to entitle the [29] plaintiff to bold this note as a part of the’ property of her husband, which is given to her by the section of the statute above quoted, she must show that it has been selected by her'. In the absence of any proof on that subject, we cannot say that the plaintiff acquired any title to it under said section. See Resch v. Senn, supra. By the Court.— The judgment -of the circuit court is reversed, and a new trial ordered.