Estate of Gilbert

[294] Tbe following opinion was filed February 5, 1918: KeRWIN, J. Tbe court below found tbat on January 14, 1914, Warren Gilbert, deceased, bad in bis possession tbe notes in question made by A. C. Gilbert payable to bim; tbat on said day Warren Gilbert delivered said notes to said A. C. Gilbert, and tbat at said time said Warren Gilbert was mentally competent; tbat said Warren Gilbert at said time intended to and did make a gift of said notes to bis son A. C. Gilbert; tbat A. ’ C. Gilbert bas been a resident of Minnesota since tbe execution of said notes, and tbat said Warren Gilbert was a resident of tbe state of Wisconsin from tbe time of tbe execution of said notes; and concluded as matter of law tbat at tbe tirpe of the death of Warren Gilbert there was nothing owing by A. C. Gilbert to Warren Gilbert on account of said notes. On tbe part of appellants it is contended tbat there was not sufficient competent evidence to support tbe finding to tbe effect tbat said Warren Gilbert made a gift of said notes to A. 0. Gilbert; tbat said notes were not barred by tbe statutes of limitation. On tbe part of respondents it is insisted tbat tbe evidence was sufficient to support a gift of said notes to A. 0. Gilbert, and further tbat tbe notes were barred by tbe statutes of limitation. Tbe assignment of errors raises tbe questions (1) whether tbe court erred in refusing to strike out evidence relating to tbe gift, (2) fin finding tbat Warren Gilbert delivered the notes to A. 0. Gilbert intending to make a gift, and (3) in concluding tbat nothing was owing by A. 0. Gilbert to Warren Gilbert on said notes. It is clear tbat if tbe findings of fact of tbe court below are supported by tbe evidence tbe judgment is right and must be affirmed. It is insisted by appellants tbat tbe evidence of one Bros295 sard, relative to bow A. C. Gilbert got the notes, was incompetent and sbonld bave been stricken out, and further, that even if this evidence be not stricken there is not sufficient evidence in the case to support the finding of a gift of the notes to A. 0. Gilbert. The argument on the point of competency of the evidence of Brossard is that it related to a transaction with deceased, Warren Gilbert, through whom A. 0. Gilbert claimed, and hence was not admissible, and that the statements of A. 0. Gilbert to Brossard were self-serving declarations and not competent. Counsel relies upon sec. 4069, Stats., relating to transactions with a deceased person, and Hilton v. Rahr, 161 Wis. 619, 155 N. W. 116. The infirmity in the argument of counsel on this point is apparent. The appellants put Brossard on the stand in making their case and by him proved declarations of A. 0. Gilbert to the effect that he got the notes in question from his father. The witness was put upon the stand by appellants to prove a conversation with A. C. Gilbert, and, having testified to a part.of the conversation, the respondents were entitled to the whole conversation. Sec. 4069, Stats.; Yeska v. Swendrzynski, 133 Wis. 475, 113 N. W. 959; Earley v. Winn, 129 Wis. 291, 109 N. W. 633; Fertig v. State, 100 Wis. 301, 75 N. W. 960; Smith v. Milwaukee E. R. & L. Co. 127 Wis. 253, 106 N. W. 829; 16 Cyc. 1041. The case of Hilton v. Rahr, supra, is not in point, as will clearly appear from an examination of that case and Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140. We are convinced that the evidence to the effect that A. C. Gilbert got the notes from his father was competent. The conclusion of the court below upon the record is clearly shown from the following statement at the close of the evidence: “It is plain, as I said before, that A. C. Gilbert got possession of these notes at that time, and there is nothing to [296] show that be got them wrongfully or that there was any insanity on the part of Warren Gilbert. I cannot presume any wrongful conduct. I am perfectly willing you should show Mr. Warren Gilbert’s state of mind at that time. If he was not competent, why, of course, your position is well taken. If he was competent to make a gift, and I must presume he was, then the gift is made.” It appears from the record that no confidential relation other than father and son existed between A. C. Gilbert and his father; that A. C. Gilbert did not represent his father in any confidential or fiduciary capacity; that Warren Gilbert was a man of wealth and had taken notes from other sons for large amounts, which notes were, at the time proceedings were heard in county court, barred by the statutes of limitation; that the father was well advanced in years, and that the delivery of the notes to A. C. Gilbert was about seven months before his death. The deceased, Warren Gilbert, must have known that his demise was not far distant when A. 0. Gilbert got the notes. A contention is made by respondents that the notes of A. C. Gilbert were barred by the statutes of limitation though he resided in Minnesota. This contention is denied by appellants, and interesting and able arguments are made by both parties upon the proposition. In the view we take of the case it is not necessary to decide, and we do not decide, whether the notes of A: 0. Gilbert were barred by the statutes of limitation. Under the repeated decisions of this court the findings below cannot be disturbed unless clearly wrong. Mechanical A. Co. v. A. Kieckhefer E. Co. 164 Wis. 65, 159 N. W. 557. Many cases are cited by counsel for appellants from this and other courts which it is claimed sustain their contentions. But we are satisfied that the cases cited from this court are distinguishable from the ease at bar. Some are cases where the incompetency of the donor was involved; others where fraud, undue influence, overreaching of the donor, and un [297] fair and unnatural distribution were involved; and still others the sufficiency of proof, and confidential business relations. Most, if not all, cases from other jurisdictions may be classified under substantially the same heads. The findings here are supported by abundance of evidence, and the judgment upon such findings and established facts is clearly right. Killops v. Stephens, 66 Wis. 571, 29 N. W. 390; Thornton, Gifts & Adv. secs. 248, 250, 251, 255, 262; Jenning v. Rohde, 99 Minn. 335, 109 N. W. 597; Lewis v. Merritt, 113 N. Y. 386, 21 N. E. 141; Vann v. Edwards, 128 N. C. 425, 39 S. E. 66; 6 Ency. of Ev. 227 and cases cited. By the Court. — Judgment affirmed.