Hudson v. Trustees of the Funds & Property of the Protestant Episcopal Church

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, [241] 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 [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.