Beilfuss v. Dinnauer

Eschweiler, J. The answer of the defendant admits, and the testimony clearly discloses, a close confidential relationship between a widow of advanced years with a large family in which there was constant trouble, and her son-in-law, a man of mature years, and with whom she, immediately after the ending of the estrangement between the two families by the death of her. husband, assumed a very cordial relationship. No subsequent steps appear to have been taken by Mrs: Beilfuss with reference to her property affairs except and unless after consultation with defendant Dinnauer and apparently also without the advice of the other members of the family, and it is to an attorney who was also the advisor of Dinnauer that Mrs. Beilfuss went in order to be advised as to the proceedings to be taken to save the equity in this twenty acres, for some purpose. It being conceded in this case that no valuable consideration passed as between the defendant Dinnauer and Mrs. — 515 — Beilfuss, either at the time of his receiving the substantial sum of money from her realized from the mortgage of her own property or at the time of the execution of the two deeds by her as administratrix and individually, respectively, a situation was presented in which the law has declared with emphasis that the burden is upon the beneficiary of such a transaction or series of transactions to satisfactorily and clearly show, when challenged, that there was' no abuse by him of the trust and confidence so evidently reposed in him by such donor. Armstrong v. Morrow, 166 Wis. 1, 163 N. W. 179; Patulski v. Bellmont Realty Co. 166 Wis. 188, 164 N. W. 841; Dupont v. Jonet, 165 Wis. 554, 558, 162 N. W. 664; Tobin v. Tobin, 139 Wis. 494, 121 N. W. 144. Unless the testimony does clearly establish that no advantage was taken of the relationship between the two, -that it was open and above board, fair and legitimate, and in all respects the voluntary transaction of the donor, the presumption that there is no valid gift must stand and the transaction be held void. It is strenuously argued by appellant that where, as in this case, the deceased, Mrs. Beilfuss, as administratrix being disqualified both by statute and public policy from becoming the purchaser of the real estate of her deceased husband and having executed a deed of the same as ad-ministratrix and in her individual capacity, and having subsequently in the administration proceedings, upon the confirmation of sale and by her verified report, alleged that she had no interest in the purchase, neither she in her. lifetime nor the plaintiffs as her heirs could or can now successfully question but that title was absolutely vested in defendant by. such deeds. Reliance is also placed upon sec. 2077, Stats., which reads as follows: “When a grant for a valuable consideration shall be made to one person and the consideration therefor shall be paid — 516 — by another, no use or trust shall result in favor of the person by whom such payment is made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” Appellant asserts that under the most favorable view of plaintiffs’ case it amounts to the taking of title by Dinnauer of lands, the purchase price for which was advanced by another, Mrs. Beilfuss, and therefore by virtue of such statute the title vested absolutely in Dinnauer and cannot be questioned. We think, however, these contentions were properly overruled by the trial court. The defendant by his pleadings and through the proceedings predicates his defense upon the assertion that there was a bona fide gift of personal property, namely, the money, by means of which the outstanding claims against the estate of Charles Beilfuss, Sr., were purchased by defendant and as a result of which the conveyances were made to him, and' unless, therefore, he can successfully show a valid gift to him of this money he is without the purview of said sec. 2077, supra, for the reason that he is within the last excepting clause to said section as found in sec. 2079, Stats., which reads as follows: “Section 2077 shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, or when such alienee, in violation of some trust, shall have purchased the lands so conveyed with monej^s belonging to another person.” If, therefore, he was unable successfully to assert a gift of this mpney to him, he necessarily stood charged as trustee on behalf of Mrs. Beilfuss as to this fund and with the proceeds thereof in whatsoever form they may be traced into his hands, for there is no middle ground. We are satisfied that there is sufficient justification in the record for the conclusion arrived at by the trial court that — 517 — there was no valid gift of the money realized by Mrs. Beilfuss from the mortgage of her own property to the defendant Peter Dinnauer. It is true one witness testified that when applying to Mrs. Beilfuss for a lease of the 100 acres she told him that Mr. Dinnauer would have to sign for the twenty acres, that she had given them to him. Another, that during the proceedings in the county court in the probate of the estate of her husband Mrs. Beilfuss stated that she was going to give the defendant Dinnauer the twenty acres, that she wanted him to work the farm because he had small children, but was going to give him the twenty acres right out straight, and that this was because he did all the work that had to be done and that any time she called for work he attended to it for her. And another, to whom she said that she gave the twenty acres to Dinnauer because he helped her out with the land. These conversations, however, were all with reference to the twenty acres and not to the gift of money upon which the defendant based his rights herein. The effect of these statements, if made, is qualified or limited by the undisputed facts that Mrs. Beilfuss remained in possession during all the time, paid the taxes, conducted the farm, and received the proceeds without question on Dinnauer's part. There was evidence of statements alleged to have been made by the defendant himself in the presence and hearing of Mrs. Beilfuss and some of her children after the sale of the twenty acres in which he stated that he had that day purchased them for her benefit. Although the record is silent as to the value of her eighty acres, yet it is a fair presumption that the sum turned over to Dinnauer and now claimed by him amounted to quite a substantial proportion of her entire estate, and no very powerful reasons are shown why the son-in-law should be so preferred over his wife and the other children of Mrs. — 518 — Beilfuss, who were all on substantial equality under her will. The defendant has failed to show any adequate consideration for the transfer to him of such a sum of money. Great reliance is placed by appellant upon the testimony of the attorney at law who represented Mrs. Beilfuss as the administratrix in the probating of her husband’s estate and who was permitted to testify, without any objections being interposed, as to statements made to him by Mrs. Beilfuss during the relationship o,f attorney and client and with reference to this particular transaction, and to the effect that she, Mrs. Beilfuss, wanted Dinnauer to have these twenty acres, intended to make a gift of it to him; and that she had consulted with him, the attorney, in reference to the proper proceedings to take in order to effectuate such a purpose, and had expressed to him entire satisfaction with the proceedings when taken and the result apparently attained. Although all this testimony was received without objection being made, it was nevertheless inadmissible because a clear violation of sec. 4076, Stats., which reads as follows: “An attorney or counselor, at law shall not be allowed to disclose a communication made by his client to him or his advice given thereon in the course of his professional employment.” It is manifest that had the action been brought by Mrs. Beilfuss in her lifetime to set aside the deeds in question it would have been a breach of the statute for the court to have permitted the attorney to testify as a witness for defendant to the information received bjr him from Mrs. Beil-fuss in the course of his confidential professional relationship, and of course it can be no more properly received in this action after her death than if offered in her lifetime. The purpose of the statute is to seal the lips of the attorney as to communications made to him in good faith when seeking his professional advice in any and all matters outside of those which are to aid in a criminal intent or to — 519 — violate the law. To exclude such evidence so forbidden by the public policy of this state is a rule of judicial propriety. Getzlaff v. Seliger, 43 Wis. 297, 302. Such testimony, therefore, has no proper place in the consideration of this case and will be presumed to have been disregarded by the court below, and must be here. That the judgment of the court below can and should be upheld on the grounds above stated, renders it unnecessary to consider any other questions presented. It follows as matter of course that the demurrer to the complaint was property overruled. By the Court. — Judgment and order overruling demurrer each affirmed.