Brundage v. Towers

Eschweiler, J. The claim as filed by Mrs. Brundage against the estate of her husband as to the two items here involved was: “For stock of claimant appropriated by Victor Brundage to his own use, $17,500.” And again: “For moneys of claimant appropriated by Victor Brundage to his use, $1,800,” etc. To such items objections were interposed by the executor to the effect that such were absolute gifts, not loans or advancements, and that there has been no valid promise by Victor Brundage to pay or return any moneys he so received. The residuary legatee also objected on similar grounds and further asserted the bar of the statute of limitations. Upon such record Mrs. Brundage and her daughter and claimant, Mrs. Smith, each demanded a jury trial under sec. 4043.&, Stats. Upon the hearing Mrs. Brundage apparently undertook to show or assumed the burden of showing the nature of the transaction by which the 138 shares of stock of the Pinckney Investment Association, one half of her. holdings which she had acquired from her former husband, were transferred, after marriage, to her husband, the deceased. Testimony on her behalf tended to show that some agreement was made in contemplation of marriage whereby she was to give to him the one half of her holdings in the said company and he in turn was to pay to Mrs. Smith the $2,500 above referred to, pay certain debts of claimant, and comply with certain other obligations. The exact nature of such alleged agreement was left very indefinite and uncertain at the close of the testimony. Such as the testimony was, however, it satisfied the jury and was accepted by the trial court as sufficient to warrant the conclusions that the transfer of the 138 shares of the Investment Company stock and the $1,800 check, proceeds of the sale of the Wisconsin [563] Foundry Company stock, were neither of them gifts, and that he did not perform whatever obligations he undertook. It is here contended by appellants that evidence offered by the claimant was improperly admitted; evidence offered by the objectors to the claims improperly rejected; that proper questions were not embodied in the special verdict; and that the evidence was insufficient to support the findings and judgment. We shall not discuss the several alleged errors separately. It appears, by proper evidence, that during coverture Mrs. Brundage transferred and delivered to her husband certain personal property, part of her separate estate, to wit, 138 shares of the capital stock of the Pinckney Investment Company and a check of $1,800 from the sale of the Wisconsin Foundry Company stock. Upon such undisputed facts there was no presumption that it was intended as a gift, and, in the absence of direct evidence of an intention to make by such delivery an absolute gift, the husband is deemed in law to hold it in trust for her benefit. Harter v. Holman, 152 Wis. 463, 139 N. W. 1128. This case cited among others the case of Stickney v. Stickney, 131 U. S. 227, 239, 9 Sup. Ct. 677, which is approved as to this point in Garner v. Second Nat. Bank, 151 U. S. 420, 433, 14 Sup. Ct. 390, and is followed in Gilmore v. Gilmore, 270 Fed. 260, 262, and in Re Remmerde, 206 Fed. 826, 830. To the same effect is Wormley’s Estate, 137 Pa. St. 101, 20 Atl. 621; Parrett v. Palmer, 8 Ind. App. 356, 35 N. E. 713. The doctrine so declared in Harter v. Holman, supra, was reiterated in Friedrich v. Huth, 155 Wis. 196, 200, 144 N. W. 202, but as there pointed out, such principle does not apply as to transactions concerning real estate because of specific statutes regulating such trusts. In transactions involving the obtaining of personal property by the husband from the wife during the marital relationship the burden is on the husband to show that it is a [564] gift and not a trust. Boyd v. De La Montagnie, 73 N. Y. 498, 502, approved in Allen v. La Vaud, 213 N. Y. 322, 328, 107 N. E. 570. Under, these rules of law, therefore, at the close of the testimony it was incumbent upon those who were objecting to Mrs. Brundage’s claims to have proven that such items of personal property were absolute gifts to the husband by the wife rather than incumbent on the wife to have proven that they were not such gifts. The trial court, however, charged the jury that the claimant in presenting her claims has the burden of proof as to her rights in the matter and made no other statement on the subject. Even under such instruction the jury reached the conclusion that there was no gift as to either item, and we are satisfied that such was the proper and necessary result. While it is true that Mrs. Brundage in her verified complaint, brought to set aside the contract for sale and the sale to the Doctors Kennedy in 1921, referred to the shares of stock then standing in her husband’s name as his property, and in the proceedings brought by the husband and wife to review the income-tax assessment arising out of the sale of such stock again apparently recognized her husband’s ownership of the 138 shares, yet such can neither work as an estoppel against Mrs. Brundage or as a waiver of her rights. Such attitude, subsequent to the delivery of the certificates of stock giving apparent title to the husband and while the trust thus thereby created was still in effect, cannot be considered as a denial of the trust or a converting it into a gift. No showing being made that the original trust relationship had been terminated or repudiated, neither the lawsuit nor the tax proceedings could, as between the husband and wife, be considered as giving to the husband or recognizing in him any greater or different interest than that which had been vested in him and created by the original transfer of the stock. The trust was just as effective to the $17,500 [565] which he received with her approval upon the sale of the shares of stock'as had previously existed to the shares themselves. If the record title to these shares or of the proceeds therefrom was to remain in the husband during his lifetime, he predeceasing his wife — and that is the proper conclusion under the evidence here, — then her attitude in the Kennedy lawsuit and the tax-review proceedings cannot be held to be a denial of such trust relationship. Some suggestion was made as to the. statute of limitations possibly applying by reason of the lapse of more than six years between the death of Victor Brundage in August, 1923, and the acquiring in January and February, 1917, of the certificates of stock and the $1,800 check. It has long been established that despite the broad and general language of the statutes of limitation they do not affect or run between husband and wife as to contracts or obligations made or arising during coverture. Second Nat. Bank v. Merrill, 81 Wis. 151, 155, 50 N. W. 505 (cited with other cases in 1 A. L. R. in note on p. 822), approved in Fawcett v. Fawcett, 85 Wis. 332, 339, 55 N. W. 405; again followed, but with some hesitation, in Brader v. Brader, 110 Wis. 423, 425, 85 N. W. 681; again recognized in Gudden v. Estate of Gudden, 113 Wis. 297, 303, 89 N. W. 111, and in Flanagan’s Estate v. Flanagan’s Estate, 169 Wis. 537, 542, 173 N. W. 297. But that such ruling is not to be held to apply to prevent the running of the statute as to contracts upon which the limitation began prior to marriage is pointed out in Charmley v. Charmley, 125 Wis. 297, 307, 103 N. W. 1106; Enwright v. Griffith, 169 Wis. 284, 286, 172 N. W. 156. The personal property in question therefore having been given by the wife to the husband during coverture, and the presumption that he held the same in trust for his wife not having been overcome, she was entitled to recover as claims [566] against his estate the two items allowed by the court below. This disposition of the case' makes it unnecessary, under concessions made on her- behalf to that effect, to consider the appeal of Mrs. Smith from the disallowance of her claim of $2,500. By the Court. — Judgment affirmed.