Hocking's Estate, In re

• Decision Date: 04 February 1958
• Citation: Hocking's Estate, In re, 87 N.W.2d 811, 3 Wis.2d 79 (Wis. 1958)
• Parties: In re ESTATE OF Charles R. HOCKING, Deceased. E. S. DAVISON, Adm'r, Respondent, v. L. R. HOCKING, Appellant.
• Court: Wisconsin Supreme Court

Page 811

87 N.W.2d 811

3 Wis.2d 79

In re ESTATE OF Charles R. HOCKING, DeceasedE. S. DAVISON, Adm'r, Respondent, v.L. R. HOCKING, Appellant.

Supreme Court of Wisconsin.

Feb. 4, 1958.

William McEwen, Ralph E. Senn, River Falls, for appellant.

White, Davison & White, River Falls for respondent.

STEINLE, Justice.

The principal issue involved concerns the effect of the tranfers of money by the defendant to the decedent in 1954 and 1955.When determining such issue, the trial court stated:

'There were three payments of money made by the defendant to the deceased; the first on approximately December 15, 1954 in the amount of $15.00; the second on January 7, 1955 in the amount of $15.00 and a third payment of $50.00 on May 7, 1955, which are represented by checks.There is no dispute but what these sums were paid.The only question is whether those sums were paid on or properly applied to the indebtedness owing on the note.If they were paid on or properly applied on the indebtedness of the note, then the statute of limitations would be tolled and the plaintiff would have the right to bring the action and to recover.So the only question to be determined is whether or not these three payments were made on or were properly applied by the deceased on the note.The testimony does not, I feel, indicate that the payments were made as a gift as contended by the defendant.The obligation was owing.The deceased asked the defendant, his brother, for some money.I do not see that the purpose for which the deceased wanted to spend the money has any particular bearing on the case at all.He might spend it in any way that he saw fit.The obligation was owing.The deceased needed some money and he asked the individual who owed him some money if he would give him some money.There was nothing said particularly about the note, and since the money was paid pursuant to a request for it, I do not see how it could be considered a voluntary gift.Consequently I will have to find that it was not a gift.I think authority is very clear for the fact that if there is no specific instruction or agreement or intention as to how a payment is to be applied, in the absence of such the creditor may apply payments made by him in such way he wishes on any indebtedness that the debtor may owe him.Since there was no talk of the note and since there was no statement that it was not to be paid or applied upon the note, and the defendant admits he made no statement to that effect, the deceased would have a right to apply the payments upon the indebtedness.Consequently payments having been made, the statute of limitations has tolled and the plaintiff would have a right to recover, and I will find that the payments were properly applied by the deceased upon the indebtedness represented by the note; that the obligation is still owing and that the plaintiff is entitled to judgment.

* * *

* * *

'The defendant has not denied there was an obligation.The only question is, has the plaintiff a right to bring the action because of lapse of time.We have the situation of a creditor going to the debtor and saying that, 'You owe me money' and saying, 'I need some money.Can you give me some?'Now it would be a little unusual for a person to whom no obligation was owing to voluntarily go out and ask for a gift.We have the situation of a creditor and debtor; the creditor asks his debtor for money; the debtor in response to that request paid over some money.He claims that he gave it merely for the purpose of saving some expenses which the creditor had incurred for medicine or whatever it may be.The purpose for which the creditor may wish to spend the money is of no particular concern.If some payments were actually being made on a note it would make no difference how the creditor wanted to spend the money.He could spend it in any way he pleased, or could put it in a savings account.So the debtor in response to a request by the creditor for some money, paid over the money.There was no particular reference to the note, but the inference must be plain that the creditor was asking for money from his debtor.There was an obligation existing at that time.The obligation to pay existed.On the second payment in January there was no conversation between the parties whatsoever.The defendant voluntarily made a check, sent it to a man to whom he owed money.There is no dispute of the fact that he did make the payment.There was absolutely no conversation between them as to what the money was to be applied for.When there is an obligation owing the creditor has the right to apply payments as he may receive from the debtor upon the note.'

It is the position of the defendant, L. R. Hocking, that there was no credible evidence to warrant a determination (a) that he transferred the sums of money in 1954 and 1955 to his brother with an intention to recognize the note as an existing liability and to acknowledge that he still had an obligation to pay the note, (b) that he pointed out the note at the time of the transfer of the money to his brother or that he ever made an express acknowledgment of the debt represented by the note and (c) that the deceased brother or any one else on his behalf with his authority, actually applied the transfers of money on the note.It is also the contention of the defendant that the trial court erred in refusing to hear evidence as to his purpose in making the transfers of money, and further that it was error to have refused to admit into evidence a statement constituting an admission against interest by a party of interest in the proceedings.

At the trial the plaintiff rested his cause after examining the defendant adversely, and after offering in evidence as exhibits the note in question and the three checks showing transfers of money by the defendant in 1954 and 1955.The exhibits were admitted into evidence.On the reverse side of the note appears memoranda in handwriting as follows:

'Pd Int. Apr '25--$125

'1954 'Pd Int. Dec 15--1500

'1955 'Pd Int. Jan 28 1500

'1955'Pd Int.May 9--5000'

The two checks for $15 each were payable to the order of 'C. R. Hocking.'The $50 check was dated May 7, 1955 and was payable to the order of 'Mr. & Mrs. C. R. Hocking.'

The defendant testified on his own behalf, Nettie Camp, a daughter of the decedent by a prior marriage was called as a witness by the defendant.After testifying that she had a conversation with the wife of decedent shortly before his death concerning the $50 check of May 7, 1955, she was not permitted by the court(upon objection by the plaintiff) to testify as to what the decedent's wife had said concerning the purpose of the money so transferred by check.

The defendant admitted the execution of the note and also the delivery of the checks in 1954 and 1955.The memoranda on the reverse side of the note was not identified by anyone in the evidence.The defendant denied ever making any payment on the note.During the examination of the defendant, the transfers of money were referred to as payments (plaintiff's counsel first using such expression) by the defendant, and were also spoken of by him as gifts.Specifically in so far as material, the defendant testified: (abridged)

'I did not pay $125.00 interest on this note in April, 1925.I never paid one penny on the interest.I gave Charles R. Hocking $15.00 about December 15, 1954, by check.Charles R. Hocking came to me and asked me for a little money; that he needed some money for medicine and I gave my brother that $15.00 check.He just asked me if he could have a little money.I said 'Yes, you can have some money' and I gave him that $15.00 check.That is all there was to it.I didn't say a word about the note or anything else.He took this check and left.I didn't tell him it was a Christmas present or any other kind of gift.All I did was hand him a check for $15.00.About a month later I gave him another check for $15.00.It was about January 7, 1955.I sent the check to him through the mail.He was sick and I was busy and I put it in an envelope without any notation with it and sent it to him through the mail.The money out of that check was for medicine because they had to buy so much medicine; he knew what the check was for, he knew it was coming.I told him I would give him one each month.I made a third payment to Charles R. Hocking by check.I signed the check for $50.00 dated May 7, 1955, payable to Mr. & Mrs. Charles Hocking, and handed it to Mrs. Hocking.My brother, Charles R. Hocking, was extremely ill and wasn't able to sign it.I handed this check for $50.00 to Mrs. Charles R. Hocking at her home.I didn't say anything that day that I gave it to her.I said that it was for shots for his condition and he took one shot and was dead the next morning.I made no other payments to my brother besides these three.I didn't give Charles R. Hocking any Christmas present after giving him the first check about December 15, 1954.I don't know his birthday.I did not give him a birthday gift or any gift in December of 1953.'

In the adverse examination the defendant was asked, 'Now, Mr. Hocking, do you deny that you have any money to pay this note with?'Over objection by the defendant that the matter was irrelevant, the court directed the defendant to make answer.His response was 'I did not have any money to pay this note and I do not have it now.'

The defendant's testimony in direct examination was not contrary to that elicited in the adverse examination.

It is well established in this state that in order to renew a debt once barred, there must be an express acknowledgment of the debt with the intention to renew it as a legal obligation.A partial payment, to operate as a new promise and avoid the bar of the statute of limitations, must be made under such circumstances as to warrant a clear...