Rasmussen v. Oshkosh Sav. & Loan Ass'n

• Decision Date: 30 June 1967
• Citation: 35 Wis.2d 605,151 N.W.2d 730
• Court: Wisconsin Supreme Court
• Parties: Harold RASMUSSEN, Individually and as Administrator of the Estate of Margaret L. Rasmussen, Deceased, Appellant, v. OSHKOSH SAVINGS & LOAN ASSOCIATION and Mae Thew, general guardian of Ky Tracy Rasmussen, Defendants, Eric Bion Rasmussen and Ky Tracy Rasmussen, Respondents.

Page 730

151 N.W.2d 730

35 Wis.2d 605

Harold RASMUSSEN, Individually and as Administrator of the Estate of Margaret L. Rasmussen, Deceased, Appellant, v. OSHKOSH SAVINGS & LOAN ASSOCIATION and Mae Thew, general guardian of Ky Tracy Rasmussen, Defendants Eric Bion Rasmussen and Ky Tracy Rasmussen, Respondents.

Supreme Court of Wisconsin.

June 30, 1967.

Rehearing Denied Sept. 11, 1967.

Henry P. Hughes, Oshkosh, for appellant.

Williams, Williams & Meyer, Oshkosh, for respondents.

HALLOWS, Justice.

The trial court found in its findings of fact that during her lifetime Margaret L. Rasmussen received from her husband his wages and used them to pay household expenses and from the surplus thereof, plus some added funds received from her mother Mae Thew, she made deposits in the savings accounts. The court also found Harold Rasmussen did not require periodic accounting from his wife and never inquired during her lifetime what she did with the money he turned over to her and he knew nothing of the establishment of the accounts until after the death of his wife. As a conclusion of the law the court stated the turning over of these earnings constituted a gift to the wife of any surplus. The question is whether the evidence supports the findings and the findings the conclusion.

Since the enactment of our married women's act, sec. 246.03, Stats., which recognized a married woman's right and capacity of ownership separate from that of her husband, a husband can make a gift of property to his wife. The present sec. 246.03, Stats., first appeared as R.S.1858, ch. 95, s. 3, which provided a married woman could receive property by gift, grant, devise or bequest from any person 'other than her husband.' This language was removed from the statute by ch. 86, Laws of 1895. See Dockry v. Isaacson (1925), 187 Wis. 649, 651--652, 205 N.W. 391. But see Cummings v. Friedman (1886), 65 Wis. 183, 186, 26 N.W. 575, 56 Am.Rep. 628, which said a married woman may acquire title to property by gift from her husband but no reference was made to the statute.

Gifts from a husband to his wife are not presumed from the marital relationship but are governed by the same rules as gifts between strangers, namely, there must be an intention to part with the interest in and dominion over the property and there must be delivery of the property. Estate of Budney (1957), 2 Wis.2d 389, 86 N.W.2d 416; 26 Am.Jur., Husband and Wife, p. 864, sec. 256. The facts of the Budney Case are somewhat similar to the instant case. The husband cashed his weekly check and gave the cash to his wife. Some of this she saved and his in various places around the house. Although the husband knew his wife was saving money and was not denied access to it he was surprised, as perhaps many husbands would be, to discover upon his wife's death she had saved $7,200. Unable to find any evidence the husband intended to make a gift to his wife, the court held the money belonged to the husband and quoted 26 Am.Jur., Husband and Wife, p. 721, sec. 95, to the effect 'Clear and uncontroverted evidence, and not a mere entrusting, is necessary to establish a gift from a husband to his wife.'

This is an unduly harsh rule of proof which would ordinarily fall upon the wife, and we think that the evidence of a gift, to be sufficient, need not be uncontroverted so long as it is clear and convincing. This is the middle degree of proof. City of Madison v. Geier (1965), 27 Wis.2d 687, 135 N.W.2d 761.

It is apparently a common practice in some American households for the husband, for the sake of convenience or for other reasons satisfactory to him, to turn over most or all of his earnings to his wife to meet the household and other expenses. The image of a housewife scrimping and saving some of this money is a popular one, but how much scrimping can be done by the wife depends in part upon the amount of funds turned over to her. A husband and wife may have an understanding that she is to receive an 'allowance' for certain purposes and intend that any surplus shall belong to the wife. This is a kind of reward or incentive bonus for good management. Then too the wife may, without any such definite understanding, be given funds for household purposes and the amount may or may not be sufficient; if not, she must ask for more. But if the allowance is sufficient or at times more than enough, one would think the surplus would still be impressed wth the household purposes and be added to the amount of the next allowance.

In other situations the wife may act as the 'business manager,' handling all the finances for the family. Such control of the funds does not ordinarily give rise to a gift of any surplus after meeting family expenses, otherwise very few husbands would entrust their wives with the household finances. The general rule in separateproperty states in which the husband and wife may own property separately from the other is that the excess left after paying the joint expenses of the husband, the wife, and the family remains the property of the husband and does not automatically constitute a gift to the wife. See 41 C.J.S. Husband and Wife § 150, p. 623, citing Dolan v. Dolan (1928), 107 Conn. 342, 140 A. 745; In re Ekins (1925), 126 Misc. 1, 213 N.Y.S. 162; and In re Fliegelman's Will (1945), 184 Misc. 792, 55 N.Y.S.2d 139.

In both Dolan and Ekins, supra, the husband turned over substantially all of his earnings to his wife, who combined it with her own earnings and after paying expenses deposited the surplus in bank accounts in her own name. In both cases the husband knew of the account, but in neither case was there any understanding regarding what was to become of the money so saved. In both cases domestic difficulties developed and a dispute naturally arose over the savings. Both the Connecticut court in Dolan and the New York court in Ekins held the facts failed to indicate any intent on the part of the husband to make a gift of the surplus money to the wife. In these cases both parties contributed to a joint fund to meet their joint expenses and any surplus was owned jointly and was to be divided between them. Some people consider the marriage relationship creates a partnership, but under this theory the excess of partnership funds could hardly belong, in the absence of an agreement, to the partner whose duty it is to handle the partnership funds.

Were only the husband contributes the funds the money earned by him is his property out of which he has a duty to support his family, and for this purpose he may make his wife the custodian of his earnings. But in the absence of clear evidence to the contrary the surplus after meeting such expenses remains his property. In re Fliegelman's Will (1945), 184 Misc. 792, 55 N.Y.S.2d 139, 141, the husband's earnings constituted the sole source of savings in dispute and the court said, 'The monies which make up the balance on deposit in the bank constitute monies which the widow was able to save solely out of the monies advanced by the decedent for household expenses. Under the law, these savings by the wife continued to be the sole property of the husband.' See also Frick v. Cone (1936), 160 Misc. 450, 290 N.Y.S. 592. Thus if a gift...