Wilcox v. Matteson

• Decision Date: 27 September 1881
• Citation: 9 N.W. 814,53 Wis. 23
• Parties: WILCOX v. MATTESON.
• Court: Wisconsin Supreme Court

53 Wis. 23

9 N.W. 814

WILCOX

v.MATTESON.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Jefferson county.R. B. Kirkland and I. N. & G. W. Bird, for respondent.

Harlow Pease, for appellant.

TAYLOR, J.

This action was brought to recover the amount of a promissory note given by the appellant to the deceased husband of the respondent, payable to his order, and indorsed by him in blank. The answer denies the ownership of the note by the respondent. The question of ownership was the only question litigated on the trial. The plaintiff claimed upon the trial that the note in question had been given to her by her husband in his life-time. The only evidence tending to prove such ownership was the following:

Harriet Edgar, a witness for the plaintiff, testified that she attended the deceased husband in his last sickness, and that on the night of his death, and about three hours before his decease, the deceased “told me that his pocketbook was under his feather bed, just under his shoulders, and for me to take it, and give it to his wife when she came; that there was some money and papers in it that would be of value to her, as she would need them. He afterwards died at 1 o'clock in the morning. I continued there, remaining with his corpse until about 9 o'clock in the morning, eight hours after he died, when Mr. Dyer Williams came into the room, and Mr. Williams turned the corpse over, and I took the pocket-book referred to out from under his shoulder and gave it to Mr. Williams, telling him that Mr. Wilcox requested me to give the pocket-book to his wife; and Mr. Williams took the pocket-book, saying he would give the same to Mrs. Wilcox if she came, and if she did not come he would send it to her. From the time of his death until Mr. Williams came I had exclusive charge of the room in which the deceased lay, and was not out of the room five minutes during all that time.”

Dyer Williams, a witness for the plaintiff, testified that he saw Wilcox about six hours after he died. “When I arrived in the room where the corpse was, Mrs. Harriet Edgar, his nurse, told me that Mr. Wilcox the night before had requested her to give a certain pocket-book under his shoulder to his wife, as he wanted his wife to have it, and that he wanted the nurse to see that his wife got it herself. I then moved the corpse so that the nurse could get the pocket-book, and then she gave it to me and requested me to give it to Mrs. Wilcox. I took the pocket-book and kept it in my possession until Mrs. Wilcox arrived, and then gave it to Mrs. Wilcox between 8 and 9 o'clock in the evening after her husband died, delivering the message the nurse had communicated to me concerning its disposition--that it was a gift from her husband.”

The respondent herself testified that the note in suit was in the pocket-book when it was delivered to her, and that it was indorsed by the deceased in his own handwriting. She also testified that she had been duly married to the deceased, and that the deceased died without leaving any children or other lineal descendants.

Upon this evidence the learned circuit judge directed a verdict for the plaintiff. To this ruling the defendant duly excepted, and appeals to this court from the judgment rendered upon such verdict.

Upon this appeal the defendant alleges as error that the evidence produced on the trial shows affirmatively that the note upon which the action was brought was not owned by the plaintiff, but belonged to the estate of her deceased husband, and that the evidence offered for the purpose of showing a gift of the same by the deceased to the plaintiff during his life-time failed to show such gift. We are constrained to agree with the learned counsel for the appellant that there is no evidence in the...