Opinion
November 7, 1957 —
December 3, 1957.
APPEAL from a judgment of the county court of Racine county: FRANCIS H. WENDT, Judge. Affirmed.
For the appellant there was a brief by Benson, Butchart, Haley Benson of Racine, and oral argument by Donald A. Butchart.
For the respondent there was a brief and oral argument by William J. H. Evans of Racine.
Petition by Leone Hendrickson, in proceedings for the administration of the estate of Laura Budney, deceased, for the examination of William Budney, administrator, concerning the discovery of money at the residence of the deceased and the disposition thereof, and for the adjudication of the title to and ownership of said funds. From a judgment determining that all of the discovered money was the property of William Budney, except $100 cash and a $2.50 gold piece, the petitioner appeals.
Laura Budney died intestate, a resident of Racine, Wisconsin, on April 13, 1955, at the age of sixty-four years. She had married William Budney, the administrator, in 1921. Leone Hendrickson, the only other heir-at-law, is decedent's daughter by a prior marriage.
William Budney is sixty-three years old. He and the decedent had lived in a five-room apartment for the fifteen years immediately preceding the wife's death. After the funeral he and the petitioner, with the intent of disposing of decedent's personal belongings, went through the apartment and found various amounts of money in small bills tucked away in numerous places. Budney testified the money totaled $7,020. It was found in envelopes, in dresser drawers, in fancywork, in decedent's clothing, in a can in the kitchen, etc. Budney placed the money into a bank-deposit box which he rented for the purpose and later invested it in shares of a savings and loan association in his name.
Leone Hendrickson testified that after her mother's death she signed a waiver to the decedent's bank account, at Budney's request, so that he would have funds for the payment of funeral expenses; that she signed it after Budney assured her that all her mother left was the savings account of about $400, a joint bank account with Budney, and a little insurance. After the discovery of the money in the home she revoked the waiver.
As administrator of the estate Budney filed an inventory listing three items: A savings account at First National Bank, $453.10; cash in a safety-deposit box at said bank, $1,550; and a joint savings account at the same bank in the names of Mr. or Mrs. William Budney, decedent's interest $198.35. Leone Hendrickson thereafter filed her petition for determination of the ownership of the money discovered in the home.
Further facts will be stated in the opinion.
It is established by the evidence that the source of the money found in the home was William Budney's earnings. He testified that the decedent had no estate of her own when he married her, that she had not received any inheritance, that he did not think she had received any divorce settlements from her previous husbands, that she never worked during their thirty-three years of married life. These facts are not denied by the petitioner; in fact, they are corroborated by her testimony.
Budney further testified that it was his practice to cash his weekly pay check and give the money to his wife; that
"Whatever she done I was pleased. She was a faithful wife to me. We never discussed money at all."
Petitioner assumes for the purpose of argument in this court that the deceased had exclusive possession of the money and from that the presumption follows that it was her property. We cannot agree that Mrs. Budney had exclusive possession. Budney testified he knew there was money in the house but he did not know how much because they never discussed the subject. The evidence shows that it was found in many places, such as the cookie jar, the bedroom dressers and wardrobe, which were used by both husband and wife. It was as much in his possession as in hers. A $25 war bond in Budney's name was found in a sewing cabinet; several envelopes containing money were also found, marked in the decedent's handwriting as Budney's "vacation pay" and "arm money." Petitioner makes quite a point of the fact that Budney was very surprised when the money was discovered. It is her testimony that he was surprised; Budney testified that lie knew there was money in the house, though not how much. The amount of it may well have surprised him, but this is not proof of exclusive possession.
Nor can it be held that William Budney made a gift of the money to his wife when he handed her his weekly earnings.
"Clear and uncontroverted evidence, and not a mere intrusting, is necessary to establish a gift from a husband to his wife." 26 Am. Jur., Husband and Wife, p. 721, sec. 95.
While Budney testified that he "gave" his wages to the decedent, it is apparent from his testimony that he never intended a gift; that he merely intrusted his earnings to her to run their household, pay their bills, and save what remained. He was pleased with the way she handled their affairs and never questioned her about the money. There is no evidence whatever that he intended it as a gift to her.
Petitioner argues with some vigor that William Budney's testimony was "a labyrinth of evasion." The argument goes to Budney's credibility — a question for the trial court — and was answered in the decision as follows:
"He is a shop wage earner with no more than the average laborer's intelligence. He was nervous on the witness stand and certainly he was frequently confused. On several occasions when he refused to answer he thought that counsel was prying into his personal affairs and when instructed to answer he would do so immediately. He was not always consistent in his answers but I believe it was due to the fact that he was agitated and confused rather than to any deliberate attempt to give false testimony. He was examined adversely and counsel was permitted great latitude without objection."
The trial court was not so impressed with respect to the veracity of the petitioner.
there is ample evidence in the record to support the trial court's finding that the money found in the Budney home was the property of William Budney. It is, therefore, unnecessary to discuss the question as to the amount thereof.
By the Court. — Judgment affirmed.