Will of Klehr

Kebwih, J.

In making her case in the court below the claimant, appellant here, introduced competent evidence showing that on the 28th day of June, 1905, the deceased, Johann Peter Klehr, had in his possession a note payable to himself in the sum of $4,500, signed by one Edward G. J. Smith, secured by real-estate mortgage; that^upon that day said Johann Peter Klehr indorsed and transferred said note to the appellant by the following indorsement: “Pay the within without recourse to Sister Fierre Klehr,” and signed his name to said indorsement and delivered said note so indorsed to appellant, expressing satisfaction that he had made said,gift; that the note after delivery to appellant was delivered back by her to Johann Peter Klehr for the purpose of allowing him to collect the interest thereon as it became due, he living where the maker lived, because he reserved the interest for himself when he made the gift. It also appeared that after the indorsement of the note to the appellant crosses or erasures were made over the indorsement, and the claimant proved that she authorized no one to erase the indorsement, and that she received no money on the note.

*656 In order to meet the case made by appellant the respondent, estate of Johann Peter Klehr, deceased, offered Jphn Weber, executor of the last will and testament of Johann Peter Klehr, deceased, as a witness. Objection was duly made to the competency of Weber, executor, as a witness, and also to the evidence given by him. Both objections were overruled and the evidence received and retained in the record over objection and motion to strike out.

The errors assigned are (1) upon the competency of Weber to testify and the competency of his evidence; (2) in refusing to direct a verdict for the appellant; (3) in the charge to the jury; (4) in refusing to change the answer of the jury and in denying motion for a new trial.

Objection was duly made to the competency of the executor, John Weber, to testify to declarations of Johann Peter Klehr, several months after the time of the alleged gift, affecting the validity of the gift of the note in question, which objection was overruled and the executor permitted to testify. The members of this court are not in accord upon this question, and since the judgment below must be reversed on other grounds we will not pass upon the competency of the executor to testify. But, regardless of the competency of the executor to testify, testimony received over objection was incompetent. The executor was permitted to testify that, some eight months after the delivery of the note to appellant, Johann Peter Klehr, now deceased, in a conversation with him admitted that he signed the indorsement to appellant, but said that it was not his intention to give the note to appellant. A complete gift of the note to appellant had been fully proved by her in making out her case, not alone by the indorsement and delivery to her,'but by expressions of gift made by deceased at the time of the indorsement and accompanying the gift; and further that- the note had been left with deceased merely for the purpose of collecting the interest, which had been retained by him. The delivery hack of the note to deceased to permit him to collect the interest did not defeat the gift if a *657 gift Rad been in fact made. McNally v. McAndrew, 98 Wis. 62 , 73 N. W. 315 ; Tucker v. Tucker, 138 Iowa, 344 , 116 N. W. 119 ; Shepard v. Shepard, 164 Mich. 183 , 129 N. W. 201 ; Jones v. Nicholas, 151 Iowa, 362 , 130 N. W. 125 .

The declarations testified to under objection, above referred to, were hearsay and self-serving and not competent unless they can be brought within some exception to the general rule. Fay v. Rankin, 47 Wis. 400 , 2 N. W. 562 ; Earley v. Winn, 129 Wis. 291 , 109 N. W. 633 ; Rohloff v. Aid Asso. 130 Wis. 61 , 109 N. W. 989 ; Hamachek v. Duvall, 135 Wis. 108 , 115 N. W. 634 ; Salchert v. Reinig, 135 Wis. 194 , 115 N. W. 132 ; Chase v. Woodruff, 133 Wis. 555 , 113 N. W. 973 .

But it is argued that the evidence was competent under the rule that evidence of one in possession of property explanatory of such possession is competent under the rule laid down in Roebke v. Andrews, 26 Wis. 311 , and Griswold v. Nichols, 126 Wis. 401 , 105 N. W. 815 , and other cases. These cases hold that:

“When the character of a party’s possession of property, either real or personal, is in question and material to the litigation, the statements made by such party while in possession, if apparently made in good faith, are competent to be introduced in evidence upon the ground that the possession of property is a continuous act, and that the declarations accompanying such possession are in fact a part of the act of possession, and hence a part of the res gestee.”

The rule is also well stated in Jones on Evidence (2d ed.) § 351 (354), as follows:

“While declarations which relate to the nature of the possession may be admitted as a part of the res gestee, yet they must be confined to that subject; and those which relate to the origin of the title, or to the contract under which possession is held or to the mode or manner of payment, and other independent facts should be excluded.”

It is clear that the question involved in the instant case was not one of character of possession, but of title to the note. Whether the deceased intended to make a gift went directly *658 to the question of tie title of appellant to tlie note. Opitz v. Karel, 118 Wis. 527 , 95 N. W. 948 . Where a gift of personal property is made with intent to take effect irrevocably, and is fully executed by unconditional delivery, it is a valid gift inter vivos. Henschell v. Maurer, 69 Wis. 576 , 34 N. W. 926 .

Other errors were committed in the admission of evidence and in the charge, but whether sufficient to reverse the judgment if standing alone we need not consider, since the declarations of the deceased to the effect that he did not intend to make the gift were incompetent, highly prejudicial, and must work a reversal of the judgment.

By the Gourt. — The judgment is reversed, and the cause remanded for a new trial.

Timlin, J., took no part.