Opinion
January 10, 1952 —
February 5, 1952.
APPEAL from a judgment of the county court of Waushara county: BYRON B. CONWAY, Judge, Presiding. Affirmed.
For the appellant there were briefs by Brazeau Brazeau, attorneys, and Richard S. Brazeau of counsel, all of Wisconsin Rapids, and oral argument by Theo. W. Brazeau.
For the respondent there was a brief by Earl F. Kileen of Wautoma, and Lehner Lehner of Princeton, and oral argument by Philip Lehner.
This proceeding arises out of a claim filed by Arthur Bean against the estate of Ida Bean, his deceased wife, in which petitioner seeks to have certain items stricken from the inventory. From a judgment granting the petition in part, the executor appeals.
Ida Bean died testate on December 11, 1950. She and Arthur Bean had been married approximately twenty-one years. Before their marriage the deceased had been the widow of Emil Henning and had some property of her own. Bank records were produced and testimony taken tending to show that a number of her holdings were sold after her marriage to Arthur Bean and the proceeds deposited in her own bank accounts.
Shortly after the marriage of decedent to Arthur Bean she rented a safety-deposit box in the Union State Bank of Wautoma. Petitioner testified that she kept his papers and valuables in her box until some five or six years before her death when she told him he had better get a box of his own because he needed more room. Ida Bean kept the key to her box in her handbag. She was authorized to use his box and had access to that key, although it was shown that she visited his box only once and then in his company. After her death her deposit box was opened and, among other things the ownership of which is not in dispute here, the following were found:
Deed to lot 17, block 11, Milwaukee county. Bundle of cash in amount of $4,064.00 Bundle of cash in amount of 820.00 Bundle of cash in amount of 345.00 One gold piece 2.50 One sack of Indian Head pennies Currency 12.00 Silver 2.00 Petitioner claims ownership of the above-described property and asks that it be stricken from the inventory of decedent's estate and turned over to him.Arthur Bean was a dealer in livestock and some real estate. He did all his business with cash and did not have a bank account. Ida Bean handled all his money. She kept considerable sums in the house and on her person. When he needed some to make a deal, she gave it to him; when he took in money from a sale he gave it to her. He never carried much with him. Petitioner testified that his wife usually kept the money in a cloth sack pinned to her underclothing.
Many witnesses testified that he asked his wife for money when he went out to do business and returned it to her after he had made a deal. Several of them testified that they made payments on notes held by Arthur Bean directly to Mrs. Bean and that she gave them receipts; that she frequently referred to herself as "Art's banker."
Ida Bean was ill during the summer of 1950, but she did not know her death was imminent. In June, 1950, on one occasion testified to by Dr. John Bjorge, an elderly veterinarian and old friend who was then living in a trailer on the Bean property, Ida Bean told him, "I must go and take some money of Art's to the bank, it is dangerous to have so much money in the house." Several days later he asked her whether she had gotten to the bank before it closed, and she answered, "Oh, yes, I did."
Mrs. Joseph Schenskey, an old friend of the deceased, testified that she visited Ida Bean in June of 1950, and accompanied her to the bank to deposit some money. She said:
"She didn't go to the cage, she went to the back somewhere. I took it she went to her lockbox."
The bank records showed that Mrs. Bean visited her box on three occasions during June of 1950.
Petitioner identified the $4,064 as being the money his wife usually carried on her person. This amount, together with the bundle of $820, was found in a sack which petitioner claims she always wore pinned to her underclothes. He could not identify the bundle of $345, although he thought it was his. He identified the $2.50 gold piece as one his mother had given him as a keepsake forty years before. He said the silver dollars were souvenirs he kept from a trip west several years before his wife's death. The Indian Head pennies were saved by him while operating a tavern at Richford. He further stated that the real estate in Milwaukee was purchased by him in the trade of an automobile he owned, but that he put title to it in the name of his wife.
It was the conclusion of the trial court that the items of $4,064, $820, the gold piece, pennies, and silver dollars were Arthur Bean's property and ordered them stricken from the inventory of the estate. It disallowed the claim for the $345 cash, $12 currency, and the lot in Milwaukee.
Examination of the record on this appeal discloses facts amply supporting the trial court's conclusions that petitioner owned the property here involved.
There is no doubt that Ida Bean had possession of this property since it was found in her individual safety-deposit box. The presumption of ownership arising from that possession placed the burden of proof upon the petitioner to show that the property was in fact his.
Many witnesses were called on behalf of the petitioner to show the relationship between Ida Bean and Arthur Bean with regard to the manner in which his business funds were handled. Their testimony in that respect is entirely credible. Arthur Bean was a dealer in livestock and, occasionally, real estate, and he always did business in cash. He never carried much money with him, but he sometimes needed considerable sums when buying as many as thirty or forty head of cattle. It was his practice to give all his money to his wife and when he needed it he asked her for it. She kept the money in a sack either on her person or in the bedroom of their home. Persons owing money to Bean on cattle deals frequently paid it to Mrs. Bean. She sometimes referred to herself as "Art's banker."
No claim is made that Ida Bean ever deposited her husband's funds in her own bank accounts, and there is no evidence that she ever paid her husband's bills by cheek.
Under these circumstances it is entirely believable that Arthur Bean expected to find a considerable sum of money in the house after Ida's death. He testified that he had not done any business since April 15, 1950, because his wife was ill and he often had to take her to the doctor at Fond du Lac. Dr. Bjorge testified that Mrs. Bean told him in June that she had to take some of Art's money to the bank because it was dangerous to keep it at home. The bank records show that she visited her lockbox three times that month. On one those occasions Mrs. Schenskey was with her. Mrs. Bean had no reason to believe she would die soon.
The items of $4,064 and $820 were found in a sack at the top of the lockbox. Petitioner identified the sack as the one his wife usually kept his money in, either on her person or in the bedroom. He recognized the $820 as the balance of $1,000 formerly kept in the house and from which he had paid doctor bills.
Bank records and other exhibits were introduced in evidence to account for funds which decedent inherited from the estate of her first husband. She had interests in various pieces of real estate which were sold during her marriage to Arthur Bean and she owned a mortgage which was subsequently converted into bonds and then sold in 1938. The proceeds of these transactions are shown in the record and reflected in her bank accounts, which accounts also show that during her marriage to Bean decedent added no substantial sums thereto. Ida Bean was at no time gainfully employed while she was married to petitioner. These circumstances alone do not prove that the money found in the lockbox belonged to petitioner, but the trial court had the right to consider them, along with all the other evidence, in drawing the inference that it was the property of Arthur Bean.
Counsel contends that petitioner committed perjury in his testimony regarding the filing of income-tax reports, and that therefore his entire testimony should be viewed with suspicion. The testimony complained of is of importance on this appeal only so far as it goes to the credibility of the witness. However, in such details as corroboration was possible to obtain, there was corroboration of much of petitioner's testimony by numerous other witnesses. The trial court is in the best position to appraise the credibility of all witnesses, since it has the opportunity to observe them on the stand and hear their words with its own ears.
It is our opinion that the evidence, taken as a whole, provides ample support for the trial court's conclusions in this case.
There is a motion to review before us on that portion of the judgment denying petitioner's claim to the Milwaukee real estate and the item of $345 cash. The deed to the Milwaukee property was in Ida Bean's name. Although petitioner stated the lot was obtained in the trade of his automobile, he showed no records of such a transaction, nor was it testified to by any other witness. He had no explanation for the $345 bundle of cash and apparently had never seen it before. The trial court's conclusion that petitioner had not met the burden of proof necessary to overcome the presumption of ownership in Ida Bean was correct, and the judgment must be affirmed in its entirety.
By the Court. — Judgment affirmed.