#### Resch vs. Senn

Evidence: *(1-3) Declarations*— Bes *Gestee.*(4) *Possession of goods; its effect as evidence.*

Títle to Goods of Intestate. (5) *What must he shown by one claiming by gift from widow.*

1.- Where one person takes and removes goods claimed by another, declarations made by the parties at the time of such taking are a part of the *res*gestee, and admissible in evidence, in replevin for the goods.

2. Where a witness for plaintiff, in such an action, has testified that he was present and saw the taking, he may be *cross-examined*as to any conversation between the parties at the time.

3. The property in dispute being a bureau and its contents, and the answer alleging that the bureau was locked and the key in plaintiff’s possession, at the time of the taking, and that defendant requested plaintiff to unlock it and take out any goods belonging to him: *Held,*that defendant might cross-examine such witness as to the conversation between the parties, for the purpose of proving such request.

4. Although possession of goods is *prima facie*evidence of title, yet where the goods were shown to have been a part of the .estate ®f a deceased intestate, and there had been no administration, the possession of the widow cannot be presumed to have been in her own right rather than for the benefit of the minor children.

0. Where defendant claimed and took the goods as guardian of the minor children, plaintiff, who claims by gift *inter vivos*or *causa mortis*from the widow (with whom he had intermarried), must show affirmatively her title, and actual delivery of the goods by her to him as a gift.

*287APPEAL from tlie Circuit Court for *Fond duLac*County.

Replevin, for a certain bureau and its contents, described as follows : “Articles of bedding, table clothes, towels, one suit of men’s clothes, eight yards of woolen cloth, one revolver, twenty-five dollars in gold, two dollars in silver, one gold ring, one silver watch, one cupping instrument, one dozen new shirts, two boxes containing bed-clothing and books.” The value is stated at $818. Plaintiff claimed to own the property by gift from the widow of Henry Senn, with whom he had intermarried after the death of said Henry, and who had herself subsequently deceased. Defendant claimed that the goods were the property of the minor heirs of said Henry Senn, of whom he was the guardian. The substance of the pleadings, and the principal errors alleged to have intervened at the trial, will appear from the opinion.

At the plaintiff’s request, the court gave the following instructions: “ 1. If the plaintiff was in possession of the property in July, 1869, such possession is *'prima facie*evidence of ownership of the property. 2. Where in actions like the present, defendant sets up the title of the property to be in a person not a party to the action,' such a defense is an affirmative defense, and it is incumbent on the party pleading it to establish by the weight of evidence all the facts to show a perfect title in the person in whom he alleges it to be. 8. Pos-séssion of personal property, such as household furniture, wearing apparel, and other household property, ordinarily used in and about the dwelling house of a family, by a widow, for upward of two years after the death of her husband, is presumptive evidence of title and ownership.”

The instructions referred to in the opinion as having been asked by the defendant and refused by the court, were as follows : “ 1. The property of a man dying without a will, and leaving surviving him a widow and children, will descend to the children, subject to the dower right of the widow, and certain *personal*property to vest in the widow under the order of *288tbe probate court; and if tbe widow die before ber right in tbe property is adjudicated and set apart to ber by tbe order of a competent court, then tbe whole estate vests at once in tbe children on tbe death of tbe widow. 2. Unless you find that tbe property which tbe plaintiff claims by gift from tbe widow was ber separate property, or bad «been set apart to ber from tbe property of ber former husband by tbe order of tbe county court, then she bad no title to it, and could not confer any title on tbe plaintiff. 4. To make a gift operative, it must be accompanied by immediate delivery and change of possession ; and if you find that there was an attempted gift by tbe wife to tbe plaintiff before their marriage, tbe same was not operative unless there was a delivery and change of possession of tbe property.”

Verdict for tbe plaintiff, assessing tbe value of tbe property at $278; new trial denied; and defendant appealed from a judgment on tbe verdict.

*F. F. Wilde,*with *Mayliam & Perlcins*and *J. F.*McMullen, of counsel, for appellant.

*Coleman &*Thorp, for respondent,

argued, among other things, that tbe greater part of tbe goods given by Mrs. Rescb to tbe plaintiff were her paraphernalia, which belong to tbe wife upon tbe death of ber husband, and of which she could dispose by gift or otherwise. Tyler on Inf. and Cov., 422i-425; 2 Redf. on Wills, 161-168; Cord on Rights of M. W., 597-614; 2 Roper on H. and W., 2d ed,, 141 ; 1 Williams on Ex’rs, 678 et seq.; *Jervoise v. Jervoise,*17 Beav., 566. 2. Mrs. Rescb was in tbe undisturbed possession of tbe property for two years after tbe death of ber former husband, before she gave it to tbe plaintiff; which is *prima fade*evidence of title.' 3. Tbe statute declares that the widow shall be allowed all ber articles of apparel and ornament, tbe household furniture of tbe deceased, etc. It passes tbe absolute title of such property to tbe widow, and no order of tbe county court is necessary to confer tbe title upon ber. Such property would not be assets in tbe bands of *289an administrator, nor descend to tbe beirs. If an order of tbe court is necessary in any case, it was not in tbis, because tbe entire value of all tbe property left Mrs. Eescb by ber former' busband was less tban tbe statutory amount. 2 Williams on Ex’rs, *1496; *Brigham v.*Bush, 33 Barb., 596; *Vedder v. Saxton,*46 id., 188; *Sheldon v. Bliss,*8 N. Y., 31. 4. Tbe fourth instruction asked by defendant was properly refused; because, as between busband and wife, residing in tbe same bouse, where tbe goods were at tbe time of tbe gift, it was utterly impossible tbat there should be an actual change of possession. Such a rule would frequently render it impossible for busband or wife to make a valid gift to each other. *Allen v. Cowan,*23 N. Y., 502; *Penfield v. Thayer,*2 E. D. Smith, 305; *Gragiac v. Arden,*10 Johns., 293; 28 Barb., 622; 45 id., 9; 33 N. Y., 581; 14 Johns., 222; 10 Bosw., 314; 39 N. Y., 111; 21 Pick., 325.

Cole, J.

Tbis was an action to recover tbe value of a bureau and Contents which it was alleged bad been wrongfully taken from tbe plaintiff by tbe defendant. It appears from tbe case tbat tbe plaintiff claimed tbe larger part of tbe property in controversy as a gift from bis deceased wife, and a portion in bis own right.

Tbe answer contains tbe general denial, and further alleges, in substance, tbat as guardian of Emma Senn and Mina Senn, minor beirs and children of Henry Senn, deceased, who were tbe real owners of tbe bureau and other property mentioned in tbe complaint, defendant took possession of tbe bureau, which was then locked, tbe key thereof being in tbe possession of tbe plaintiff, who was requested to unlock tbe bureau and to take any property therefrom which belonged to plaintiff. *

Tbe errors complained of are quite numerous, and we shall *290only notice tbe more material ones. And first, it is said tbe ourt erred in sustaining tbe objection to tbe question asked tbe witness Jobn R. Seely, on cross-examination, as to whether be beard any conversation between tbe plaintiff and defendant about taking these goods. Tbe witness bad stated on bis examination in chief, that be was present and saw the defendant take tbe bureau and some other goods. Tbe defendant claims that be was entitled to show, as a part of tbe *res gestae,*tbe conversation between him and tbe plaintiff at tbe taking of tbe property. We suppose tbe acts and declarations of the parties done and made at tbe time of tbe transaction are admissible as constituting parts of tbe *res gestae.*They might be material, as showing by what right tbe defendant claimed tbe property, and whether be requested tbe plaintiff to unlock tbe bureau and to take therefrom any property belonging to him.

Again, tbe court excluded testimony offered to prove tbe contents of tbe bureau. Upon what ground this evidence was ruled out, it is difficult to imagine. It is suggested on the brief of tbe counsel for tbe plaintiff, that tbe answer admitted tbe taking of the property. We have already remarked that tbe answer contained tbe general denial, and also averred that tbe defendant took tbe bureau and other property mentioned in tbe complaint as tbe property of bis wards. Tbe plaintiff was permitted to testify as to tbe contents of tbe bureau and their value. Tbe defendant was not permitted to show what articles tbe bureau in fact contained, and thus meet the case made on tbe other side. That this evidence should have been admitted seems to us very plain.

Although this case must go back for a new trial on account -of tbe exclusion of the testimony above referred to, we deem it .proper to make a few general remarks bearing upon tbe instructions given at the request of the plaintiff, and those asked and refused on tbe part of tbe defendant Before doing so, bow-•ever, it will be necessary to state one or two matters in order -.that our observations may be more clearly understood.

*291Henry Senn, tbe father of tbe defendant’s wards, was tbe owner of certain property real and personal, including tbe most, if not all, of that in controversy. He died in 1866 ; and about two years afterwards, bis widow, tbe mother of these children, married tbe plaintiff, with whom she continued to live until her death in 1869. It does not appear that letters of administration were ever granted to any one upon tbe estate of Henry Senn, nor that any property was ever assigned to tbe widow by an order of tbe county court. And, as already observed, tbe plaintiff claims tbe property as a gift from bis wife. It is insisted by tbe counsel for tbe defendant, that Mrs. Resch bad no title to tbe property in her own right so that she could lawfully dispose of it or give it away, even if tbe evidence showed that there was a gift *inter vivos*or *causa mortis.*Tbe plaintiff claiming tbe property as a gift from Mrs. Resch, it was of course incumbent on him to show that tbe property belonged to her, and that her gift of it to him bad become perfect by delivery and acceptance. “ Delivery is essential both at law and in equity to tbe validity of a parol gift of a chattel or chose in action: and it is tbe same whether it be a gift *inter vivos*or *causa mortis.*"Without actual delivery tbe title does not pass. A mere in tention or naked promise to give, without some act to pass tbe property, is not a gift.” 2 Kent., p. 438. Tbe mere fact that these goods were in tbe bouse occupied by tbe plaintiff and wife at tbe time of her death, will not warrant tbe presumption that possession and ownership were in him, especially when that presumption is rebutted by tbe positive evidence that tbe property belonged to tbe estate of Henry Senn, deceased. Tbe possession would naturally remain with tbe mother, even if tbe property belonged to tbe children. And tbe same remark would be applicable to tbe possession of tbe widow, which, under tbe circumstances, would not be presumptive evidence of title and ownership. Eor certainly possession furnishes no presumptive evidence of title, when it is shown that tbe property belongs to another. So that tbe bare fact that Mrs. Resch was in tbe *292undisturbed possession of tbe property in question for two years after the death of her former husband, before' she gave it to. the plaintiff, would not of itself be even *primafacie*evidence, that she owned' the property in her own right, when it appeared that it was a part of the estate of her first husband.

It is said that the greater portion of the goods were such as would belong to Mrs. Eesoh upon the death of her husband. The statute provides that the widow shall be allowed all her articles, of apparel and ornament, and all the wearing apparel and ornaments.of the deceased, the household furniture of the deceased not exceeding in value two hundred and fifty dollars, and other personal property to be selected by her not exceeding two hundred dollars. Section 1, chap. 99, E. S. There is not a particle of testimony which tends to prove that Mrs. Eesch ever selected any portion of this property, or that it was *allowed*or set apart to her by the county court. Her title really rests upon mere possession, which is entirely consistent with the fact that the property belonged to her children, and that she was holding it for their benefit. •

We think the instructions givenat the request of the plaintiff were calculated to mislead the jury, in view of the evidence which showed that the property belonged to the estate of Henry Senn. It is very evident that the fourth instruction asked by the defendant should have been given; and we are inclined to think, that the first and second were correct as propositions of law, and applicable to the facts .of the case. We do not, however, feel called upon to fully pass upon those instructions, inasmuch as another trial may develop a different state of facts from tbe ease now before us.

*By the Court.*— The judgment of the circuit court is reversed, and a new. trial ordered.