McNelly v. Marshall
McNelly v. Marshall
Opinion of the Court
The findings of the circuit court are to the effect that Harvey and Samantha Marshall, he a widower with children, and she a widow with children, were married about thirty-five years ago, resided together up to the time
It is contended on this appeal that the •prima, facie case of ownership made by the written instrument is overcome by evidence (1) that at the time of marriage Samantha had no separate estate or property; (2) that the money represented by these certificates is the avails of farm products or live stock from the farm owned by Harvey; (3) that this money was by consent of Samantha assessed to Harvey; (4) that Harvey was quite illiterate and remained at home, while Samantha transacted most of the business and especially attended to the deposits in the banks and to the renewals of the certificates of deposit during the thirteen years covered by these deposits; she had made some of them in her name, some in the name of Harvey Marshall, and some of them in the name of Harvey or Samantha Marshall, but at last had renewed six of them in her name; (5) after her death Harvey went to the banks and desired to cash the certificates, where he was informed that the certificates were in. Samantha’s name; (6) that there is no evidence that Samantha made any claim to own these certificates during her life, nor did her heirs after her death until it was learned that they were in her name; (7) that the finding of the circuit court that she had possession of the certificates is not supported by evidence; (8) that Samantha said to one of the officers of one bank, sometime before the last renewal in her name, that she
The case is a close one. The probative effect of a fact, like the ornamental effect of a jewel, is much affected by its setting. Therefore analysis is not always a reliable test. This is particularly noticeable in fraud cases, where each fact detached and alone might have a probative value equal to zero; but grouped and set as the facts actually occurred may convincingly establish fraud. It however applies in a greater or less degree to all evidence. Keeping this in mind the following analytical treatment will not mislead: (1), (2), (4), and (6) have little probative force. We could almost as well say that they indicate a reason for Harvey making a gift' as to say that they negative a gift; (3) is not significant because the statute then in force (sec. 1044, Stats. 1898) provided that the money of the wife might be assessed to the husband. (6) This is weakened by the fact that there was no occasion calling for the assertion of any claim of ownership upon her part. (I) We find some evidence tending to support the conclusion that she had possession of the certificates. These certificates were kept with deeds, tax receipts, and other papers in a box at the home of the old couple, presumably accessible to both, but found after the death of Samantha by her daughter, and by the latter delivered to Harvey. (5) and (8) tend to disprove a gift; and (9) is an argumentative inference from the situation and circumstances which assumes the whole controversy in favor of defendant. On the other hand, in addition to the written instruments there is the fact that the moneys in question were the product of the joint industry and self-denial of both husband and wife exerted in the operation and management of
By the Court. — Judgment affirmed.
Reference
- Full Case Name
- McNelly, Administratrix v. Marshall, Administrator
- Status
- Published