SWAZEE v. LEE, 259 Wis. 136 (1951)

47 N.W.2d 733

SWAZEE, Appellant, vs. LEE, Administratrix, Respondent.

Supreme Court of Wisconsin.April 2, 1951 —
May 8, 1951.

APPEAL from a judgment of the circuit court for Wood county: HERMAN J. SEVERSON, Circuit Judge. Affirmed.

The action was begun September 11, 1948. Judgment was entered March 15, 1950. The original defendant, Charles E. Anderton, died after the appeal was perfected and his administratrix was substituted in his place by court order. For convenience and clarity the opinion will deal with the facts as though the original defendant still lived.

Plaintiff brought this action demanding an accounting and payment by the defendant of such amount as should be found due him. His material allegations were that plaintiff’s four aunts contributed equally to a fund of $12,000 which was then given to defendant in trust for defendant to invest and to pay plaintiff’s mother the income thereof for life and on her death to pay the principal to plaintiff. The mother and three of the aunts have died. The defendant and the one surviving aunt, who is married to the defendant, deny that

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the terms upon which the fund was placed in defendant’s hands made any provision whatever for the plaintiff. Trial was to the court which rendered judgment for the defendant.

For the appellant there were briefs by Zillmer Redford
of Milwaukee, and oral argument by John M. Redford.

For the respondent there was a brief by Brazeau Brazeau, attorneys, and Richard S. Brazeau of counsel, all of Wisconsin Rapids, and oral argument by Theo. W. Brazeau.

BROWN, J.

It is not necessary to create a trust by written instrument but where it is alleged that a trust is created by parol the evidence concerning the creation and the terms of the trust must be clear and convincing. Hartman v. Loverud
(1938), 227 Wis. 6, 277 N.W. 641. In a trial to the court findings of fact will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Lerner v. Lerner (1948), 252 Wis. 87, 31 N.W.2d 208; Ische v. Ische (1948), 252 Wis. 250, 31 N.W.2d 607. The learned trial court here specifically found:

“8. That there was at no time created or established a trust of which plaintiff was a beneficiary or had any interest.”

Its conclusion of law was:

“3. That the plaintiff never had any interest in said funds contingent or otherwise.”

The judgment dismissed the complaint on the merits.

We have examined the evidence and are agreed that the quantity and quality of plaintiff’s proof is not clear and convincing and the great weight and preponderance of the evidence is not in accord with his contention that the fund was to be his upon the death of his mother. Other questions raised thus become immaterial. The learned trial court’s finding, ante, must be sustained and its judgment affirmed.

By the Court. — Judgment affirmed.

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