The order of the circuit court is reversed, | Jackman v. Bank of Eau Claire, 125 Wis. and the cause remanded, with directions to enter judgment for defendant.

TIMLIN, J. This is a suit by the administrator of Lelia I. Russell, deceased, to recover from the defendant certain property which the latter claims as a gift from deceased. The administrator recovered, and it is contended that the findings of the circuit court are not supported by evidence. 3. APPEAL AND ERROR (§ 1048*)-PREJUDICELelia I. Russell was a married woman livRULINGS ON QUESTIONS TO WITNESS-CROSSEXAMINATION. ing apart from her husband and owned cerAlleged error in the refusal to allow cross-tain furniture in a house in St. Paul, Minn., examination of a witness cannot be reviewed unless exception is taken to the ruling and prej udice is shown on the further examination of the witness.

her administrator to have full control of finding of the circuit court, because it apthe contents of the box. Rent appears to peared that during the lifetime of the donor have been paid by her up to May 7, 1906, the Safety Deposit Company did not, as reand in arrears from that date. On August quested, "give over" to defendant the con7, 1906, defendant presented the writing tents of the box, nor make any change in above quoted and the keys, and the Safety the situation or condition of such contents, Deposit Company entered a surrender of and the acts of both parties furnish eviMrs. Russell's lease of the box in the sur-dence that this was probably not intended to render book, and the defendant paid for the quarter year rent due August 7, 1906, and took away the contents of the box. There was also evidence from which the circuit court was authorized to infer that the intention of Mrs. Russell was to put her property in such shape that not only the gift but the delivery to her brother of her furniture and the contents of the safety deposit box were to be contingent upon her death. The court found that the deceased intended to make a gift to the defendant, but that such intention was never consummated or carried into effect in her lifetime.

The question is whether there was a constructive delivery equivalent to an actual delivery. The case in this state most in point is Crook v. First Nat. Bank of Baraboo, 83 Wis. 31, 52 N. W. 1131, 35 Am. St. Rep. 17. The case last mentioned, so far as it concerns the validity of the gift, was decided upon demurrer to an answer upon a situation where the pleadings taken together showed the form of the gift in writing, and an averment in the answer admitted by demurrer was to the effect that the donor by this writing intended to give, and did give, the fund in question to the donee. The writing contained sufficient ambiguity to make this an averment of fact admitted by the demurrer rather than a conclusion of law. If the court below found in the instant case that the writing in question was intended to give, and did give, to the defendant the contents of the safety deposit box, the cases would be parallel. The court here found the contrary. This finding has the following evidence to support it: (1) The defendant did not present the writing of surrender of lease of Mrs. Russell until after her death; (2) in requesting instructions from the Safety Deposit Company she wished to know what form of an order would be necessary so that this company would feel authorized and let her brother have access to her box; (3) the instrument requested the trust company to give over the contents, and did not itself purport to transfer the contents; (4) a competent witness testified that Mrs. Russell said to defendant: "Now I will give you an order, and, if anything should happen to me, get them first before you should let it be known that I was gone so that it will not go through the court." There was in this sufficient to support the

be done during the lifetime of the donor, but that the delivery should take place pursuant to said order after her death. The like intention is inferable from the evidence relating to the attempted gift of the furniture, which was entirely oral. Wilcox v. Matteson, 53 Wis. 23, 9 N. W. 814, 40 Am. Rep. 754; Schultz v. Becker, 131 Wis. 235, 110 N. W. 214.

In all such cases of constructive delivery, a finding of the trial court against the intention to make delivery before death necessarily presents a very formidable obstacle in the way of recovery by the donee where there is evidence to support such finding.

Error is assigned on the refusal of the trial court to allow cross-examination of the mother of deceased as an adverse witness. If such error was made, the proper way to take advantage of it is to except to the ruling and proceed with the examination of the witness so as to disclose by her testimony whether the appellant was prejudiced by such ruling. As it is we cannot say that the ruling was prejudicial to appellant. Neither was there error in excluding the testimony of Mr. Griggs. The court excluded this upon its determination of the preliminary question that deceased consulted Mr. Griggs as an attorney and the communication was privileged. State v. Russell, 83 Wis. 337, 53 N. W. 441. We do not feel warranted in overthrowing the decision of the trial court upon this preliminary question of fact because there is considerable evidence to support it.

Error is assigned upon the refusal to grant a new trial upon newly discovered evidence consisting of the testimony of several inmates of Mrs. Russell's house and that of a prospective buyer of her furniture to declarations made by her to the effect that she had given the furniture and the contents of the safety deposit box to defendant. This evidence was cumulative or corroborative of other evidence offered on the trial by defendant. It is much weakened by contradictory statements or admissions alleged to have been made by the proposed witnesses and in other respects, and we cannot say that the trial court erred in refusing to grant a new trial thereon within the rule of Jalie v. Cardinal, 35 Wis. 118, and Hedger v. State (Wis.) 128 N. W. 80.

Judgment of the circuit court is affirmed.

COMSTOCK v. BOYLE et al.

(Supreme Court of Wisconsin. Dec. 6, 1910.) 1. TAXATION (§ 213*)-PROPERTY SUBJECT TO TAX-PROPERTY HELD BY STATE AS TRUSTEE -"EXCLUSIVE OWNERSHIP."

A philanthropist made a bequest to the various asylums that may have been formed, or may be formed within a year, for the orphans of the late war for the restoration of the Union, providing that for a time the interest only should be used, and that the bequest be so managed as to give the orphans as they become of age a sum of money to fit them out in life and gradually extinguish the fund. The Soldiers' Orphans' Home having been established in Wisconsin, it received over $25,000 from this bequest. Thereafter another left $2,000 to the trustees of the home for the benefit of the children. Held, that the state in the administration of the fund occupied the position of a trustee only, the orphans being the beneficiaries, and hence property purchased by the state from the fund for the use of one of such orphans was not exclusively owned by the state so as to be exempt from taxation; exclusive ownership being necessarily ownership free from any kind of legal or equitable interest in any one else. [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 213.*]

2. CHARITIES (§ 48*)-TRUST FUND-REQUESTS TO CHARGE-REIMBURSEMENT BY STATE.

Where funds were bequeathed to the state in trust for the use of the children in the Soldiers' Orphans' Home, the fact that the state itself, in carrying on such home, was engaged in a similar charity, did not entitle it to reimburse itself for money spent therein out of such funds. [Ed. Note.-For other cases, see Charities, Dec. Dig. § 48.*]

books of the state treasurer under the head of the "Ward and Smith Bequests Fund." It is still so kept. The purpose of the testator, Ward, that the fund should be extinguished by distribution among the orphans to fit them out in life, was partly executed in 1874, when the trustees issued to each of them a certificate of $45. But, owing to the fact that all did not call for their certificates, there was quite a balance left in 1877, and a second series of certificates for $10 each was issued. This distribution also failed to completely exhaust the fund, and in 1887 there was still a balance left. The Home was closed in 1875, and pursuant to chapter 306, Laws 1875, the real estate was transferred to the Regents of the State University; but the trustees still continued to act, and in 1887 it came to their attention that one of the beneficiaries was in destitute circumstances. Their action relative thereto is stated as follows in their final report: ."During 1887 it came to the knowledge of the board that one of the boys from the Home, named Charles A. Randall, residing in the city of Fond du Lac, Who had a wife and two children, was, on account of poor health, in a state of destitution, and that, unless help was given him, he would probably become dependent on public charity. This boy suffered while at the Home a very severe illness, barely escaping death, in consequence of which his physical development was arrested. He was dwarfed in stature and not strong. In competition in

Appeal from Fond du Lac County Court; the field of labor, with strong full-grown men, A. H. Reid, Judge.

Action by E. G. Comstock against John T. Boyle and others, impleaded. Judgment for plaintiff, and defendants appeal. Affirmed.

In 1865 Horatio Ward, an American banker residing in London, England, made a bequest "to the various asylums or homes that have been formed or may be formed within a year throughout the loyal states for the orphans by the late war for the restoration of the Union." Among other provisions his will contained this: "I judge that the interest, only for a time, will be used, and that the bequest be so managed as to give the orphans, as they become of age, a sum of money to fit them out in life and thus gradually extinguish the fund-this course would be in exact accord with my wishes." In 1867 the testator died. By an act of the Legislature, approved March 31, 1866, the state of Wisconsin established the Soldiers' Orphans' Home of Wisconsin, and in 1871 it received from the Ward bequest the sum of $25,554.79. Some considerable time after Mr. Ward's death, Miss Caroline E. Smith, formerly of Waukesha, died in Chicago, leaving by her will $2,000 to the trustees of the Wisconsin Orphans' Home for the benefit of the children. In 1872 this bequest was paid to the trustees and deposited with the Ward fund, and thereafter a separate account was kept in the

he was crowded to the wall. He was industrious and fond of gardening-was somewhat skilled in the art. So from the Ward and Smith fund we appropriated a sum sufficient to purchase within the corporate limits of Fond du Lac three acres of ground fenced, for a truck garden. One of the members of the board purchased the lumber and superintended the erection on the ground of a warm, comfortable shanty house and small shed barn, costing $160; we also purchased for him a cow and put him in possession of the premises and told him that he could occupy them for as long a time as he wished without cost except taxes. The whole establishment costs $700. But that there might be no temptation presented to him to mortgage or sell the place we placed the title in trust in the state of Wisconsin. For a few years he prospered and was happy, cultivating his truck garden. But subsequently he was taken sick and died; and his widow with her children abandoned the place in order to go to her people, who lived in the northwestern part of the state."

This land in question was taxed in 1887, but it does not appear whether the tax was paid or redeemed. It was again taxed in 1888, sold at the tax sale of 1889 to the county, and redeemed from the county by C. K. Pier April 4, 1892. It was not taxed in 1889,

1896. The defendants claimed that the land
belonged to the state exclusively, and that,
under subdivision 2, § 1038, St. 1898, which
provides that property "owned exclusively
by the United States or by this state" shall
be exempt from taxation, it was not tax-
able.

1890, nor 1891; but in 1892 it was trebly as- I therefore, is whether or not the land was
sessed for the years 1890, 1891, and 1892, taxable in the years 1893, 1894, 1895, and
and the tax levied and the property sold
therefor at the tax sale of 1893 to Kate Pier.
In 1896 the tax certificate was, on the peti-
tion of Kate Pier setting forth that the prop-
erty belonged to the state of Wisconsin and
was not subject to taxation, canceled by or-
der of the county board for that reason. The
land was, nevertheless, again taxed in the
years 1893, 1894, 1895, and 1896 and sold at
the annual tax sales succeeding the same
years, to George Radford, and thereupon, in
due time, tax deeds based upon said tax sales
were issued to said Radford and by him re-
corded. The land was taxed successively in
1897, 1898, 1899, and 1900, and the taxes were
paid by George Radford. In 1901 the proper-
ty was assessed to the state of Wisconsin as
owner, but not sold. In 1902 and 1903 it was
not assessed. By quitclaim deed dated March
17, 1904, George Radford conveyed this prop-
erty to the plaintiff. On April 25, 1887, when
one Mary A. Hamilton deeded this land in
question to the state of Wisconsin in trust,
she was the owner in fee thereof. Section 1
of chapter 375, Laws 1895, authorized Mr.
C. K. Pier, the secretary of the board of
trustees, to sell the land and convey all the
title held by the state and pay the net pro-
ceeds of the sale into the state treasury to
the credit of the account known as the Ward
and Smith fund. Section 2 provided: "The
State Treasurer shall thereupon transfer the
balance in the Ward and Smith fund to the
general fund and it shall be his duty to pay
therefrom any and all certificates issued by
said trustees and held by those who were
formerly inmates of the Wisconsin Soldiers'
Orphans' Home as same are presented by
those entitled to receive payment on same,
not exceeding, however, in the aggregate the
amount so transferred from the Ward and
Smith account to the general fund." The
act then provided for the approval of the
final report of the trustees and abolished the
board. Mr. Pier having died without making
a sale, the commissioners of public lands
were, by chapter 71, Laws 1899, authorized to
sell the land, and on May 24, 1904, they sold
it to the defendant John T. Boyle, and a
patent was issued to him. He immediately
entered into possession of it, and plaintiff
brought an action of ejectment. A jury was

waived, and the court found that plaintiff was the owner in fee and entitled to the pos

session thereof. From judgment entered accordingly, the defendant appealed.

Frank L. Gilbert, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for appellants. H. E. Swett, for respondent.

It is evident that it was the intent of the
testator, Ward, to make the inmates of the
institutions, and not the institutions them-
selves, the beneficiaries of his gift. That por-
tion of his will which reads: "I judge that
the interest, only for a time, will be used,
and that the bequest be so managed as to
give the orphans, as they become of age, a
sum of money to fit them out in life and
thus gradually extinguish the fund-this
course would be in exact accord with my
wishes"-evinces a clear intent that not only
the interest but also the corpus of the gift
should go to the orphans. The inmates of
institutions managed by private parties as
well as of those managed by the states were
to share in the gift, for the bequest was "to
the various asylums or homes that have
been formed or may be formed within a year
throughout the loyal states for the orphans
by the late war for the restoration of the
Union." The bequest of Miss Smith was to
the trustees of the Wisconsin Orphans' Home
for the benefit of the children. So it must
be held that both bequests constituted the
orphans the beneficiaries. That this was
recognized by the trustees and the state is
evident from the fact that the Ward and
Smith bequests fund was kept separate from
all other funds. The trust relation was also
clearly recognized when the balance of the
fund was transferred to the general fund,
for it was provided by the Legislature that
the State Treasurer should pay out of the
general fund any and all certificates issued
by the trustees not exceeding in the aggre-
gate the amount so transferred from the
Ward and Smith account to the general
fund. This provision was tantamount to
saying that the balance of the Ward and

Smith account belonged to the orphans, but
would be transferred to the general fund

and paid to them out of that whenever a

proper demand was made.

dence shows the state spent large sums of
its own money for the care and maintenance

But the defendants argue that the evi

of the orphans, and it is therefore entitled to reimburse itself out of their fund, conceding it belonged to them, and that if it did so the whole trust fund would be exhausted. The evident answer to this is that the fact the state was engaged in a similar VINJE, J. (after stating the facts as charity would not entitle it to reimburse itabove). It is conceded by the defendants self for money spent therein out of other that, if the land was taxable when the taxes funds held in trust by it. Nor has it sought on which the tax deeds are based were as- to so reimburse itself. It has, as above statsessed against it, then plaintiff's tax title is ed, always recognized that it held the fund

eys were turned into the general fund, for it 2, authorizing an appeal from a final order afprovided for a repayment to them upon pres- fecting a substantial right made upon a sumentation of proper vouchers to the whole ex-mary application in an action after judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 517-522; Dec. Dig. § 82.*

St. 1898, § 2831, gives the circuit court discretionary power on motion for good cause shown, and upon terms, to allow proceedings to Among references cited upon the part of be taken after the time limited by or in pursu- the respondent were the following: Tenney ance of the statute. Held that, where the 60 days within which a proposed bill of exceptions. City of Madison, 99 Wis. 539, 75 N. W. could be served under section 2876 had expired. 979; Glover v. Wells, etc., Co., 93 Wis. 13, the court, upon application for an extension of 66 N. W. 799; Cent. Nat. Bank v. Brand, time, could impose terms as a condition to the 100 Wis. 648, 76 N. W. 608. granting of the motion.