subd. 3, Rev. St. 1898, makes it the duty of the county clerk to sign orders under such circumstances. Hence mandamus will issue against him to compel the performance of this a ministerial duty clearly imposed by law. State ex rel. Treat v. Richter, 37 Wis. 275. Judgment reversed and cause remanded, with directions to enter judgment awarding peremptory writ of mandamus, as prayed. SCOTT v. HOLMAN et al. (Supreme Court of Wisconsin. March 21, 1903.) HOMESTEAD INTENT TO DEFRAUD CREDITORS-RESULTING TRUST. 1. While a suit was pending against him, a husband assisted his wife with the greater part of the money paid as the purchase price for a homestead, title to which was taken in her name, and on which they moved before judgment was rendered against him. Afterwards, and before execution was issued, he made further payments on the homestead out of his earnings. The money which the wife contributed to the homestead she had at the time of their marriage, and had since retained as her separate property, and after they were married they kept saving money in order to buy a home. Held, that the facts rebutted the presumption of a fraudulent intent to place the husband's property beyond the reach of the judgment creditor, so as to create a resulting trust in his favor under Rev. St. 1898, §§ 2077, 2078, providing that the creditors of a party paying the consideration for a conveyance taken in the name of another shall have a resulting trust to the extent of their demands unless an intent to defraud is disproved. litigants. Therefore the county board is | for at the end of each month. Section 709, vested with discretion whether the public treasury ought to bear the expense. This general scheme is quite apparent in the original legislation, and, though somewhat obscured by the distribution of different parts of the act of 1895 between sections 694 and 2464a, Rev. St. 1898, without doubt, persists in the law as it now stands on the statute book. The law also clearly contemplates that the register is to receive a salary, for it provides (section 2464a, Rev. St. 1898) that when the county board shall not fix a salary "The judge shall compensate such register." It is too apparent for serious debate that this particular contingency is not before us, so that by mere force of the law, apart from any agreement, the duty rests on the county judge to compensate appellant. She clearly could not demand that he pay her, for that duty is cast upon him only when "the county board shall not fix a salary." By the record before us, it appears that they have fixed one. The question for decision, however, is whether, when the county board have fixed a salary, and have not changed it, and have collected and appropriated the money therefor, they can prohibit payment of it. This does not necessarily involve decision whether by a mere fixing of a salary the county board for all future time adopt a system from which they cannot recede, as was held to be the effect of a very different act as to sheriff's compensation, under a radically different statute, in Northern Trust Co. v. Snyder, 113 Wis. 516, 530, 89 N. W. 460. Nor are we called on to decide whether, as argued by appellant, there is a public policy, enforceable by the courts, beyond the control of the Legislature, which must constrain us to a holding that the salary of an officer having no term cannot be changed while he continues to hold the office, notwithstanding the statute (section 694, Rev. St. 1898) authorizes the county board to fix that salary from time to time. In the present instance, the appellant having been appointed and the county board having fixed her salary, that salary, by the very terms of section 694, Rev. St. 1898, "shall be paid at the end of every month." The resolution of the county board that after September 1, 1902, it shall not be paid, is direct negation of the statute; and, as the latter cannot be negatived by the county board, their resolution is of no force. Hence the appellant, having performed the duties of register in probate for the month of September, was entitled by law to be paid $40 therefor. Appeal from Circuit Court, Waupaca County; J. J. Fruit, Judge. Action by M. B. Scott, as trustee, against Margaret and Luzern Holman, to impress certain property with a trust in favor of plaintiff Judgment for defendants, and plaintiff appeals. Affirmed. It appears and is undisputed that February 26, 1900, one Charles A. Spencer commenced an action for the breach of a lumbering contract entered into by him November 29, 1892, with the defendant Luzern Holman and one Ira W. Baggs; that pending said action, and on February 21, 1901, the defendant Margaret Holman, wife of Luzern Holman, with knowledge of the pendency of such action, purchased of one Milo Clark the house and lot in the city of Waupaca, therein described, and was to pay therefor $970; that she paid $700 cash down at such purchase, of which $250 was of her own money and $450 thereof she received from her husband, Luzern Holman, about the time of such purchase; that at the same time Milo Clark conveyed the house and lot to the defendant Margaret, and she gave back to him a note for $270, secured by mortgage on the house and lot; that the value of the house and lot and appurtenances did not exceed No question seems to be raised as to the propriety of mandamus against the county clerk as a remedy, nor do we think it doubtful. The resolution that appellant be not paid by the county is without force, as being in derogation of a statutory command. The money for this month's salary had been raised by taxation, accompanied by the order of the county board that orders be issued there- | $1,000, and that the lot does not exceed one fourth of an acre; that the only buildings | exempt under section 2983, Rev. St. 1898, and will and having the pen, he signed before the testator, and that he also judged from a blot on the acknowledgment that such was the case, the testimony was not sufficiently clear to overcome the presumption of regularity raised by the attestation. npon the lot are a dwelling house and stable; that Margaret and her husband moved into the house and on the premises March 1, 1901; that March 26, 1901, Spencer recovered judgment in the action so pending against Luzern Holman and Ira W. Baggs for $1,100 damages and costs, and the same was duly docketed March 30, 1901; that April 15, 1901, Luzern Holman paid on the note and mortgage $70, which he had saved out of his earnings between February 21, 1901, and that time; that June 25, 1901, he paid thereon the further sum of $100, which he had saved from his earnings between April 15, 1901, and that time; that execution was issued on such judgment July 1, 1901, and the same was returned wholly unsatisfied July 19, 1901; that August 27, 1901, the defendant Luzern was duly examined before the county judge in proceedings supplementary to such execution; that August 30, 1901, Luzern was adjudged a bankrupt on his voluntary petition in the District Court of the United States for the Eastern District of Wisconsin; that September 26, 1901, the plaintiff was appointed trustee of his estate in bankruptcy, and accepted the trust; that thereupon the plaintiff, as such trustee, commenced this action to have the moneys so advanced and paid by the husband to the wife, and by her used in the purchase of the house and lot, and the moneys paid by him on the note and mortgage to Clark, be adjudged fraudulent and void as to the creditors of the husband, and that the house and lot, mentioned, charged and impressed with a trust in favor of the plaintiff for the amount of such moneys, and that the defendants be decreed to convey the same to the plaintiff to satisfy said judgment. The defendants separately answered by way of admissions, denials, and counter allegations. At the close of the trial the essential facts were stipulated by the parties, and the court found, in effect, the facts stated, and also, in addition thereto, that the defendants were married in 1898; that at the time of such marriage the defendant Margaret possessed $250, which she had kept and invested as her separate property: that there is still due on the note and mortgage to Clark $100; that ever since their marriage the defendants have been saving money to buy a home; that they have always been residents of the state, and down to the time of such purchase lived in a rented house in Waupaca; that they have lived in and occupied the house and lot in question ever since March 1, 1901; that the husband has paid on the house and lot and mortgage in the aggregate $620; that the wife knew that her husband had a lawsuit with Spencer; that the only thing she ever heard her husband say about it was that he did not owe Spencer anything; that she believed that her husband could hold a house and lot as exempt without giving it to her; that she claimed the house and lot as her homestead, and the husband claims that whatever interest he has in the house and lot is by reason of its being his homestead, and exempt from seizure and sale on execution, under section 2983, Rev. St. 1898, as amended. And as conclusions of law from such facts the court found that the money furnished by the defendant Luzern Holman to his wife, with which she partly paid for their homestead, constituted no fraud; that no fraud, either in law or in fact, was committed by the defendant Luzern Holman; and that judgment should be entered in favor of the defendants, and that the plaintiff's complaint herein should be dismissed on the merits, with costs in favor of the defendants, and ordered judgment to be entered accordingly. From the judgment so entered the plaintiff brings this appeal. Cate & Dahl, for appellant. John C. Hart, for respondents. CASSODAY, C. J. (after stating the facts). Counsel for the plaintiff insist that the case is governed by two sections of our statutes, which declare that: "When a grant for a valuable consideration shall be made to one person and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment is made; but the title shall vest in the person named as the alienee in such conveyance subject only to the provisions of the next section." "Every such conveyance shall be presumed fraudulent as against the creditors of the person paying the consideration and when a fraudulent intent is not disproved a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands." Sections 2077, 2078, Rev. St. 1898. The whole consideration paid for the house and lot in question was $970. Of that sum the husband furnished to his wife at the time of her purchase $450, and subsequently he paid upon the note and mortgage which she gave back to secure a part of the purchase price $170, making his contribution to the purchase of the house and lot $620; and counsel contend that under the statutes quoted such payment by the husband, to the amount stated, must be presumed to be fraudulent as against his creditors, and to that extent the wife must be regarded as holding the title to the house and lot in trust for such creditors. But by the express language of the last section quoted such can only be the result "when a fraudulent intent is not disproved." Here the court found from the admitted facts that there was no such fraudulent intent. Counsel insist that the presumption of such fraudulent intent has not been rebutted, and yet counsel concede, as they must under the decisions of this court, that it would have been perfectly legitimate for the husband to have purchased the house and lot in question, and taken the title thereof in his own name, and 3. In a will contest, evidence tending to show that one of the witnesses did not sign at the request of testator or in his presence, and did not see the testator sign, considered, and held insufficient to overcome the presumption of regularity raised by the attestation. Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge. Proceedings to probate the will of George A. Gillmor, deceased. From a decree admitting the will to probate, contestant appeals Affirmed. held it as his homestead, and then conveyed | first, but presumed that, having just drawn the it to his wife, without subjecting it to the claims of his creditors. Hibben v. Soyer, 33 Wis. 319; Pike v. Miles, 23 Wis. 164, 99 Am. Dec. 148. This is on the theory that it may be legitimate for an insolvent debtor to use moneys or nonexempt property in procuring a homestead. This court has held that "the mere fact that an exchange of nonexempt for exempt property might be highly advantageous to an insolvent debtor is not conclusive evidence of an intention to defraud his creditors." Kapernick v. Louk, 90 Wis. 232, 234, 62 N. W. 1057; Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341. Since he may do that, we perceive no good reason why he may not join with his wife, who may have separate property of her own, in procuring a homestead for both of them. Thus it was held by this court more than 40 years ago that, "A homestead being exempt from forced sale upon execution, it matters not whether the title remain in the execution debtor, or be held by his wife as his trustee." Dreutzer v. Bell, 11 Wis. 114; Rozek v. Redzinski, 87 Wis. 525, 531, 58 N. W. 262. At the time of the purchase of the house and lot the wife had $250, and her husband had $450, which he had saved from his earnings for the purpose of buying a homestead. There was a lawsuit pending against the husband and another man upon a contract made eight years before. There is no evidence of any other claims being made against him at the time. They used the moneys they both had in buying a homestead and taking the title in the name of the wife. There is noth-court found as facts that the instrument was ing unnatural in the transaction, nor anything indicating an intent to defraud creditors. It was said by the late Justice Newman, speaking for the court, that: "The right of the owner to have his homestead exempt from liability in any form for his debts is superior to the equity of a creditor to have it applied to the payment of his debt. However it may have been formerly, and in the absence of a statute declaring his right, it is now the settled policy of the law to prefer the homestead right as against the rights of creditors." Clancey v. Alme, 98 Wis. 230, 73 N. W. 1014, 67 Am. St. Rep. 802. The admitted facts rebut any presumptions of fraudulent intent arising from the statute. The judgment of the circuit court is affirmed. In re GILLMOR'S WILL. (Supreme Court of Wisconsin. March 21, 1903.) WILLS-ATTESTATION-PRESUMPTION-WIT NESSING EVIDENCE-SUFFICIENCY. 1. The proper attestation of a will by witnesses raises a strong presumption of due execution, which can only be overcome by clear and convincing proof to the contrary. 2. Where a will was duly witnessed, and the only surviving witness testified that he could not recall with certainty who signed the will Appeal from judgment of the circuit court, which, in reversal of the county court for Chippewa county, admitted to probate a proposed will of George A. Gillmor, who died December 23, 1900. The instrument bore date June 11, 1889. The two attesting witnesses subscribed a certificate declaring the instrument to have been "signed, published, and declared by the said testator to be his will and testament, in the presence of us, who have signed our names at his request and by his express direction as witnesses thereto, in his presence and in the presence of each other." Hollon Richardson, the survivor of the subscribing witnesses, testified, by deposition, very indefinitely to the transaction of executing the will; his testimony failing, in several respects, to establish the steps necessary under our statute. The trial duly signed by George A. Gillmor as and for his will, and thereafter duly attested and subscribed by the two witnesses in the manner specified in their attestation, above quoted, and that the will was in all things duly executed. From such judgment the contestant appeals. J. A. Anderson and W. M. Bowe, for appellant. W. H. Stafford (W. F. Bailey, of counsel), for respondent. DODGE, J. (after stating the facts). The rule of law is thoroughly well established in this state that the subscription and attestation of a will by witnesses who declare, over their signatures, acts essential to the due execution of the instrument, raise a strong presumption in favor of the fact, and that such presumption can be overcome only by clear and convincing proof to the contrary, and that mere indefiniteness of recollection will not suffice. "A will purporting on its face to be legally executed should not be defeated on any doubtful or inconclusive parol proof that it was not legally executed." In re Meurer's Will, 44 Wis. 392, 28 Am. Rep. 591; In re Lewis' Will, 51 Wis. 101, 7 N. W. 829; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21; In re O'Hagan's Will, 73 Wis. 78, 40 N. W. 649, 9 Am. St. Rep. 763; Adams v. Rodman, 102 Wis. 456, 78 N. W. 588, 759; Flood v. Kerwin, 113 Wis. 673, 89 N. W. 845; Cas-too far back for me to remember. At the than the amount of the debt." Nothing equivalent and nothing to suggest the idea was embodied in the charge, nor is there any good reason suggested by respondent why that instruction was not given. Surely, if the son did not own the property, its transfer to the plaintiff could not work any fraud upon the son's creditors. "He could not have defrauded his own creditors by wrongfully disposing of some other person's property." Campbell v. Jackson, 80 Wis. 48, 49 N. W. 121. By the refusal of this instruction was withheld from the jury one of the important issues litigated, the resolution of which in plaintiff's favor would have entitled him to judgment. Its refusal was er soday on Wills, § 223 et seq. The will under consideration bears upon its face, signed by two witnesses, a declaration that every step essential to its valid execution was duly taken. Upon examination of the testimony of the only surviving witness, we find nothing more than vague impressions of acts or omissions inconsistent therewith. Appellant claims that the testimony of that witness establishes that his subscription preceded that of the testator, but his testimony in fact was: "I cannot say with exact certainty who signed the said paper or writing first, but I presume that, having a pen in hand in the preparation of the acknowledgment, that I first signed it, but of this I am not certain. My impressions are that Mr. Gillmor signed next." On cross-examination he said: "There is nothing in connection with the signing of said instrument which enables me now, more than eleven years after its date, to testify as to the fact who signed said instrument first, who next, and who last, except the fact that I drew the will, and drew the form for execution; that, with pen in hand, I would naturally sign by name before turning the papers over to the other parties. And further, the blot on the acknowledgment would indicate pretty clearly to my mind that Mr. Gillmor made this blot while signing his name to the will." This falls far short of the positive testimony of a witness to a memory or knowledge of acts or transactions inconsistent with the certificate of due execution, and, under the rules of the cases above cited, entirely justified the trial court in refusing to deem it so clear and convincing as to overcome the certificate deliberately signed by this same witness at the time of the transactions. Further, it is claimed that this witness shows that there was no request by the testator that either of the witnesses subscribe as such, and that the other witness, Edminister, was not present in the room to see the testator sign or hear him acknowledge his signature, and that he subscribed in another room, not in the testator's presence. The testimony on this subject is even more vague and incomplete than that upon the order of signatures. While the witness does say that it is his impression that Edminister affixed his signature in the outer office, and not in the private office, where he thinks the will was signed, there is nothing to indicate that such subscribing was not within view of the testator, and so within his presence that he would be deemed to have adopted the request that Edminister subscribe, communicated to the latter by Richardson. However, other statements of Richardson's show that his memory on the subject is wholly vague. He testified: "I do not know and I am not prepared to say whether Gillmor signed in the presence of the two witnesses, or whether they signed in the presence of said Gillmer and in the presence of each other. It is 94 N.W.-3 time Gillmor's name was placed on the instrument, I do not know where Edminister and I were located, with reference to the position then occupied by Gillmor. I do not know whether the same parties were at the time all in the same room. I believe Gillmor and myself were in my private office, and Edminister in my public office; that, after the same was signed by Gillmor, I either called Mr. Edminister into my private office, or went out into the public office and had him sign the paper there. What the exact facts are, I am not now prepared to say." And generally he testified that he was not conscious of any peculiar circumstances that would distinguish the will in question, as to its execution or signing, from the many others that he had prepared, and that he was not able to say that the facts stated in the certificate were not correct, nor that they were correct. Without going further at large into the testimony, the foregoing suffices to show the situation, and to make obviously applicable the rules of law above stated. trial court having duly found all the detailed facts constituting due execution of this will, we cannot hold that such testimony constitutes a clear or overwhelming preponderance of evidence against that offered by the instrument itself. The 1903.) FRAUDULENT CONVEYANCES-SALE OF GOODS WITHOUT DELIVERY - PRESUMPTION - REBUTTAL-PAYMENT OF PRE-EXISTING DEBT -FIRM PROPERTY-INSTRUCTIONS. 1. Partnership property transferred by a firm to a creditor in payment of a firm debt cannot be considered as transferred in fraud of the creditors of an individual partner. 2. In replevin against a sheriff, where plaintiff claimed that the property had been transferred to him by a partnership in payment of a firm debt, it was error to instruct that plaintiff claimed that the property had been acquired by purchase from one of the partners; that being one of the points in issue. 3. Under Rev. St. 1898, § 2310, providing that a sale of goods without a transfer of possession is presumptively fraudulent as against creditors, and the burden is on the purchaser to rebut that presumption, where the sale is shown to have been made in payment of a bona fide debt the presumption of fraud is overcome. Appeal from Circuit Court, Sauk County; Robert G. Siebecker, Judge. Action by Luther Griswold, Sr., against E. E. Nichols. From a judgment for defendant, plaintiff appeals. Reversed. Action for replevin for certain bar furniture and two horses seized by the defendant, as sheriff, by virtue of an execution against one Luther Griswold, Jr., son of the plaintiff. Plaintiff was shown to have loaned money to his son, to be used by the latter | the fixtures transferred are of less value and a partner in establishing a saloon business in Chicago. It was claimed that the property in question belonged, the bar fixtures to that firm, and the horses to the partner, Weigel, and was delivered by such owners to the plaintiff by shipment from Chicago to him at Baraboo, in part payment of that indebtedness. It appeared that the goods were shipped from Chicago to "L. Griswold," and were accompanied from Chicago by the son, taken by him from the railroad, the bar fixtures stored in a warehouse, and the horses put in plaintiff's barn; the son thereafter stopping with his father. It was claimed on the part of the defense that the goods had belonged to the son, and that there had been no delivery or change of possession; hence that, if any transfer was made from him to the plaintiff, it was fraudulent and void as against his creditors. The case was tried by a jury, and verdict returned in favor of the defendant, and judgment rendered thereon for the possession of the goods and nominal damages, after overruling a motion on the minutes for a new trial. From such judgment the plaintiff appeals. Daniel Ruggles, for appellant. Bentley & Kelley, for respondent. DODGE, J. (after stating the facts). The evidence in this case established, without dispute, the existence of an indebtedness of the son, individually, and of the partnership composed of himself and Weigel, to the plaintiff, in an amount greater than the stipulated value of the property involved. The direct testimony was all to the effect that at the time of shipment from Chicago that property belonged part to the firm and part to Weigel, and none to Griswold, Jr. The only evidence to overcome such proof of ownership was certain alleged declarations of the latter to the effect that he owned such property. Whether the circumstances were such as to render those declarations admissible in evidence, as being made in plaintiff's hearing or while witness was in possession, and, if so, whether they were sufficient to put in issue the otherwise clear proof of other ownership, are debatable questions, which, though raised by assignments of error, we shall not deem it necessary to decide, as they may well be presented differently upon another trial. It suffices for the consideration of other questions to note that there was evidence that the alleged transfer to the plaintiff of this property was not from the son, but was from his partner and their firm. 'The first error assigned is upon the refusal of the court to instruct the jury, upon request: "If you find that the fixtures were partnership property, and were transferred to L. Griswold, Sr., to pay a partnership debt, there can be no fraud in such transfer, as against the creditors of L. Griswold, Jr., if ror. 2. The next assignment of error is in analogy to that last considered. The court, in instructing the jury as to the issues, informed them that plaintiff claimed the property was his, and had been by him acquired by purchase from his son; that the consideration paid for the property was the sum due him from said son and his partner as a loan he had made them theretofore; and that the property had been delivered by his son to him. This was a direct perversion of the plaintiff's claim that the property was sold to him, not by his son, but by the partnership and by the partner, Weigel, and that it had been delivered to the plaintiff by such partner. Thus again the court obscured and practically took from the jury the question of whether the source of the father's title was the son, against whom the defendant sheriff had the execution, or some one else clearly prejudicial, and therefore erroneous. * * 3. Error is also assigned upon further instruction as follows: "If you find that * the son, as owner of the property in question, made sale of the property in question to the plaintiff, his father, for the purpose of paying the debt referred to, but that the goods and horses were not delivered, and no actual and continued change of possession thereof on the part of the plaintiff followed delivery, then such sale is presumed to be fraudulent and void as against the creditors of L. Griswold, Jr." The effect of this instruction is that, although the property was conveyed and received for the purpose of paying a bona fide debt, nevertheless there is a presumption that it was fraudulent, unless the complete change of possession required by section 2310, Rev. St. 1898, took place. The mere statement of the effect of this instruction suffices to point the error embodied in it. The statute provides that if a sale is made, and possession does not change, presumption of fraud against creditors arises, and the burden is upon the purchaser to overcome that presumption by proof; but, as this court has repeatedly held, when he proves that he paid full and adequate consideration therefor, he effectively disproves the |