Akin v. Akin

• Decision Date: 03 March 1983
• Docket Number: No. 2-82-070-CV,2-82-070-CV
• Citation: 649 S.W.2d 700
• Parties: Billy D. AKIN, et al., Appellants, v. Gladys AKIN, Appellee.
• Court: Texas Court of Appeals

Page 700

649 S.W.2d 700

Billy D. AKIN, et al., Appellants, v. Gladys AKIN, Appellee.

No. 2-82-070-CV.

Court of Appeals of Texas,

Fort Worth.

March 3, 1983.

Wilson, Craig, Bourland & Paup, Fort Worth, for appellants.

Maurice G. Walton, Dallas, for appellee.

Before HUGHES, JORDAN and ASHWORTH, JJ.

OPINION

JORDAN, Justice.

This is an appeal from a trial court judgment that appellants herein take nothing in a declaratory judgment suit involving a claim asserted by appellants against the estate of their deceased father, W.C. Akin. The trial court, after a nonjury trial, held that a savings account in the approximate amount of $24,000.00 was the separate property of appellee, Gladys Akin, as a result of a valid parol inter vivos gift from her husband, W.C. Akin, deceased.

Appellants urged three points of error on appeal of this take nothing judgment.

We reverse and render.

W.C. Akin died intestate in Tarrant County, Texas on August 16, 1980. Shortly thereafter, appellee, Gladys Akin, the decedent's wife, was appointed community administrator of the estate of W.C. Akin, deceased. An inventory of the estate, filed January 12, 1981, which listed the community property of the decedent and his wife, did not include thereon a savings account in the amount of approximately $24,000.00 in the First National Bank of Granbury, Texas, which, after the death of W.C. Akin, was in the name of Gladys Akin. Appellee claimed ownership of the savings account as her separate property by virtue of an alleged parol inter vivos gift from the decedent on July 31, 1980 while the decedent was in the hospital in Fort Worth, Texas. The appellants, who are the heirs and beneficiaries of the decedent's community property interest, if any, in the savings account, filed a claim with the estate seeking to have one-half the decedent's community property interest in the savings account listed in the inventory of the estate. The appellants' claim was denied by the appellee community administrator. This declaratory action was filed requesting the trial court to decide the status of the $24,000.00 savings account.

Appellants' first point of error contends that the trial court erred in admitting into evidence statements of the appellee to the effect that on July 31, 1980, the decedent made a parol inter vivos gift of his one-half community interest in the $24,000.00 savings account to her. This testimony, according to appellants' first ground of error, is inadmissible under Tex.Rev.Civ.Stat. Ann. art. 3716 (1926), the statute more commonly known as the "Dead Man's Statute".

Article 3716 reads, in pertinent part:

In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the ... intestate ... and the provisions ... extend to and include all actions by or against the heirs ... of a decedent arising out of any transaction with such decedent. [Emphasis added.]

At the trial, over objections of appellants that her testimony violated art. 3716, Gladys Akin testified that the decedent, on July 31, 1980, while in St. Joseph's Hospital in Fort Worth, Texas, at a time when he was dying of cancer, made an oral gift to her of his interest in the community bank account number 009-215-5 in the First National Bank of Granbury, Texas.

Appellee testified in part, with regard to the parol inter vivos gift, that:

"And he said, 'Honey, on your way home, stop at the bank, take that money out and put it in your own name, because the kids are going to give you trouble.' ... And I--Well, that's it, and I did what he told me."

She further testified in effect that she was not going to do as requested and put the money in her own name until she got a call from Billy Akin, one of decedent's sons, on the following day, Friday, August 1, and that after receiving such call she did then go to the bank and withdraw by means of a cashier's check the entire $24,000.00. Her exact testimony on this transaction is as follows:

"Well, at first, I wasn't going to do it [transfer the money into her own name] until I got the call, and then I went and done it, it was about four o'clock on a Friday, and I called Mrs. Erickson and asked if she would come to the bank with me.... And I drew it out as a cashier's check, and I kept it until I believe it was the fifth, I was afraid I would lose it, and I redeposited it back in the bank, ..."

She again, later in her testimony, reiterated that she wasn't going to transfer the money into her own name until Billy Akin called and "talked to me like he did."

This testimony was admitted over appellants' timely objection that it was violative of the "Dead Man's Statute" and was not competent evidence. Appellant argues that in admitting this testimony of appellee, Gladys Akin, the trial court erred, and we agree.

A cursory look at the above quoted portion of art. 3716 convinces us that this is a typical case involving a claim against an administrator of an estate by the heirs of the decedent and that the testimony of the administratrix, appellee, without question involved a transaction with the deceased and was therefore prohibited.

If a cause of action involves a transaction with the decedent and is by or against one of the specified parties in the statutes, then the statute applies and neither party can testify. Leahy v. Timon, 110 Tex. 73, 215 S.W. 951 (Tex.1919); Zinn v. Farmer, 243 S.W. 523 (Tex.Civ.App.--Fort Worth 1922, no writ); Essex v. La Boue, 223 S.W.2d 35 (Tex.Civ.App.--Galveston 1949, writ dism'd).

In this case, the plaintiffs are suing as the heirs of W.C. Akin. The classification of the property as separate or community directly affects their interest in that capacity in that estate. Any testimony by the appellee administratrix respecting transactions and/or conversations with the decedent in attempting to establish a parol gift from the decedent in the subject property (the $24,000.00 bank account) is adverse to the plaintiffs interest as heirs and therefore should have been excluded as violative of the "Dead Man's Statute". It is immaterial, for purposes of the application of the statute, that appellee was sued both in her capacity as community administratrix and individually. Eastland v. Basey, 196 S.W.2d 336 (Tex.Civ.App.--Austin 1946, no writ).

In Essex v. La Boue, supra, the heirs of a decedent sued the decedent's former wife for the return of real property which she claimed to own by virtue of a parol gift from the decedent. The defendant was sued solely in her individual capacity. All testimony by the decedent's former wife touching upon conversations or transactions with the decedent was excluded by the trial court as violative of the "Dead Man's Statute". The Court of Civil Appeals upheld the exclusion of this testimony with the comment that such ruling was "clearly correct".

Appellants first point of error is sustained.

In their third point of error appellants maintain that the evidence of the parol inter vivos gift of the decedent's community property interest in savings account number 009-215-5 was not supported by sufficient, clear and convincing testimony and that such testimony was against the weight and preponderance of the evidence required to be proved to establish such a gift.

The burden of proof was on the appellee to prove that a parol gift of the decedent's community one-half interest in the savings account was in fact made. Appellee in this case must meet this burden of proof in order to rebut the presumption that all property on hand at dissolution of marriage is community property. Any doubt as to the character of the property must be resolved in favor of the community. Contreras v. Contreras, 590 S.W.2d 218 (Tex.Civ.App.--Tyler 1979, no writ).

In order for there to have been a valid gift inter vivos, there must have been a gratuitous and absolute transfer of the property from the donor to the donee,...