Cadwell v. Dabney, 9676.

• Decision Date: 07 January 1948
• Docket Number: No. 9676.,9676.
• Citation: 208 S.W.2d 127
• Parties: CADWELL et al. v. DABNEY et al.
• Court: Texas Court of Appeals

208 S.W.2d 127

CADWELL et al. v. DABNEY et al.

No. 9676.

Court of Civil Appeals of Texas. Austin.

January 7, 1948.

Appellees' Rehearing Denied January 21, 1948.

Appellants' Rehearing Denied February 4, 1948.

Appeal from District Court, Bell County; Wesley Dice, Judge.

Proceeding between Lois Etter Cadwell and husband, and J. A. Dabney and Watt B. Skinner, executors of the estate of Dr. W. F. Etter, deceased, and others. From judgment finding certain items to be the separate property of Mrs. Cretys Shipp Etter, widow of deceased, Lois Etter Cadwell, and husband appeal.

Reformed and affirmed.

Robert C. Johnson and Lee T. Johnson, Jr., both of Dallas, for appellants.

Cox, Brown, Daniel & Curtis, and W. R. Brown, of Temple, for appellees.

HUGHES, Justice.

Dr. W. F. Etter died testate on May 14, 1945. He was survived by his widow, Mrs. Cretys Shipp Etter, hereinafter called appellee, a daughter by a former marriage, Mrs. Lois Etter Cadwell, hereinafter called appellant, and a daughter of his second and last marriage, Mrs. Lorraine Etter Whittington.

Appellee elected not to take under the will of deceased but to stand upon her community interest in the community estate, her claim that certain of the property attempted to be disposed of by the will was her separate property and upon a separately owned claim against the estate evidenced by a note for $1,000, in which she was payee and the decedent payor.

Trial was to the court without a jury. Findings of fact and conclusions of law were made and filed and in accordance therewith judgment was rendered, as to the items of which complaint is made on this appeal, as follows:

(1) That Lots 8, 9 and 10, Block 16, original town of Rogers, were owned by appellee in her separate right.

(2) That a savings account in the Citizens National Bank of Cameron in the sum of $2,349.65, was owned by appellee in her separate right.

(3) That a cashier's check in the sum of $500 was owned by appellee in her separate right.

(4) That a claim against the estate of Dr. W. F. Etter, deceased, be established in favor of appellee in her own separate right for the principal sum of $1,000 and interest thereon in the sum of $24,231.60, evidenced by decedent's note payable to appellee, dated June 4, 1913, and due January 1, 1914.

Item (1).

Dr. Etter and appellee were married December 17, 1902. At the time of his marriage Dr. Etter owned a horse and buggy and a $200 payment made on a lot in Rogers.

Appellee at such time had $1,000 in cash, a present from her father, who died in 1902. From his estate, which was settled some four or five years after his death, appellee received $4,500 in cash. Appellee's mother died in 1912 and from her estate she received $2,000 in cash.

The property in question was acquired from William Brooks and wife by deed dated December 2, 1909, which recited payment of $3,500 cash consideration by Mrs. Cretys Etter, and the conveyance was to Mrs. Cretys Etter. The deed did not recite that she took the property in her individual right or as her separate estate.

Appellee testified that she had kept her "inheritance money" at home in cash. That she desired to invest it and upon hearing that the Brooks's were moving to Arkansas, the sale of the property was negotiated and was closed at the First National Bank in Rogers in the presence of the bank officials and Mrs. Luther Moore, a sister of appellee. Dr. Etter was not present. When appellee offered Mr. Brooks $3,500 in cash, he objected, saying he did not wish to travel with that much money, and appellee deposited the money in the bank and gave a check in lieu of the cash. A sister who was present in appellee's home when this property was purchased testified that appellee had a lot of money in the house and at her request she counted the $3500 and handed it to her.

Other witnesses testified to statements made by Dr. Etter that the property belonged to his wife.

From appellant's point of view the evidence shows that the property was acquired during the marriage. That Dr. Etter rendered the property for taxation and paid the taxes on it for many years. That appellee for a number of years kept boarders, took in sewing, and made money from cows and chickens. Appellant in her brief states that the money so earned by appellee was community and that it was commingled with her separate funds to such an extent that the separate money cannot be or was not traced into the purchase of these lots. We, of course, agree that the money earned in the above ways by appellee was community property. Appellant makes no specific reference to the statement of facts where evidence of commingling may be found, and we are unable to find any such evidence. The testimony is vague as to when appellee earned money in the manner shown, whether before or after the purchase of these lots.

That the Doctor rendered the property and paid taxes on it is not conclusive and, in our opinion, of but little weight. The husband usually does such things. The income from this property would be community and it would be but fair that the community pay the taxes.

In our opinion, the evidence is sufficiently clear and satisfactory to rebut the statutory presumption that these lots were community property, and that the finding of the trial court awarding these lots to appellee as her separate property must be sustained.

Item (2).

On April 17, 1945, Dr. Etter, about, one month prior to his death, executed the following instrument in the manner indicated:

"Citizens National Bank,

"Cameron, Texas.

"Gentlemen:

"This will be your authority to change savings account No. 1691 now standing in the name of Dr. W. F. Etter in your bank with a balance of $2349.65 as of this date to my wife, Mrs. Cretys Etter, to be owned and handled by her as suits her convenience.

                                "Very truly yours
                               "Dr. W. F. Etter
                              "X His Mark
                

"Witnesses:

"Miss Susie Vaught

"Mrs. J. R. Whittington."

Appellee's sister, Mrs. Moore, testified:

While Dr. Etter was in the hospital, shortly before his death, "he said he had a savings account in Cameron, that he wanted to transfer it to Crete (appellee)," and that "he wanted to give that savings account to her."

Mrs. Shelley, a sister of appellee, gave similar testimony.

It was stipulated that on or about the date of its execution the above instrument was presented to the bank and transfer of the funds from Dr. Etter's account to appellee was made.

Unless the above transaction constitutes a valid gift the funds in question belong to the community estate.

There is considerable evidence concerning the physical condition of the Doctor at the time of, and circumstances attending, the execution of the above instrument, which we do not summarize, for the reason that appellant's point as to this portion of the judgment is limited to the assertion that the evidence is insufficient to establish an unconditional intent on the part of deceased to make a gift and to show an unconditional delivery of said account to appellee.

The principal authority cited by appellant is Cogdill v. First National Bank of Quitaque, Tex.Civ.App., 193 S.W.2d 701.

The instrument involved in that case was a bank draft drawn by deceased in favor of his brother and brother-in-law. The evidence showed and the court found that such draft was drawn and the money paid over to these relatives in order to preserve it for the benefit of deceased and to prevent "somebody back in Mexico" from getting the money. There was no testimony that deceased ever expressed to any one an intention to give his money to his brother and brother-in-law.

There is quite a distinction between an ordinary bank draft and the instrument which Dr. Etter made. A draft merely authorizes the bank on which it is drawn to pay certain funds to the payee and to charge the account of the maker. The purpose in giving the draft and the use or disposition to be made of the funds would depend upon collateral facts.

Delivery of the funds was completed prior to the death of Dr. Etter. The language of the transfer instrument and the verbal statements of Dr. Etter are, in our opinion, sufficient to evidence an intention on his part to vest in appellee unconditionally and immediately the ownership of these funds and the trial court's judgment in this respect must be sustained.

Item (3)

Appellee had in her possession a cashier's check for $500, payable to herself. Mrs. Mamie Shelley, sister of appellee, testified that Dr. Etter had borrowed $300 from her and at the Doctor's request appellee gave her a check for $300 in payment of this loan. That she, Mrs. Shelley, gave this $300 to appellee, which was accomplished by appellee handing Mrs. Shelley $200 in cash, and Mrs. Shelley buying the cashier's check with the cash and the $300 check.

It is clear that Mrs. Shelley made a gift of $300 to appellee and that this much of the $500 cashier's check is her separate property.

Appellee, in her brief, does not refer to any evidence showing the source of the $200 cash which she put into the cashier's check. This $200 was presumptively community property and we have found no evidence in the statement of facts sufficient to overcome this presumption. The trial court therefore erred in decreeing the entire $500 cashier's check to be the separate property of appellee.

Item (4).

The $1,000 note involved was dated June 4, 1913, due January 1, 1914, payable to appellee and bearing the name of her husband as maker. The note recited that the funds were advanced from appellee's personal estate.

Appellant maintains that the evidence is insufficient to show execution and delivery of the note, she having filed a plea of non est factum.

Appellee had possession of the note, it having been in her private bank box. Mrs. Moore and her husband both testified that they were familiar with Dr. Etter's signature and that the note bore his signature.

Several witnesses testified to statements...