Chevallier v. Wife

• Decision Date: 31 December 1846
• Citation: 1 Tex. 161
• Parties: CHARLES CHEVALLIER, ADM'R, v. WILSON AND WIFE
• Court: Texas Supreme Court

1 Tex. 161

CHARLES CHEVALLIER, ADM'R,

v.WILSON AND WIFE

Supreme Court of Texas.

December Term, 1846.

Appeal from Nacogdoches.

1. Delivery by the donor and possession by the donee are essential to the validity of a parol gift. [6 Tex. 45;14 Id. 640;21 Id. 192;27 Id. 355.]

2. The transmission of the property must be such as will enable the donee to maintain an action at law, as well against the donor as all other persons.

3. There is no distinction between donatio inter vivos and the donatio causa mortis, as to the requisite of delivery. In either case it is essential to the validity of the gift; in the latter it is defeasible on the recovery of the donor.

4. A promise to give at the death of the promisor is not binding and conveys no right to the thing promised.

5. A person who, in view of taking the administration of an estate, purchases claims against the estate at a discount, is only entitled to credit for the amount actually paid.

The following are the facts in this case as taken from the record by Mr. Chief Justice Hemphill:

This suit was brought for the recovery of certain slaves named in the petition which, it is alleged, were verbally given by Mrs. Wadlington during her last illness to her daughter Sarah, one of the plaintiffs. That one of them, the boy Westley, was placed in the possession of the plaintiffs in the court below, who are the appellees here; that Caroline, the other, was pledged to the appellant for the payment of one hundred dollars borrowed by Mrs. Wadlington, which the plaintiffs were desired by her to pay with interest, and on that being done Chevallier was requested to deliver up the slave Caroline to the plaintiffs. That at Mrs. Wadlington's death there were effects sufficient to pay the debts of the estate, without reference to the negro woman Caroline, excepting a debt of some amount owing to plaintiffs, which the said Chevallier (after his appointment as administrator of the estate) would not recognize; that Chevallier purchased various claims against the estate for much less than their nominal amount; that he is attempting to subject the slave Caroline and her infant, born since she was pledged, to the payment of said claims for their full amount as expressed on their face, and has procured an order for the sale of the said slaves; that they have frequently applied to him for an account of the services of the above slave Caroline, and that he apply the same to the payment of the loan and the extinguishment of other claims against the estate; that they have offered on the delivery of the negroes to pay all the just claims against the estate, and that he has refused acceptance of their proposals. The other averments need not be noticed.

The answer denies all knowledge of the verbal gift of the slave, whatever. It alleges that Westley, the boy, was left at the death of Mrs. Wadlington in the possession of Mr. Terry; admits that he loaned the one hundred dollars and that the same has not been paid; asserts that Caroline has been of no service, but an expense; denies that Mrs. Wadlington ever mentioned to him anything about a gift of said slave to petitioners, or that she instructed them to redeem the said Caroline; acknowledges that he has purchased a claim against the estate, but it was before he was appointed administrator.

At the trial the evidence of Joel Wilborn was in substance, that during a period of two or three years preceding the death of Mrs. Wadlington, he had heard her say that she intended said slave, Caroline, for Mrs. Wilson, after her (Mrs. Wadlington's) death; that sometimes she said she had given said slave to Mrs. Wilson; and sometimes, that she intended her for Mrs. Wilson; and that these statements were made before as well as after the possession of Caroline by the defendant.

Ephraim Terry, sworn for plaintiffs, said, substantially, that Mrs. Wadlington had given to his wife (a daughter of Mrs. Wadlington) several negroes, which negroes were delivered to him by the donor; had often heard Mrs. Wadlington say, that she intended the negro Caroline, for Mrs. Wilson; had never heard her say that she had given said negro to Mrs. Wilson; that Mrs. Wadlington had given to another daughter, Mrs. Millard, several slaves; that Mrs. Millard still held the negroes; that Mrs. Wadlington had in her lifetime pledged the slave Caroline to one Tipps for money borrowed of him; that this debt being paid by one Cook, Caroline was again pledged to him for its repayment by Mrs. Wadlington; that fearing the said slave would be removed by Mr. Cook, she borrowed one hundred dollars from the defendant, Chevallier, redeemed the said slave, and then pledged her to the defendant, to be retained until the one hundred dollars was paid.

The testimony of R. F. Millard, so far as it is pertinent to the issue was, that he had frequently heard Mrs. Wadlington say that she intended Caroline for Mrs. Wilson.

Charlton Payne stated that as agent of the plaintiff, he had offered to pay defendant, who was then administrator of Mrs. Wadlington, one hundred dollars if he would give up Caroline to Mrs. Wilson, which he refused to do.

Wm. G. Lewis testified, that he had sold to defendant his medical account, amounting to near ninety dollars, for fifty dollars, and, that he did this believing him to be the administrator of Mrs. Wadlington.

Dr. Starr proved, that in May, 1845, he purchased for defendant the account alluded to by Dr. Lewis.

Dr. Irion proved, that the health of Caroline was very delicate all the while she was in possession of defendant; that in February, 1846, she gave birth to a child, and since that period she has been sick and requiring medical attention. The letters of administration were granted in December, 1845.

Here the statement of facts apparently closes; but is immediately recommenced (as we may presume from the use of the first person singular by the judge; though the statement of facts, and the charges of the judge are signed by the attorneys of the parties alone). In this additional statement the foregoing facts are acknowledged to be substantially correct, so far as they go; and that Ephraim Terry also testified, that it was generally understood between Mrs. Wadlington and her children, that Caroline was to be taken by Mrs. Wilson at the death of Mrs. Wadlington, as her distributive share of the estate.

The court, among other matters, charged the jury, that if they believed that Mrs. Wadlington had given the negro woman Caroline to Mrs. Wilson, and afterwards retained her in possession, that they would find her to be the property of Mrs. Wilson, subject, however, to such debts as might be contracted by Mrs. Wadlington on the faith of the said negro; and that if they believed the hire of the negro woman to be of greater value than the interest of one hundred dollars, they should credit the overplus on the indebtedness; and that all medical bills for services rendered the said negro should be allowed; that if, from the evidence, they believed that the account of Dr. Lewis was purchased at less than its face value, they should so find, and also, how much he paid for the same, to which amount he was entitled, and no more. The following passage, from 2 Yerger, 586, was adopted as a part of the charge of the court: “Taylor, by deed of gift gave to his daughter a negro, reserving the use to himself and wife for life, and to the survivor; the daughter married Neal; they both died before Taylor; after the death of Taylor and wife, a controversy arose between the administrator of Sarah Neal and the administrator of her father, as to the right of the slave. The court decided that the daughter was entitled to a remainder of which she did not come into possession during the coverture, and gave judgment for the plaintiff. Of course the decision was in favor of the validity of the deed of gift, and that it vested the title in Sarah, the daughter of Taylor, although he reserved a life interest in the use of the slave given.”

In a subsequent part of the transcript, the testimony of Mrs. Millard is inserted, to the effect that she heard her mother say about a week before her last illness, that she intended Caroline and the boy Westley for Mrs. Wilson; that she had heard her say so for several years back. She said that she would have given her up to Mrs. Wilson long ago, but she was all she had to support her, except what the witness gave her; and she further said, that she would have given her to Mrs. Wilson before that time, but that she had pawned her first to Mr. Tipps, then to Mr. Cook and then to Mr. Chevallier. That Caroline and her child are not more than Mrs. Wilson's fair share of the property of her mother, etc. That her sister at one time offered to pay Mr. Chevallier the one hundred dollars and take Caroline, but he refused, saying that he had given bond and security for the property, and that the court would not justify him in giving her up.

The jury found two verdicts in the following words, viz.: “We, the jury, find for the plaintiffs the negroes in the within petition, and one hundred and fourteen dollars hire for the negro Caroline, after deducting the amount of the medical bill, September, 30, 1846.

WM. M'DANIEL, Foreman.”

“We, the jury, find that the defendant purchased an account for 89 50-100 dollars against the estate of Mary Wadlington, deceased, September, 30, 1846.

WM. M'DANIEL, Foreman.”

By the decree the property of the slave Caroline and her infant child was vested in the said Sarah Wilson, and the defendant was ordered forthwith to deliver them to the said Sarah or her husband, upon their entering into bond with approved sureties, conditioned in substance that if the assets of the estate of the decedent be not sufficient for the payment of all just demands against the said estate that then the same should be paid by petitioners, etc.

I. R. Lewis, for appellant. The appellees proved no gift but only a promise to give; consequently no title...