McGrede v. Rembert Nat. Bank

• Decision Date: 30 January 1941
• Docket Number: No. 5673.,5673.
• Citation: 147 S.W.2d 580
• Parties: McGREDE v. REMBERT NAT. BANK et al.
• Court: Texas Court of Appeals

147 S.W.2d 580

McGREDE v. REMBERT NAT. BANK et al.

No. 5673.

Court of Civil Appeals of Texas. Texarkana.

January 30, 1941.

Rehearing Denied February 6, 1941.

Appeal from District Court, Gregg County; D. S. Meredith, Judge.

Action by Mrs. Gladys McGrede against the Rembert National Bank, wherein the plaintiff claimed ownership by way of gift of the contents of a safety deposit lock box in the Rembert National Bank, and wherein the executors of the estate of J. G. McGrede, deceased, and others, intervened. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Hurst, Leak & Burke, of Longview, for appellant.

Lacy & Price and Taylor & Storey, all of Longview, for appellees.

WILLIAMS, Justice.

Appellant, Mrs. Gladys McGrede, plaintiff below, claims that two days prior to the death of J. G. McGrede he gave her the contents of his safety deposit lock box in the Rembert National Bank of Longview. He as such lessee was furnished a key to same. The bank retained the pass or master key, the joint use of which with the one furnished lessee was necessary to unlock and enter the box. It is without dispute that the bank under its rules would not permit a person other than the lessee to open or unlock the box without a written authorization to the bank from the lessee. It is further without dispute that deceased was familiar with this requirement or rule.

In support of her claim of a symbolic or constructive gift, causa mortis, she alleged: "That on June 28, 1937, the said J. G. McGrede delivered to plaintiff the keys to said box by handing his purse which contained said keys to John Sly and at said time instructed him to deliver same to plaintiff, and further stated at said time that he (deceased) was giving to plaintiff the contents * * * that said keys and purse were thereafter delivered by the said Sly to plaintiff and that she accepted and received said keys from said J. G. McGrede in the manner as alleged as a gift of the keys and the contents of said box."

Asserting title and right of possession, she sued the bank. Its position in this litigation is that of a stakeholder. Appellees, the executors of the estate of J. G. McGrede, being three of his children, intervened and answered with a general demurrer and denial. They further pleaded that on date of the purported gift deceased was up in years, then suffering with deadly bodily ailments, and of unsound mind. They further detailed acts and conduct of appellant which, stripped of logomachy, charged appellant with fraud from the inception of her association with deceased, covering a period from 1932 until his death.

Deceased, a man of considerable means and possessing valuable oil-producing properties, after the death of his first wife, married plaintiff in March, 1932. He was then a man with grown children and grandchildren—she a young woman. This marriage, after one temporary separation, finally terminated with a divorce decree entered October 14, 1932. At some date not shown, subsequent to the divorce decree and prior to 1936, plaintiff and deceased began to associate again, which continued until his death. She acted as his housekeeper and chauffeur, and to some extent assisted him in looking after his property. Deceased paid her $100 per month for this service. After they resumed their association as above indicated, deceased gave her one or two automobiles, a residence in Longview, an annuity insurance policy between the values of $2,000 and $3,000 at the time of his death, and either gave or advanced to her other sums of money besides that for salary. In December, 1936, deceased executed a will, duly probated, in which he willed all his property to his grandchildren, having theretofore settled with his children in a partition agreement.

For two or three years prior to his death, deceased suffered from chronic Bright's disease, "having a combination of cardiovascular condition and cardio-renal of heart and kidneys." During this period he had been treated by medical doctors, and also by Dr. Shaw, a chiropractor, in the latter's office in Longview. Early on the morning of June 28, 1937, the date of the purported gift, deceased was driven by John Sly, his servant for many years, from his temporary home at Cason, Texas, to Dr. Shaw's office for treatment. After receiving treatment by Dr. Kennedy, a chiropractor in the office, Sly, assisted by Mrs. Shaw and appellant, removed deceased that afternoon to a tourist home, and thence to a hospital where he died on July 1, 1937. From the description of deceased's weakened condition and suffering, and from the attributed statements made by deceased while in Shaw's office, deceased was conscious of his approaching death.

Mrs. Shaw testified that while she, Sly, and deceased were present in Dr. Shaw's office, "Mr. McGrede took his pocketbook out of his purse,—I mean out of his pocket —and he felt in there to see if there was a key, and he handed it to John, he said: `John, take this pocketbook and this bank key to Gladys and give it to her'; then he turned around to me and he said, `She will have enough to take care of her the rest of her life.'" This witness further testified that the deceased was calling for plaintiff and word was sent to her to come to the hospital. According to plaintiff's testimony, she later arrived at Dr. Shaw's office where she met Sly in an outer room and he then handed to her the deceased's purse containing the key to his lock box. Dr. Kennedy testified that he heard deceased ask her (Gladys) later if she had the pocketbook, if John gave her the pocketbook, and she replied, "Yes, I have it."

It is to be observed that plaintiff both by her pleadings and above testimony, grounded the gift to her by the alleged act of deceased delivering the purse and key to Sly with instructions to give to plaintiff, coupled with the alleged statement, "She will have enough to take care of her the rest of her life." She had possession of the key at the trial, and claimed to have received same at the time and in the manner above stated. Other evidence is to the effect that she had possession of the key on several occasions at her home prior to deceased's death. Plaintiff refused to permit the box to be opened, and this record does not disclose the character, value or extent of its contents, other than she alleged its value to be not less than $5,000. Other witnesses for plaintiff testified to alleged statements of deceased that he had provided for Gladys; that he was going to provide for her; that he intended to provide for her; that his children had plenty and he had, or was going to make a will and leave his estate to his grandchildren, except the contents of his lock box; that "I am going to leave her the keys and the box"; that his attorneys had advised him to do this, "so there could be no contest." Evidence to be discussed later herein controverted above alleged statements. Sly denied that he gave the purse or keys to plaintiff. He denied that deceased instructed him to deliver same to plaintiff. Sly testified that this purse was in deceased's clothes in the chiropractor's office after he had undressed deceased preparatory to the treatment on June 28, 1937. The jury answered "No" to issue No. 3 reading: "Do you find from a preponderance of the evidence that J. G. McGrede instructed John Sly to deliver the pocketbook and keys to Gladys McGrede?"

Likewise the jury answered "No" to issue No. 4 reading: "Do you find from a preponderance of the evidence that J. G. McGrede did at the time he delivered his pocketbook and keys to John Sly (if you have so found) thereby give to Mrs. Gladys McGrede the contents of the lock box in the Rembert National Bank?"

The jury found that deceased was not of unsound mind. Upon above findings and others not necessary to detail, the court denied plaintiff relief prayed for, and awarded appellees title.

Appellees, in support of their claim that the gift had not been made and that she was making a fictitious claim, introduced in evidence the cross-action of deceased in the divorce suit wherein he had alleged that upon their first separation he had paid her certain sums of money in full settlement of any property rights; that she had boasted...