Patterson v. Hall

• Decision Date: 26 February 1969
• Docket Number: No. 11540,11540
• Citation: 439 S.W.2d 140
• Parties: James PATTERSON et al., Appellants, v. Billie Barbara HALL et vir, Appellees. . Austin
• Court: Texas Court of Appeals

Page 140

439 S.W.2d 140

James PATTERSON et al., Appellants, v.Billie Barbara HALL et vir, Appellees.

No. 11540.

Court of Civil Appeals of Texas Austin.

Feb. 26, 1969.

Rehearing Denied March 19, 1969.

Barkley, Cutcher & Alderson, James L. Cutcher, Taylor, Graves, Dougherty, Gee, Hearon, Moody & Garwood, Dan Moody, Jr., Austin, Bryan, Suhr, Bering & Bailey, James P. Bailey, Houston, for appellants.

Wallace T. Barber, San Marcos, Emmett Shelton, Sr., Sterling Holloway, John W. Stayton, Austin, for appellees.

HUGHES, Justice.

Billie Barbara Hall and husband, Nathan Hall, appellees, brought this suit against James Patterson, Frances Patterson Lee, a feme sole, Annie Mabry Gilliland and husband George W. Gilliland, Matie E . McKellar, a feme sole, Edith Butler and husband, W. S. Butler and the State Bank and Trust Company of San Marcos, Texas, Administrator of the Estate of Barbara L. Everett, deceased, to recover the title to and possession of 812.5 acres of land located in Hays County.

Trial to a jury resulted in a verdict and judgment for appellees.From this judgment, Matie E. McKellar, Frances Patterson Lee, Annie Mabry Gilliland, George W. Gilliland and Annie K. Patterson¹ have appealed.

This case is before us for the second time.SeePatterson v. Hall, Tex.Civ.App., 421 S.W.2d 921, remanded to this Court by the Supreme Court, 430 S.W.2d 483.Upon return of the case to us, we granted appellants' motion for more time to file a statement of facts, and such statement of facts has been filed.

Trial was to a jury which answered the special issues submitted to it as follows:

'SPECIAL ISSUE NUMBER ONE: Do you find from a preponderance of the evidence that Barbara Everett made an oral gift to the Plaintiffs, Billie Barbara Hall and Nathan Hall, of the land described in the Plaintiffs' Original Petition and known as the 'Home place' at or about the time the Plaintiffs first moved on such lands in about 1962?

Answer: NO.

SPECIAL ISSUE NUMBER TWO: Do you find from a preponderance of the evidence that Barbara Everett made an oral gift to the Plaintiffs, Billie Barbara Hall and Nathan Hall, of the land described in the Plaintiffs' Original Petition and known as the 'Home place' during the year 1964?

Answer: YES.

SPECIAL ISSUE NUMBER THREE: Do you find from a preponderance of the evidence that the Plaintiffs, Billie Barbara Hall and Nathan Hall, entered into possession of such land relying on such gift, with the consent of Mrs. Everett?

Answer: YES.

SPECIAL ISSUE NUMBER FOUR: Do you find from a preponderance of the evidence that the Plaintiffs, Billie Barbara Hall and Nathan Hall, made valuable and permanent improvements on such land in reliance on the gift, with the knowledge and consent of Barbara Everett?

Answer: YES.'

Appellants' first three points, jointly briefed, are that the finding of the jury to special issue number four is without any evidence to support it and is against the overwhelming weight and preponderance of the evidence so as to be clearly wrong.

Appellants' points four, five and six, briefed jointly, are that the jury answer to special issue number two was without any evidence to support it and was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

We overrule these points.In so doing, we have considered the evidence under the rules prescribed in King v. King, 150 Tex. 662, 244 S.W.2d 660(1952).

Mrs. Billie Barbara Hall, appellee, is a niece of Barbara L. Everett, a widow, who died intestate July 20, 1965.Mrs. Everett left no children.Surviving her were two sisters, Mrs. Matie McKellar and Mrs. Edith Butler, mother of Appellee, Mrs. Hall.Mrs. Everett was also survived by one nephew James Patterson, who died pendente lite, and two nieces Frances Patterson Lee and Annie Gilliland who were children of her deceased brother.

As indicated by the jury findings, Appellee Mrs. Hall claims the 812 acres in controversy by parol gift from Mrs. Everett.

Mrs. Everett owned a ranch of approximately 1500 acres, 800 acres of which she inherited from her parents and was known as the home place.It is this 800 acres which is in controversy.

Mrs. Everett was confined to a wheel chair.After the death of her husband in 1954she had difficulty in obtaining help to run the ranch.She raised sheep, goats and cattle, and planted feed for the stock.The ranch became in poor condition.Fences and other improvements were in need of repairs.

During hurricane Carla in 1961she lost more than 150 head of stock.The ranch was losing money; Mrs. Everett was so discouraged that she considered selling part of the ranch.

There is evidence that Billie Barbara was the favorite niece of Mrs. Everett and that her other relatives paid little attention to her.

James DeRoy Howard who was a first cousin of Mrs. Everett's first husband was an income tax man and for many years he had prepared the returns for Mrs. Everett.Their relationship was very close.

Mr. Howard testified that Mrs. Everett told him that she would let Nathan and Billie Hall run the place and would give them 400 acres.She first mentioned giving them the home place but later said she would give them 400 acres.She stated that the place was losing money and that Nathan would get it back on a paying basis if he had an interest in it.In this connection, she asked Howard about gift and inheritance taxes.Mrs. Everett further told Howard that she was going to build appellees a house to live in.The witness saw the house being built and after it was completed Nathan and Billie moved onto the ranch in about October, 1962.

Later, Mrs. Everett told the witness that she had fixed it so Billie and Nathan would have 400 acres.One Sunday afternoon in 1963 or 1964, Mrs. Everett told Mrs. McKellar, one of the appellants, in the presence of Howard, that she, Mrs. Everett, had given Nathan and Billie 400 acres of the home place.

Howard testified further that under Mrs. Everett's agreement with appellees, Nathan was to receive $100.00 per month for traveling expenses that Mrs. Everett reported on her income tax returns as salary and appellees were to have one-third of the increase of the wool and mohair.But she never paid appellees the money received for their one-third of the increase but instead applied it on the indebtedness on the house that she had built for them.Mrs. Everett had borrowed the money to build the house.During the year 1964, she didn't take the depreciation on this house as a deduction on her income tax return because appellees were paying for the house and not Mrs. Everett.We quote her testimony in this respect:

'Q.Do you remember the specific time when you had this conversation with her?

A We talked about the income tax return?

Q Yes, sir.

A It was some time in February.

Q Of what year?

A 1965.I made her return in February.

Q Who initiated the talk with reference to taking the depreciation?

A I asked her about us taking it and she said we couldn't; that Nathan was paying for that house and we couldn't take the depreciation on it.It was not her house, it and the pipes to the house and all the water system.'

On her 1963 return she showed this depreciation but it made no difference in the amount of tax she paid.

Mr. Howard testified that while he believed Mrs. Everett had made a gift of the land she had filed no gift tax return.On depositions taken prior to trial Mr. Howard had stated that no gift of the land was made by Mrs. Everett, but on the trial he testified that this testimony was in error.

Eva Navaries, who for five years lived on property adjoining the Everett ranch, testified that while the house was being built, Mrs. Everett told her it was the house she was giving appellees along with the home place.

In 1960 or 1961, Mrs. Everett listed the ranch with Jacob Bauerle, a real estate man, for sale.The ranch was not sold and a year or two later, Mrs. Everett told Bauerle that she did not wish to list the home place for sale because she was going to give it to her niece in South Texas, who would have to come to live with her to get it.

Vella Pettmacke, a school teacher, who lived on the property north of the Everett ranch from 1950 to 1955, testified that in January or February, 1955, Mrs. Everett called her to tell her about her, Mrs. Everett's, difficulties in operating the ranch and to get the help of the witness in persuading appellees to move onto the ranch.Mrs. Everett told her that if appellees did so, the place would be theirs.There was no mention of the specific acreage that appellees would obtain.

The witness left Texas for Alaska in 1955 and returned to the Dripping Springs area on June 30, 1962.Upon her return she talked to Mrs. Everett every day for about a week.Mrs. Everett informed her that she, Mrs. Everett, was having a difficult time getting the ranch work done and that she hoped to persuade appellees to move onto the ranch.She stated that she intended to give appellees the place.This conversation was in June, 1962, and a house on the ranch was completed a few months later and appellees moved onto the ranch in October or November, 1962.

We quote the following testimony of Mrs. Pettmacke:

'Q When Billie first moved out, do you know whether or not you ever had any conversation with Mrs. Everett or anyone concerning the terms they moved out there on?Or did you ever have any conversation, that is, before they left?

A Before they left, no.But while they were gone, yes.

Q After they were gone, what conversations did you have with them?

A She said she was sorry that Billie and Nathan left but they will be back because the place is their's.

Q During the time--let's take after they came back--did you have occasion to talk to Mrs. Everett the last few years of her lifetime as to who the place belonged to?Did you have any such conversations about that?

A She came to see us and this was a very difficult undertaking for Mrs. Everett.Billie drove her.

She was...