Sansing v. Wells

• Decision Date: 12 July 1951
• Docket Number: No. 12314,12314
• Citation: 243 S.W.2d 254
• Parties: SANSING et al. v. WELLS.
• Court: Texas Court of Appeals

Page 254

243 S.W.2d 254

SANSING et al. v. WELLS.

No. 12314.

Court of Civil Appeals of Texas, Galveston.

July 12, 1951.

Rehearing Denied Oct. 4, 1951.

Madison Rayburn, of Houston, for appellants.

C. B. Stanley, of Houston, for appellee.

GRAVES, Justice.

The appellant, Mrs. Leslie Sansing, joined pro forma by her husband, sued the appellee, as the surviving husband of, and owner by statute of any personal property left by, his deceased wife, Mrs. Ethel E. Wells, alleging ownership and right to possession of a large diamond ring, by reason of a parol gift thereof alleged to have been made to her by Mrs. Wells, who was her cousin, during the latter's lifetime;

She prayed that the ring be delivered to her, pursuant to a judgment of the court.

The ring was exhibited during a trial of the cause, which was had before the court, sitting with a jury.

The appellee, as such representative of his deceased wife, defended the suit on the main ground that, if such ring had been given to the appellant, there had never been any delivery of it to her.

The appellant, in turn, further set out that the ring had been given to her while the deceased Mrs. Wells was on a visit from her home at Houston to the city of San Antonio, some 200 miles distant, and that symbolic and constructive delivery of it to her had been made, by the contemporaneous delivery of the keys to the deceased Mrs. Wells' safety-deposit box in her Houston bank where the ring had been kept; further, that such delivery was the best delivery, of which the ring was susceptible, under the surrounding circumstances.

Upon the close of the appellant's testimony, the court withdrew the case from the jury, granted the appellee's motion for an instructed verdict, and directed the jury to find for the defendant; the jury thereupon, in open court, duly returned such a verdict, whereupon the court rendered judgment in the appellee's favor, directing that appellant take nothing by her suit.

In this Court the appellants' two points-of-error are substantially these:

(1) The trial court erred in instructing a verdict and rendering judgment against plaintiff-appellant, when the pleadings and evidence raised a fact-issue, which should have been submitted to the jury, as to whether or not the deceased donor had given a large diamond ring to donee plaintiff-appellant.

(2) The trial court erred in rendering an instructed verdict and judgment against plaintiff-appellant, when the pleadings and evidence raised an issue-of-fact, which should have been submitted to the jury, as to what the intention of the deceased donor was in giving such diamond ring to plaintiff-appellant, and whether she intended thereby to vest title and possession in donee, by then and there delivering the keys to donor's safety deposit box to donee.

She supports these presentments with a citation of these authorities:

1. Anglin v. Cisco Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935; Le Master v. Ft. Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224; 21 Tex.Juris., Gifts, Sec. 40, p. 57; Bunnell v. Bunnell, Tex.Civ.App., 217 S.W.2d 78, 81; Lord v. N. Y. Life Ins. Co., 95 Tex. 216, 66 S.W. 290, 56 A.L.R. 596; Chevallier v. Wilson, 1 Tex. 161; Hill v. Escort, 38 Tex.Civ.App. 487, 86 S.W. 367; Brown v. Fore, Tex.Com.App., 12 S.W.2d 114 and 117, 63 A.L.R. 435; American Juris., Vol. 24, Gifts, Sec. 134, p. 799; Braun v. Brown, 14 Cal.2d 346, 94 P.2d 348, 127 A.L.R. 773.

2. Hunt v. Garrett, Tex.Civ.App., 275 S.W. 96, 104 and Tex.Com.App., 283 S.W. 489; Webb v. Webb, Tex.Civ.App., 184 S.W.2d 156 (writ refused); McGrede v. Rembert Nat. Bank, Tex.Civ.App., 147 S.W.2d 580 (writ dismissed, judgment correct); Ellsworth v. Ellsworth, Tex.Civ.App., 151 S.W.2d 628 (writ refused); Article 3998 of Vernon's Annotated Civil Statutes of Texas; Hill v. Escort, 38 Tex.Civ.App. 487, 86 S.W. 367; Weems v. First Nat. Bank, of Winnsboro, Tex.Civ.App., 234 S.W. 931; Schauer v. Von Schauer, Tex.Civ.App., 138 S.W. 145; Brown v. Fore, Tex.Com.App., 12 S.W.2d 114, 63 A.L.R. 435; Webb v. Webb, Tex.Civ.App., 184 S.W.2d 153 (writ refused); Bunnell v. Bunnell, Tex.Civ.App., 217 S.W.2d 78; Coke & Reardon v. Ikard, 39 Tex.Civ.App. 409, 87 S.W. 869 (writ refused); Hunt v. Garrett, Tex.Civ.App., 275 S.W. 96 (reversed on other grounds), and Tex.Com.App., 283 S.W. 489; Hughes v. Sloan, Tex.Civ.App., 62 S.W.2d 194 (writ refused); Cowen v. First Nat. Bank, 94 Tex. 547, 63 S.W. 532, 533; Vol. 24, American Juris., Title, 'Gifts', Sections 27 and 28.

The appellee, upon the other hand, defendands the court's judgment, so rendered in his favor, and, after declaring 'that appellant alleged, and the evidence showed, that deceased, the alleged donor, delivered to appellant only one of two keys to the safe-deposit box rented by deceased, instead of both keys,' presented these two counter-points:

(1) 'There was no evidence, or pleading, that appellant ever had actual possession of the diamond ring in question.'

(2) 'There was no evidence that the alleged donor ever transferred either dominion, or control, of the diamond ring to appellant, the alleged donee.'

He supports his answering-position with a citation of these authorities:

1. Article 3998, Revised Civil Statutes of 1925, a part of the title of Frauds and Fraudulent Conveyances; 21 Tex.Juris., Sec. 24, pg. 46; Cowen v. First Nat. Bank, of Brownsville, 94 Tex. 547, 63 S.W. 532, 533; Weems v. First Nat. Bank, of Winnesboro, Tex.Civ.App., 234 S.W. 931; Giles v. Giles, Tex.Civ.App., 94 S.W.2d 208, 210; Love v. Hudson, 24 Tex.Civ.App. 377, 59 S.W. 1127; Coke & Reardon v. Ikard, 39 Tex.Civ.App. 409, 87 S.W. 869; Eldridge v. McDow, 46 Tex.Civ.App. 270, 102 S.W. 435, Id., Tex.Civ.App., 132 S.W. 516; Chevallier, Adm'r v. Wilson, 1 Tex. 161; 2 Kent Com., pg. 438; Garrett v. Hunt, Tex.Com.App., 283 S.W. 489; McGrede v. Rembert Nat. Bank, Tex.Civ.App., 147 S.W.2d 580; Hughes v. Sloan, Tex.Civ.App., 62 S.W.2d 194; Humble Oil & Refining Co. v. Manziel, Tex.Civ.App., 165 S.W.2d 909, 910; Ogg v. State, 48 Tex.Cr.R. 231, 87 S.W. 348; Webb v. Reynolds, Tex.Com.App., 207 S.W. 914, 917; Lord v. N. Y. Life Ins. Co., 95 Tex. 216, 66 S.W. 290, 293, supra.

2. Chevallier, Adm'r, v. Wilson, 1 Tex. 161; 21 Tex.Juris., Sec. 10, pg. 30; Baldwin v. Fleck, Tex.Civ.App., 168 S.W.2d 904 (affirmed by the Supreme Court in 141 Tex. 340, 172 S.W.2d 976; O'Donnell v. Halladay, Tex.Civ.App., 152 S.W.2d 847.

From the presentments thus catalogued from the briefs, and from the the able oral arguments before the Court from both sides, this Court concludes that the controlling question-of-law upon this appeal is a single one, to this effect: Under the pleadings and evidence so heard by the trial court, was an issue-of-fact raised for the jury over whether or not it had been the intention of Mrs. Wells, not only to give the diamond ring to the appellant, but also to furnish her...