Shaw v. Shaw

• Decision Date: 03 April 1930
• Docket Number: No. 903.,903.
• Citation: 28 S.W.2d 173
• Parties: SHAW v. SHAW et al.
• Court: Texas Court of Appeals

Page 173

28 S.W.2d 173

SHAW v. SHAW et al.

No. 903.

Court of Civil Appeals of Texas. Waco.

April 3, 1930.

Rehearing Denied May 15, 1930.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Suit by L. J. Shaw against the Corsicana National Bank, which answered, impleading Mrs. Annabel Shaw and others. From the judgment, the last-named party appeals.

Affirmed.

Callicutt & Upchurch, of Corsicana, for appellant.

Richard & A. P. Mays and Lawrence Treadwell, all of Corsicana, and W. M. Taylor, of Big Spring, for appellees.

GALLAGHER, C. J.

The principal issues in this case involve the ownership and disposition of certain personal and real property owned or claimed by B. J. Shaw, deceased, at and shortly prior to his death. Mrs. Annabel Shaw, hereinafter designated as appellant, was married to B. J. Shaw, hereinafter designated as the deceased, June 14, 1900. Excepting a short temporary separation, they lived together as husband and wife until some time in May, 1913. Appellant at that time left her home and never returned. L. J. Shaw, hereinafter designated as appellee, is the only child of said marriage. He was born in the year 1901. Mary Shaw and Mary Lou Shaw, also appellees herein, are appellee L. J. Shaw's wife and daughter, respectively. When the final separation between appellant and her deceased husband occurred appellee remained with his father. Practically all the property on hand at the time of the separation remained in the possession of the deceased. No demand for the possession of any of the same as the separate property of appellant was ever made. Neither was it shown that any such claim was ever asserted by appellant until after his death, which occurred June 2, 1928. About twenty days before his death, deceased gave to appellee five certain time certificates of deposit issued by the Corsicana National Bank. He at the same time also gave appellee Liberty bonds of the face value of $350, with instructions to deliver the same to appellee's wife and daughter.

The deceased, B. J. Shaw, left a will, which upon application of appellee was duly probated on July 3, 1928. No executor was named in said will and the court found that no administration was necessary. The deceased by said will bequeathed to appellant, if living, the sum of $10, to his granddaughter, Mary Lou Shaw, $3,000 to his daughter-in-law, Mary Shaw, $3,000, and to appellee, L. J. Shaw, the remainder of his estate, both personal and real.

Appellee cashed one of the certificates of deposit to defray funeral expenses of the deceased. The bank which issued the same refused to pay the remaining four certificates, amounting in the aggregate to $8,338.87, on the ground that appellant was setting up some claim thereto. Appellee then brought this suit against the bank to recover on said certificates. The bank answered admitting liability thereon but alleged that appellant was claiming some interest therein, and also set out the provisions of the will of the deceased and impleaded appellant, Mrs. Mary Shaw and her minor daughter, Mary Lou Shaw. It alleged its willingness to pay the money in controversy to whomever the court adjudged entitled to receive the same, and asked for an attorney's fee for filing its bill of interpleader.

Appellant answered the bank's interpleader by alleging that the certificates of deposit in controversy were community property of the deceased and herself and owned by them jointly and equally at the time of his death. She further alleged that if the deceased attempted to give said certificates of deposit to appellee, that the same was done for the purpose of defrauding her out of her half interest therein. She further alleged that after her marriage to the deceased she delivered to him certain moneys which she owned at the time of her marriage, and that he used the same, or a part thereof, in making the cash payment on a certain piece of property purchased shortly after their marriage and used by them as a homestead while they continued to live together. She also claimed as her separate property the household furniture, the piano, and a certain horse in the hands of the deceased at and after their separation. She also claimed a half interest in all other property in the possession of the deceased at the time of his death, including said Liberty bonds. She asked that the entire estate of the deceased, including said certificates of deposit and Liberty bonds, be partitioned, that her separate claims be recognized and that she be compensated therefor, and that she be awarded her community interest in the remainder of such property.

Appellee, by supplemental pleading, alleged that appellant had abandoned the deceased and removed to the state of California; that she had thereafter, at some time and place unknown to him, secured a divorce from the deceased and thereafter on August 31, 1920, married another man. He further alleged that, if he was mistaken with reference to such divorce, appellant had acquired and then held valuable properties in the state of California, and asked that she be charged with the value of the same in any partition ordered by the court in this cause.

The four certificates of deposit in controversy amounted in the aggregate to $8,338.87, as aforesaid. The fifth certificate of deposit, which was cashed by appellee and used to defray in part the burial expenses of the deceased, was for the sum of $318.36. In addition to said certificates of deposit and the $350 in Liberty bonds, delivered by the deceased to appellee in his life time, his personal estate consisted of one Liberty bond of the face value of $50, $55 in cash; one promissory note for the sum of $137, and a gold watch and chain. The real estate consisted of two certain lots of land with the improvements thereon, used as a homestead as aforesaid and of the estimated value of $3,000. There was on deposit in said bank as rentals received therefrom since the death of the deceased the sum of $192. Other facts pertinent to the respective issues of law hereinafter discussed will be stated in connection with such discussion.

The case was submitted to the jury on seventeen special issues. For convenient reference, the original numbering of these issues is preserved. The principal issues submitted and the findings of the jury in response thereto are as follows:

"Question No. 1: Did defendant, Annie Bell Shaw, after her marriage to B. J. Shaw, give to the said B. J. Shaw the sum of $650.00, which she had accumulated before her marriage to B. J. Shaw, if she had, and which was used by the said B. J. Shaw in the payment for lots numbers 2 and 3, block No. 408 and constituting their homestead in the city of Corsicana, Texas? Answer `yes' or `no.' Answer: No.

"Question No. 2: Did defendant Annie Bell Shaw turn over to her husband, B. J. Shaw, after her marriage, at different times, sums of money aggregating $850.00, which money was loaned by the said B. J. Shaw for her? Answer: No.

"Question No. 4: Did B. J. Shaw, previous to his death at Houston, Texas, give to his son, Louis J. Shaw, as a gift, the four certificates of deposit introduced in evidence before you, together with $350.00 in Liberty bonds; said Liberty bonds to be given by plaintiff to his wife and daughter? Answer `yes' or `no.' Answer: Yes.

"Question No. 5: If you have answered question No. 4 `yes,' then did B. J. Shaw give the four certificates and Liberty bonds in said question to his son, Louis J. Shaw, for the purpose of defeating Annie Bell Shaw's claim to her interest therein, if any she had? Answer `yes' or `no.' Answer: No.

"Question No. 6: Did the defendant, Annie Bell Shaw, abandon her husband, B. J. Shaw, in the year 1913, without just cause? Answer `yes' or `no.' Answer: Yes.

"Question No. 7: Has the defendant, Annie Bell Shaw, ever been divorced from B. J. Shaw? Answer `yes' or `no.' Answer: No.

"Question No. 9: Did B. J. Shaw in his lifetime give to the defendant, Annie Bell Shaw, the household and kitchen furniture, including piano, to be her separate property? Answer `yes' or `no.' Answer: No."

Other issues were submitted and findings thereon made by the jury but none of the same affect the disposition of this appeal. The court rendered judgment on such findings in favor of appellee against the bank, appellant and his coappellees, for the amount of the principal and interest due on the four certificates of deposit in controversy, and in favor of appellees Mary Shaw and Mary Lou Shaw against appellant for the title and possession of the Liberty bonds given to them by the deceased. He also rendered judgment against appellant denying her any recovery as compensation for separate money claimed to have been turned over by her to the deceased. He declared all the other property as above recited the community property of appellant and deceased, appointed a receiver to sell the same, and directed that out of the cash on hand and proceeds of such sale certain taxes and costs be paid, and one-half the remainder turned over to appellant.

Opinion.

Appellant, by various propositions, contends that the court erred in failing to hold as a matter of law, or in the alternative, in failing to instruct the jury that she owned a half interest in the certificates of deposit and Liberty bonds which the deceased delivered to appellee before his death. Appellee introduced in evidence the record of a ceremonial marriage entered into by appellant with one Henry J. Stump in the state of California on August 31, 1920. The law, in deference to the presumption of her innocence and the regularity of such marriage, indulged the further presumption that her prior marriage to the deceased had been dissolved by a divorce prior thereto. Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 412, 19 S. W. 560; Holman v. Holman (Tex. Com. App.) 288 S. W. 413, 414-5; Floyd v. Fidelity Union Casualty Co. (Tex. Civ. App.) 13 S. W. (2d) 909, 912. Such presumption was rebuttable,...