Wells v. Sansing (151 Tex. 36, 1952)

Mr. Justice Sharp

delivered the opinion of the Court.

Mrs. Leslie Sansing, joined pro forma by her husband, filed this suit against William R. Wells, surviving husband of Mrs. Ethel E. Wells, who died intestate, alleging ownership of a diamond ring by virtue of a parol gift of the ring by Mrs. Wells to Mrs. Sansing more than two months before Mrs. Wells died. Upon the close of the testimony for Mrs. Sansing, the trial court withdrew the case from the jury, granting Wells’ motion for an instructed verdict, and directed the jury to find for Wells. Based upon such instructed verdict, the trial court rendered judgment in Wells’ favor, directing that Mrs. Sansing take nothing by her suit. The Court of Civil Appeals reversed and remanded the cause to the trial court for further trial, holding that a fact issue existed. 243 S. W. 2d 254.

Mrs. Sansing alleged that her cousin, Mrs. Ethel E. Wells, gave her the diamond ring during the Christmas season of 1948, while visiting Mrs. Wells in San Antonio, Texas, which is some 200 miles from Houston, the home of Mrs. Wells; that Mrs. Wells died some weeks later from the ailment which was the basis of her apprehension at the time the gift was made. There were three of Mrs. Sansing’s witnesses who testified about their conversations with Mrs. Wells regarding her giving the ring to Mrs. Sansing. Mrs. Ben E. Cavenaugh, of San Antonio, testified by deposition, and stated in substance that in her presence Mrs. Wells had given the diamond ring to Mrs. Sansing.

Mrs. Ida Barron, of Houston, testified that she saw Mrs. Wells when she returned from San Antonio after the holidays, and she was not feeling well, and had not been feeling well for several months. She was worried about her health. She told Mrs. Barron that she had given “Little Leslie” the diamond ring and the key to the lockbox in Houston where the ring was at that time; that she was afraid she was not going to live much longer if a change did not happen. She said no one but herself and “Little Leslie” knew about the lockbox. Mrs. Barron also testified that after Mrs. Wells’ death she went to the bank with Mrs. Sansing, who had the key to the lockbox. The bank would not open the lockbox without a court order, which was obtained. Mrs. Barron testified that the box was opened with the key Mrs. Sansing had in her possession and the one the bank had in its possession; that the diamond ring was in an envelope, and there was a slip of paper in the envelope with the ring, upon which was written, “For Little Leslie,” and that it was in the handwriting of Mrs. Wells.

Mrs. Kendall, of Houston, testified that shortly after February 1, 1949, she had a talk with Mrs. Wells in regard to the disposition of the diamond ring; that she, Mrs. Kendall, had gotten a ring, and she went back to Mrs. Wells’ desk and showed her the ring; and Mrs. Wells asked Mrs. Kendall if she had ever seen the ring her former husband had given her, and Mrs. Kendall replied that she had not. Then Mrs. Wells stated that it was much larger than Mrs. Kendall’s ring, and that she had given it to “Little Leslie” at Christmas, which was about a month before she died. The ring was exhibited during the trial.

Curtis Regner, manager of the safety-deposit department of the bank, testified that the safety-deposit box was rented to Mrs. Wells; that the bank’s record indicated that the box had not been entered by anyone from January 6, 1948, until March 7, 1949; that nothing was removed from the box; and that the diamond ring was in the box upon inventory on March 24, 1949. Mrs. Wells’ contract of rental with the bank provided that only she should have access to the safety-deposit box, and although she could have done so, she never authorized the bank to permit Mrs. Sansing to open the box. The testimony also shows that, under the terms of Mrs. Wells’ contract with the bank, prior to her death no one other than Mrs. Wells could have entered the lockbox, even with possession of the key.

The public policy of this State with regard to parol gifts is expressed in Article 3998, Vernon’s Annotated Civil Statutes, which reads as follows: “No gift of any goods or chattels shall be valid unless by deed or will, duly acknowledged or proven up and recorded, or unless actual possession shall have come to,