Griffin v. Stadler's Administrators , 35 Tex. 695 ( 1872 )

Ogden, J.

Suit was instituted in this cause by theappellees as administrators on the estate of Robert G. Stadler, against the appellants in 1864, to obtain possession of certain promissory notes belonging to said estate, and the last will and testament of the said Robert G. Stadler, deceased, which they charge the defendants in the court below of having, by a fraudulent combination, got possession of, and that now, by suppressing said will, they claim said notes as their own. property, or rather as the property of one of the defendants, Malinda A. Griffin. They further charge that the defendants are endeavoring to collect said notes, and have collected a portion of the same, and converted the proceeds to their own benefit. They pray for an injunction against the defendants, and that a receiver be appointed to receive and collect said notes, and for a final judgment against the defendants for those notes not collected, and for the amount of money collected by them.

The defendants answer by a general demurrer and general denial; and further, they say that several weeks, before his death, the said Robert G. Stadler, for and in consideration of the love and affection he bore to the defendant, Malinda A. Griffin, who was his niece, did give to her the said notes referred to in plaintiff’s petition, to have, keep, and enjoy the same as her own property, with the exception of about three hundred dollars to be paid out of the proceeds of said notes. That the said R. G. Stadler, at the time aforesaid, and during his lifetime, delivered said notes to the defendant, Malinda A. Griffin, and that she and her said husband have held the same as their own property, and that therefore the plaintiffs have no right or interest in the same; and they pray for judgment against the plaintiffs for costs.

There were several amended petitions and answers, setting up other facts and making other parties, which need not now be particularly noticed in order to the determination of this cause as it is here presented. The cause was submitted to a jury, and there was a verdict and judgment for the plaintiffs, and the defendants have appealed.

The only question which requires a particular consideration, in order to a proper determination of this cause, is, did Robert G. Stadler, before his death, part with the ownership of the notes in dispute, by gift to his niece, Malinda A. Griffin, and deliver them up to her as her own property ? This was purely a question of fact, for the jury to determine from the evidence which was before them. That question was, we think, fairly and fully presented in the charge of the court, and the jury found a verdict denying the gift. If, therefore, that verdict is supported by legitimate and proper evidence, it is not the province of this court to interfere and set the judgment aside, notwithstanding there may have been evidence to support the gift. The evidence is to some extent conflicting, and tending to prove different facts, and to lead the mind to contradictory conclusions. There certainly was sufficient evidence, if uncontradicted directly or by implication, to establish the fact of the gift; and we are not prepared to say that there was not sufficient proof, if unrebutted, to disprove the gift to a reasonable certainty.

It is, however, claimed' by the appellants that the court erred in permitting improper and illegal testimony to go to the jury, to disprove the gift claimed by them. And first, it is claimed that the court erred in permitting the declarations of the alleged donor, made before and subsequent to the alleged gift, to disprove any presumptions of a gift.

That the declarations of a grantor, made subsequent to the grant, cannot be given in evidence to vary, contradict, or destroy a solemn deed or grant, is too well established upon reason and authority to be now called in question. It may also be said to be equally well settled that the verbal declarations of a testator are not admissible to vary or revoke a valid written will. It is also a well settled principle of law, that a voluntary donation, when complete, is beyond the power of the donor to recall or control. But in either case the law presupposes that there is no question or doubt as to the complete execution of the grant, the will, or the gift. But when there is a denial or doubt as to the legal and complete execution of the grant, the will or gift, the authorities do not agree as to the admissibility of the declarations of the grantor, testator, or donor, to disprove the legal execution of the alleged act. It is contended by many authorities, cited in Cowen & Hill’s Notes to Phillips on Evidence, and in Reel v. Reel, in 1 Hawk’s N. C. Reports, 248, and cases there cited, that the declarations of the alleged testator, or donor, were admissible to disprove the will or the donation. But in Phœnix v. Dey, 5 Johnson’s R., 412, and in Sprague v. Kneelan, 12 Wend., 161; Barr v. Barker, 6 Cowen, 377; and in Woodruff v. Cook, 25 Barb., 510, it is contended with much force that- the declarations of the testator or donor were admissible in no instance to disprove a will, or gift, or sale.

■ The case of Woodruff v. Cook is quite similar to the one at bar, where an administrator brought suit against the defendant for a mare claimed to have been sold or given to defendant by the intestate before his death; and the court refused to allow the plaintiff to give in evidence the declarations of the deceased, establishing the fact that at the time of or just before his death, he claimed the animal as his; and on an appeal the Supreme Court of New York approved that ruling, and distinctly denied the authority as cited in Cowen & Hill’s Notes. And in Brown v. Mailler, in 2 Kernan, 118, Justice Denio, in delivering the opinion of the court, says: “Thedeclarations of the intestate touching the title to personal property are evidence against t ie administrator, but are not competent evidence against other parties who claim title under the deceased.” The case of Reel v. Reel was a case of a contested probate of a will, and evidence was offered to prove the acts and words of the testator at the time of the execution of the will, in order to establish the fact that the same wras obtained through fraud and undue influence, and the court decided that the same was admissible as a part of the res gestae. But we have been unable to find any authority conflicting with the decision in Woodruff v. Cook, or Brown v. Mailler, excepting the cases in Cowen & Hill’s Notes, which are declared not to be law. Upon this question we feel called upon to defer our judgment to the weight of authority, and decide that the court erred in permitting the declarations of R. G. Stadler, during his lifetime, to be given in evidence to defeat the alleged and proven gift to Malinda A. Griffin, which had been fully executed by delivery of possession.

It must be admitted that the proof of the donation was, under all the circumstances, quite weak. But if the donation was in truth made, then it would be exceedingly hard to allow a casual remark of the donor to defeat that gift, and that too when, perhaps, an entire different purpose was intended by the donor in making the remark. And as this cause must be reversed for the error indicated, we deem it necessary only to notice a few of the other errors complained of.

We are of the opinion, that under the pleadings in which the defendants below were charged with a fraudulent combination to injure and defraud creditors and the remaining heirs of the deceased, that when such a fraudulent combination had once been established by proof or otherwise, then the admissions of either party might have-been given in evidence as against the interest of the other,—since the laws regulating and protecting the rights of married women were never intended as a shield to her own voluntary fraudulent acts.

In relation to appellants’ eleventh assignment of error, we need now only say, that as the court appears to have followed the rule in regard to the organization of, and challenges to the jury, which has long been practiced in most districts of this State, we are not inclined at present to make any specific rulings in relation to the matter; but in view of the great importance of an equitable, definite, and uniform practice throughout •the State in this respect, we may take an early occasion to lay down such rules as may be considered most necessary to secure the ends of the law and justice.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remarded.