Wellborn v. Odd Fellows Building & Exchange Co. , 1882 Tex. LEXIS 62 ( 1882 )

Walker, P. J. Com. App.

It is not pretended, on any hand, that the $500 deposited by John Collins with the Odd Fellows Building and Exchange Company of Texas was at that time the separate property of his wife, Mary Collins. The presumption of law is that it belonged to the community estate of both of them as husband and wife. Lott v. Keach, 5 Tex., 394; Edrington v. Mayfield, id., 363. The mere deposit of the money by the husband, to the account and credit of his wife, cannot of itself be deemed a circumstance sufficiently explicit as to determine conclusively that such act was intended as a gift of the money as her separate property, and that it would have the effect as to third persons to alter its character as community into that of separate property. Mitchell v. Marr, 26 Tex., 329; Houston v. Curl, 8 Tex., 239; Veramendi v. Hutchins, 48 Tex., 531; and see Kirk v. Navigation Company, 49 Tex., 213. “Property conveyed by deed to the wife pending marriage is presumed to be community property in the absence of evidence that it was paid for out of the separate estate of the wife.” Stanley v. Epperson, 45 Tex., 645.

“A transfer by the husband, to the wife of his right to the community property can only be done by acts so explicit as to leave no doubt of his intention.” Parker v. Chance, 11 Tex., 513.

And notwithstanding the doctrine laid down in Smith v. Strahan, 16 Tex., 314, “that the prima facie presumption arising from a deed of the husband to his wife for the community property is that it was intended to change its character from community to separate property of the wife, and that the deed is effectual against a subsequent purchaser,” such a rule applicable to real estate and solemn assurances of title cannot appropriately be applied to the rights of husband and wife growing out of verbal sales, exchanges or gifts of personal property, especially where the latter consists of money. See Kendrick v. Taylor, 27 Tex., 695, and Bradshaw v. Mayfield, 18 Tex., 21.

Held in Kendrick v. Taylor, supra, “ That such transactions between husband and wife will be subjected by the courts to the most rigid scrutiny; and that they will not be sustained unless upon the clearest proof of their validity.”'

It is of the essential quality of such a gift that the intention and purpose to make it should be well defined. The mere fact that a husband shall deposit a sum of money in bank to be drawn against by the wife, or according to the precise facts of this case, so deposited and a receipt taken in the name of the wife, cannot be deemed a specific appropriation by him of his community interest in the money, and a donation thereof to his wife.

Additional circumstances explanatory of his intention would be essential to give that complexion to the transaction. At the time of the death of John Collins, therefore, the money on deposit with the Odd Fellows Building and Exchange Company of Texas was community property subject to administration as belonging to his estate. All power and authority which had been given to Haight by John Collins to appropriate the money on deposit with the appellee was revoked and ceased to exist at the time of his death. Hall v. Robertson, 16 Tex., 472; Cleveland v. Williams, 29 Tex., 204.

The plaintiff showed under the evidence no right to recover any portion of said deposit, as against the claims of creditors or the right of an administrator of John Collins to recover the same. See Ansley v. Baker, 14 Tex., 607, and Green v. Rugely, 23 Tex., 539. It was not error, therefore, for the court to refuse to render judgment for the sum of $172.75.

The appellee makes no complaint against the judgment as the same has been rendered, and, as between the parties to this litigation, there appears to be no reason why the judgment should not be affirmed. This action, however, will be without prejudice to whatever rights may exist in other parties not before this court, as they may stand affected as creditors, administrator or heirs of the estate of John Collins, deceased.

[Opinion delivered March 20, 1882.]

The judgment ought to be affirmed.

Affirmed.