The controversy in this case is about the ownership of the proceeds of a policy of insurance for $10,000 upon the life of Richard Lord, deceased, issued by the New York Life Insurance Company. Upon its face the policy is payable to the executors, administrators, or assigns of the insured. Richard Lord died September 8, 1900, leaving a will in which he devised all his property of whatever character to his wife, Margaret G. Lord. Kate Lord, a sister of the deceased, claimed the policy of insurance as a gift from her brother and brought this suit against the insurance company and Margaret G. Lord to require the proceeds to be paid to her. The insurance company admits liability upon the policy for the sum of $14,428, and offers to pay the money to whichever of the parties the court shall adjudge is entitled to it. A trial by jury in the court below resulted in a judgment in favor of the plaintiff, Kate Lord, against the insurance company for the amount above stated. From that judgment Margaret G. Lord has appealed.
Richard Lord and the defendant, Margaret G. Lord, were married June 29, 1899. He was about 43 years of age at the time of his marriage and his sister, the plaintiff, was then about 27 years of age. When Kate Lord was about 12 or 13 years old her mother died. Not long after the death of the mother their father went to South America, where he died within a short time. After the death of her mother, and until his death, Kate Lord was supported entirely by her brother, Richard Lord. She had no property except an interest in some shares of mining stock inherited from her father, and it yielded no income. The relations between the brother and sister were of the most affectionate nature, and he provided liberally for her support and education. After she left school she lived with him until his marriage and until his death had permission to draw against his bank account. At his death Richard Lord left but little property except some policies of life insurance. These policies were all contained in a box which was locked and left by him in the custody of Adoue Lobit, bankers in Galveston, in whose possession it was at the time of his death. Among the policies were two payable to the wife amounting to $20,000; an accident policy for $5000 payable in case of death to Kate Lord; and three policies payable to the estate of the deceased, one of which was the one in controversy. All of them were issued after the marriage of Richard Lord and the defendant Margaret G. Lord, except the one claimed in this suit by the plaintiff, Kate Lord. It bears date October 31, 1894, and was the only insurance Lord ever had upon his life prior to his marriage.
The plaintiff introduced several witnesses as to declarations made by Richard Lord in his lifetime to show that he had given her the policy in suit. Emma J. McLellan testified that some time in 1894, before the issuance of the policy, Richard Lord told her that he would leave his sister provided for with life insurance; and in 1896 he said that he had taken out this policy for her; that he was not a man to save money, and that he had left her provided for in life insurance. Charles Vidor, *Page 141 an insurance agent, testified that he was well acquainted and intimate with Lord; that five or six years ago he had asked Lord why he did not take out a life policy, and that Lord had replied that he had a policy for $10,000, and that was all he wanted, as he only had his sister to care for; that the policy was for the benefit of his sister and that he did not care to have any more. Louis Wortham, also an insurance agent, had a conversation with Lord in 1899, prior to his marriage, and also in 1896 or 1897, with reference to insurance. They were friends and their relations were intimate. The witness said that Lord told him that he had a policy in the New York Life for the benefit of his sister, of whom he spoke as "Kitty;" that the policy was hers. A.A. Green, Jr., testified that he was a life insurance manager and knew Richard Lord in his lifetime quite well; that in August, 1898, he had solicited him for insurance. That he said that he had one policy for $10,000 in the New York Life Insurance Company; that that policy was his sister Kitty's, and that he would like to have $10,000 additional insurance if he could stand the examination. Witness wrote his application, but the company applied to declined to issue the policy. This witness also testified: "When I came to ask him to whom he wanted this policy payable, he said, `This policy in the New York Life is Katie's. * * * You know I am educating a girl. * * * Just make that payable to myself and I will arrange for that.'"
James Irwin, also an insurance agent, testified that Lord applied to him for insurance in December, 1899, about six months after his marriage; that the witness asked him if he had any insurance and he answered "yes," he had some for his sister "Katie." Witness suggested that he ought to take out some insurance for his wife, and he said, "if I thought you could get me through I would." Witness submitted Lord's name to the company represented by him and it wrote the $20,000 for the benefit of his wife. Neil P. Anderson testified that he resided in Fort Worth and was a general agent of McFadden Bros., in the cotton business; that Richard Lord had been in the employ of the firm from about 1891 or 1892 until his death; and that he had known him since 1887 or 1888. They were in business touch with each other every year, but Lord's office would be changed from year to year. The witness said: "I think it was in 1894, the latter part of that year, * * * Mr. Lord gave me some valuable papers in a sealed envelope to be cared for him, asking me if I could take care of them in my safe. I told him yes; I would put them in my private till. When he handed them to me he says, "In this is a policy for my sister Kate." Witness kept the papers for about a year, when Lord called for them and he delivered them to him. The attention of the witness was not directed to any other paper in the package, and the matter was never mentioned again. It appeared from the evidence that Lord was a man of good business qualifications and understood the effect of the language of the policy, and knew what would be necessary to make it payable to his sister.
The court in effect instructed the jury that unless the insurance policy *Page 142 in controversy was delivered to the plaintiff by Richard Lord, or to some person for her benefit, she would not be entitled to recover. Under this charge the verdict of the jury is a finding that the policy was delivered. It has been assigned as error by the defendant, Margaret G. Lord, that the evidence is not sufficient to support the verdict. That a chose in action may be the subject of a gift is well settled. But it is insisted that only the intention of the donor to give must be shown by the evidence, but that the gift can be completed only by delivery actual or constructive of the thing to be given, and that there is no evidence in the record here upon which the delivery of the policy of insurance to the plaintiff can be predicated. On the other hand, it is contended that the fact of the delivery of the policy may be implied from the evidence. Repeated declarations were shown to have been made by Richard Lord that he had insured his life for the benefit of the plaintiff, and that the policy in question, about the identity of which there can be no doubt, was his sister Kate's. After his marriage, when he procured insurance for the benefit of his wife, he is shown to have declared that the policy then held by him was for the benefit of his sister. Soon after the issuance of the policy he intrusted it to the witness Anderson for safe keeping in a sealed envelope with other valuable papers, but when he delivered the package to Anderson he told Anderson that in it was an insurance policy for his sister Kate. The policy being payable to his estate, the only reasonable construction that could be placed upon this statement to Anderson was that he was to hold it for the plaintiff.
It is true that when Lord called for the package about a year afterwards it was returned to him, and so far as the evidence shows the policy remained in his possession and at his death it was found locked up in a box with other papers in the custody of the bankers to whom he had intrusted it. But it was shown not only as a motive for the gift, but as explaining the possession of the policy by him, that Richard Lord and the plaintiff sustained towards each other the most endearing relations; that ever since she was a child twelve years old he had stood to her loco parentis, and had been her sole support; that he had provided liberally for her education and supplied all her wants. It was shown that but for such provision as he might make for her she would be left almost penniless at his death, and that he declared his intention to provide for her with life insurance and that he had done so. Not a syllable of the testimony shows that he could have had any motive for making the policy payable to his estate rather than directly to his sister, or that he could have desired to retain control of the policy in order that he might give any other direction to the payment of the proceeds. The motive of the gift and the intention to give are clearly shown. While in speaking of the matter Lord did not say "I have given" or "I gave" the policy to "my sister Kate," or make use of the word "give," yet he did say "the policy is Kate's." He said this repeatedly and used language in speaking of it that in the light of the relation of the parties to each other necessarily meant that he had given the policy to her. From these *Page 143 declarations will it not be implied that the gift had been completed by delivery?
But there is the further fact that he had actually delivered the policy into the custody of the witness Anderson with the declaration that it belonged to his sister. He said, "in this [the package] is a policy for my sister Kate." The attention of Anderson was called to no other paper. Should it not be inferred that the purpose in making this declaration to Anderson was to make him the custodian of it for his sister? The policy had been procured but recently in accordance with a declared purpose to do so, and its delivery to some one for his sister would have completed the gift. She resided with her brother. He was to her in the place of a father as well as a brother. She had no property except an interest in some mining shares inherited from her father, and in Richard Lord's box at his death was found a power of attorney from her to represent her interest in it. There would be no other custodian than her brother for whatever property she had. This policy of insurance he had delivered into the custody of Anderson with the declaration that it was his sister's, and he had left it with him for a year, and it was taken from the custody of Anderson probably only when Lord moved from Fort Worth to some other place in the pursuit of his business. From the relation of the parties to each other and the declarations of Richard Lord, and giving due probative force to all the circumstances in evidence before them, the jury were authorized to imply the fact of delivery of the policy to Kate Lord. Although it may be conceded that in order to establish the gift it was necessary to show a delivery of the policy, yet this could be done by circumstantial evidence.
The general principles of law respecting gifts are well established and it would serve no useful purpose to set them out here. Each case must rest upon its own facts and assistance must be derived from the analysis of cases with analogous facts. In Chevallier v. Wilson, 1 Tex. 161, and Hillebrant v. Brewer,6 Tex. 45, the Supreme Court of this State has enunciated these principles as applied to facts in the one case where no delivery was shown and in the other where there was a constructive delivery. The cases of Richardson v. Hutchins, 68 Tex. 81; Brown v. Brown, 61 Tex. 56, and Gonzales v. Adoue, 58 Southwestern Reporter, 951, are useful in the consideration of the case before the court, but in each of these cases the question of delivery was affected by the relation of husband and wife between the parties, since under the marital law of this State the husband is entitled to the control and possession of the wife's property. The decision in Richardson v. Hutchins, however, was not rested upon the right of the husband to the custody of the bonds. There are cases cited by counsel for the appellant in which the facts tend strongly to support their contention that a completed gift was not shown. But the most analogous case is Malone's Appeal, cited by counsel for the appellee, Kate Lord, from Pennsylvania, from the Orphan's Court of Philadelphia (37 Legal Intelligencer, 63), affirmed by the Supreme Court of Pennsylvania (38 Legal Intelligencer, 303). *Page 144 Malone took out an insurance policy on his life for $5000, payable on its face to his personal representatives. Afterwards he married the claimant. Just before his marriage he said to her, "If anything should happen after marriage you will get this $5000, because I took out this policy, and it is yours." No policy was seen in his possession at the time, nor was he seen to give her any, but a policy of insurance in the company named was afterwards seen in a drawer of the wardrobe which was used by himself and wife. He repeatedly declared afterwards to various persons that the policy was his wife's. After marriage he took out two other policies of insurance specifically payable to his wife. For many years prior to and at his death the policy in question was continuously in the fire-proof receptacle belonging to the firm of which he was a member, and the premiums upon it during the latter part of decedent's life were paid out of the firm's money. The contest was between creditors and the widow who claimed the benefit of the policy.
The Supreme Court affirmed the decree on the opinion of Judge Penrose of the Orphan's Court. In that opinion Judge Penrose said: "Unless the uncontradicted testimony of six witnesses be rejected, it must be conceded that the decedent repeatedly, and in the most unequivocal and explicit terms, declared that he had given the policy of insurance, taken out by him shortly before his marriage, to his wife, and that it belonged to her. * * * That the wife's claim might be thus established is clear, both in reason and authority." Citing Hackney v. Vrooman, 62 Barb., 666; Gray's Estate, 1 Barr, 327; Wesco's Appeal, 2 Smith, 195. "The declarations were against the husband's interest, and were deliberate, precise, and consistent with each other. * * * The right of the wife is denied: (1) Because there was no written evidence of assignment to her. (2) Because there was no direct evidence of delivery. (3) Because at the time of decedent's death the policy was, and had been for a number of years, in the fire-proof of the firm of which he was a member. * * * (5) Because premiums on the policy were paid by the firm. * * * It is clearly shown by the American authorities, if not also by the English, that any act on the part of the owner of a chose in action, showing not only a persistent intention to transfer, but that he regarded himself as having carried such intention into effect, is sufficient, and that no written evidence of the transaction is required. * * * It was held at an early date that gifts, causa mortis, of choses in action, as, for example, of a bond or of a policy of insurance, might be made by mere delivery. * * * Later decisions have established the principle that there is no difference in this respect between gifts causa mortis and gifts inter vivos." Citing Grover v. Grover, 24 Pick., 265; Hackney v. Vrooman, 62 Barb., 650; Wing v. Merchant, 57 Me. 383; Camp's Appeal, 36 Conn. 88. "In all these cases it was decided that a valid gift of a chose in action might be made inter vivos without writing, and by mere delivery. * * * With regard to the proof of actual delivery, it is not necessary that the witnesses shall have seen it take place. * * * *Page 145 The delivery may be proved by the declarations of the donor, just as the gift itself may be; and when the donor declares that he had given at a previous time, and that the donee had then become the owner, it is implied that delivery, and indeed every other formality necessary to create a complete gift, had taken place. The law always presumes knowledge of its requirements. * * * Upon the whole, we think that a valid gift of the policy of insurance in question by the decedent to his wife was fully established."
Other cases might be cited, all to show that while there can be no doubt but that delivery of possession is necessary to constitute a valid gift, yet this is a matter of fact upon which the jury must pass, and unless this court can say that there are no facts from which the delivery could be implied, or that the evidence against the finding of the jury so far preponderates over that in its favor as to show that the jury was influenced by passion or prejudice, the verdict should not be set aside. A distinction should be observed between cases where it is held that the evidence is of not sufficient probative force or there is no evidence, and those cases where slight evidence that of itself might be sufficient to support the verdict is so far outweighed by affirmative evidence against it as to lead all reasonable minds to the opposite conclusion. The case before the court is one in which it is necessary only to consider the sufficiency of the evidence to prove the issue, and not one in which slight evidence is outweighed and overcome by other evidence. Were the relation of the parties to each other, the repeated declarations of Richard Lord, and all the facts in the case of sufficient probative force to support the finding of the jury that Richard Lord gave the policy of insurance to his sister? If so, the verdict should be sustained. There is no fact inconsistent with this conclusion.
We do not decide that a parol assignment of the policy would be a completed gift of the proceeds without delivery, as there is perhaps much reason to hold from the decision in Cowen v. National Bank. Nor do we put our affirmance of the judgment of the court below upon the ground that although a delivery of the policy might not have been shown, the facts were sufficient to constitute Richard Lord a trustee for his sister. Neither of these questions are necessary to a decision of the case according to the views of the majority of the court and we express no opinion as to them.
A part of the testimony of Miss Kimball and Mrs. Morrison, the admission of which is complained of as hearsay, was probably objectionable on that ground. But the matters testified to were so fully and clearly established by other unchallenged testimony that its admission could not have affected the verdict of the jury, especially when it is considered that none of the testimony objected to had any other effect than to show the relationship between the parties, and that Richard Lord was supporting his sister and had entire charge and care of her from the death of her mother until his own death, a circumstance otherwise *Page 146 abundantly shown as above stated. Family history as to the death of the father in South America made the evidence of his sister, Mrs. Morrison, to that effect admissible. The objection to the testimony of Louis Wortham and Mrs. McLellan as shown by the seventh and tenth assignments of error, can not be sustained for either of the reasons given. The evidence showed that no other policy could have been referred to than the one in controversy, because it was the only insurance Lord had at the time of the conversation with Wortham and until after his marriage. Lord's declarations were admissible to establish the gift. They were against interest, and although the policy may at the time have been in his possession, such possession was perfectly consistent with the relation that he bore the donee. As held in the case of Cowen v. National Bank, the Revised Statutes concerning gifts does not apply to choses in action, and it was not necessary that the possession of the policy should have remained with Kate Lord, even if Richard Lord's relation to her loco parentis were not sufficient explanation. He may have held it as her agent. The testimony of Anderson was properly admitted. As already stated, there could be no doubt about the identity of the policy. Lord's statement that the policy was his sister Kitty's, made to Green, did not tend to vary the terms of a written instrument, because the policy after it had been executed in terms payable to his estate was subject to gift.
We find no error in the admission of the testimony of the witnesses as shown by the eleventh, twelfth, and thirteenth assignments of error as to the declarations of Lord. The charge of the court was as favorable to the defendant, Margaret G. Lord, as it could have been, and since, as above stated, the statute concerning the gift of goods or chattels does not apply to choses in action, there was no error in the failure of the court to charge the jury that the possession of the policy must have remained with the plaintiff. We find no error in the charge for which the judgment should be reversed; and according to the view the majority of the court have taken of the case there was no error in the refusal of the requested special instructions complained of in several assignments of error that need be specially referred to, as our reasons above given will also apply to them.
The judgment of the court below will be affirmed.
Affirmed.
DISSENTING OPINION.