joined by Justices Smedley and Calvert, dissenting.
I respectfully dissent from the decision of the majority with respect to Item No. 5 known as the drawbridge property.
*127Petitioner Robert Singer, Jr., has a jury finding that Robert Singer, Sr., did not make delivery of the deed to the drawbridge property to Mrs. Mariam C. Singer, the wife of Singer, Sr., and stepmother of Singer, Jr. The sole question discussed here is whether there is any evidence to support this verdict.
On July 14, 1948, Robert C. Singer, Sr., was ill at home and had been told by his physician that he would have to be taken to the hospital and might die. He put his business affairs in order. He sent for his lawyer, Mr. Bill Prewett, and, among other things, he instructed him to prepare the deed in question. He gave his attorney a deed into him from his father’s estate so that the attorney might copy the description. The attorney went to his office, prepared the deed, and returned that same morning to the Singer home. He went to the bedroom where Robert Singer, Sr., lay and in the presence of a Mr. Dowling, a notary public, delivered the deed. Singer, Sr., took the deed, read it, and himself corrected an initial. After that a Mr. Collier entered the bedroom and signed the deed as a witness. Mr. Collier testified to Singer, Sr.’s conversation as follows:
“Q. What did he say about this paper, whether he said it to Prewett in your hearing or said it to you or to the other gentleman ?
“A. He said, T have signed the paper and I have changed the name, changed right - -’; there was a wrong name in it somewhere, ‘and you know what I want you to do.’
“Q. Well, what else did he say?
“A. Well, that was about all as regards the paper, and then our conversation led off on the building.”
Mr. Dowling and Mr. Collier left. All of the above is uncontroverted.
Mrs. Singer and Mr. Prewett testified substantially as follows:
“After Mr. Dowling and Mr. Collier left the Singer home, Mr. Singer requested Mr. Prewett to call Mrs. Singer into his bedroom, and, when she came into this room, Mr. Singer handed her the deed from himself to her and said ‘Mama, this is yours, I want you to have it.’ Mrs. Singer, having the deed in her hand, asked Mr. Singer ‘What is this?’ to which Mr. Singer replied ‘It is a deed to the “drawbridge property.” I am giving you the “drawbridge property” ’ Mr. Singer then turned to Mr. Prewett and said to the latter, ‘Bill, I want you to put the stamps on this deed and record it. Whatever the stamps cost, send me a bill *128and I will pay it,’ to which Mr. Prewett replied, T will.’ Mrs. Singer then handed this deed to Mr. Prewett, ‘as my husband requested me to’ and Mr. Prewett took it with him when he left the Singer home.”
Mr. Singer died the morning of July 26, 1948, and Mr. Prewett filed the deed for record that same morning a short while later.
Petitioner, Singer, Jr., relies upon the following evidence to sustain his verdict:
1. The fact that Mr. Prewett retained the deed in his possession 12 days from July 14 until July 26, and then filed it for record at 9:35 A. M. about an hour and a half or more after the death.
2. The testimony of F. L. Collier that Singer, Sr., in referring to the deed told Mr. Prewett “You know what I want you to do.”
3. The lack of a natural relationship between father and son. The son was 21 years old when he first met his father in 1937 and had very little communication thereafter.
4. The fact that Mariam Singer was familiar with the William Singer will.
5. The fact that the $20,000.00 in currency that Mrs. Singer had withdrawn from the bank and given over into the possession of Mr. Prewett was, immediately after the death of Robert C. Singer, turned over by Mr. Prewett to Mrs. Singer minus a fee for himself of $5,000.00.
Thus the uncontroverted facts established that Robert Singer, Sr., signed and acknowledged a deed of gift to his wife. No attack is made on his mental capacity or upon his signature or upon the acts of the notary in taking and affixing the acknowledgment. At the time he executed this deed Robert Singer, Sr., had the full right and power to give this property to his wife. He took this property under his father’s (William Singer’s) will which made him an executor or trustee of that will. He, with the other executors, had managed his father’s estate through a great deal of controversy, some of which reached the appellate court in Singer v. Singer, 196 S.W. 2d 938. By reason of this, and by reason of his holding title under his father’s will, it can be presumed, as a matter of law, that Robert *129Singer, Sr., knew that if he wanted to give this property to his wife he must do so during his lifetime, because, by the terms of the William Singer will, title automatically divested from him upon death so that his wife could not take by inheritance.
And the uncontroverted evidence established that he did want to give it to her. Even under his son’s (petitioner) theory of this case — that Singer, Sr., handed the deed to Mr. Prewett with instructions to hold it until his (Singer, Sr.’s) death and then record it — even under this theory, Singer, Sr., wanted to give the property to his wife but did not want the gift to become final until his certain death.
The fact that Prewett held the deed until immediately after the death before filing does not of itself raise a jury issue. The act of filing is not necessary to a valid delivery of the deed, and the fact that Singer, Sr., entrusted the filing of the deed to his attorney is not inconsistant with a delivery in view of Singer’s illness. As Prewett was attorney for both Mr. and Mrs. Singer, the fact that he had physical possession of the deed is no evidence either for or against the delivery of the deed. The possession of the husband is the possession of the wife. If there were direct evidence that Mr. Singer, Sr., had said to Mr. Prewett “Do not deliver this deed to my wife unless I die,” then the time of filing might tend to corroborate it; but there is no direct evidence at all.
The testimony of the witness, F. L. Collier, that Singer, Sr., said to Prewett “you know what I want you to do” does not add anything. The lack of a close relationship between father and son strengthens the evidence that Singer, Sr., wanted to give this property to his wife, and that he took the only legal method to accomplish his intent.
Both sides admit that Singer, Sr., wanted to give this property to his wife and did not want it to go by inheritance to his son. He knew that he could accomplish this only by a deed executed and delivered before death. The effect of the majority ruling is to defeat this purpose upon suspicion raised principally by the five thousand dollar fee to Mr. Prewett.
Petitioner has title only if his father died “seized and possessed” of the drawbridge property. He must attack this deed, and clearly he had the burden of raising the issue of nondelivery with competent evidence before submitting non-delivery to a jury. This he has failed to do.
*130In my opinion, the Court of Civil Appeals has correctly decided this point and should be affirmed on this point. See their opinion at 230 S.W. 2d 242 for citation of authority.
Opinion delivered February 28, 1951.
Rehearing overruled April 11, 1951.