In the Estate of Wright, the court of appeals affirmed a trial court’s finding of an oral gift of real estate. No. 14-14-00401-CV, 2015 Tex. App. LEXIS 12644 (Tex. App.—Houston [14th Dist.] December 15, 2015, no pet. history). Stroman had assisted Wright for a long period of time. In the early 1990s, Wright purchased a house and rented it to Stroman. After two years of paying rent, Wright allegedly stated that it was enough and that the house was Stroman’s. Stroman then made improvements to the house. Later, Wright drafted a will leaving the house to Stroman. Subsequently, after a new friend (Tautenhahn) assisted Wright, a new will was drafted leaving everything to Tautenhahn and another person. After Wright’s death, Tautenhahn was appointed the executor of the estate. The parties litigated whether the most recent will was valid and also whether Wright had consummated an oral gift of the house to Stroman in the 1990s. The trial court found that the recent will was valid, but also found that Wright had made a binding oral gift and then awarded Stroman attorney’s fees for offering a prior will for probate.

 The majority of court of appeals panel affirmed. The court first addressed whether the Dead Man’s Rule applied, such that evidence of Wright’s alleged statements to Stroman could be used to defend the trial court’s finding of an oral gift. The court held that Tautehahn did not object to all of the offered statements and that the unobjected to evidence was sufficient to waive the impact of the Dead Man’s Rule.

The court then addressed the oral gift claim. The court held that, generally, a conveyance of real property must be in writing and subscribed and delivered by the conveyor or his agent. The general rule, however, does not apply to a parol gift of real estate in equity. “To establish a valid parol gift of real estate in equity, a party must show: (1) a gift in praesenti, that is, a present gift; (2) possession under the gift by the donee with the donor’s consent; and (3) permanent and valuable improvements by the donee with the donor’s consent or other facts demonstrating that the donee would be defrauded if the gift were not enforced.” Id. Further, to be a present gift, the donor must, at the time he makes it, intend an immediate divestiture of the rights of ownership out of himself and a consequent immediate vesting of such rights in the donee.

The court of appeals held that the evidence of Wright’s intent to give the house to Stroman in the 1990s was sufficient to establish an oral gift: “the language Wright allegedly used, indicating the house was Stroman’s, as well as his actions in discontinuing offsets from Stroman’s paychecks, are clearly suggestive of an intention to bestow a present gift.” Id. at *17. The court rejected an argument that there was no present intent to make a gift because Wright’s prior will provided that Stroman would receive the house. The evidence supported “the finding that Wright intended to make a present gift to Stroman of equitable title to 105 Sweeney Street despite apparently also indicating that he would make provision in his will for the legal title in the property to be put in Stroman’s name.” Id. at * 18.

A dissenting justice would have reversed the trial court’s finding of a valid oral gift. She found dispositive that Wright had mentioned the future gift of the house to Stroman in the will: “Wright’s intention to include the Sweeney Street property in his will negates the intention to make an inter vivos gift of that property. Because a will is without legal effect until the time of the testator’s death, a statement that a testator intends to bequeath property in a will evinces only an intention to make the gift in the future. A gift by will is a future gift, not a present gift.” Id. at *34.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of David Fowler Johnson David Fowler Johnson

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law