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Affirmed=20 and Memorandum = Opinion=20 filed October 16, 2007.

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-00787-CV

____________

 

ROBIN REINDL=20 GREENE AND KAREN REINDL KOCH, = Appellants

 

V.

 

ROSE CASTEEL=20 GLASS, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ALICIA = MARCOS-DIAZ=20 REINDL, = Appellee

 

 

On Appeal from the = Probate Court No. 1

Harris County, = Texas

Trial Court Cause = No. 354431-401

 

 

M E M O R=20 A N D U M   O P I N I O N

This=20 appeal involves competing motions for summary judgment concerning = the=20 ownership of a 1/3 interest in real property in Harris = County. =20 Concluding that the trial court did not err in granting the = summary=20 judgment motion of appellee Rose Casteel Glass, Independent = Administrator=20 of the Estate of Alicia Marcos-Diaz Reindl, and denying the = partial=20 summary judgment motion of appellants Robin Reindl Greene and = Karen Reindl=20 Koch, we affirm.

 

Factual and=20 Procedural Background

The real=20 property in dispute consists of six contiguous tracts of land = located at=20 314, 315, 316, 317, 318, and 320 Shelley Street, Houston, Harris = County,=20 Texas.  In the 1930=3Ds,=20 undivided 1/3 interests in the real property were left to siblings = Rudy J.=20 Reindl, Charlotte Reindl and Karl J. Reindl by their parents, = Sofie[1]=20 and Joseph Reindl.  Greene and Koch are Rudy = Reindl=3Ds=20 daughters and the granddaughters of Sofie and Joseph (hereinafter=20 ARudy=3Ds=20 daughters@). =20

In=20 September 1982, Rudy executed a hand-written document, = acknowledged by a=20 notary public, reciting the following:  AI Rudy J.=20 Reindl give to my brother, Karl J. Reindl, my share of the Joseph = Reindl=20 estate.@  For=20 convenience, we will refer to this document as Athe=20 writing.@  In=20 June 1989, Karl recorded the writing in the real property records = of=20 Harris County.  Later, in March 1991, Charlotte conveyed her=20 undivided 1/3 interest in the real property to Karl by warranty = deeds.=20

In 2003,=20 Karl died, having bequeathed his interest in the real property to = his=20 wife, Alicia Marcos-Diaz Reindl.  In the probate proceeding, = Alicia=20 filed a sworn inventory of Karl=3Ds estate,=20 reflecting that Karl owned an undivided 2/3 interest in the real=20 property.  The inventory did not identify who owned the = remaining 1/3=20 interest. 

Alicia=20 Reindl died in November 2004 without a will, and left no spouse, = children,=20 or parents to inherit her property.  Her remaining heirs are = her=20 nieces and nephews.  Glass, the independent administrator of=20 Alicia=3Ds estate,=20 is one of Alicia=3Ds nieces=20 (hereinafter Athe=20 administrator@). =20

In=20 September 2005, Rudy=3Ds=20 daughters filed an application for the probate of Rudy = Reindl=3Ds last=20 will and testament as a muniment of title to establish their 1/3 = interest=20 in the real property.[2] =20 Contemporaneously, they also filed an original petition for = partition,=20 declaratory judgment, and accounting against the = administrator.  In=20 response, the administrator answered with a general denial and = asserted=20 the affirmative defenses of laches and limitations; she later=20 counterclaimed for title to and possession of the real property = based on=20 the writing, and alternatively pleaded ownership by adverse = possession.=20

Rudy=3Ds=20 daughters filed a no-evidence and traditional partial summary = judgment=20 motion, asserting that the writing was not sufficient to convey=20 Rudy=3Ds 1/3=20 interest in the real property to Karl, and that Karl and Alicia = did not=20 adversely possess the property.  Rudy=3Ds=20 daughters also sought to have the real property sold and a = receiver=20 appointed to handle the sale, and to recover their reasonable=20 attorney=3Ds=20 fees.  In response, the administrator argued that (1)=20 Rudy=3Ds=20 daughters were not entitled to a declaratory action to establish = their=20 ownership interest because a trespass to try title action is the = only=20 accepted method of determining title to land, citing Martin v.=20 Amerman, 133 S.W.3d 262 (Tex. 2004); (2) the writing was = sufficient to=20 transfer Rudy=3Ds 1/3=20 interest in the real property to Karl under Texas Probate Code = section=20 37B;[3]=20 and (3) a ten-year adverse possession period began when Karl = recorded the=20 writing in 1989, and was thus established in = 1999.

The=20 administrator then moved for summary judgment on her counterclaim, = and=20 asserted that her superior title to the real property arose from = the=20 writing, which established Rudy=3Ds gift of=20 his interest in Joseph Reindl=3Ds=20 estate.  Rudy=3Ds=20 daughters responded that the writing was insufficient as either a = gift=20 deed or evidence of a parol gift, and further asserted there was = no=20 adverse possession.

On March=20 30, 2006, the trial court granted the administrator=3Ds motion=20 for summary judgment.  During the hearing on the motions for = summary=20 judgment, the trial court stated that it was granting the=20 administrator=3Ds motion=20 on the basis that the writing Aconstitutes=20 a valid gift of assignment of the parties=3D = interest=20 in the Estate,@ = but the=20 written order does not specify the grounds on which it was = based. =20 After additional procedural issues not relevant here were = addressed, this=20 appeal followed.

Issues on=20 Appeal

On appeal,=20 Rudy=3Ds=20 daughters contend the trial court erred in denying their motion = for=20 summary judgment and granting the administrator=3Ds motion=20 for summary judgment because (1) it did so on grounds not before = the=20 court; and (2) the writing is insufficient to transfer title to = real=20 property.  We address these arguments as necessary to resolve = the=20 appeal below.

I.       =20 Standards of Review

We review=20 all summary judgments de novo.  Valence Operating Co. v.=20 Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  We apply the = usual=20 standards of review for traditional and no-evidence motions for = summary=20 judgment.  See, e.g., Provident Life & Accident Ins. = Co. v.=20 Knott, 128 SW.3d 211, 215B16 (Tex.=20 2003) (standard of review of traditional motion for summary = judgment);=20 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, = 750B51 (Tex.=20 2003) (standard of review of no-evidence motion for summary=20 judgment).  

When a=20 trial court=3Ds order=20 granting summary judgment does not specify the ground or grounds = relied on=20 for its ruling, summary judgment will be affirmed on appeal if any = of the=20 theories advanced are meritorious.  See Carr v. = Brasher, 776=20 S.W.2d 567, 569 (Tex. 1989).  When both parties move for = partial=20 summary judgment on the same issues and the trial court grants one = motion=20 and denies the other, we review the summary judgment evidence = presented by=20 both sides, determine all questions presented, and render the = judgment the=20 trial court should have rendered.  Valence, 164 S.W.3d = at 661.=20

II.      =20 The Grounds Upon Which the Administrator=3Ds = Summary=20 Judgment Was Based

In this=20 issue, Rudy=3Ds=20 daughters contend the trial court erred because it granted the=20 administrator=3Ds motion=20 for summary judgment on a ground not raised in her motion.  A = motion=20 for summary judgment must expressly present the grounds upon which = it is=20 made, and must stand or fall on these grounds alone.  = Johnson v.=20 Brewer & Prichard, P.C., 73 S.W.3d 193, 204 (Tex. 2002);=20 McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, = 341 (Tex.=20 1993); see Tex. = R. Civ.=20 P. 166a(c) (AThe motion=20 for summary judgment shall state the specific grounds=20 therefor.@).=20

Here,=20 Rudy=3Ds=20 daughters point to the trial court=3Ds=20 statements during the hearing that it was denying the=20 administrator=3Ds trespass=20 to try title and adverse possession claims, but was granting the=20 administrator=3Ds motion=20 for summary judgment because it concluded Aas a=20 matter of law@ = that the=20 writing Aconstitutes=20 a valid gift of an assignment of the parties=3D = interest=20 in the Estate.@ =20 However, the written order granting summary judgment does not = specify the=20 grounds on which it was based; therefore, it may be affirmed if = any of the=20 theories advanced below are meritorious.  See Carr, = 776 S.W.2d=20 at 569; see also In re J.J., 900 S.W.2d 353, 356 (Tex.=20 App.CTexarkana=20 1995, no writ) (written judgment controls over court=3Ds oral=20 pronouncements); Nine Greenway Ltd. v. Heard, Goggan, Blair = &=20 Williams, 875 S.W.2d 784, 787 (Tex. App.CHouston=20 [1st Dist.] 1994, writ denied) (same).[4] =20

We=20 overrule the first issue raised by Rudy=3Ds=20 daughters.

 

III.     =20 The Sufficiency of the Writing to Transfer Title to Real=20 Estate

In their=20 second issue, Rudy=3Ds=20 daughters contend the writing is insufficient to transfer title to = real=20 property because there are only two ways to make a gift of real=20 estateCby deed or=20 by parol giftCand the=20 writing does not satisfy the requirements for either.  For = the=20 reasons stated below, we conclude that the writing is effective as = a parol=20 gift of real estate and therefore the trial court=3Ds grant of=20 summary judgment may be affirmed on that basis.[5]

A.     =20 The Requirements for a Parol Gift of Real Estate are = Met

Generally,=20 a conveyance of real property must be in writing.  See = Tex. Bus. & Com. Code=20 ' = 26.01;=20 Tex. Prop. Code=20 ' = 5.021.  However, a gift of realty can be made in two=20 ways:  either by deed or by parol gift.  Troxel v.=20 Bishop, 201 S.W.3d 290, 297 (Tex. App.CDallas=20 2006, no pet.).  To relieve a parol gift of real estate from = the=20 requirement of a writing, one must show three elements:  (1) = a gift=20 in praesenti, that is, a present gift; (2) possession under the = gift by=20 the donee with the donor=3Ds consent;=20 and (3) permanent and valuable improvements, made on the property = by the=20 donee with the donor=3Ds=20 knowledge or consent or, without improvements, the existence of = such facts=20 as would make it a fraud upon the donee not to enforce the = gift. =20 Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, = 192B93 (1951);=20 Thompson v. Dart, 746 S.W.2d 821, 825 (Tex. = App.CSan=20 Antonio 1988, no writ); Grimsley v. Grimsley, 632 S.W.2d = 174, 178=20 (Tex. App.CCorpus=20 Christi 1982, no writ).  To be a present gift, the donor = must, at the=20 time he makes it, intend an immediate divestiture of the rights of = ownership out of himself and a consequent immediate vesting of = such rights=20 in the donee.  Thompson, 746 S.W.2d at 825.  The = three=20 elements which constitute a gift are (1) donative intent, (2) = delivery of=20 the property, and (3) acceptance of the property.  = Id. =20 All dominion and control over the property must be released by the = owner.  Id.  The party claiming a parol gift has = the=20 burden of establishing these elements.  Id. =20

Rudy=3Ds=20 daughters contend that none of the requirements for a parol gift = have been=20 met.  First, they contend that the writing does not evidence=20 Rudy=3Ds intent=20 to make a present gift of the real property because the writing = does not=20 specifically identify the property by words like Aproperty,@ = Aland,@ = or=20 Ahouses.@ =20 However, undisputedly Rudy, Karl, and Charlotte Reindl each = received a 1/3=20 interest in the real property at issue.  The writing = evidences=20 Rudy=3Ds present=20 intent to give Karl all of his Ashare of=20 the Joseph Reindl estate,@ = which=20 would necessarily have included the real property, on September = 21, 1982,=20 when it was executed and notarized.  See Brown v. = Moss, 265=20 S.W.2d 613, 617 (Tex. Civ. App.CFort=20 Worth, 1954, writ ref=3Dd n.r.e.)=20 (holding deed containing insufficient property description was = admissible=20 to substantiate claim of parol gift). 

Second,=20 Rudy=3Ds=20 daughters contend there was no evidence of delivery, acceptance, = and=20 possession of the real property, because Rudy and Karl were = tenants in=20 common before 1982, and the status quo did not change after the = writing=20 was executed.  However, Rudy=3Ds=20 daughters point to no evidence in the record that Rudy also lived = on the=20 property, and we have found none.  Nor is there any evidence = that=20 Rudy repudiated the gift or acted in any way that was inconsistent = with=20 consent to Karl=3Ds=20 possession of the real estate after 1982.  As discussed in = greater=20 detail below, the only evidence in the record was that Karl and = Alicia=20 lived continuously on the property and acted in a manner = consistent with=20 exclusive ownership.[6] =20

Third,=20 Rudy=3Ds=20 daughters assert there is no evidence that permanent and valuable=20 improvements were made to the real property, and assert that no = evidence=20 supports the conclusion that not enforcing the alleged gift would = work a=20 fraud on the estate.  Instead, they argue that it would work = a fraud=20 on them to enforce the gift because they would be deprived of = their=20 inheritance.  However, in support of her motion for summary = judgment,=20 the administrator argued and averred in an affidavit that Karl and = Alicia=20 lived on the property continuously from 1978 until their deaths, = and that=20 they leased portions of the property to other individuals, = collected all=20 rents, performed maintenance, and paid property taxes on the real=20 property.  Angelica Casteel, Alicia=3Ds sister,=20 attested to similar facts.[7] =20 The administrator further testified by affidavit that she only = learned of=20 Rudy=3Ds=20 daughters=3D = claim to=20 1/3 interest in the real property on or about June 1, 2005, and as = of=20 February 14, 2006, had found no documents or other items among the = effects=20 of either Karl or Alicia Reindl which reflected any ownership = interest in=20 the real property.

Although=20 not evidence of permanent and valuable improvements, this evidence = supports the third requirement that, in the absence of such = evidence,=20 there exist such facts as would make it a fraud upon the estate = not to=20 enforce the gift.  As Rudy=3Ds=20 daughters recognize, a parol gift of real estate is a creature of = equity,=20 and this evidence demonstrates that Karl and Alicia lived on the = real=20 property and took actions consistent with exclusive ownership of = that=20 property for over thirty years, unchallenged by Karl.  It is = also=20 consistent with Rudy=3Ds intent=20 as expressed in the writing.  Thus, contrary to = Rudy=3Ds=20 daughters=3D = arguments, we conclude that, on these facts, failing to = acknowledge=20 Rudy=3Ds gift to=20 Karl work a fraud on the estate.[8]

B.     =20 No Genuine Issues of Material Fact are Raised

In=20 addition to challenging the evidence supporting the requisites of = a parol=20 gift, Rudy=3Ds=20 daughters also contend that they raised genuine issues of material = fact=20 precluding summary judgment for the administrator.  They = point to two=20 specific items:  (1) the inventory Alicia Reindl filed in the = probate=20 of Karl=3Ds estate,=20 reflecting that Karl owned a 2/3 interest in the real property, = rather=20 than all of it; and (2) the warranty deeds filed by Charlotte when = she=20 conveyed her 1/3 interest in the real property.

We turn=20 first to the inventory.  Although the inclusion or exclusion = from an=20 inventory of certain property may be prima facie evidence = ownership of=20 such property, it is not conclusive proof on that issue.  = Tex. Prob. Code = ' = 261;=20 Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48, 50 = (1962). =20 An order of the probate court approving an inventory is not an=20 adjudication of title.  McKinley v. McKinley, 496 = S.W.2d 540,=20 542 (Tex. 1973); Balaban v. Balaban, 712 S.W.2d 775, 779 = (Tex.=20 App.CHouston=20 [1st Dist.] 1986, writ ref=3Dd=20 n.r.e.).  Here, the inventory filed by Alicia does not = indicate who=20 is the owner of the other 1/3 interest in the estate; it merely = affirms=20 that Karl owned at least a 2/3 interest, which is = undisputed.  It is=20 unknown whether Alicia was aware of either the writing or=20 Charlotte=3Ds warranty=20 deeds transferring her interest to Karl.  Moreover, there is = no=20 indication that title to any part of the property was in question = at the=20 time of the inventory, and the court=3Ds order=20 approving the inventory makes no express determination of title to = the=20 real property. 

Thus, even=20 indulging all reasonable inferences in favor of Rudy=3Ds=20 daughters, Alicia=3Ds=20 inventory does not raise a genuine issue of material fact that = Karl did=20 not own the 1/3 interest in dispute.  It does not identify = who is or=20 may be the owner, and at most demonstrates that Alicia did not = believe=20 that Karl had obtained either Rudy=3Ds or=20 Charlotte=3Ds 1/3=20 interest.  But, Alicia=3Ds belief=20 cannot nullify the legal effect of the parol gift made by Rudy to=20 Karl.  As discussed above, the parol gift is demonstrated by = the=20 writing transferring Rudy=3Ds share of=20 his father=3Ds estate=20 to Karl, the evidence that Karl and Alicia lived on the real = estate=20 continuously until their deaths and took actions consistent with = exclusive=20 ownership, unchallenged by Rudy, and the administrator=3Ds=20 affidavit testimony that she found no documents or other items = reflecting=20 that Rudy=3Ds=20 daughters have any ownership interest in the real property.  = On the=20 facts and circumstances of this case, therefore, we disagree that=20 Alicia=3Ds=20 inventory raises a genuine issue of material fact precluding = summary=20 judgment.

We reach=20 the same conclusion concerning the different methods Rudy and = Charlotte=20 used to transfer their 1/3 interests to Karl.  = Rudy=3Ds=20 daughters assert that Charlotte=3Ds use of=20 warranty deeds to convey her interest to Karl indicates that = AKarl=20 Reindl understood the importance of proper warranty deeds to = effectuate=20 transfer of real property, but choose [sic] not to have his = brother sign a=20 corresponding set of deeds.@  We=20 disagree with this contention for several reasons.  As=20 Rudy=3Ds=20 daughters themselves make clear, a gift of real estate may be made = one of=20 two waysCby deed or=20 by parol gift.  See Troxel, 201 S.W.3d at 297.  = Thus, in=20 this case, Charlotte=3Ds=20 conveyance of her interest by deeds does not reasonably lead to = the=20 inference that Rudy knew that any other method was necessarily=20 ineffective.  See id. at 300 (affirming summary = judgment in=20 appellee=3Ds favor=20 because the evidence established both a gift of property by deed = and by=20 oral gift).  At most, one might infer that Charlotte believed = that=20 employing warranty deeds was an effective way to convey her = interest, but=20 Charlotte=3Ds intent=20 is not at issue here. 

Further,=20 Charlotte conveyed her interest to Karl in 1991,  = approximately nine=20 years after Rudy executed the writing, and nearly two years after = Karl=20 recorded the writing in the real property records of Harris = County. =20 There is no evidence to indicate that Karl believed that the = writing,=20 executed and filed years earlier, was ineffective because = Charlotte later=20 conveyed her interest by warranty deeds.  Indeed, the = inference=20 Rudy=3Ds=20 daughters suggest would be reasonable only if there were evidence = that=20 Karl sought to obtain warranty deeds from Rudy after Charlotte = made her=20 conveyance.  There also is no evidence that Rudy knew that = Charlotte=20 also conveyed her interest in the property to Karl.  Thus, we = conclude that, on this record, the evidence Rudy=3Ds=20 daughters point to does not raise a genuine issue of material fact = precluding summary judgment.

C.     =20 Republic National Bank of Dallas v. Stetson Does Not=20 Apply

Finally,=20 Rudy=3Ds=20 daughters claim that the parol gift must fail because it lacks a=20 sufficiently specific description of the property conveyed, citing = Republic National Bank of Dallas v. Stetson, 390 S.W.2d 257 = (Tex.=20 1965).  In that case, the Texas Supreme Court stated the = general rule=20 that Athe=20 description in a written conveyance must furnish within itself or = by=20 reference to some other existing writing, the means or data by = which the=20 particular land conveyed can be identified.@ =20 Id. at 262B63. =20 Concluding that an alleged parol gift of undescribed land to = Stetson was=20 void, the Court went on to state:  AWe can=20 think of no reason that the description of land which is the = subject of a=20 parol gift should not be governed by the settled rule for written=20 conveyances.  Indeed the dangers which the statutes sought to = guard=20 against are greater in the case of oral conveyances.@ =20 Id. at 263.  According to Rudy=3Ds=20 daughters, an interest in real estate, vested for almost fifty = years,=20 cannot be transferred by Aa document=20 which does not even come close to including a = description@ = of the=20 land conveyed.

However,=20 we find Stetson distinguishable.  In that case, = Stetson never=20 provided any description of the land purportedly orally given to = him;=20 there were no pleadings or evidence to identify it, and it could = not be=20 located by any improvements.  Id. at 262.  At the = end of=20 the trial, no one knew or had any data from which the boundaries = of the=20 alleged gift could be determined.  Id.  Indeed, = even=20 Stetson did not know the boundaries of the land given.  = Id. at=20 263.  In holding that the alleged parol gift of land violated = the=20 statute of frauds, the Texas Supreme court stated that its policy = and=20 reasoning against parol conveyances of land was to avoid uncertain = and=20 unsettled land titles resting in parol, fraud and perjury.  = Id.=20 at 262.  That problem is not present = here.

Here, as=20 evidenced by the writing and the other evidence discussed above, = Rudy made=20 a parol gift of his interest in his father=3Ds estate=20 to Karl.  There is no dispute that Rudy, Karl, and Charlotte = each=20 inherited an undivided 1/3 interest in the real property at issue = from=20 their father.  Nor is there any dispute about the = description,=20 location or boundaries of this real property.  Therefore, the = Texas=20 Supreme Court=3Ds stated=20 policy and reasoning against parol conveyances of land do not pose = a=20 stumbling block in this case; Stetson does not apply.  = See=20 id. at 262; see also Galerie D=3DTile, Inc.=20 v. Shinn, 792=20 S.W.2d 792, 795 (Tex. App.CHouston=20 [14th Dist.] 1990, no writ) (holding that, when parties had full = knowledge=20 of real property to be conveyed by in-court settlement agreement, = the=20 equities of the situation removed the case from the operation of = the=20 statute of frauds). 

We=20 overrule the second issue raised by Rudy=3Ds=20 daughters.

Conclusion

We=20 overrule all of the issues of Rudy=3Ds=20 daughters and affirm the trial court=3Ds order=20 granting the administrator=3Ds motion=20 for summary judgment.

 

 

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

 

 

Judgment=20 rendered and Memorandum Opinion filed October 16, 2007.

Panel=20 consists of Chief Justice Hedges, Justice Fowler, and Senior = Justice=20 Edelman.*

 

 

 

*Senior=20 Justice Richard H. Edelman sitting by assignment.


[1]  Although Glass=3Ds brief refers to ASophie@ Reindl, her last will and testament = reflects that=20 her name was spelled ASofie.@

[2]  The application reflects that = Rudy Reindl=20 died in 1997.

[3]  Section 37B provides in relevant=20 part:  AA person entitled to receive property or = an=20 interest in property from a decedent under a will, by inheritance, = or as a=20 beneficiary under a life insurance contract, and who does not = disclaim the=20 property under Section 37A of this code, may assign the property = or=20 interest in property to any person.@  Tex. Prob. Code = ' 37B(a).

[4]  We note that the trial = court=3Ds oral pronouncement and the=20 administrator=3Ds motion for summary judgment both = referenced a=20 Agift@ of Rudy=3Ds interest in the estate to Karl; = therefore, we=20 cannot necessarily conclude that the motion for summary judgment = was=20 granted on grounds not expressly presented in the motion.  = Moreover,=20 the administrator=3Ds motion cited to Grimsley v. = Grimsley, 632=20 S.W.2d 174 (Tex. App.CCorpus Christi, 1982, no writ), in which = the court=20 recited the elements required to establish a parol gift of real = estate,=20 see id. at 178, and Rudy=3Ds daughters responded that, among other = things,=20 the administrator failed to demonstrate that the writing = constituted a=20 parol gift of real estate.  Therefore, Rudy=3Ds daughters=3D response reflects their understanding = that the=20 motion was based on a theory that Rudy transferred his interest in = the=20 real estate to Karl by the gift of his interest in their=20 father=3Ds estate.

[5]  Because of our disposition of = this issue,=20 we do not address the other sub-issues and arguments raised in the = parties=3D appellate briefs.

[6]  Even if Rudy and Karl were = tenants in=20 common, that would not necessarily preclude the conclusion that a = parol=20 gift of the real property was intended.  See, e.g,, Wilson = v.=20 Mitchell, 299 S.W.2d 406, 408 (Tex. Civ. App.CDallas 1957, no writ), overruled in = part on=20 other grounds by Griffin v. H.L. Peterson Co., 427 = S.W.2d 140=20 (Tex. Civ. App.CDallas 1968, no writ) (stating that when = other=20 conditions are met, joint occupancy will not defeat a parol gift); = Scott v. Cliett, 213 S.W.2d 562, 565 (Tex. Civ. App.=20 GalvestonC1948, no writ) (noting that when a parol = gift is=20 established, possession by the donee need not be exclusive); = Davis v.=20 Douglas, 15 S.W.2d 232, 233 (Tex. Comm=3Dn App. 1929, holding approved) (stating = that=20 evidence was sufficient to support possession by donee with = consent of=20 donor even though donor continued to live on = property).

[7]  Rudy=3Ds daughters assert that the affidavits = are=20 conclusory because they are not accompanied by evidence of rents=20 collected, who paid the taxes, or Awhat arrangement or understanding = existed between=20 Rudy and Karl Reindl@ and they do not state the basis for = their=20 personal knowledge.  However, the administrator=3Ds affidavit avers that she is the = independent=20 administrator for the estate of Alicia Reindl and the successor=20 independent executrix for the estate of Karl Reindl, and that = Alicia=20 Reindl was her aunt.  Further, she avers that, after Alicia=20 Reindl=3Ds death, she Areviewed all documents and records = located in her=20 residence,@ and also Afound no documents or other items among = the=20 effects of either Karl Reindl or Alicia Reindl which reflect any = ownership=20 interest@ by Rudy=3Ds daughters in the real property.  = In=20 Angelica Casteel=3Ds affidavit, she avers that she is = Alicia=20 Reindl=3Ds sister and the sister-in-law of Karl = Reindl, and=20 that she previously disclaimed her interest in Alicia=3Ds estate.  She also avers that, = following=20 Alicia=3Ds death, she and the administrator = inspected the=20 contends of Alicia=3Ds residence.  In addition, the = affidavits are=20 capable of being contradicted.  See Trico Techs. Corp. v.=20 Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (summary judgment = based on=20 uncontroverted affidavit of interested witness is proper if the = evidence=20 is clear, positive, direct, otherwise credible, free from = contradictions=20 and inconsistencies, and could have been readily = controverted).  Had=20 Rudy=3Ds daughters desired to do so, for = example, they=20 could have obtained information from the county tax records to = determine=20 who paid the taxes on the property.  Accordingly, we disagree = that=20 the affidavits are conclusory. 

[8]  We note that part of the relief = sought by=20 Rudy=3Ds daughters was an accounting and a = share of the=20 rents and profits collected over this approximately thirty-year=20 = period.

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