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presumption created by the form of conveyance is rebuttable. In some cases, the intentions of the parties are controlling, and intentions may be judged by the facts surrounding the case.

In Cockerham, 527 S.W.2d 162, the Supreme Court considered the separate or community ownership of land where the deed was taken in name of both the husband and the wife in a partition suit involving an interest in property owned by the husband before marriage. Wife's trustee in bankruptcy intervened contending that, if husband had a separate property interest, he made a gift

of an undivided one-half of such separate property interest to his wife when title was taken in both names. The Supreme Court upheld the trial court’s implied finding that the presumption that the husband intended a gift to the wife was sufficient. Id.

In Carter, 736 S.W.2d 775, the husband signed an earnest money contract and paid the earnest money prior to marriage. The closing took place after marriage, and the deed was made to both spouses. Husband testified that he did not intend to make a gift of a one-half interest in the house to wife and that he did not request that both names be placed on the deed. Rather, he merely accepted and signed the papers prepared by the savings and loan company, and he had recently moved to Texas from Michigan and was unfamiliar with Texas community property laws. The court held there was no evidence of a gift and any such presumption was rebutted by the evidence. Id.

In Dawson v. Dawson, 767 S.W.2d 949 (Tex. App. - Beaumont 1989, no writ) the husband had begun the purchase of property under a "contract for deed" prior to marriage. The contract was completed and a warranty deed received during marriage in the name of both husband and wife. The court held:

Both parties testified Mr. Dawson had purchased the property under a contract for deed prior to the marriage. This determined the character of the property as separate. Where there is no evidence of gift, the fact that the deed is in both names does not change the character of the property.

Id. at 951.

In Peterson, 595 S.W.2d 889, the husband purchased a house with separate property funds 28 days after marriage. On the day he was notified the sale was ready to close, he phoned wife to advise her of the closing. Husband testified that it was at that point that he learned that his wife would not move into the house with him unless her name appeared on the deed, and testified that:

. . . I was real shocked. I didn't know what to do. I had just been married. I really didn't want to stir up any trouble at that early [stage] of a marriage . . . so I called . . . and asked . . . if we could get her name added to the deed right away . . . .

Id.

The wife's name was subsequently added to the deed and the sale was consummated. Husband testified that he did not intend to make a gift to wife of any interest in the house, but that he added her name to make her happy and to assure her that "she had a place to live the rest of her life," and "then at her death, it would be passed on to my children." The court found that the presumption of gift created by the taking of title in the name of husband and wife was rebutted by evidence establishing no intent to make a gift. Id. (emphasis added)

In Grost, 61 S.W.2d 223, the wife's aunt transferred 1,000 shares of stock to husband and wife. The aunt filed a gift tax return reflecting a gift tax exclusion one-half to husband and one-half to wife. The court held in a later divorce suit that the testimony that aunt intended to give the entire 1,000 shares of stock to wife and did not intend to give any part thereof to husband was admissible to show a gift of the stock only to the wife. Id.

Another enunciation to the rule that extrinsic evidence may be used to determine the character of property as community or separate is found in Galvan, 534 S.W.2d 398. In divorce proceedings, the husband claimed certain real estate as his separate property. The facts were: (a) Deed from husband's parents was to husband and wife "in consideration of love and affection"; (b) Wife claimed an undivided one-half interest as her separate property; (c) Husband introduced parol evidence claiming land was his separate property as a gift from his parents to him; and (d) Wife argued that husband’s evidence in opposition to the deed violated the parol evidence rule and that in absence of fraud, accident or mistake, deed may not be challenged. Id. The court made a thorough review of the parol evidence rule as applied to show the true character of property and held that parol evidence was admissible to show the intention in the making of a gift (emphasis added):

Parole evidence was admissible in this case to show either that the husband, if he furnished valuable consideration, did or did not intend to make a gift to his wife; or that the grantors did not intend to make a gift to the wife, even though she was one of the named grantees.

Id.

Following an established line of cases, the court further stated:

It is elementary that whether the evidence offered to rebut the presumption of a gift established that there was no gift to the wife and that the land was the separate property of the husband, was for the determination of the Court as the trier of the facts.

Id. See also Alexander, 373 S.W.2d 800, (deeds conveying property to husband as separate property from his parents contained recital "for love and affection", such recitals are not conclusive to true character of transaction, and are subject to be overcome by parol testimony of community payments).