SEBREN v. WARD et al., 242 Ga. 782, 251 S.E.2.d 524 (1978)
Linked as:
Summary
Certiorari to the Court of Appeals of Georgia -- 146 Ga. App. 867 (247 SE2d 532) (1978)., Judgment affirmed. All the Justices concur, except Nichols, C. J., and Jordan, J., who dissent.
Summary
Certiorari to the Court of Appeals of Georgia -- 146 Ga. App. 867 (247 SE2d 532) (1978)., Judgment affirmed. All the Justices concur, except Nichols, C. J., and Jordan, J., who dissent.
Text
Coney, Tinsley & Tinsley, Barbara V. Tinsley, for appellant (Case No. 34169).Coney, Tinsley & Tinsley, Barbara V. Tinsley, James & Johnson, Robert J. James, for appellees (Case No. 34168).G. Michael Hartley, Walter P. Rowe, Joseph H. Fowler, for Ward et al.
Certiorari was granted to review Division 2 of the opinion of the Court of Appeals in Ward v. Sebren,
1. The Court of Appeals properly remanded the case for a determination by a jury of whether a gift had been effected. The decision of the Court of Appeals was incorrect, however, insofar as it inferred that the gift, if there was one, was the certificate of deposit. The gift, if any, that Sebren, Sr., made to Sebren, Jr., was the money that the certificate of deposit represented. The certificate, issued in the name of Sebren, Jr., is a subsisting chose in action which represents the fund it describes. Philpot v. Temple Banking Co.,
Code Ann. 48-101 provides: "To constitute a valid gift, there shall be the intention to give by the donor, acceptance by the donee, and delivery of the article given or some act accepted by the law in lieu thereof." Code Ann. 48-103 provides in part that: "Any act which shall indicate a renunciation of dominion by the donor, and the transfer of dominion to the donee, shall be a constructive delivery." Whether the donor relinquished dominion and effected constructive delivery is a question of fact for the jury to determine. Williams v. McElroy,
The Court of Appeals properly found that Code Ann. 108-116 would authorize a finding that Sam Sebren, Sr., had completed the gift to Sam Sebren, Jr., but that this presumption could be rebutted. That Code section provides: "As between . . . parent and child . . . payment of purchase money by one, and causing the conveyance to be made to the other, shall be presumed to be a gift; but a resulting trust in favor of one paying the money may be shown and the presumption rebutted." Whether the evidence proffered at trial is sufficient to rebut the presumption of gift is a question for the jury. Adams v. Pafford,
The fact that the certificate of deposit remained in the possession of Sam Sebren, Sr., until his death; Sam Sebren, Jr.'s lack of knowledge of the certificate of deposit; the terms of the certificate of deposit; and the existence or nonexistence of a signature card should be considered by the jury when it determines whether the presumption created by Code Ann. 108-116 has been effectively rebutted. "The mere fact of the deposit of money in the name of a third person without the delivery of the pass book, or other evidence of intention to make a gift, however, will not constitute a valid gift inter vivos, since this may have been done for any one of a number of reasons, each without donative purpose. 38 CJS 832, Gifts, 49. "Among the inferences to be drawn from the delivery or nondelivery of bank books are, . . . whether the presentation of the book was necessary in order to withdraw money on deposit." Clark v. Bridges,
NICHOLS, Chief Justice, dissenting.
It is my opinion that this case should be dismissed as being improvidently granted.
1978
Sponsored links
