Opinion
16783.
OCTOBER 12, 1949. REHEARING DENIED NOVEMBER 18, 1949.
Equitable petition. Before Judge Knox. Applying Superior Court. June 4, 1949.
Milton C. Grainger, for plaintiff.
J. H. Highsmith, C. W. Heath, and Gordon Knox Jr., for defendants.
The evidence did not authorize the verdict, and the court erred in overruling the motion for new trial.
No. 16783. OCTOBER 12, 1949. REHEARING DENIED NOVEMBER 18, 1949.
Mrs. Eloise Guest, as administratrix of the estate of Robert M. Montgomery, brought a suit against Mrs. Lessie Stone and Baxley State Bank to recover $2566.56, which was on savings deposit in said bank to the credit of Robert M. Montgomery at the date of his death in April, 1948, and prayed for a judgment against the bank in the amount of the deposit.
The bank answered, admitted having the amount on deposit, but stated that it was also being claimed by Mrs. Stone; and by subsequent agreement the bank was permitted to pay the amount into court and to be relieved of further liability.
Mrs. Stone filed an answer, and set up certain facts in relation to the deposit, by reason of which she claimed that the deposit belonged to her, notwithstanding it appeared on the record of the bank in the name of Robert M. Montgomery; and she prayed that the bank be adjudged a trustee for her, and that she recover a judgment for the amount of the deposit.
On the trial Mrs. Stone admitted a prima facie case and assumed the burden of proof. She produced the following evidence: Montgomery was a career soldier, having been in the Army for many years, divorced from a former wife for more than 10 years, and had a daughter. Mrs. Stone was his first cousin, and for the past eight years, when on furlough, he made his home with Mr. and Mrs. Stone, who furnished him food, lodging, and companionship. Prior to December, 1945, he had sent money to Mrs. Stone for safe-keeping, and she deposited it in the bank in her name. On December 14, 1945, he was visiting Mrs. Stone, and on that date made a savings deposit of $2000 in the bank, the deposit being made up of $300.88 in cash, and a check from Mrs. Stone for $1699.12, which represented the aggregate amount of money he had sent her. At the time of making this deposit, he stated to the teller receiving the deposit that he wanted Mrs. Stone to be the beneficiary of the fund in the event of his death. On the deposit slip was written: "Mrs. Lessie Stone beneficiary in case of death, . . Robert M. Montgomery." About two days before he left Mrs. Stone's home in the latter part of February, 1946, and before going to Germany where he died, he turned over to Mrs. Stone his savings account pass book, which it was necessary to produce in order to withdraw any money, and stated to her, "If I happen to crap out, it is all yours," and also at this time gave her a check on the bank signed by him, in which no payee was named and no amount stated, and told her, "If you need any money while I am gone go to the bank and get it." After he deposited the $2000 and before he delivered the pass book and blank check to Mrs. Stone, he made several deposits amounting in the aggregate to $400, and also made several withdrawals which totaled $400. After he delivered the pass book and blank check to Mrs. Stone and left for Germany, there were from May 10, 1946, to February 8, 1947, deposits made by Mrs. Stone to this account totaling $450. Whether this was money sent to her by Montgomery, does not appear from the record. At the time of making the first of these deposits, the teller told her that she was the beneficiary, and if anything happened to Robert Montgomery she would get the money.
The administratrix, in rebuttal, produced the testimony of Mr. and Mrs. S.E. O'Quinn that, after the death of Montgomery, Mrs. Stone stated to them that there was $2500 in the bank for the girl of Robert Montgomery when the girl became 21 years old, but that it was in her (Mrs. Stone's) name, and the girl could not get it without her signature, and she would not sign for the girl to get the money, and she would stand them a lawsuit before she would sign for the girl to get it before that time. Mrs. Stone denied making this statement.
At the conclusion of the evidence, the court directed a verdict in favor of Mrs. Stone. A motion for new trial was filed. Exceptions are to the direction of a verdict and the overruling of the motion for new trial.
Whatever might have been the intention of the deceased or the understanding of Mrs. Stone, a solution as to the legal effect of the foregoing transactions will best be determined by an application of the process of elimination.
The original deposit of $2000 with the notation, "Mrs. Lessie Stone beneficiary in case of death," and signed by the deceased, standing alone, is clearly testamentary, and not being executed with the formality required of a will, would convey no interest therein to her.
We next consider the circumstances of the original deposit along with the subsequent fact that the deceased gave the pass book and blank check to Mrs. Stone, stating, "If I happen to crap out, it is all yours," and, "If you need any money while I am gone, go to the bank and get it."
The evidence negatives the fact that this transaction occurred during the last illness or while the deceased was in peril of death, and therefore does not meet the requirements of a gift causa mortis under the Code, § 48-201.
Nor would it constitute a valid gift inter vivos. We quote from Drake v. Wayne, 52 Ga. App. 654 ( 184 S.E. 339), bottom of page 659: "`A delivery of property subject to be reclaimed by the donor at any time prior to his death, or where full control or power over the property or fund vests in the donee only after the death of the donor, does not constitute a valid gift inter vivos.' 20 Cyc. 1211, § 2. A gift inter vivos `operates, if at all, in the donor's lifetime, immediately and irrevocably; it is a gift executed; no further act of parties, no contingency of death or otherwise, is needed to give it effect.' 20 Cyc. 1192. `To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos.' Mims v. Ross, 42 Ga. 121 (2). This ruling was quoted with approval and followed in Clark v. Bridges, 163 Ga. 542, 544."
We now consider whether the facts created a trust. In a transaction of this nature, if a trust was intended to be created, but such intended trust was not to arise and come into effect until the creator's death, it would be testamentary and fail for the lack of the formalities of a will. But if during the life of the creator a trust was created and became effective, it would not be testamentary merely because the interest of the beneficiary would not take effect in enjoyment or possession before the death of the creator or because he might reserve the right to revoke or modify it. The facts do not show any intention to create a trust in these funds, to come into existence during the life of Montgomery, but on the contrary show an intention to retain these funds until his death, in which event they were then to become the property of Mrs. Stone. This is shown by his conversation with the banker, by the signed notation on the deposit ship, by the statements to Mrs. Stone that, "If I happen to crap out it is all yours," and "If you need any money while I am gone, go to the bank and get it."
While Mrs. Stone relies largely on the case of Wilder v. Howard, 188 Ga. 426 ( 4 S.E.2d 199), it does not support her contention. In fact, the statement of law as set forth in the first part of the preceding paragraph was taken from enunciations in that case. The facts there were different. In that case the deposit was made in the name of "Mrs. D. R. Wilder, trustee for Alice Frances Wilder," thus evidencing an intention on the part of Mrs. Wilder to then and there create a tentative trust.
Mrs. Stone also insists that she was entitled to the funds under the contract between the bank and Montgomery, by which the bank contracted and agreed to pay the funds to her upon the death of Montgomery. This contention is without merit. Under the deposit agreement, Mrs. Stone, though a beneficiary, was not a party or privy, but a mere stranger, and under Gunter v. Mooney, 72 Ga. 205, Ragan v. National City Bank of Rome, 177 Ga. 686 (2) ( 170 S.E. 889), and citations, Veruki v. Burke, 202 Ga. 844, 849 ( 44 S.E.2d 906), and citations, and Waxelbaum v. Waxelbaum, 54 Ga. App. 823 ( 189 S.E. 283), she would have no right of recovery thereunder. While the recent act of the General Assembly (Ga. L. 1949, p. 455), amending Code, § 3-108, was apparently enacted to permit a beneficiary under a contract between other parties to recover, yet it could be given no effect in this case. To do so, would violate the provisions of the United States Constitution (Code, § 1-134), and the State Constitution (Code, § 2-302), as to impairing the obligations of contracts. It would be creating a right for one to recover under an existing contract where he previously had no such right; and at the same time subject a party to an existing contract to liability to a third person who previously had no right under the contract. A vested ground of defense is protected from being destroyed by an act of the legislature. Bullard v. Holman, 184 Ga. 788 (2) ( 193 S.E. 586, 113 A.L.R. 763); 16 C. J. S. 676, 848, §§ 254, 397.
There are certain requirements for the transfer of property rights both before and after death, and even though Montgomery desired to exercise a spirit of liberality towards Mrs. Stone, his desire could not be given effect by our courts unless it was manifested by some means recognized by law. The facts here do not establish her right to the funds, as a will, a gift causa mortis, a gift inter vivos, a trust, or a contract, and accordingly the court erred in overruling the motion for new trial.
We have confined the rulings heretofore made to the original deposit of $2000, and inasmuch as the case is remanded for another trial we do not pass on evidence as to the deposits aggregating $450 made after Montgomery left for Germany.
Judgment reversed. All the Justices concur.