EPPS v. WOOD et al.
34799, 34800
Supreme Court of Georgia
JUNE 20, 1979
243 Ga. 835 | 253 S.E.2d 146
NICHOLS, Chief Justice.
SUBMITTED APRIL 13, 1979
Judgment reversed. All the Justices concur.
SUBMITTED APRIL 13, 1979 — DECIDED JUNE 20, 1979.
Gary L. Davis, for appellant.
Arthur K. Bolton, Attorney General, Gerald W. Boling, Assistant Attorney General, amicus сuriae.
James A. Henderson, for appellees.
34799. EPPS v. WOOD et al.
34800. EPPS v. EPPS et al.
NICHOLS, Chief Justice.
This is a resulting trust case. The widower (in Case No. 34799) and the administrator of the deceased wife‘s estate (in Case No. 34800) appeal from an order granting summary judgment for the deceased wife‘s sister.
Depositions and affidavits introduced in support of and in opposition to the motion for summary judgment establish the following: Clifford and Frances Epps were husband and wife. Both were gainfully employed during a portion of their marriage. Since 1971, Clifford has been receiving Veteran‘s Administration and Social Security benefits in excess of $1,000 each month. Frances retired from her employment in 1971 and received a small monthly income thereafter. Before Clifford was injured during the early 1960‘s, he had maintained bank accounts in his own name. After the funds in those accounts were exhausted during the periods of his hospitalization and recovery, these accounts were closed out, and thereafter his income was deposited by Frances into a checking account maintained in the names of Frances and her sister, Mrs. Vivian Wood, until withdrawn by Frances
Clifford was aware of these transactions. After he was injured during the early 1960‘s, he executed and filed of record, and thereafter never canceled, a general power of attorney in favor of Frances. Everyone, including Clifford, agrees that Clifford is not a good businessman; in fact, that he could be a spendthrift, whereas Frances was a skilled and successful manager of financial matters. She placed approximatеly $500 per month from Clifford‘s benefit checks into the savings accounts and certificates. Clifford simply gave Frances his paychecks and his benefit checks and left financial matters entirely up to her. He did not question her actions or her decisions.
Clifford and Frances had several houses in Macon, Georgia that were titled either in Clifford‘s or in Frances’ name during their marriage. Their first residence, purchased in 1951, was at 2784 Alta Vista Avenue. It was titled in Clifford‘s name. A second house was purchased in 1956 at 336 Clinton Street to serve as a place of residence for Frances’ aged parents and her mentally retarded brother. All or a largе part of Frances’ income then was being spent to support her parents and brother. Clifford made the down payment on the Clinton Street property by drawing out his retirement benefits from the company where he then was employed. The Clinton Street property was titled in Frances’ name because Clifford rеgarded it as being a gift to her. In 1962 the proceeds from the sale of the Alta Vista property were used to purchase a residence at 547 Woolfolk Street. The Woolfolk Street property was titled in Frances’ name because, in the words of Clifford, “I gave her power of attorney when I had to go to the hospital so long and she was a good business woman and I saw no reason to change it.” He also testified about the Woolfolk Street property that there was no agreement for her to hold the title in trust for him; rather, “I bought it as ours.”
Clifford has been under periodic psychiatric care for many years, both as an in-pаtient at Veteran‘s Administration Hospitals and as an out-patient. He always has turned himself in when he felt need for care and never has been involuntarily committed. He also has received medical treatment and undergone hospitalization for alcohol abuse and for alcohol and drug abuse.
In 1972, Francеs recorded an instrument in the form of a deed, executed in consideration of love and affection, pursuant to which she purported to convey to herself and her sister Vivian the home in which she and Clifford then were living on Robert Henry Street. The instrument recites: “It is the intention of this instrument to convey unto the grantees herein a present fee simple title to said property as tenants in common and upon the death of either of said grantees herein the interest in said property shall immediately vest in the survivor.” Clifford knew this deed existed, although it is not altogether clear exactly when or how he found out about it. Frances gave Clifford no reason for the deed and Clifford did not ask her about her reasons for it. He merely supposed that “the fact that I stayed in the hospital so much that she left it to where I would have a home and that her sister would be a trustee more or less to see that it didn‘t deteriorate and be done away with.”
Upon the dеath of Frances, Vivian laid claim to all of the money and the house on Robert Henry Street to the total exclusion of Clifford. She did so, according to her evidence, in accordance with the survivorship deed and with Frances’ expression of intent as set forth in a
Vivian testified that although there was an agreement between her and Frances for Frances to leave to her all of Clifford‘s assets, there was no agreement for her to take care of Clifford or to expend any money for his benefit. She later testified that the money and property being left to her was not Clifford‘s; rather, that it all belonged to Frances. She also swore that Frances, as well as Clifford, put money into the various bank accounts, certificates, and homes, some money of which came from Frances’ earnings and some of which came from their mother‘s estate; that the various family members always had helped еach other out financially, including her paying for Frances’ funeral arrangements, and that she and her husband had helped keep Frances and Clifford from losing the Robert Henry Street property when Clifford had been in the hospital. Vivian claimed all of the money and the house as hers alone. She disavowed any obligation to provide anything for Clifford.
Clifford testified positively that he never intended to make a gift of the money or of the Robert Henry Street property to Frances; that all of it was theirs and not hers; that if he ever had known that she was claiming it as hers alone to his complete exclusion, he would have asserted his rights sooner. He thought she was acting for him or for them, not for herself alone.
As to Clifford‘s medical conditions and the reason why Clifford‘s assets were put into Frances’ and Vivian‘s names, Vivian testified, in part, “Well, I don‘t know hardly how to begin to tell you, but over the years the way she made the things—the actions of Mr. Epps caused her to do what she did. That is all I—that‘s the best way I can explain it to you. His actions caused her to have my name on what she had. Q. Was that because she considered him mentally incompetent to handle any business? A. She
Vivian moved for summary judgment against Clifford and the administrator of Frances’ estate. Clifford and the administrator responded in opposition. The trial court granted Vivian‘s motion. These appeals followed.
1. The motion to dismiss the appeal (Case No. 34799) is dеnied, as the appellant‘s brief is not deficient in the respects specified.
2. The trial court erred in granting summary judgment against Clifford Epps if, under the facts presented in support of and in opposition to the motion, a jury would have been authorized to find that there was an agreement, express or implied, between Clifford and Frances Epps for Frances Epps to hold all or part of the subject property in trust for Clifford Epps. It was not the proper function of the trial court in passing upon the motion, nor is it this court‘s function on appeal, to decide whether or not the evidence of such an agreement is “сlear and convincing” as this determination is for the jury. The parties are entitled to introduce, and the jury is entitled to consider, as tending to prove the intention of the parties, evidence relating to the nature and circumstances of the transactions and the conduct and declarations of the partiеs. These principles are well rooted in our jurisprudence.
Clifford Epps denied the existence of any express agreement for Frances to hold the real and рersonal property in trust for him but insisted that he intended for Frances to be acting for him in accordance with the power of attorney that he executed and filed and that never was canceled during her lifetime. Whether or not it legally would have been possible for Frances to have acted for Clifford in аll these respects pursuant to the power of attorney, or whether or not a court would hold that her actions were taken under the power of attorney, is entirely beside the point of inquiry. What is important is whether or not they intended for her to be acting in his behalf since proof of such an intention on their part by clear and convincing evidence would negate a donative intent on his part and would give rise to a resulting trust for him under
A majority of this court has expressed the view that the agreement of a husband and wife for the one to hold the property in trust for the other may arise by implication from the nature and circumstances of the transaction and from the parties’ conduct and declarations concerning the nature of the transaction when the alleged donor‘s proof tends to establish a course of conduct between the parties evidencing such an intention. Talmadge v. Talmadge, supra. Although Justice Hall and I would permit the jury to find the intention of the alleged donor even in those cases in which there is no evidence of an express trust or evidence from which a trust could be implied, a majority of this court has not joined us in these views. Ford v. Ford, 243 Ga. 763 (1979). The present case does not approach any threshold issue since there is evidence here of a longstanding course of conduct between the parties, as well as other evidence requiring the motion to be denied.
Evidence introduced in support of and in opposition to the motion would authorize a jury to find either that Clifford Epps intended to establish a longstanding practice of giving to Frances Eрps, his wife, his entire income and his entire interest in or claim to their marital residence or, instead, that both he and she intended that she was to act as his agent regarding family financial
In the procedural posture of this case at the time of this appeal, it is not for this court to say whether or not the quantum of proof of implied trust is sufficient to meet the “clear and convincing” standard. Freeman v. Saxton, supra.
The trial court erred in granting summary judgment in favоr of Vivian Wood and against Clifford Epps.
3. In Case No. 34800, the administrator of Frances Epps appeals from summary judgment entered against him on Vivian Wood‘s motion. The deed in question was executed in 1972 before the survivorship deed provisions of
Judgment rеversed in Case No. 34799; affirmed in Case No 34800. All the Justices concur, except Jordan, Hill and Bowles, JJ., who concur in the judgment only.
O. L. Crumbley, for appellant (Case No. 34799).
V. J. Adams, Jr., Durward B. Mercer, for appellees (Case No 34799).
Durward B. Mercer, for appellant (Case No. 34800).
V. J. Adams, Jr., O. L. Crumbley, for appellees (Case No. 34800).
HILL, Justice, concurring in judgment.
It has been said before and will be said again: Hard cases make bad law. This is one of them.
In my view, this case is unique. The principal reason it is unique is the power of attorney given by the husband to the wife, the motives which led up to the creation of that power of attorney and the conduct of the parties while it remained in effect. Those facts established a fiduciary (agency) relationship as to transаctions covered by the power of attorney and provide evidence of such relationship as to other transactions. On the one hand this special relationship negates or is evidence tending to negate the presumption of gift from husband to wife.
To me, this is not a resulting trust case. It may be a trust arising from fraud.