Jackson v. Jackson
70 S.E.2d 592
Ga.
1952
Check Treatment

*1 Dawson Lester Watson, plaintiff. Kea and F. for Emory L. Thompson H. Rowland, Dale and Joe Rowland, W. for defendant.

JACKSON et al. v. JACKSON et al. Argued January April 14, No. 17729. 1952— 15,1952 Decided Rehearing May 1952. denied *3 III, plaintiffs. A. C. Felton for persons Alex interest, parties W. at Smith, for not to record. Culpepper Geo. B. Jr. Culpepper and Geo. B. III, for defend- ants. previously Curiam. When this case was before court this

Per (Jackson 602), v. 206 Ga. E. Jackson, 2d, 57 S. it was support held the evidence was insufficient to the verdict. again Upon jury another trial returned a verdict for plaintiff. In record of the trial no second we can find upon substantial difference in the evidence from that adduced trial, accordingly, ruling upon the former and' whether the previously right wrong, evidence when before this court or Langston it has become law the case. & Crane v. Ander son, Georgia 65; Cannon v. Central Ry. Co., (36 99); E. S. & Southern Bank v. Clark, Citizens Nat. (158 297). Ga. 625 S. E.

It given is insisted that in the second trial the evidence by H. additional Huckabee was evidence, substantial sufficient prevent law being of the case from applicable, and author- verdict; being ize the his that, the course of conver- savings sation with Sam showed him Company Trust issued Citizens in the of Mary name Kendrick, said, who, Sam sister. Mr. Huckabee testified it was the custom in banking business in order savings account, to withdraw funds from a must *4 He presented. said, “Sam, further testified that he that some- is body’s passbook.” Sam said, “Yes, my else’s but sir, that is money.” possession

We that savings by cannot see the of the Jackson, or the in fact of the custom banking Sam the business except upon permit not to withdrawals presentation of pass- the book, any of is the addition substantial fact to the record previously before this court. declaration,

Neither we think that sir, do but is “Yes, that

89 my money,” anything pure hearsay is and but evidence could any probative have value. “Declarations of the donor made alleged gift, after time of the the and while the in donee was possession, not disprove although are admissible to the gift, admitting gift other declarations the in are for the evidence (61 donee.” Paris, Paris v. Ga. 491), 341 S. E. 2d, and citations. person wholly “Declarations of in a since deceased, favor the interest declarant, of of which part the and are not a of the gestae, hearsay res are and mere not in evi admissible Drawdy (2) (60 dence.” v. Hesters, 130 Ga. 161 S. E. (N.S.) 190). L. R. proba A. any Nor does such evidence have Higgins 862). (197 tive value. v. E. Trentham, Ga. S. Atkinson, Judgment except concur, reversed. All the Justices P.J., Almand, JJ., Head and who dissent. Justice, Presiding dissenting. previous In the deci

Atkinson, (Jackson v. Jackson, 470), sion it was stated that nothing deposit question was in the record here to show the in savings account, Upon a checking was or a commercial account. trial, savings the it second was shown and in account, to be a addition thereto there was that Sam the Jackson had. passbook in his and that was the in possession, it custom the banking savings in business order to withdraw funds from a account, presented. must be This a material was by fact jury, considered in connection with other evi dence, determining complete in whether there had been a renunci any right deposit. ation of of Sam Jackson over The vital question $12,152.42 deposit was, here whether in the name of Mary Kendrick, by brother, of Ella made Jackson, was, her Sam fact, gift. gift, present a “To make a valid there must be a complete give, intention to and renunciation right, of giver, thing given, power revocation, over the without delivery possession a full as a gift, inter vivos.” Mims v. Ross, 42 121 (2); (136 Clark v. Bridges, 163 Ga. 542 S. E. 444). Mary There was evidence in trial no either that any Kendrick ever deposit except had drawn out from funds this accompanied by when she out who wrote applied proceeds Upon checks and use. his own the second trial, savings it shown was a this account, banking required custom presentation in the business of the *5 undisputed withdrawals, in order make and it was to pass- of the possession Mary that Kendrick never had had until his book, possession in of Sam Jackson but that it was joint control; deposit under death. As between these two the having her without he could not have drawn out these funds without consent sign a his check, nor could she have done so jury from which the produce passbook. These facts to were over by find retention of this control were authorized the complete renun- by funds not such a there was gift necessary over it to constitute a ciation of his dominion as is under 48-103. Code § foregoing, Sam,

In addition to the Huckabee also testified possession sir, in said, “Yes, while of the but that is testimony previously re- my money.” Under the of Huckabee to, jury between the ferred were authorized to find as joint deposit, alleged donee, donor and of this control being proper prove so, and this such declaration was to further possession Such Code, and establish adverse under 38-308. § possession to to establish adverse are not confined declarations possession realty, applicable but are of possession also (2). personalty. Hansell v. true Bryan, And this is though possession joint. Callaway, Dawson v. (4). Relinquishment possession essential is an element gift any going 48-101, to a under Code to show § alleged in possession donor was material the issue and proper along to be jury, facts, considered with other determining the issues. executors,

SALTER et et al. v. al., SALTER.