Knight v. Jackson

156 Ga. 165 | Ga. | 1923

■Hines, J.

(After stating the foregoing facts.)

Eeal doubt or danger alone authorizes one to file a petition for interpleader. It must appear from the allegations of the petition that the conflicting claims of the defendants are of such character as to render it doubtful or dangerous for the plaintiff to act; and in order to do this it is necessary that such claims be set forth so as to inform the court of their nature, character, and foundation, certainly to the extent of enabling the court to determine whether or not an interpleader is essential to the plaintiff’s protection. National Bank v. Augusta &c. Co., 99 Ga. 286 (25 S. E. 686). The conflicting claims must be of such character as to render it doubtful or dangerous for the plaintiff to act. Civil Code (1910), § 5471. Before “a stakeholder can call upon adverse claimants of a fund in his hands to interplead, he must satisfactorily show to the court that their claims have such a ‘ foundation in law as will create a reasonable doubt ’ as to his safety in undertaking to determine for himself to whom the fund belongs.” It is no longer the rule that the stakeholder is entitled to be put beyond the shadow of a risk. It is not incumbent upon him “ to decide at his peril either close questions of fact, or nice questions of law;” but when he is in possession of all the facts, and the questions of law involved are not intricate nor debatable, from repeated decisions of the courts, a petition for interpleader will not be looked upon with favor, and will be denied. Franklin v. Southern Ry. Co., 119 Ga. 855 (47 S. E. 344).

Under these familiar principles of law, do the facts alleged in plaintiff’s petition make a case for interpleader? The answer depends upon whether either the alleged gift of this money by the donor to the donee was a complete gift or a valid trust in these funds was created in favor of the latter.

“ To constitute a valid gift, there must be the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by law in lieu thereof.” Civil Code (1910), § 4144. Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor, and the transfer of dominion to the donee, is a constructive delivery, § 4147. Whether actual or constructive, there must be an immediate delivery of the chattel by the donor to the donee. Anderson v. Baker, 1 Ga. 595. What are the facts on which this alleged gift rests? The client placed with her attorney for collection a claim against her debtor. After judgment and before anything had been collected thereon, the client directed her attorney to pay over all money which he might collect thereon to her nephew, or to his guardian when appointed. After the money was collected, she directed her attorney to hold the same for her nephew, and to deliver it to him or to his guardian as soon as one should qualify, stating that she had already given the same to her nephew on account of her love for the latter. The client died while these funds were still in the hands of the attorney, and before they had been turned over to the nephew or his guardian by the attorney. Clearly the direction given the attorney by the client before he had collected any money on the judgment, that he was to pay over all money which he might collect thereon to her nephew or to his guardian when appointed, did not create a complete and valid gift in favor of the donee. The subject-matter of the gift was not then in existence, and there was no shadow of delivery, either actual or constructive. The direction by the client to the attorney, after the money had been collected, to hold it for the nephew and deliver it to him or his guardian as soon as one qualified, t coupled with the statement that she had already given the same to the nephew, did not constitute a complete and binding gift. The direction did not contemplate the immediate delivery of the funds to the donee. It clearly contemplated delivery when he became of age or delivery to his guardian when one was appointed. Until such delivery, the attorney held these funds for his client, and she could at any time revoke the direction given him. There was no renunciation of dominion over the funds by the donor nor transfer of dominion to donee, and there was no change of possession of the subject-matter of the gift. Burt v. Andrews, 112 Ga. 465 (37 S. E. 726). This being the case, the death of the donor, with these funds still in the attorney’s hands, was a revocation of his authority.to deliver the funds to the minor or to his guardian. “ Where the owner of money deposited it with another and directed him to deliver the same to a third person as a gift from such owner, he could, at any time before actual delivery to the intended donee and acceptance of the gift by him, recover the money from him with whom it had been so deposited for the purpose stated.” Smith v. Peacock, 114 Ga. 691 (40 S. E. 757, 88 Am. St. R. 53). See Howard College v. Pace, 15 Ga. 486; Burke v. Steele, 40 Ga. 217.

The donor having died before the gift became complete, her administratrix would be entitled to recover these funds from the attorney, unless a valid trust in them in behalf of the donee was created by the donor. The attorney advised his client that' he was holding the moneys collected for her from Livingston, and that he preferred to dispose of thém, as her nephew was a minor without guardian, and not in position, on account of his youth, to receive the funds. The attorney ha.d drawn a check payable to his client for these funds, but she declined to accept it or the money, saying she had given the money to her nephew, and as he had no guardian she would then and there deliver it to the attorney to be held in trust for the nephew, and directed him to tear up the check. Here was an effort on the part of the aunt to create an express trust by parol in behalf of her nephew. She undertook to constitute the attorney a trustee for the nephew. Prior to the Code, a trust in personalty could be created by parol. Kirkpatrick v. Davidson, 2 Ga. 297; Robson v. Harwell, 6 Ga. 589, 603: Since the Code an express trust can not be created without writing. Malone v. Malone, 137 Ga. 429 (73 S. E. 660); Smith v. Peacock, supra; Eaton v. Barnes, 121 Ga. 548 (49 S. E. 593); Oglesby v. Wilmerding, 149 Ga. 45 (99 S. E. 29). So no valid trust in behalf of the nephew was created, as the attempt to do so was by a parol declaration alone. The alleged gift being incomplete from lack of delivery, and the trust in behalf of the nephew being void because declared by parol alone, the plaintiff failed to make out a case of interpleader, and the trial judge did not err in sustaining the demurrer to the petition.

Judgment affirmed.

All the Justices concur.