188 Ga. 426 | Ga. | 1939
(After stating the foregoing facts.) The question presented by this record is whether or not the fact that a deposit was made by Mrs. D. E. Wilder in the Georgia Savings Bank & Trust Company in her name as trustee for Alice Frances Wilder is sufficient to show an intention to create a trust. This exact question has not been decided by this court, and the decisions of the courts of other jurisdictions are somewhat at variance. According to some decisions, the mere fact, standing alone, thai deposit was made by one person in trust for another, creates a presumption that an irrevocable trust was intended, and, unexplained, is conclusive in establishing such trust as of the time the deposit was made, thus invalidating any subsequent dealings by the depositor with the funds deposited, except in his capacity as trustee. See Sayer v. Weil, 94 Ala. 466 (10 So. 546, 15 L. R. A. 544); Milholland v. Whalen, 89 Md. 212 (43 Atl. 43, 44 L. R. A. 205); Connecticut River Savings Bank v. Albee, 64 Vt. 571 (25 Atl. 487, 33 Am. St. R. 944); Hoboken Savings Bank v. Schwoon, 62 N J. Eq. 503 (50 Atl. 490); Merigan v. McGonigle, 205 Pa. St. 321 (54 Atl. 994). The weight of authority, however, supports the doctrine that the mere fact of such a deposit, standing alone, does not establish an irrevocable trust, but a tentative trust merely, which is revocable at the will of the depositor until he dies or completes his gift in his lifetime by some unequivocal act or declaration showing an intention to create the trust. Cummings v. Bramhall, 120 Mass. 564; Scrivens v. North Easton Savings Bank, 166 Mass. 255 (44 N. E. 251); Cleveland v. Hampden Savings Bank, 182 Mass. 110 (65 N. E. 27); Marcy v. Amazeen, 61 N. H. 131 (60 Am. R. 320); Cunningham v. Davenport, 147 N. Y. 43 (41 N. E. 412, 32 L. R. A. 373, 49 Am. St. R. 641); People’s Savings Bank v. Webb, 21 R. I. 218 (42 Atl. 874); Re Totten, 179 N. Y. 112 (71 N. E. 748, 70 L. R. A. 711, 1 Ann. Cas. 900). While there.ar.e other decisions holding that such a deposit, standing alone, creates neither a tentative nor an irrevocable trust (Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, 6 Am. R. 222; Clark v. Clark, 108 Mass. 522), in 7 Am. J.ur. 309, § 438, the conflict of decisions on this question is recognized, and it is asserted that-the weight of authority supports the doctrine that such a deposit, standing alone, establishes a tentative trust, which is revocable .at the will of the depositor until he dies or completes the gift by. some
In 65 C. J. 293-294, § 68, it is said: "In some jurisdictions, while it is recognized that a trust in respect of a deposit in bank which is absolute and irrevocable by the donor or depositor may be created, the courts have recognized so-called tentative trusts in respect of such deposits in cases in which usually, if not always, saving deposits or accounts are involved. Whether the trust is tentative or irrevocable depends on the intention of the depositor or donor, determinable as a question of fact. Where the foregoing distinction is recognized, in general a deposit by one person of his own money in his own name as trustee for another, standing alone, creates merely a tentative trust, revocable at the will of the depositor during his lifetime, becoming absolute and irrevocable on the death of the depositor before the beneficiary without revocation or some decisive act or declaration of disaffirmance, and entitling the beneficiary to the balance remaining at the time of the depositor’s death, but not to anything more than such balance.” In 9 C. J. S. 1418, § 995, it is said: "Where a deposit is made in the name of the depositor as trustee, the fund presumably belongs to the cestui que trust; but this presumption may be rebutted by evidence showing that the money was that of the depositor who had no intention of giving it to the person named as cestui que trust.” In American Law Institute’s Eestatement of the 'Law of Trusts, 183, § 58, comment (b), it is said: “A tentative trust of a savings deposit in a bank can be revoked by the depositor at any time during his lifetime, by a manifestation of his intention to revoke the trust. No particular formalities are necessary to manifest such an intention. If he withdraws any part of the deposit during his lifetime, the withdrawal operates as a revocation of the trust to the.extent of such withdrawal, and the beneficiary will be entitled only to the amount remaining on deposit at the death of the depositor.” It is further stated that if the beneficiary should die before the depositor dies, the trust is terminated, although the depositor should subsequently die without manifesting an intention to revoke the trust; and that such a trust can be revoked by the depositor by his will, if he makes a disposition of his property which can not be carried out without using the deposit.
Defendants in error contend that because of the facts that tes
It is urged by defendants in error that since the trust here relied upon was an express trust, to be valid it must be expressed in writing as required by the Code, § 108-105. A sufficient answer is the testimony of an agent of the bank, that at the direction of the depositor a written entry of deposit was made on the records of the bank in the name of the depositor as trustee for the plaintiff in
It is further contended that the deposit here involved was testamentary in character, and therefore was void because violative of the wills act, in that it was not executed with the formalities required in the execution of a will. In the first place, the intention of the depositor at the time the deposit is made is, under the authorities, the controlling question as to whether or not a trust is created; and since the deposit here involved, standing alone, is held to be presumptively a tentative trust, unless evidence is produced showing that the depositor had no intention of creating a trust, or that she later revoked the same, it stands as an executed trust as of the time of its creation. Furthermore, in the States where the courts have sustained similar deposits as tentative trusts (which decisions are cited above) the wills act is of force; and those decisions are adjudication that such a deposit is not testamentary in character. In American Law Institute’s Restatement of the Law of Trusts, § 57(3), a number of described intended trusts are said to be testamentary; but § 58 of the same work (heretofore quoted) declares that a deposit made and handled as the one involved in the instant case is a valid trust, is expressly excepted from the rule declaring other trusts testamentary; and in the comment (p. 175)-^ it is said: “Where the owner of property transfers it inter vivos to another person in trust, the disposition is not testamentary merely because the interest of the beneficiary does hot take effect in enjoyment or possession before, the death of the settlor, or because in addition he reserves power to revoke or modify the trust. In such a ease the trust is created in the lifetime of the settlor; and the mere fact that he can destroy it or alter it does not make the disposition testamentary, although if the trust were not to arise until his death the intended trust would be testamentary.” Buteau v. LaValle, 284 Mass. 276 (187 N. E. 628); 1 Bogart on Trusts 221, § 47; 68 C. J. 620, § 241; 12 R. C. L. 949, § 24. The deposit here involved was not testamentary.
Judgment reversed.