Opinion
17729.
ARGUED JANUARY 15, 1952.
DECIDED APRIL 14, 1952. REHEARING DENIED MAY 14, 1952.
Equitable petition. Before Judge A. M. Anderson. Crawford Superior Court. October 8, 1951.
A. C. Felton III, for plaintiffs.
Alex W. Smith, for persons at interest, not parties to record.
Geo. B. Culpepper Jr. and Geo. B. Culpepper III, for defendants.
This case was previously before this court and reversed by reason of the insufficiency of the evidence; and there being no substantial difference in the evidence adduced upon the second trial, the previous decision has become the law of the case.
No. 17729. ARGUED JANUARY 15, 1952 — DECIDED APRIL 14, 1952 — REHEARING DENIED MAY 14, 1952.
This case was previously before this court. Jackson v. Jackson, 206 Ga. 470 ( 57 S.E.2d 602). It is here now on exception to the denial of a motion for new trial. The jury found for the plaintiff in the lower court. The sole question at issue was the ownership of a savings deposit of $11,050.58 in the Citizens Trust Company. The plaintiff in the lower court contended that it was the property of Sam Jackson, deceased, and the defendant insisted that it belonged to Mary Ella Kendrick, a sister of Sam Jackson. There was evidence that, prior to the death of Sam Jackson, he with his sister Mary Ella Kendrick, went to the bank March 13, 1947, and drew from his account $12,152.42, and at the same time there was deposited that amount in a savings account in the name of Mary Ella Kendrick. At the time of Sam Jackson's death March 7, 1948, the account had been reduced to $11,050.58. The record does not disclose the exact manner by which this account was reduced, but there were some withdrawals. Whether any additional deposits were made does not appear.
At this time Sam Jackson was not living with his wife and minor children. There was a pending divorce suit. He had been previously married and had two grown sons, Henry James and Sam Jr., by a former wife.
Following his death, the $11,050.58 was withdrawn from the bank by Mary Ella Kendrick. Subsequently she was arrested, and while under arrest signed a written statement of questions and answers propounded by an agent of the Georgia Bureau of Investigation in the presence of W. H. Beeland, Sheriff of Peach County, both of whom testified that the statement was freely and voluntarily made and signed. In this statement she said: The $11,000 in the Citizens Trust Co. was in her name, but her brother Sam Jackson who died put it there and it was his money and he put it in her name. After her brother died, she and Sam Jackson Jr. drew the money out. Henry James Jackson and her brother Handy Jackson were there. She never signed any other check. Sam Jackson never told her he gave her the money. He told her he put some money in her name, but didn't tell her how much. When she signed the check Sam Jr. got the money and gave her some. He gave James some, but she did not know if he gave any to Handy. She never did have any bank book. Sam and James had the bank book. The money belonged to her brother Sam Jackson, who is dead. It was not her money, it was only in her name. She didn't know why he put it there.
In her testimony Mary Ella Kendrick stated: "I am the sister of Sam Jackson. Me and him deposited some money in a bank. . . I don't know how much it was. . . Some of it was my money. . . Sam gave it to me. . . I didn't ever write no checks, he done the writing of the check. . . I can't remember how much it was. . . I live . . in Fort Valley. . . I remember one day I talked to Mr. James P. Hillen about this money, but I had high blood [pressure] heap of things. I said I didn't know what I was saying. . . I don't know if Mr. Beeland, the sheriff of Peach County was there. . . Mr. Hillen told me if I didn't sign that paper he would put me in jail. . . I went up there twice after Sam's death. I went to the bank both times. I got some money the first time. . . I don't know how much I got the second time. . . I don't know whether it was about a thousand dollars or about . . ten thousand dollars. . . The boys took me up there. . . They were my dead brother's boys. . . I saw the pass book that had my name on it. . . I drawed the money out with it. . . I drawed the money in the bank. . . Me and the boys picked it up; divided three piles. . . I don't know how much it was there. . . As to whether Sam [Jr.] and James had the book — I never seed no book. . . I knew the money was in my name. . . I didn't know it was mine until I got up there. . . I spent the money, but I don't know how much . . I drew out or spent. . . Young Sam was there with me and got some of the money. Handy was there, but he didn't get any of the money. . . I don't have any of Sam Jackson's money now, I spent it. . . The bank told me it was my money. Sam told me it was in my name. . . He did not tell me it was mine. . . He told me it was in my name. As to whether he never told me it was mine — no sir, but I knowed it was mine and the boys. . . Sam had the bank book up until the time that he died. I got it when I went to draw this money, that is the time I got the bank book, after Sam had died. . . Sam kept it until after he died. . . I didn't have any control over that money until Sam died. . . I said he put it in there in my name, . . but he did not tell me it was mine. . . I never did claim it until after he died. . . I was going to draw it out and get some of it. I didn't know it was mine, he never have told me, I didn't know he give it to me but I know it was in my name and I could get some of it. . . I cannot write my name. I make an `x' mark."
Handy Jackson testified that Sam Jackson told him a year before he died that he gave Mary Ella that money.
A. W. Dahlberg and Leyton Shepard both testified that, after the death of Sam Jackson, they saw her in her home, and Mary Ella Kendrick stated that she knew nothing about a bank account in Atlanta, and had no such account.
H. Huckabee, vice-president of the Bank of Fort Valley, testified that Sam Jackson was in his bank a short time before he died and had a cashier's check on the Citizens Trust Company of Atlanta, and in the course of conversation Sam showed him a passbook he had, a savings passbook issued by the Citizens Trust Company in the name of Mary Ella Kendrick; he said she was his sister, and he told Sam that was somebody else's passbook, and that he said, "Yes sir, but that is my money." The amount was up to nine or ten thousand dollars. He further testified that it is customary with banks not to pay out large amounts on savings accounts without presenting the passbook.
The testimony further showed that, when the money was withdrawn, Handy Jackson, the brother of Mary Ella Kendrick, and Henry James and Sam Jr., the two grown sons by a former marriage of Sam Jackson, were with Mary Ella Kendrick, in the bank; that, when the money was withdrawn, it was divided by Henry James and Sam Jr.; and that Mary Ella got none of it.
When this case was previously before this court ( Jackson v. Jackson, 206 Ga. 470, 57 S.E.2d 602), it was there held that the evidence was insufficient to support the verdict. Upon another trial the jury again returned a verdict for the plaintiff. In the record of the second trial we can find no substantial difference in the evidence from that adduced upon the former trial, and accordingly, whether the ruling upon the evidence when previously before this court was right or wrong, it has become the law of the case. Langston Crane v. Anderson, 69 Ga. 65; Cannon v. Central of Georgia Ry. Co., 111 Ga. 837 ( 36 S.E. 99); Citizens Southern Nat. Bank v. Clark, 172 Ga. 625 ( 158 S.E. 297).
It is insisted that in the second trial the evidence given by H. Huckabee was additional and substantial evidence, sufficient to prevent the law of the case from being applicable, and to authorize the verdict; his evidence being that, in the course of conversation with Sam Jackson, Sam showed him a savings passbook issued by the Citizens Trust Company in the name of Mary Ella Kendrick, who, Sam said, was his sister. Mr. Huckabee testified that it was the custom in the banking business that, in order to withdraw funds from a savings account, the passbook must be presented. He further testified that he said, "Sam, that is somebody's else's passbook." Sam said, "Yes, sir, but that is my money."
We cannot see that the possession of the savings passbook by Sam Jackson, or the fact of the custom in the banking business not to permit withdrawals except upon presentation of the passbook, is the addition of any substantial fact to the record previously before this court.
Neither do we think that his declaration, "Yes, sir, but that is my money," is anything but pure hearsay evidence and could have any probative value. "Declarations of the donor made after the time of the alleged gift, and while the donee was in possession, are not admissible to disprove the gift, although other declarations admitting the gift are in evidence for the donee." Paris v. Paris, 207 Ga. 341 ( 61 S.E.2d 491), and citations. "Declarations of a person since deceased, wholly in favor of the interest of the declarant, and which are not a part of the res gestae, are mere hearsay and not admissible in evidence." Drawdy v. Hesters, 130 Ga. 161 (2) ( 60 S.E. 451, 15 L.R.A. (N.S.) 190). Nor does such evidence have any probative value. Higgins v. Trentham, 186 Ga. 264 ( 197 S.E. 862).
Judgment reversed. All the Justices concur, except Atkinson, P.J., Head and Almand, JJ., who dissent.
In the previous decision ( Jackson v. Jackson, 206 Ga. 470), it was stated that there was nothing in the record to show the deposit here in question was a savings account, or a commercial checking account. Upon the second trial, it was shown to be a savings account, and in addition thereto there was evidence that Sam Jackson had the passbook in his possession, and that it was the custom in the banking business that, in order to withdraw funds from a savings account, the passbook must be presented. This was a material fact to be considered by the jury, in connection with other evidence, in determining whether there had been a complete renunciation of any right of Sam Jackson over the deposit. The vital question here was, whether the deposit of $12,152.42 in the name of Mary Ella Kendrick, made by her brother, Sam Jackson, was, in fact, a gift. "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); Clark v. Bridges, 163 Ga. 542 ( 136 S.E. 444). There was no evidence in either trial that Mary Ella Kendrick had ever drawn out any funds from this deposit except when she was accompanied by Sam Jackson, who wrote out the checks and applied the proceeds to his own use. Upon the second trial, it was shown that this was a savings account, that the custom in the banking business required the presentation of the passbook in order to make withdrawals, and it was undisputed that Mary Ella Kendrick had never had possession of the passbook, but that it was in the possession of Sam Jackson until his death. As between these two the deposit was under joint control; he could not have drawn out these funds without having her sign a check, nor could she have done so without his consent to produce the passbook. These were facts from which the jury were authorized the find that by the retention of this control over the funds by Sam Jackson, there was not such a complete renunciation of his dominion over it as is necessary to constitute a gift under Code § 48-103.
In addition to the foregoing, Huckabee also testified that Sam, while in possession of the passbook said, "Yes, sir, but that is my money." Under the testimony of Huckabee previously referred to, the jury were authorized to find that, as between the alleged donor and donee, there was a joint control of this deposit, and this being so, such declaration was proper to further prove and establish his adverse possession under Code, § 38-308. Such declarations to establish adverse possession are not confined to the possession of realty, but are also applicable to possession of personalty. Hansell v. Bryan, 19 Ga. 167 (2). And this is true though the possession be joint. Dawson v. Callaway, 18 Ga. 573 (4). Relinquishment of possession is an element essential to a gift under Code § 48-101, and any evidence going to show possession in the alleged donor was material to the issue and proper to be considered by the jury, along with other facts, in determining the issues.