Opinion
44165.
ARGUED JANUARY 9, 1969.
DECIDED JANUARY 24, 1969.
Complaint. Fulton Superior Court. Before Judge Tanksley.
Sams Sams, Augustine Sams, for appellant.
Weekes Candler, John Wesley Weekes, Gary M. Sams, McChesney Jeffries, for appellees.
1. Where a savings account was opened with a bank in the names of two people under an agreement that it was to be a joint tenancy with right of survivorship, upon the death of one the whole of the interest in the account immediately vested in the survivor.
2. Allegations of inceptive fraud in the obtaining of an agreement of joint tenancy in connection with the opening of the account were pierced by the evidence submitted and the executor of the deceased depositor failed to make a countershowing that a genuine issue as to any material fact remained for submission to the jury. Consequently, the grant of a summary judgment in favor of the surviving depositor was proper.
ARGUED JANUARY 9, 1969 — DECIDED JANUARY 24, 1969.
On August 6, 1961, Lanier R. Billups and Mrs. Katie Houston McDonald applied to First National Bank of Atlanta for the opening of a savings account in their names "as joint tenants and with right of survivorship and not as tenants in common," so that "[u]pon the death of one of us our survivor shall own said deposit and all interest thereon to the exclusion of the other or his estate." The account was opened and funds were deposited to it. Billups died testate January 23, 1966, and there was a balance in the account of $8,539.40. Before probate of the will Mr. Augustine Sams qualified as temporary administrator of Mr. Billups' estate and, in that capacity, made demand on the bank for the balance in the account. The account was closed February 17, 1966, by delivery to Mr. Sams, as temporary administrator, of the balance therein, and therewith he opened a new account in the same bank in his name as temporary administrator of the Billups estate.
The will was probated and Mr. Sams, as executor, brought suit against the bank and against Mrs. McDonald alleging that he was entitled to the funds and prayed judgment therefor.
The bank answered, admitting that the joint account had been opened with it, that at the time of Mr. Billups' death the sum of $8,539.40 was on deposit therein, that thereafter Mr. Sams had made demand on the bank in his capacity as temporary administrator of the estate, that pursuant to his demand the funds had been delivered to him, that he had opened a new savings account with the bank in his name as temporary administrator and that the funds, with accrued interest, were still on deposit. Admitting that Mrs. McDonald had made demand on it for the money, the bank prayed that the executor and Mrs. McDonald be interpleaded and required to set up their respective claims to the funds so that a judgment protecting the bank against a double liability might be entered. An order was entered requiring the parties to show cause why they should not be interpleaded, and in response Mrs. McDonald answered, setting up her claim as the surviving joint tenant. See Code Ann. § 81A-122.
Mr. Sams answered, claiming as executor, and further asserting that if there was a joint tenancy the contract establishing it was void because of inceptive fraud in that Mrs. McDonald, a cousin of Mr. Billups, occupied a confidential relationship, and had promised him at the time of the opening of the account that the funds would be used solely for his benefit in paying medical, hospital and doctors' bills, and that at the time of making the promise she had no intention of performing. He also alleged that she had failed and refused to use the money, or any part thereof, in accordance with the agreement.
Mrs. McDonald moved for summary judgment, submitting in support thereof the pleadings, the contract under which the account was opened, and her affidavit in which she denied that there had been any promise by her to Mr. Billups concerning use of the funds or that he had requested any promise of her, and further asserting that prior to Mr. Billups' death there had been no demand made upon her for the making of any withdrawal from the account.
In opposition to the motion Mr. Sams, as executor, presented affidavits of Agnes Billups and Oswald Billups in which they asserted that Mr. Billups had stated, while at the hospital during his last illness, that Mrs. McDonald was to pay the bills, and that, when the bills for hospital, medical and nursing expense were presented, affiants had stated to Mrs. McDonald that these were to be paid out of the bank account, whereupon Mrs. McDonald had replied that she knew nothing about Mr. Billups' money and bank account.
Other affidavits of Agnes and Oswald Billups were presented in which they asserted that about August 1, 1965, they were at the home of Billups and he had stated to them that he had placed an account with DeKalb County Federal Savings Loan Association in the names of Mrs. McDonald and himself so that she could use the funds to pay his bills during his illness. An affidavit of Nova Scott, who had nursed Billups at his home before he entered the hospital, asserted that after Billups had signed an application for a joint account with right of survivorship, Billups had stated to her that the name of Mrs. McDonald had been placed thereon due to his sickness and so that she might withdraw funds for the purpose of paying his hospitalization and medical expenses. An affidavit of Dr. R. B. Ansley, the attending physician, recited the physical impairments of Mr. Billups during the period from September 19, 1959, until his death, and that for a considerable portion of the time these, together with his addiction to alcohol, had been such that he could not attend to business and banking matters.
Mr. Sams made affidavit that the bank book had been in Billups' possession at the time of his death, thus coming into his hands as temporary administrator and then as executor; that he had demanded the funds of the bank and that pursuant to his demand the funds had been delivered to him in his representative capacity; that Billups had paid intangible taxes on the account, and that Mrs. McDonald had admitted to him that she had made no deposits to it; that she had not paid the hospital, medical and nursing bills, and that he had paid or reimbursed these from other funds of the estate in his hands.
Summary judgment was granted in favor of Mrs. McDonald, and the executor appeals.
1. There is no merit in appellant's contention that the account was not one of joint tenancy or that upon the death of one of the joint tenants the title to the whole of the funds in the joint account did not immediately vest in the survivor to the exclusion of the estate of the deceased tenant. Code § 13-2039; Sams v. McDonald, 223 Ga. 53 ( 153 S.E.2d 538), and citations; Nash v. Martin, 90 Ga. App. 235 (4) ( 82 S.E.2d 658); Sams v. McDonald, 117 Ga. App. 336 ( 160 S.E.2d 594). As was stated in our last case (p. 341): "[U]pon his death all the rights which Billups may have had in the account terminated, and it was wholly vested in Mrs. McDonald. Any change in the status of the account after [Billups' death by delivering the funds to the temporary administrator of his estate] was nugatory and could in no wise affect [Mrs. McDonald's] rights."
2. Although the executor pleads that there was inceptive fraud on the part of Mrs. McDonald which renders the contract of joint tenancy void, in that she promised Mr. Billups at the time the account was opened that she would use the funds therein solely for his benefit in the payment of medical, hospital and like expenses, but at the time of making the promise she had no intention of performing and had not performed, these allegations are pierced by the evidence presented and there is no question left for submission to the jury.
The executor asserts that Mrs. McDonald, being a cousin of Mr. Billups, occupied a confidential relationship with him, but it is well settled that mere kinship of this character gives rise to no confidential relationship. Stephens v. Walker, 193 Ga. 330, 332 ( 18 S.E.2d 537); Crawford v. Crawford, 134 Ga. 114 (1) ( 67 S.E. 673, 28 LRA (NS) 353, 18 AC 932); Watkins v. Mertz, 83 Ga. App. 115, 120 ( 62 S.E.2d 744); Sams v. McDonald, 117 Ga. App. 336, 343, supra.
Mrs. McDonald positively asserts in her affidavit that she had not made any promise to Mr. Billups, nor had he requested any of her in connection with the account, and further asserts that prior to his death no demand had been made upon her to do anything relative to making any withdrawals therefrom. This evidence was admitted without objection, is sufficient to pierce the "inceptive fraud" allegations, and shifted the burden to the executor to make a countershowing and demonstrate the existence of a genuine issue of material fact. Crutcher v. Crawford Land Co., 220 Ga. 298, 304 ( 138 S.E.2d 580). His effort so to do fails.
Even if the affidavits of Agnes and Oswald Billups relative to the account in DeKalb County Federal Savings Loan Association could have any relevance here, they assert no more than that Mr. Billups had stated in the hospital that "Katie was to pay the bills," and that when the hospital, nursing and doctors' bills were presented they then stated to Mrs. McDonald that these were to be paid out of the account, whereupon she replied that she knew nothing of Mr. Billups' money and account. They also asserted that on an occasion when they were in Billups' home he stated to them that he had placed Mrs. McDonald's name on the joint account so that she could make withdrawals for paying his expenses during his illness. This falls far short of proving the existence of any promise on Mrs. McDonald's part to make withdrawals from the account or so to use the funds. The same is true of the affidavit of Nova Scott. Nor do these affidavits prove any demand on Mrs. McDonald prior to Billups' death that she do so. The mere fact that Agnes and Oswald Billups had stated to Mrs. McDonald that the hospital, bills, etc., were to be paid by her from the account is not a demand that she do so, and if it had been in the form of a demand nothing discloses that these affiants were in any legal position to make the demand on her. Neither of them had any interest in the account. Neither appears to have held any power of attorney or other authority from Mr. Billups authorizing him or her to make any demand on Mrs. McDonald. No demand by them on her could have any legal effect unless they could show their right or authority to make it. Gould v. Small, 121 Ga. 747, 748 ( 49 S.E. 723). A demand is an imperative request preferred by one person to another, under a claim of right, requiring the latter to do or to yield something or to abstain from some act. Zimmerman v. Hicks, 7 F.2d 443, 445; Norwood Nat. Bank v. Piedmont Pub. Co., 106 S.C. 472 ( 91 S.E. 866). A demand properly made as to form, time and place, is effective when made by one lawfully authorized to make it. Foss v. Norris, 70 Me. 117.
A directed verdict for Mrs. McDonald would be authorized if the case were being tried before a jury on this evidence, and since the grant of a motion for summary judgment is analogous to the grant of a motion for a directed verdict, it was proper to enter a summary judgment in her favor. Camp v. Fulton County Medical Society, 219 Ga. 602 (1) ( 135 S.E.2d 277).
Judgment affirmed. Bell, P. J., and Deen, J., concur.