Edwards v. Edwards , 267 Ga. 780 ( 1997 )

Fletcher, Presiding Justice.

Two sons seek to impress an implied trust on 25.47 acres of land that their father acquired under their mother’s will. The trial court granted summary judgment to the father and the sons appeal. We affirm the grant of summary judgment concerning Bobby Edward’s claim, but reverse the grant concerning Billy Edward’s claim because there is a disputed issue of material fact whether a constructive trust was created.

The procedural posture in this case requires us to view the facts, which are drawn from the pleadings, affidavits, and depositions, in the light most favorable to appellants Bobby and Billy Edwards as the parties opposing summary judgment. Ronnie, Bobby, and Billy Edwards are the sons of Jeanette Short Edwards and appellee David Edwards and the grandsons of Keff and Retha Short. Viewed in the light most favorable to Bobby and Billy, the record shows that Keff Short originally owned the 25.47 acres as a portion of a larger tract that he left to his wife Retha Short in his will. She and her two children agreed that the property would pass eventually to her grandchildren, Ronnie, Bobby, and Billy, as she designated in her will. After Ronnie and Bobby expressed an interest in other land on the “backside” of their grandmother’s property, their grandmother, mother, and father agreed that Billy would receive the 25.47 acres on which the homeplace was located. Since David and Jeanette lived on the property with the boys’ grandmother, they agreed that Billy was to receive the property only after both of his parents died.

In February 1986, their mother executed her will leaving all of her property to her husband. In July 1986, their grandmother executed a deed conveying her property to their mother. The deed was executed at their father’s behest to guarantee that their grandmother would qualify for government assistance if she were required to enter a nursing home. At the time, their grandmother, mother, and father knew that Jeanette Short held the property for the ultimate benefit of her sons. Retha Short died later that year, and Ronnie and Bobby each received approximately 25 acres of land from the “backside” of her property through a deed from their mother, Jeanette. When she died in 1991, her husband received a deed of assent giving him legal title to the 25.47 acres. After he remarried and placed the property for sale, his sons filed this action seeking to stop the sale and impress a trust on the property for Billy’s benefit.

1. The 1991 Georgia Trust Act defines an “implied trust” as “a trust in which the settlor’s intention to create the trust is implied from the circumstances, and which meets the requirements of Code Sections 53-12-90 through 53-12-93.”¹ OCGA § 53-12-90 states that an implied trust is either a resulting trust or a constructive trust. An implied resulting trust can arise under three circumstances: (1) an express trust is created but fails for any reason; (2) a trust is fully performed without exhausting all of the trust property; and (3) a purchase money resulting trust is established.²

Even construing the facts in the light most favorable to the sons, we conclude that they have failed to allege a disputed issue concerning the existence of a resulting trust. They have not alleged any of the circumstances enumerated under the statute by which the trier of fact could determine that their mother intended for her husband to hold the property in trust for their son. Specifically, the sons presented no evidence that an express trust was created, a trust was fully performed without exhausting all of the trust property, or they paid consideration for legal title of the property to be transferred to their father.

2. The second kind of implied trust is a constructive trust. OCGA § 53-12-93 defines a constructive trust as “a trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.” In cases involving implied trusts, the court may hear parol evidence on the nature of the transaction, the circumstances, and the parties’ conduct.³

Again construing the evidence in the light most favorable to the sons, we find that they have raised a disputed issue of material fact concerning whether a constructive trust should be implied based on the circumstances. They contend that their father agreed with their grandmother and mother that the 25.47 acres would remain in the family and eventually go to Billy as his share of his maternal grandparents’ property. The family discussed the agreement at various holiday gatherings. Their grandmother executed a will consistent with that promise, but at David Edwards’ direction deeded the property to her daughter. After Retha Short died a few months later, their mother gave both Ronnie and Bobby a deed to approximately 25 acres of their grandmother’s land, consistent with the alleged agreement. Billy, the remaining grandson, did not inherit his share of the property because he was to receive the 25.47-acre homeplace after his parents died. To allow the father to sell the property while holding it for Billy’s ultimate benefit would result in the father’s unjust enrichment. Since this evidence is sufficient to raise á disputed issue of material fact whether David and Jeanette Edwards agreed with Retha Short to hold the homeplace in trust for Billy, we reverse the trial court’s grant of summary judgment on Billy’s claim.⁴

3. We affirm the grant of summary judgment concerning Bobby Edwards because he testified that he was not asserting any personal claim to the disputed 25.47 acres.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Benham, C. J, and Carley, J., who dissent in part.

1 OCGA § 53-12-2.

2 OCGA § 53-12-91.

3 OCGA § 53-12-94.

4 See Conner v. Conner, 250 Ga. 27, 29 (295 SE2d 739) (1982) (trial court erred in granting motion to dismiss when evidence at trial was sufficient to raise a jury issue of existence of implied trust).