DocketNumber: S97A0050
Citation Numbers: 482 S.E.2d 701, 267 Ga. 780, 97 Fulton County D. Rep. 605, 1997 Ga. LEXIS 59
Judges: Fletcher, Benham, Carley
Filed Date: 2/24/1997
Status: Precedential
Modified Date: 10/19/2024
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
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.”
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.
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 grand
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.
OCGA § 53-12-2.
OCGA § 53-12-91.
OCGA § 53-12-94.
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).