Brooks v. Brooks

• Decision Date: 24 September 1936
• Docket Number: No. 25511.,25511.
• Citation: Brooks v. Brooks, 54 Ga.App. 276, 187 S.E. 687 (Ga. App. 1936)
• Parties: BROOKS. v. BROOKS et al.
• Court: Georgia Court of Appeals

54 Ga.App. 276

187 S.E. 687

BROOKS.

v.BROOKS et al.

No. 25511.

Court of Appeals of Georgia, Division No. 1.

Sept. 24, 1936.

Syllabus by the Court.

1. To constitute a gift, "there must be in every ease a delivery of some sort, such a delivery as would put it beyond the power of the donor to revoke the gift. He must relinquish all dominion and control over it as his own, and part absolutely with the title." A certificate of deposit representing funds belonging to A and made payable to A or B, the possession and the right to collect dividends or interest thereon being retained by A, would authorize the jury to find that there had been no delivery of the property and consequently no valid gift.

2. An heir at law pecuniarily interested in claiming property adversely to the estate is incompetent to testify to transactions or communications had by him with the intestate in respect to an alleged gift of such property.

3. The evidence authorized the jury to find that counsel was not employed for the benefit of the estate but for personal representation of the administratrix, and consequently that there was no liability upon the estate for his compensation.

4. The evidence supports the verdict, and the judge did not err in overruling the motion for new trial.

Error from Superior Court, Walton County; Blanton Fortson, Judge.

Proceeding by A. M. Brooks and others against Mary Brooks, as administratrix of the estate of Savannah Brooks, deceased. Verdict for plaintiffs, and, to review a judgment refusing a new trial, defendant brings error.

Affirmed.

P. K. Burns, of Decatur, and A. M. Kelly, of Monroe, for plaintiff in error.

Roberts & Roberts, of Monroe, for defendants in error.

GUERRY, Judge.

A. M. Brooks and others, as heirs at law, brought a citation for settlement against Mary Brooks as administratrix of the estate of Savannah Brooks, deceased. It was contended in the citation that the administratrix had not made any accounting for certain time certificates of depost in the Loganville Banking Company. The evidence disclosed that three certain certificates of deposit representing funds owned by the deceased were issued to her before her death; one payable to herself or Alice Brooks, one payable to herself or Mary Brooks, and one payable to herself or Mary Brooks, as guardian for Helen Gross. These certificates remained with the papers of Savannah Brooks, which, until after the death of Savannah Brooks, were kept in the bank in a box owned by Mary Brooks.

The administratrix contended that the certificates were not a part of the "assets of the estate, but were gifts by the deceased before her death. All dividends paid upon these certificates of deposit before the death of Savannah Brooks were paid to her. It further appears from the evidence that one of the plaintiffs, a son of Savannah Brooks, had a similar certificate issued to him, but that Savannah Brooks had the same canceled before her death. The president of the bank, who countersigned the certificate of deposit, testified: "Well, she knocked him out. It was $10,000 made to him, but after that was made he didn't treat her right, and she knocked that up herself and made it to those others." A witness for the defendant testified, in regard to the reasons why Mrs. Brooks made the certificates as they were: "She was just dividing up her estate, so that if she were to die--she said she had that certificate made so that if she were to die it would be...