Culpepper v. Culpepper

• Decision Date: 30 May 1916
• Docket Number: 6673.
• Citation: 89 S.E. 161,18 Ga.App. 182
• Parties: CULPEPPER v. CULPEPPER.
• Court: Georgia Court of Appeals

89 S.E. 161

18 Ga.App. 182

CULPEPPER v. CULPEPPER.

No. 6673.

Court of Appeals of Georgia

May 30, 1916

Syllabus by the Court.

To constitute a valid gift, there must be the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof. Civil Code 1910, § 4144. The intention to give must be expressed. Acceptance by the donee (being generally presumed) may be implied; and, though delivery must be proved, it may be proved by circumstantial as well as by direct evidence.

According to the evidence for the plaintiff, R., her uncle by marriage in the presence of his wife, who was the plaintiff's aunt, expressed an intention to give to the plaintiff certain money, which apparently he had obtained by his marriage. A few weeks thereafter R.'s wife died, the plaintiff soon received by mail a negotiable time certificate of deposit for $250, which had been issued by a bank to R. and was payable to his order, and some months later R. died. In this suit the plaintiff sought to establish her claim of ownership of the certificate of deposit. There was evidence for the defendant that after the time at which, according to the plaintiff's testimony, she received the certificate of deposit, R., the alleged donor, complained that his certificate of deposit had been stolen; but the credibility of this testimony, as well as that in regard to the appearance of the postmark upon the envelope in which the certificate of deposit was said to have been mailed, was a matter for the jury, who had other testimony upon the subject which afforded a plausible reason for R.'s statements, if such were made, and the jury also had before them the envelope itself containing the postmark. The certificate of deposit was not indorsed by R., but there was testimony that he was more than 74 years of age, that the deposit was made and the certificate of deposit taken by an agent in his behalf, and that for several years prior to the time of the alleged gift he was not accustomed to writing. In this state of the testimony a verdict for the plaintiff was not unauthorized by the evidence.

Though delivery of a nonnegotiable instrument is not sufficient to prove a gift, the certificate of deposit in the present case though not indorsed by the payee, was negotiable, because it was capable of being transferred by mere indorsement. And since "possession of a negotiable instrument is presumptive evidence of title" (Nisbet v Lawson, 1 Ga. 284), a gift of money represented by a time certificate will not be defeated, if the circumstances indicate that the omission to reduce to writing the evidence of the transfer of the legal title was due to ignorance accident, or mistake. A person in possession of personal property is presumed...