Nash v. Martin, 35178

• Citation: 90 Ga.App. 235,82 S.E.2d 658
• Decision Date: 12 May 1954
• Docket Number: No. 35178,No. 2,35178,2
• Parties: NASH v. MARTIN et al
• Court: United States Court of Appeals (Georgia)

Page 658

82 S.E.2d 658

90 Ga.App. 235

NASH v. MARTIN et al.

No. 35178.

Court of Appeals of Georgia, Division No. 2.

May 12, 1954.

Rehearing Denied May 27, 1954.

E. C. Harvey, Jr., E. T. Hendon, Jr., Decatur, for plaintiff in error.

Weekes & Candler, John Wesley Weekes, J. A. McCurdy, Decatur, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. Code, § 13-2039, providing in substance that, when a bank deposit is made payable to either of two named persons or the survivor, such deposit may be paid to either of said persons whether the other is living or not, and the receipt of the person so paid shall be a valid and sufficient release and discharge to the bank for the payment made, has reference only to the liability of the bank as to such deposit, and does not affect the right of the property as between the parties. Clark v. Bridges, 163 Ga. 542, 546, 136 S.E. 444.

2. Where a deposit is made to an account of two persons which is 'payable to either or the survivor,' and one of such parties dies, and a contest arises between the executor or administrator of the deceased and the other party to the deposit, a question of fact arises as to which of the parties to the deposit the fund belongs. See Compton v. Hendricks, 154 Ga. 808, 115 S.E. 654; Clark v. Bridges, supra. Also, where a deposit is made in the names of two persons jointly with no mention of right of survivorship, both of whom subsequently die, title to the fund vests jointly in the estates of the decedents, but in a contest between the administrators of such estates it may be shown that the fund in fact belonged to one of the parties to the exclusion of the other. First National Bank v. Sanders, 31 Ga.App. 789(3), 122 S.E. 341; same case, 33 Ga.App. 615, 127 S.E. 658.

3. The common law doctrine of survivorship among joint tenants was abolished by the Constitution of 1777. Lowe v. Brooks, 23 Ga. 325, 332. See also Code, § 85-1002. However, as stated in Equitable Loan & Security Co. v. Waring, 117 Ga. 599(9), 44 S.E. 320, 62 L.R.A. 93: 'Joint tenancy, with its incident of survivorship, as it existed at common law, is abolished. While survivorship is not favored by the law of this state, and will never arise by operation of law, it is not prohibited, and, when a contract provides for it in express terms, or by necessary implication, the law will allow the contract to be enforced.' 'Of course, all presumptions are against such an intention, but where the contract or will provides, either in express terms or by necessary implication, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such doctrine may not become operative under the laws of this state.' Id., 117 Ga. at page 676, 44 S.E. at page 353.

4. Accordingly, where it appears here, from the pleadings and stipulated facts upon which the trial court rendered judgment without the intervention of a jury that Mr. and Mrs. M. E. Nash had on account with Decatur Federal Savings & Loan Association a...