Reynolds v. Dorsey

• Decision Date: 14 June 1939
• Docket Number: 12810.
• Citation: 3 S.E.2d 564,188 Ga. 218
• Parties: REYNOLDS et al. v. DORSEY.
• Court: Georgia Supreme Court

3 S.E.2d 564

188 Ga. 218

REYNOLDS et al. v. DORSEY.

No. 12810.

Supreme Court of Georgia

June 14, 1939

The residuary legatees under the will of A. C. Gann, who died in 1917, brought this action against Hugh M. Dorsey Jr., as executor of the will of Frank Garraux, who had qualified as executor of the will of Gann in 1917, and who died in 1936 and against the defendant as representative in lieu of Garraux of the alleged unadministered residuary portion of the estate of Gann. The petition sought a general accounting as to 'all monies and properties' of the estate of Gann coming into the possession of the defendant, a special accounting and judgment as to an unimproved lot of land which had belonged to Gann, and an accounting and judgment as to a sum of money, deposited in a bank under the following circumstances: Garraux deposited $2,702.26 in the savings department of the Citizens and Southern National Bank of Atlanta to his account as 'administrator' of the estate of A. C. Gann, the last deposit in this account having been made about January, 1925. By additions of interest this deposit was increased to $4,079.39; the money belonged to the Gann estate; and from the inception of the deposit Garraux 'never exercised any individual control or ownership over or in said funds,' but they continued to be designated and held as stated until the death of Garraux. The petition further alleged that by the will of Gann Garraux had been relieved from filing any inventory, appraisement, or return and therefore the plaintiffs had never been informed as to this deposit, or as to the failure of Garraux to fully administer the estate, until they were notified in 1938 by the defendant, administrator of the estate of Garraux, as to the existence of such deposit. The defendant demurred on the grounds that the petition stated no cause of action; and that the plaintiffs were barred by the statute of limitations (Code, § 3-709), and by their laches, on account of their failure to assert their rights for more than 15 years after any cause of action accrued. The plaintiffs assign error on the dismissal of the petition on general demurrer. The court reserved its decision on special demurrers.

Robt. B. Blackburn, of Atlanta, and Dorsey Davis, of Athens, for plaintiffs in error.

Thomas M. Stubbs and Dorsey, Stubbs & Dorsey, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court

JENKINS Justice.

1. By the weight of authority, where a person deposits money in a savings bank to the credit of himself as representative, trustee, or agent of a designated person or estate, this at least prima facie created a tentative trust for the named beneficiary; and where the depositor dies and leaves such an account open and unexplained, without having made any declaration or decisive act of disaffirmance, 'the presumption arises that an absolute trust was created as to the balance on hand at his death.' 3 R.C.L. 715-717; 26 R.C.L. 1201, § 39; 65 C.J. 293, 294. This rule would be applicable where, as alleged in this case, an executor deposited money in the savings department of a bank to the credit of himself as 'administrator' of his designated fiduciary estate, never exercised any act of individual ownership or control over the fund, but allowed it to remain and accumulate interest for more than ten years, and died without attempting to dispose of the funds. On an equitable petition with such averments against the executor of the deceased depositor's will, presumptively a trust existed in favor of the persons entitled to the estate represented by the deceased depositor, which the residuary legatees of the fiduciary estate could assert against the executor of the deceased depositor's will, after the defendant had taken charge of the deposit.

2. 'All actions against executors, administrators guardians, or trustees, except on their bonds, shall be brought within 10 years after the right of action shall have accrued.' Code, § 3-709. 'Subsisting trusts, cognizable only in a court of equity, are not within the ordinary statutes of limitation; but in all cases equity will consider the lapse of time in decreeing an account, and where, from it and other circumstances, it would be inequitable, any relief will be refused.' Code,§ 3-713. Without regard to what particular trusts this statute of limitations and this exception may be intended to cover (Farrar v. Southwestern R. Co., 116 Ga. 337, 345, 42 S.E. 527; Denny v. Gardner, 152 Ga. 602, 608, 110 S.E. 891; O'Neal v. O'Neal, 176 Ga. 418(3), 168 S.E. 262; Wylly v. Collins, 9 Ga. 223(15), 242; Thomas v. Brinsfield, 7 Ga. 154, 157, 158; McDonald v. Sims, 3 Ga. 383(2), 396; Southern Star, etc., Co. v. Cleghorn, 59 Ga. 782, 783; Schofield v. Woolley, 98 Ga. 548, 550, 25 S.E. 769, 58 Am.St.Rep. 315; Tiedeman v. Imperial Fertilizer Co., 109 Ga. 661, 664, 34 S.E. 999; Caldwell v. Hill, 179 Ga. 417, 420, 425, 176 S.E. 381, 98 A.L.R. 1124), it is well settled in this State that not only in express or implied...