Wilson v. Brown
| Decision Date | 09 September 1965 |
| Docket Number | No. 23036,23036 |
| Citation | 221 Ga. 273,144 S.E.2d 332 |
| Parties | J. R. WILSON, Administrator, v. Artelia BROWN. |
| Court | Georgia Supreme Court |
S. S. Robinson, Atlanta, for plaintiff in error.
Marvin G. Russell, Turner Paschal, Atlanta, for defendant in error.
Syllabus Opinion by the Court
J. R. Wilson, Jr., as administrator of the estate of Johnson Brown filed a suit in the Superior Court of Fulton County against Artelia Brown whereby he prayed for judgment against her for $11,794.88 and for a judgment decreeing title in his intestate's estate to certain described realty in Fulton County. His petition alleges: Johnson Brown died March 25, 1964. At the time of his death he had on deposit with Mutual Federal Savings & Loan Association of Atlanta $11,794.88. During his life he delivered his passbook to Mrs. Myrtice Stewart, his agent, for safekeeping. About a week before his death, he instructed her to deliver it to his daughter, Artelia Brown, if he died before he changed his account in such savings and loan association. He made no change in the account and after his death Mrs. Stewart delivered his passbook to the defendant and she withdrew his funds from the association and has refused on demand therefor to account to petitioner for them. The petition further alleges that Johnson Brown purchased a house and lot in Fulton County known as 1156 Hardee Street, N.E., on February 7, 1961, from W. C. Morrissett for a recited consideration of $10 and other valuable consideration and had him convey such property jointly to him and his daughter, Artelia Brown, by a warranty deed; that decedent paid for said realty in full out of his own personal funds that he did not intend for Artelia Brown to have any interest in such property; and that he had her name placed in the deed as one of the grantees only for homestead tax exemption purposes.
The defendant answered the petition and averred that she and her father Johnson Brown on November 16, 1960, opened an account with the Mutual Federal Savings & Loan Association and as evidence thereof a certificate of deposit was issued to them in the name of 'Johnson Brown and/or Artelia Brown' and since she survived her father, she was sole owner of the funds in the account and consequently had a right to withdraw them from the association. Further answering the petition, she averred that she and her father, Johnson Brown, purchased and jointly paid for the land involved and that her father later for a consideration of $10 conveyed his undivided half interest in such property to her by a warranty deed. She further averred that she was in actual possession of such property and had been since February 1961.
The defendant moved for a summary judgment in her favor on the grounds that there was no genuine issue of fact involved in the case and that she was entitled to judgment as a matter of law. In support of her motion she presented to the court an affidavit by Hamilton Glover in which he deposed: He was an officer of Mutual Federal Savings & Loan Association of Atlanta and as such officer had custody and control of its savings account records, including all of the instruments relating to account No. 08973 which was opened on November 16, 1960, in the name of 'Johnson Brown and/or Artelia Brown,' and, as exhibits thereto, he attached photostatic copies of the application Johnson Brown and Artelia Brown made to the association for such share account; a certificate by the association for such share account; a certificate by the association showing that Johnson Brown and/or Artelia Brown held a savings account representing a share in the association 'subject to its charter and by-laws, the Rules and Regulations for the Federal Savings and Loan System, and the laws of the United States of America'; a passbook issued by the association to Johnson Brown and/or Artelia Brown on November 16, 1960, which shows that Artelia Brown withdrew from such account $11,794.88 after the death of Johnson Brown; also an affidavit by the defendant Artelia Brown, in which she deposed: She and her father, Johnson Brown, jointly purchased the land involved from W. C. Morrissett on February 7, 1961, and that her father conveyed his undivided half interest in it to her on December 12, 1963 by a duly executed warranty deed; and also affidavits by Addie G. Barksdale, a notary public, Myrtice Stewart and C. E. Prothro, Sr. who testified they witnessed the signing and delivery of a warranty deed from Johnson Brown to Artelia Brown, his daughter by which he conveyed to her his undivided half interest in the land here involved and there is attached to the latter's affidavit, as an exhibit, a photostatic copy of such deed. The plaintiff responded to defendant's motion for judgment and presented to the court an affidavit by Hamilton Glover to which he likewise attached as exhibits photostatic copies of all of the instruments relating to the account Johnson Brown and/or Artelia Brown had with the association, including orders withdrawing the balance due thereon by Artelia Brown. He also presented an affidavit by Elsie Mills in which she deposed: She was a daughter of Johnson Brown. Her father sold his home in Conyers, Ga., during 1960 for $18,000 and deposited the proceeds from such sale in Mutual Federal Savings & Loan Association of Atlanta in the names of Johnson Brown and/or Artelia Brown; that Artelia Brown owned no part of the funds deposited with the association nor did she thereafter add any funds to the account; and that her father had possession of his passbook at all times until his death. He also presented an affidavit from Myrtice Stewart in which she deposed: Pursuant to oral direction from Johnson Brown, she delivered the passbook which the association had issued to him and/or Artelia Brown to the defendant after his death.
A summary judgment in favor of the defendant was granted and plaintiff excepted to that judgment and sued out a writ of error to this court. Held:
1. Under the provisions of an Act approved March 17, 1959 (Ga. L. 1959, p. 234), a party against whom a cause of action has been filed may at any time move with or...
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