Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, §§ 3740 and 3741, and former O.C.G.A. §§ 53-12-27 and53-12-91 of the 1991 Trust Act are included in the annotations for this Code section.

Resulting trust is an implied-in-fact or inferred trust. It is not based upon fraud or misrepresentation. On the contrary, the basis of the true constructive trust is fraud, actual or "constructive." Jackson v. Jackson, 150 Ga. 544, 104 S.E. 236 (1920) (decided under former Civil Code 1910, §§ 3740 and 3741).

When A pays the purchase money and causes the deed to be made to A's spouse, and an oral agreement to hold in trust for A is shown to rebut the presumption of gift, the majority view is that the trust is nevertheless resulting if the oral agreement is not different from the agreement which would be implied if the grantee were legally a stranger to A. Jackson v. Jackson, 150 Ga. 544, 104 S.E. 236 (1920) (decided under former Civil Code 1910, §§ 3740 and 3741).

In a divorce, a husband did not show that the transfer of the marital home to the wife for "love and affection" to protect the home from possible future creditors created an implied resulting trust under which the wife held the home for the husband because the husband did not show an express trust had been created or fully performed without exhausting trust property. Brock v. Brock, 279 Ga. 119, 610 S.E.2d 29 (2005) (decided under former O.C.G.A. § 53-12-91).

Loan funds deposited for the purpose of paying a specific creditor.

- Repayment of the loan was not a transfer of an interest of the debtor's property and, therefore, not voidable as a preferential treatment since the funds were loaned to be applied to pay a specific creditor, debtor deposited the funds into a checking account the sole purpose of which was to satisfy that obligation, the debtor understood that the funds could not be used for any other purpose, and the balance in the account always exceeded the amount of the loan before the debtor repaid defendant. Tidwell v. Hendricks (In re McDowell), 258 Bankr. 296 (Bankr. M.D. Ga. 2001) (decided under former O.C.G.A. § 53-12-91).

Rebuttal of resulting trust.

- Resulting trust may be rebutted even by parol declarations of the person in whose favor the trust would otherwise be raised; and it is effectually rebutted by a subsequent deed taken by the same parties proffering to follow the very same trusts. Adams v. Guerard, 29 Ga. 651, 76 Am. Dec. 624 (1859) (decided under former law).

An express oral agreement of the wife to hold in trust for the husband will not operate to defeat the so-called resulting trust. Jackson v. Jackson, 150 Ga. 544, 104 S.E. 236 (1920) (decided under former Civil Code 1910, §§ 3740 and 3741).

Inadequate allegation of resulting trust.

- In an action in which the patients alleged that the hospital was a not-for-profit corporation that charged inflated rates to uninsured patients and used excessively aggressive tactics to collect on unpaid bills, the tax exemption granted under I.R.C. § 501(c)(3) did not create a trust, express or implied, resulting or constructive; furthermore, the patients did not adequately allege a resulting or constructive trust pursuant to former O.C.G.A. §§ 53-12-91 and53-12-93 (see O.C.G.A. § 53-12-130 and53-12-132), respectively. Hogland v. Athens Reg'l Health Servs., F. Supp. 2d (M.D. Ga. Jan. 21, 2005) (decided under former O.C.G.A. § 53-12-91).

Genuine issue of material fact as to whether a constructive trust should be implied.

- Trial court erred in granting summary judgment to a record title holder in a quiet title action because a disputed question of material fact existed whether the holder had agreed to deed back the properties at issue to the claimant after financing fell through; thus, a dispute existed as to whether a constructive trust should be implied under the circumstances. Ansley v. Raczka-Long, 293 Ga. 138, 744 S.E.2d 55 (2013).

Trial court erred in granting an ex-husband summary judgment as to the ex-wife's and mother's implied trust claim because there was a genuine issue of material fact regarding whether an implied constructive trust arose at the time of the 2008 conveyance. Robertson v. Robertson, 333 Ga. App. 864, 778 S.E.2d 6 (2015).

Assuming that a widow's counterclaim against her late husband's two siblings for failure to continue mortgage payments on a home that the husband had bought for another sibling was for a constructive trust on the property, the widow was not entitled to summary judgment because the familial gift presumption applicable to purchase money resulting trusts could apply, or the husband's contributions toward the home could be considered gifts or voluntary payments. Roberts v. Smith, 341 Ga. App. 823, 801 S.E.2d 915 (2017).

Insufficient evidence of a resulting trust.

- Trial court properly granted summary judgment to a parent and trustee of the parent's trust in a suit brought by a child to obtain a half interest in certain real property by the imposition of a resulting trust as there was no dispute that no consideration was paid by the child for the property when the property was acquired. Rosado v. Rosado, 291 Ga. App. 670, 662 S.E.2d 761 (2008) (decided under former O.C.G.A. § 53-12-91).

Although there was no purchase money resulting trust created under former O.C.G.A. §§ 53-12-90 and53-12-91 (see O.C.G.A. §§ 53-12-2 and53-12-130), a decedent's mother was entitled to an equity interest in property of the deceased daughter because a constructive trust was established under O.C.G.A. § 53-12-93(a) and there was evidence of a gift of land under O.C.G.A. § 23-2-132, as an exception to the statute of frauds, in that the mother lived on the property, made valuable improvements, and paid meritorious consideration. Oliver v. 4708 Old Highgate Entry, F. Supp. 2d (N.D. Ga. Apr. 21, 2009);(decided under former O.C.G.A. § 53-12-91).

With respect to a Chapter 11 bankruptcy in which the debtor, a business that served as an intermediary for clients desiring to effect exchanges of real property qualifying for tax-deferred treatment under 26 U.S.C. § 1031, held funds in bank accounts that resulted from certain real estate sales, two real estate exchange investors were not entitled to a turnover of proceeds from sales of their real estate, as opposed to having their claims payable on the same basis as the other unpaid exchangers, because the written agreements between the investors and the debtor specifically and unequivocally defined the circumstances under which the debtor acquired cash proceeds and the use and disposition of those proceeds, but did not create an express trust under former O.C.G.A. § 53-12-20 (see O.C.G.A. § 53-12-20). Nor could the investors establish a resulting trust under former O.C.G.A. § 53-12-91 (see O.C.G.A. § 53-12-130) or a constructive trust under former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-2132). McCamy v. Kerr (In re Real Estate Exch. Servs.), Bankr. (Bankr. N.D. Ga. Oct. 9, 2009);(decided under former O.C.G.A. § 53-12-91).

Best interest of creditors' test under 11 U.S.C. § 1325(a)(4) was not met by the proposed plan of Chapter 13 debtors because the plan did not account for the recoverable value of the debtor's transfer of the debtor's interest in property given to the debtor by the debtor's mother. A resulting trust under O.C.G.A. § 53- 12-130(1) in favor of the mother was not created based on the nature of her transaction and the conduct of the parties, and a purchase money resulting trust under § 53-12-130(3) did not arise because the transfer from the mother to the brothers was made without consideration. Meredith v. Weigl (In re Weigl), Bankr. (Bankr. S.D. Ga. Jan. 18, 2011).

Tax exempt status did not create resulting trust.

- Uninsured patients could not challenge hospital's tax exempt status under 26 U.S.C. § 501(c)(3) by alleging that the hospital breached an implied charitable trust in the hospital's billing and collection policies for uninsured and indigent patients because the tax exempt status did not meet the definition of a resulting trust in former O.C.G.A. § 53-12-91 (see O.C.G.A. § 53-12-130), because there was no allegation of any frustrated intent to form a trust on the part of a settlor. Washington v. Med. Ctr. of Cent. Ga., Inc., F. Supp. 2d (M.D. Ga. Jan. 21, 2005) (decided under former O.C.G.A. § 53-12-91).

Resulting trusts excepted from statute of frauds.

- That the Code excepts from the statute of frauds resulting and constructive trusts is not open to doubt. Jackson v. Jackson, 150 Ga. 544, 104 S.E. 236 (1920) (decided under former Civil Code 1910, §§ 3740 and 3741).

Burden of proof.

- Because a former husband did not present proof of the existence of an implied resulting trust under former O.C.G.A. §§ 53-12-2,53-12-90,53-12-91, and53-12-92 (see O.C.G.A. §§ 53-12-2,53-12-130, and53-12-131), the trial court did not err when the court granted judgment notwithstanding the verdict to the executor and the beneficiaries. Burnett v. Holroyd, 278 Ga. 470, 604 S.E.2d 137 (2004) (decided under former O.C.G.A. § 53-12-91).

Cited in Edwards v. Edwards, 267 Ga. 780, 482 S.E.2d 701 (1997); Dodd v. Scott, 250 Ga. App. 32, 550 S.E.2d 444 (2001).

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, § 135 et seq.

Am. Jur. Pleading and Practice Forms, Trusts, §§ 40 to 56.

Proof of Grantor's Intent that Grantee Hold Property in Trust, 74 POF3d 353.