Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 3160, former Civil Code 1910, §§ 3739, 3740, and 3741, former Code 1933, §§ 108-106 and 108-116, former Code 1981, O.C.G.A. § 53-12-28, and former O.C.G.A. § 53-12-92 of the 1991 Trust Act are included in the annotations for this Code section.

Statute is applicable when the wife, child, or sister pays the purchase money as well as when the husband, parent, or brother pays it. Woodward v. Woodward, 245 Ga. 550, 266 S.E.2d 170 (1980) (decided under former Code 1933, § 108-116).

Intention to make a gift.

- As between husband and wife, parent and child, brother and brother, or sister and sister, payment of the purchase money of land by one of the correlatives, and causing the conveyance to be made to the other, will generally suggest an intention to make a gift. This may or may not prevent a resulting trust, according to the circumstances of the particular transaction. Certainly, a trust for the benefit of the one paying the money does not necessarily result. Printup v. Patton & Jackson, 91 Ga. 422, 18 S.E. 311 (1893) (decided under former law).

Property between spouses.

- When the court charged that if the husband conveyed property to the wife and she paid the remainder of the purchase price without anything showing that it was for the purpose of securing the part paid, a presumption arises that it was a gift which may be rebutted; there was no application and the principle announced in Gould v. Glass, 120 Ga. 50, 47 S.E. 505 (1904). Barnett v. Strain, 151 Ga. 553, 107 S.E. 530 (1921) (decided under former Civil Code 1910, § 3740).

Whenever a husband acquires the separate property of his wife, with or without her consent, he must be deemed to hold the property in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of the property to him. Barber v. Barber, 125 Ga. 226, 53 S.E. 1017 (1906) (decided under former law).

After a debtor appealed a bankruptcy court's order finding that the debtor's transfer of half interest in three lots of real property to the debtor's spouse was a fraudulent conveyance, the debtor's spouse was not entitled to an implied purchase money resulting trust. The spouse did not pay consideration for the property to be transferred to the debtor when the debtor initially acquired the property, and the spouse did not own a half interest in the property by virtue of a purchase money resulting trust or otherwise. McFarland v. Wallace (In re McFarland), F. Supp. 2d (S.D. Ga. Aug. 8, 2014), aff'd, 619 Fed. Appx. 962 (11th Cir. Ga. 2015).

Requirements to show existence of purchase money resulting trust.

- In order to establish the existence of a purchase money resulting trust, one must show that such a trust was contemplated by both parties by way of an agreement that is either express or implied by the circumstances or conduct of the parties and such an agreement must have existed at the time the transaction was consummated. Burt v. Skrzyniarz, 272 Ga. 35, 526 S.E.2d 848 (2000) (decided under former O.C.G.A. § 53-12-92).

An absolute gift cannot, by events transpiring after the gift is made, be metamorphosed into a trust. Whitworth v. Whitworth, 233 Ga. 53, 210 S.E.2d 9 (1974) (decided under former Code 1933, § 108-116).

With the undisputed evidence showing a voluntary, intentional, and deliberate gift of the property by the husband to the wife, who had no knowledge of the transaction, and made no promise or agreement to hold the property for the husband, such gift cannot be cut down to an implied or resulting trust by events subsequently transpiring; and therefore, the declarations of the wife, after she had knowledge of the deed, as to the ownership of the property, and the payment of taxes and the making of improvements on the property by the husband, are insufficient to establish a resulting trust. Williams v. Thomas, 200 Ga. 767, 38 S.E.2d 603 (1946) (decided under former Code 1933, § 108-106).

An absolute gift will not be cut down by implication into a trust merely because the donor hoped and believed, at the time the gift was made, that the donee would share the beneficial interest of the property with the donor or with a third person. It must appear from the entire transaction that there is an obligation on the part of the holder of the legal title to hold the property for the benefit of someone else. Williams v. Thomas, 200 Ga. 767, 38 S.E.2d 603 (1946) (decided under former Code 1933, § 108-106).

Illegal acts may not constitute basis for trust.

- Husband who, in order to delay or defeat the collection of a claim for alimony or other lawful demands against him, conveyed land to another person and put that person in possession, could not maintain against the latter an action for the breach of a bond given by him to reconvey the land whenever so required. This is so, not because the law is disposed to aid one of the wrongdoers in retaining the fruits of the unlawful transaction, but because the law denies the benefit of the law's remedies to the other. Langan v. Langan, 224 Ga. 399, 162 S.E.2d 405 (1968) (decided under former Code 1933, §§ 108-106 and 108-116).

Joint purchasers of property cannot intend to simultaneously create both a tenancy in common and a purchase money resulting trust.

- Resulting trust may be found to exist if it is found that a tenancy in common was not established when the property was purchased, however, joint purchasers of property cannot intend to simultaneously create both a tenancy in common and a purchase money resulting trust since the two cannot co-exist. Burt v. Skrzyniarz, 272 Ga. 35, 526 S.E.2d 848 (2000) (decided under former O.C.G.A. § 53-12-92).

After the debtor sought a determination of the validity and extent of a lien held by a creditor on certain properties and also asserted that, even if the lien was valid, the properties were subject to equitable interests held by other entities, the court could not weigh and balance the evidence needed to determine whether purchase money resulting trusts arose under Georgia law on summary judgment. High-Top Holdings, Inc. v. RREF II BB Acquisitions, LLC (In re High-Top Holdings, Inc.), 564 Bankr. 784 (Bankr. N.D. Ga. 2017).

Contribution to purchase home for children constituted gift.

- Plaintiff's monetary contributions to the purchase, renovation, and maintenance of a home created an implied trust, giving the plaintiff an interest in the real property. Inasmuch as plaintiff, who made a $10,000 down payment, was a parent of the persons to whom title to the property was transferred, it was presumed that the plaintiff's $10,000 payment was a gift. Eason v. Farmer, 261 Ga. 675, 409 S.E.2d 509 (1991) (decided under former O.C.G.A. § 53-12-92).

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).

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. § 53-12-92).

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 former O.C.G.A. § 53-12-93 (see O.C.G.A. § 53-12-132) 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. § 53-12-92).

Cited in Rucker v. Hunt, 174 Ga. App. 596, 163 S.E. 612 (1932); Harrell v. Fiveash, 182 Ga. 324, 185 S.E. 327 (1936); Ward v. Ward, 186 Ga. 887, 199 S.E. 195 (1938); Allen v. Allen, 198 Ga. 269, 31 S.E.2d 483 (1944); Jackson v. Moultrie Prod. Credit Ass'n, 76 Ga. App. 768, 47 S.E.2d 127 (1948); Adams v. Pafford, 79 Ga. App. 477, 54 S.E.2d 329 (1949); Jackson v. Jackson, 206 Ga. 470, 57 S.E.2d 602 (1950); Hise v. Morgan, 91 Ga. App. 555, 86 S.E.2d 374 (1955); Adams v. Adams, 213 Ga. 875, 102 S.E.2d 566 (1958); Brackin v. Brackin, 222 Ga. 226, 149 S.E.2d 485 (1966); Brown v. Leggitt, 121 Ga. App. 183, 173 S.E.2d 265 (1970); Brown v. Leggitt, 226 Ga. 366, 174 S.E.2d 889 (1970); McCann v. McCraine, 228 Ga. 814, 188 S.E.2d 484 (1972); Ham v. Ham, 230 Ga. 43, 195 S.E.2d 429 (1973); Barnes v. Barnes, 230 Ga. 226, 196 S.E.2d 390 (1973); Hampton v. Taylor, 233 Ga. 63, 209 S.E.2d 634 (1974); Leachmon v. Leachmon, 239 Ga. 780, 238 S.E.2d 863 (1977); Ward v. Sebren, 146 Ga. App. 867, 247 S.E.2d 532 (1978); Ward v. Sebren, 242 Ga. 782, 251 S.E.2d 524 (1979); Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980); Young v. Hinton, 163 Ga. App. 692, 295 S.E.2d 150 (1982); Brown v. Citizens & S. Nat'l Bank, 253 Ga. 119, 317 S.E.2d 180 (1984); Cole v. Cole, 205 Ga. App. 332, 422 S.E.2d 230 (1992); Dodd v. Scott, 250 Ga. App. 32, 550 S.E.2d 444 (2001).

Legislative intent.

- Very fact that the General Assembly provided a procedure for the rebuttal of the presumption of a gift indicates that the legislature intended that the presumption of a gift would be created in all cases when the family relations enumerated existed. Trust Co. v. Kell, 49 Ga. App. 371, 175 S.E. 659 (1934) (decided under former Civil Code 1910, § 3740).

Presumption of gift.

- As between husband and wife, parent and child, and brothers and sisters, payment of purchase money by one, and causing the conveyance to be made to the other, will be presumed to be a gift; but a resulting trust in favor of the one paying the money may be shown and the presumption rebutted. Hemphill v. Hemphill, 176 Ga. 585, 168 S.E. 878 (1933) (decided under former Civil Code 1910, §§ 3739, 3740, and 3741).

Statute provides that, when a son and husband pays the purchase money for property and causes the conveyance to be made to his mother and wife, it shall be presumed to be a gift. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951) (decided under former law).

When money is paid on the debt of another, by a person who is under no legal or moral obligation to pay the debt, and one does not do so at the instance, request, or consent of the debtor, and the debtor does not ratify the act as one done in the debtor's behalf, or does not otherwise become liable therefor, the payment is a voluntary payment, and the person making the payment cannot recover from the debtor; this is particularly true if the parties are near relatives, as when the person making the payment is the mother of the debtor. Hartley v. Hartley, 50 Ga. App. 848, 179 S.E. 245 (1935) (decided under former Civil Code 1910, § 3740).

Spouse of a bankruptcy debtor had no interest in real properties prior to a transfer from the debtor since no purchase money resulting trust was created in the absence of any consideration paid by the spouse for the purchase of the properties by the debtor and the lack of evidence of the intent of the debtor and the spouse to create the trust to rebut the presumption that the transfer was a gift. Wallace v. McFarland (In re McFarland), Bankr. (Bankr. S.D. Ga. Sept. 30, 2013).

Bankruptcy court properly found that a debtor transferred the debtor's interest in property under 11 U.S.C. §§ 541 and 548(a)(1) by executing a deed of gift in favor of the debtor's spouse; they did not prove the existence of an implied resulting trust in an interest in the property as they failed to present clear and convincing evidence to rebut the presumption that the spouse's contributions to the purchase of the property were a gift to the debtor. Wallace v. McFarland (In re McFarland), F.3d (11th Cir. Oct. 16, 2015)(Unpublished).

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).

Parent and child.

- As between parent and child, payment of the purchase money by one and causing the conveyance to be made to another will be presumed to be a gift; but a resulting trust in favor of the one paying the money may be shown and the presumption rebutted. Bryant v. Green, 176 Ga. 874, 169 S.E. 123 (1933) (decided under former Civil Code 1910, §§ 3739 and 3740).

When there is a transfer of funds from father to son, the provisions of this statute are applicable, and hence, a gift is by law presumed. Reed v. Reed, 217 Ga. 303, 122 S.E.2d 253 (1961) (decided under former Code 1933, § 108-106).

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. § 53-12-92).

Husband and wife.

- When a husband pays the purchase money of land from his own funds and has the land conveyed to his wife, the presumption which the law makes is that the husband intended to make a gift to his wife; but the presumption is a rebuttable one, and a resulting trust in favor of the husband may be shown. Romano v. Finley, 172 Ga. 366, 157 S.E. 669 (1931) (decided under former Civil Code 1910, § 3740).

If a husband buys and pays for land, and takes a deed in his wife's name, a presumption arises that he intends to make an absolute gift to her; and in order to overcome this presumption he must show something which raises an obligation in her to hold the property in trust for him. An absolute gift cannot, by events transpiring after it is made, be metamorphosed into a trust. Williams v. Thomas, 200 Ga. 767, 38 S.E.2d 603 (1946) (decided under former Code 1933, § 108-106).

When a husband pays the purchase money of land from his own funds and has the land conveyed to his wife, the presumption which the law makes is that the husband intended to make a gift to his wife; but the presumption is a rebuttable one, and a resulting trust in favor of the husband may be shown. Parol evidence of the nature of the transaction, or the circumstances, or the conduct of the parties, is admissible to rebut the presumption of a gift; but in order to rebut the presumption of a gift the proof must be clear and convincing. Williams v. Thomas, 200 Ga. 767, 38 S.E.2d 603 (1946) (decided under former Code 1933, § 108-106).

Resulting trust, as between husband and wife where the husband pays the purchase money and title is taken in the name of the wife, rests upon the intention of the parties at the time of the transaction, with the presumption being that the transaction was a gift. Parol proof of conduct, circumstances, and declarations is admissible as tending to show the intent of the parties; and such evidence might ordinarily, if sufficiently clear and convincing, authorize a jury to find that the intention of the parties was that the conveyance should be in trust and not a gift. But when the undisputed testimony of the husband, who seeks to establish the trust, shows a deliberate and intentional gift, such gift cannot be cut down to a trust by proof of subsequent events. Williams v. Thomas, 200 Ga. 767, 38 S.E.2d 603 (1946) (decided under former Code 1933, § 108-106).

When the jury was authorized under the evidence to believe that the husband purchased the property and placed title in his wife's name, the court did not err in charging this statute. Reddick v. Reddick, 224 Ga. 732, 164 S.E.2d 725 (1968) (decided under former Code 1933, § 108-116).

Section not applicable when property used by both husband and wife.

- There is no presumption of a gift between husband and wife when one spouse purchases personal property and takes title in himself, and the property is subsequently used by both. Swanson v. Universal Promotions, Inc., 144 Ga. App. 591, 241 S.E.2d 474 (1978) (decided under former Code 1933, § 108-116).

Presumption of gift from marital relationship.

- Prima facie from the relationship of the parties, husband and wife, there would arise the presumption of a gift. But this presumption may be rebutted, and the rebuttal may be based upon oral evidence. Implied or constructive trusts afford an instance of an exception to the statute of frauds. Bryant v. Green, 176 Ga. 874, 169 S.E. 123 (1933) (decided under former Civil Code 1910, § 3739).

Whenever the husband acquires the separate property of his wife, with or without her consent, he must be deemed to hold the property in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of the property to him. McCann v. McCrain, 228 Ga. 814, 188 S.E.2d 484 (1972) (decided under former Code 1933, §§ 108-104, 108-106, 108-107, and 108-117).

In a divorce, when a husband transferred the marital home to the wife for "love and affection" to protect the home from possible future creditors, and claimed that this created an implied resulting trust under which the wife held the home for the husband, he did not overcome the presumption that this was a gift, under former O.C.G.A. § 53-12-92 (see O.C.G.A. § 53-12-131), as the husband did not show by clear and convincing evidence that both parties contemplated a resulting trust, as there was no evidence of a mutual intent to create a trust when the conveyance was made. Brock v. Brock, 279 Ga. 119, 610 S.E.2d 29 (2005) (decided under former O.C.G.A. § 53-12-92).

Parol evidence admissible to rebut presumption of gift.

- Parol evidence of the nature of the transaction, or the circumstances, or the conduct of the parties is admissible to rebut the presumption of a gift; but in order to rebut the presumption the proof must be clear and convincing. Ashbaugh v. Ashbaugh, 222 Ga. 811, 152 S.E.2d 888 (1966) for comment, see 18 Mercer L. Rev. 513 (1967) (decided under former Code 1933, § 108-116); Romano v. Finley, 172 Ga. 366, 157 S.E. 669 (1931); Largan v. Largan, 224 Ga. 399, 162 S.E.2d 405 (1968) (decided under former Civil Code 1910, § 3740);(decided under former Code 1933, § 108-116).

Prima facie from the relationship of the parties, husband and wife, there would arise the presumption of a gift. But this presumption may be rebutted, and the rebuttal may be based upon oral evidence. Implied or constructive trusts afford an instance of an exception to the statute of frauds. Bryant v. Green, 176 Ga. 874, 169 S.E. 123 (1933) (decided under former Civil Code 1910, § 3739).

Trust which arises from the facts and the nature of the transaction is not destroyed by the express, verbal, and therefore unenforceable, agreement of the wife to hold the title for the use of the husband. Romano v. Finley, 172 Ga. 366, 157 S.E. 669 (1931) (decided under former Civil Code 1910, § 3740).

If from all the facts and circumstances an implied trust is otherwise established, it is not destroyed by the express verbal agreement which may have constituted a part of the transaction; the express agreement may be shown, not as fixing the interests to be owned by parties, but as rebutting the inference of a gift by plaintiff. Hemphill v. Hemphill, 176 Ga. 585, 168 S.E. 878 (1933) (decided under former Civil Code 1910, § 3739).

Practice in prior marriage.

- When a husband maintained that his practice with a former wife relative to legal and beneficial ownership was understood by his present wife, and that the practice was continued with her consent, evidence of the similar arrangement in the former marriage was relevant to illuminate the nature of transactions growing out of this marriage. Harrell v. Harrell, 249 Ga. 170, 290 S.E.2d 906 (1982) (decided under former Code 1933, § 108-116).

Am. Jur. 2d.

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

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

Purchase-Money Resulting Trust, 29 POF2d 455.

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

Circumstances Establishing Purchase-Money Resulting Trust, 85 POF3d 225.

ALR.

- Presumption of gift, advancement, or settlement where husband takes title from third person to property paid for by or with funds of wife, 113 A.L.R. 339.

Provision for relief or education of member of family or relatives as creating charitable trust, 131 A.L.R. 1277.

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.