Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1895, § 3153, former Civil Code 1910, § 3733, former Code 1933, §§ 108-104, 108-105, and 108-106, former Code Section53-12-23, and former O.C.G.A. § 53-12-20 of the 1991 Trust Act are included in the annotations for this Code section.

Construction with provisions of 11 U.S.C.

- When the debtor was granted bare legal title to a residential loan package for purposes of resale as a bailment under O.C.G.A. § 44-12-40, or alternatively as an express trust under former O.C.G.A. § 53-12-20 (see O.C.G.A. § 53-12-20), but had no equitable interest in the loan, the loan was not the property of the debtor's estate under 11 U.S.C. § 541(d), and the creditor's interest was not avoidable under 11 U.S.C. § 544(a)(1). HSBC Mortg. Servs. v. Pettigrew (In re Southstar Funding, LLC), Bankr. (Bankr. N.D. Ga. Oct. 4, 2008)(Unpublished) ??? (decided under former O.C.G.A. § 53-12-20).

Constructive trust may only be an implied trust because all express trusts must be in writing under Georgia law. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982) (decided under former Code 1933, § 108-105).

Statute was taken from the statute of frauds. Smith v. Harvey-Given Co., 182 Ga. 410, 185 S.E. 793 (1936) (decided under former Code 1933, § 108-108).

There can be no express trust unless the trust is created in writing. Smith v. Peacock, 114 Ga. 691, 40 S.E. 757, 88 Am. St. R. 53 (1902) (decided under former Code 1895, § 3153); Macy v. Hays, 163 Ga. 478, 136 S.E. 517 (1927);(decided under former Civil Code 1910, § 3733).

Gift supported in trust must be in writing.

- Gift cannot be supported on the theory of an express trust unless such trust be created or declared in writing. Jackson v. Gallagher, 128 Ga. 321, 57 S.E. 750 (1907) (decided under former Code 1895, § 3153).

Express trust must be in writing.

- When the facts preclude an implied trust from being created, an express trust will also fail if not declared in writing. Walker v. Brown, 104 Ga. 357, 30 S.E. 867 (1898) (decided under former Code 1895, § 3153).

As no party contended that a writing established the interests of certain entities, there could be no express trust under Georgia law. Nor was there a constructive trust as no wrongdoing was alleged on the part of the debtor. High-Top Holdings, Inc. v. RREF II BB Acquisitions, LLC (In re High-Top Holdings, Inc.), 564 Bankr. 784 (Bankr. N.D. Ga. 2017).

Allegations in pleading.

- While the trust must have been created or declared in writing, it was not necessary for the pleader to so allege in the petition. Brown v. Drake, 101 Ga. 130, 28 S.E. 606 (1897) (decided under former law); Walker v. Edmundson, 111 Ga. 454, 36 S.E. 800 (1900); Taliaferro v. Smiley, 112 Ga. 62, 37 S.E. 106 (1900) (decided under former law); Eaton v. Barnes, 121 Ga. 548, 49 S.E. 593 (1904);(decided under former law);(decided under former Code 1895, § 3153).

Oral express trusts prohibited.

- As a decedent had successfully revoked a revocable living trust when the decedent notified the trustee in writing of a desire for revocation, the decedent's subsequent indication that reinstatement was no longer desired and that the trust could continue as it was had to be done in writing; further, although the trust had been governed by Illinois law, the decedent's oral statement to allow the trust to continue as it was had to be governed by Georgia law, where the decedent resided, and as Georgia law prohibited the creation of oral express trusts under former O.C.G.A. § 53-12-20(a), no such trust was created. Wachovia Bank, N.A. v. Moody Bible Inst. of Chi., Inc., 283 Ga. App. 488, 642 S.E.2d 118 (2007) (decided under former O.C.G.A. § 53-12-20).

Creation generally.

- Testimony of an agent of the bank that at the direction of the depositor a written entry of deposit of the depositor was made on the records of the bank in the name of the depositor as trustee for the plaintiff, that a passbook evidencing such deposit was issued by the bank in favor of the depositor as trustee, and that the depositor signed an identification card as trustee was sufficient to meet the requirement that an express trust be in writing. Wilder v. Howard, 188 Ga. 426, 4 S.E.2d 199 (1939) (decided under former law).

While an express trust can only be shown by a writing, an implied trust may rest upon an express parol agreement, fraudulently made, by which a person acquires title to property of another; and in such case the express promise or agreement may be proved by parol to raise, not an express, but an implied trust. Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943) (decided under former Code 1933, § 108-106).

While fraudulent undertakings or promises, whatever their terms, do not, unless reduced to writing, raise express trusts, yet the law, acting upon them according to their nature, makes them a basis upon which to build up in favor of the defrauded party an implied or constructive trust. Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943) (decided under former Code 1933, § 108-106).

Court having properly charged that express trusts are those created and manifested by agreement of the parties, while implied trusts are such as are inferred by law from the nature of the transaction or the conduct of the parties, and thereafter charging that all express trusts shall be created or declared in writing, and there being no evidence whatever as to any trust having been created in writing, the charge of the court left for the consideration of the jury only the inquiry whether or not, as contended by the defendant, an implied trust was shown by the evidence, and was not reversible error. Bradley v. Thompson, 202 Ga. 785, 44 S.E.2d 898 (1947) (decided under former Code 1933, §§ 108-104, 108-105, and 108-106).

An order of a court directing plaintiff's mother to hold the funds received as judgment in trust until plaintiff's 18th birthday created an express trust. Hayes v. Clark, 242 Ga. App. 411, 530 S.E.2d 38 (2000) (decided under former O.C.G.A. § 53-12-20).

Trust is a valid express trust because the trust agreement provided for a beneficiary, who was also the settlor, named a trustee, imposed duties on the trustee, and both the settlor and the trustee executed the trust agreement. Metro Inv. Partners, Inc. v. Baker (In re Baker), Bankr. (Bankr. N.D. Ga. Feb. 23, 2009).

An express trust cannot be made by parol agreement. Nor can an allegation of an express, oral trust be employed to defeat a resulting trust. Wells v. Wells, 216 Ga. 384, 116 S.E.2d 586 (1960) (decided under former Code 1933, § 108-105).

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 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 them, but did not create an express trust under former O.C.G.A. § 53-12-20 (see O.C.G.A. § 53-12-20). The parol evidence rule, former O.C.G.A. § 24-6-1 (see now O.C.G.A. § 24-3-1), prevented the investors from trying to establish a trust based on communications that occurred prior to the agreements, which contained merger clauses. McCamy v. Kerr (In re Real Estate Exch. Servs.), Bankr. (Bankr. N.D. Ga. Oct. 9, 2009) (decided under former O.C.G.A. § 53-12-20).

An express trust cannot be created by parol and engrafted on an absolute deed. Jones v. Jones, 196 Ga. 492, 26 S.E.2d 602 (1943) (decided under former Code 1933, §§ 108-104 and 108-105); Pope v. Cole, 223 Ga. 448, 156 S.E.2d 36 (1967); Dobbson v. Floyd County, 229 Ga. 598, 193 S.E.2d 611 (1972) (decided under former Code 1933, § 108-105);(decided under former Code 1933, § 108-105).

When two persons buy land jointly and the deed is made to a third person in trust a reformation of the deed, conveying the land to third parties, is not authorized, because an express trust cannot be engrafted on a deed by parol. Wilder v. Wilder, 138 Ga. 573, 75 S.E. 654 (1912) (decided under former Code 1910, § 3733); DeLoach v. Jefferson, 142 Ga. 436, 83 S.E. 122 (1914); Jenkins v. Georgia Inv. Co., 149 Ga. 475, 100 S.E. 635 (1919) (decided under former Code 1933, § 108-105);(decided under former Code 1933, § 108-105).

While it is the general rule that a parol trust cannot be grafted on an absolute deed, such instrument must be taken to mean a deed which is valid, not one without any good or valuable consideration, under which the grantee holds in fraud; under such circumstances, even though the language might otherwise be construed as setting up an express trust, it will nevertheless be taken as negativing any intent or purpose to pass title, and for such purpose it will be held to create a valid implied trust, insofar as it imposes duties and obligations naturally arising from the nature of the transaction and the conduct of the parties. Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943) (decided under former Code 1933, § 108-106).

A verdict and decree in the plaintiff's favor for a one-half undivided interest in the property, if based upon the express agreement as to the interest to be owned by each of the parties, and not upon the proportion of the purchase money paid, would manifestly impinge upon the rule that an express trust cannot be created by parol and accordingly, any recovery or decree in the plaintiff's favor must be in proportion to the amount of the purchase money paid by the plaintiff, and could not be based upon the express agreement. Hemphill v. Hemphill, 176 Ga. 585, 168 S.E. 878 (1933) (decided under former Civil Code 1910, § 3733).

When deed was wholly without any good or valuable consideration, other than trust assumed by grantee (to sell the land and pay grantors their half interest in the proceeds) and the only title at all that grantee could have had was a title in trust, claim of grantors was not an attempt to engraft on an otherwise good and valid absolute deed an extraneous parol trust, but an effort either to void the deed, or else to sustain it in the only way that it might possibly be given effect, if allowed to have any effect at all. Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943) (decided under former Code 1933, § 108-106).

When the father executed to plaintiff's sister a deed to land, absolute upon the deed's face, with the agreement between all of them that the sister was to deed a specified portion of the land to plaintiff (her brother) whenever he or the father requested its execution, such an agreement, if properly executed in writing, would create an express trust; however, when the plaintiff tendered no written evidence, but sought to establish the agreement by parol testimony, the court did not err in directing a verdict for the defendant, as plaintiff was attempting to assert an express trust and engraft it on a deed by parol, which cannot be done. Jones v. Jones, 196 Ga. 492, 26 S.E.2d 602 (1943) (decided under former Code 1933, §§ 108-104 and 108-105).

As all express trusts must be created or declared in writing, an express trust may not be impressed by parol evidence upon a deed. Fowler v. Montgomery, 254 Ga. 118, 326 S.E.2d 765 (1985) (decided under former O.C.G.A. § 53-12-20).

An attempt made to fasten upon the property an express trust upon a parol agreement, is forbidden, as all express trusts must be in writing, or else the express trusts are not enforceable as such. Mays v. Perry, 196 Ga. 729, 27 S.E.2d 698 (1943) (decided under former Code 1933, § 108-105).

When the parol agreement is a mere attempt to create an express trust, as such it is invalid as to any of the property because such a trust can be created only in writing. Caswell v. Caswell, 177 Ga. 153, 169 S.E. 748 (1933) (decided under former Civil Code 1910, § 3733).

When plaintiff purportedly conveyed a duplex to plaintiff's son by a duly recorded deed stating that the conveyance was for $10 and other valuable consideration, and plaintiff did not require any agreement in writing as to the true consideration for the deed, which was that the plaintiff was to have a right of possession of an apartment on the premises for the balance of plaintiff's life, this was an attempt to set up an express trust by parol, and plaintiff obtained no interest under this alleged agreement. Smith v. Lynch, 210 Ga. 338, 80 S.E.2d 175 (1954) (decided under former law).

Petition seeking to establish an implied trust will fail when all the allegations relied on are based solely upon an oral agreement setting up an invalid express trust. If, however, it is made to appear from all the alleged facts and circumstances surrounding a transaction that an implied trust was established, the mere fact that there may have been an abortive attempt to establish by parol an express trust, does not operate to destroy the implied trust which the facts and circumstances otherwise establish. Johnson v. Upchurch, 200 Ga. 762, 38 S.E.2d 617 (1946) (decided under former Code 1933, §§ 108-104 and 108-105).

When an express trust is not created by writing, the plaintiff must recover, if at all, upon an implied trust. Bryant v. Green, 176 Ga. 874, 169 S.E. 123 (1933) (decided under former Civil Code 1910, § 3733).

Introduction of evidence generally.

- Parties in an action to establish a trust are entitled to introduce, and the jury is entitled to consider, as tending to prove the intention of the parties, evidence relating to the nature and circumstances of the transactions and the conduct and declarations of the parties. Epps v. Wood, 243 Ga. 835, 257 S.E.2d 259 (1979) (decided under former Code 1933, § 108-106).

Parol promise may be basis for implied trust.

- Promises, whatever may be their terms, do not, unless reduced to writing, raise express trusts; but the law, acting upon them according to their nature, makes them a basis upon which to build up in favor of the defrauded party an implied or constructive trust. Brown v. Doane, 86 Ga. 32, 12 S.E. 179, 11 L.R.A. 381 (1890) (decided under former law); Taliaferro v. Smiley, 112 Ga. 62, 37 S.E. 106 (1900);(decided under former law).

Mortgagee's administration of an escrow account does not give rise to either a trust or an agency relationship. Telfair v. First Union Mortg. Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001) (decided under former O.C.G.A. § 53-12-20).

Charitable trust created.

- Decedent's will unambiguously created a charitable trust rather than an outright devise subject to a condition subsequent as: (1) the decedent plainly stated the decedent's express intent to devise the decedent's home to an organization that would maintain the property in perpetuity for conservation purposes; (2) the decedent also bequeathed gardening equipment to the same organization, clearly for the purpose of tending the land that the corporation had been given and was expected to hold as trustee; (3) the devise reflected all of the composite elements of an express trust; and (4) the failure of the will to use the terms "trust" and "trustee" did not alter the outcome. Chattowah Open Land Trust, Inc. v. Jones, 281 Ga. 97, 636 S.E.2d 523 (2006) (decided under former O.C.G.A. § 53-12-20).

No express trust created.

- 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 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. § 53-12-132). McCamy v. Kerr (In re Real Estate Exch. Servs.), Bankr. (Bankr. N.D. Ga. Oct. 9, 2009) ??? (decided under former O.C.G.A. § 53-12-20).

Because the deeds at issue did not convey property to trustees, nor to the regional body representing a national church or the national church, but simply to a local church, O.C.G.A. § 14-5-46 could not be applied without reference to other statutory and case law, particularly when the imposition of a trust was alleged in the absence of any reference in the deeds; the requirements of the Georgia Trust Act, O.C.G.A. § 53-12-20, were consistent with determining the intentions of the parties by applying neutral principles of law to all the relevant deeds, statutes, constitutions, and charters of the local and national churches. Timberridge Presbyterian Church, Inc. v. Presbytery of Greater Atlanta, Inc., 307 Ga. App. 191, 705 S.E.2d 262 (2010).

Cited in Arteaga v. Arteaga, 169 Ga. 595, 151 S.E. 5 (1929); Jones v. Robinson, 172 Ga. 746, 158 S.E. 752 (1931); Alston v. McGonigal, 179 Ga. 617, 176 S.E. 632 (1934); Evans v. Pennington, 180 Ga. 488, 179 S.E. 123 (1935); Turner v. Olympian Hills, Inc., 184 Ga. 340, 191 S.E. 106 (1937); Archer v. Kelley, 194 Ga. 117, 21 S.E.2d 51 (1942); Allen v. Allen, 196 Ga. 736, 27 S.E.2d 679 (1943); Pierce v. Harrison, 199 Ga. 197, 33 S.E.2d 680 (1945); Hawkins v. Commissioner, 152 F.2d 221 (5th Cir. 1945); Loggins v. Daves, 201 Ga. 628, 40 S.E.2d 520 (1946); Woo v. Markwalter, 210 Ga. 156, 78 S.E.2d 473 (1953); Westbrook v. Westbrook, 212 Ga. 472, 93 S.E.2d 683 (1956); Douglas v. Sumner, 213 Ga. 82, 97 S.E.2d 122 (1957); Belch v. Sprayberry, 97 Ga. App. 47, 101 S.E.2d 870 (1958); United States Epperson Underwriting Co. v. Jessup, 22 F.R.D. 336 (M.D. Ga. 1958); Southern Land, Timber & Pulp Corp. v. Eunice, 219 Ga. 338, 133 S.E.2d 345 (1963); Burns v. Winkler, 221 Ga. 285, 144 S.E.2d 337 (1965); Hodges v. Hodges, 221 Ga. 587, 146 S.E.2d 313 (1965); Beckwith v. Peterson, 227 Ga. 403, 181 S.E.2d 51 (1971); Taylor v. Aetna Life Ins. Co., 235 Ga. 630, 221 S.E.2d 45 (1975); Aetna Life Ins. Co. v. Weekes, 241 Ga. 169, 244 S.E.2d 46 (1978); King v. Tyler, 148 Ga. App. 272, 250 S.E.2d 784 (1978); Holzman v. National Bank, 149 Ga. App. 382, 254 S.E.2d 501 (1979); Conner v. Conner, 250 Ga. 27, 295 S.E.2d 739 (1982); Wasson v. Waid, 188 Ga. App. 177, 372 S.E.2d 508 (1988); Coleman v. Hainlen (In re Hainlen), 365 Bankr. 288 (Bankr. S.D. Ga. 2007); Heiman v. Mayfield, 300 Ga. App. 879, 686 S.E.2d 284 (2009); Rector v. Bishop of the Episcopal Diocese of Ga., Inc., 290 Ga. 95, 718 S.E.2d 237 (2011); Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., 290 Ga. 272, 719 S.E.2d 446 (2011).

Am. Jur. 2d.

- 76 Am. Jur. 2d, Trusts, § 17.

C.J.S.

- 90 C.J.S., Trusts, § 42.

ALR.

- Construction and application of provision in trust instrument relating to amendment or modification, 128 A.L.R. 1173.

Attorney as trustee for purpose of running of statute of limitations against claim for money or property received or collected by him, 151 A.L.R. 1388.