2021 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 4 - Gifts Generally
Part 1 - Inter Vivos Gifts
§ 44-5-82. Delivery; Constructive Delivery

Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee shall constitute a constructive delivery.

(Orig. Code 1863, § 2617; Code 1868, § 2618; Code 1873, § 2660; Code 1882, § 2660; Civil Code 1895, § 3567; Civil Code 1910, § 4147; Code 1933, § 48-103.)

- For note discussing the treatment of joint bank accounts in Georgia, with regard to survivorship and testamentary effect, prior to the enactment of the Financial Institutions Code of Georgia, see 7 Ga. St. B.J. 370 (1971). For comment on Felder v. Felder, 71 Ga. App. 860, 32 S.E.2d 550 (1944), see 7 Ga. B.J. 478 (1945).

This statute is merely a codification of the common law on the subject of delivery as a requirement for a gift. Felder v. Felder, 71 Ga. App. 860, 32 S.E.2d 550 (1944) (see O.C.G.A. § 44-5-82).

- Presumption of gift arises only when there is an actual delivery, or when the donee is in exclusive possession. Burt v. Andrews, 112 Ga. 465, 37 S.E. 726 (1900); Cowdrey v. Barksdale, 16 Ga. App. 387, 85 S.E. 617 (1915); Bond v. Bond, 22 Ga. App. 366, 95 S.E. 1005 (1918); Helmer v. Helmer, 159 Ga. 376, 125 S.E. 849, 37 A.L.R. 1137 (1924).

Manifestation of an intention to make a present gift to another and, in consummation of this intention, delivery of the property to or for the use of the intended donee, or some act indicating a renunciation of dominion in favor of the intended donee, are essentials of a gift, whether inter vivos or causa mortis. Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932).

To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos. McLendon v. Johnson, 69 Ga. App. 214, 25 S.E.2d 53 (1943), overruled on other grounds, Barfield v. Hilton, 238 Ga. 150, 231 S.E.2d 755 (1977).

- Gift inter vivos, as distinguished from a gift mortis causa, does not require actual delivery, and it is sufficient to complete a gift inter vivos that the conduct of the parties should show that the ownership of the chattels has been changed. Poullain v. Poullain, 79 Ga. 11, 4 S.E. 81 (1887).

Actual manual delivery is not essential to validity of a gift but any act which indicates renunciation of dominion by donor (e.g. a forbearance to collect), and transfer of dominion to donee (e.g. telling the donee that the donee need not make payments owed) shall constitute a constructive delivery. Bates v. Bates, 163 Ga. App. 268, 293 S.E.2d 515 (1982).

- Burden is upon the party asserting a gift to prove it as pleaded. Porter v. Allen, 54 Ga. 623 (1875).

- It is a question of fact for the jury to determine whether the donor has in fact relinquished control by the gift. Williams v. McElroy, 35 Ga. App. 420, 133 S.E. 297 (1926).

- While, as a general rule, there must be an actual delivery of the chattel at the time of the gift, it is not in every case essential that the expression of the intention to give be synchronous with delivery of the chattel; for if it be plain that there could have been no other purpose in the delivery than to effectuate a definite intention expressed in the past in anticipation of a future delivery, the delivery would complete the gift. Culpepper v. Culpepper, 18 Ga. App. 182, 89 S.E. 161 (1916).

- When a client directed the client's attorney to pay over moneys which the attorney might collect on a judgment to the client's nephew, and when, after client directed the attorney to hold the same for the client's nephew and to deliver this money to the nephew or the nephew's guardian as soon as one should qualify, stating that the client had already given this money to the nephew, and when the client died before the attorney had paid over these funds to the nephew or to the nephew's guardian, there was no valid gift of this money by the client to the nephew, for lack of delivery of the subject matter of the gift to the donee. Knight v. Jackson, 156 Ga. 165, 118 S.E. 661 (1923); Helmer v. Helmer, 159 Ga. 376, 125 S.E. 849, 37 A.L.R. 1137 (1924).

- When a mother worked for her brother, and made an agreement with him to hold her wages for her child, to accumulate an estate for it, and that he reported to her that he had done so, and had deposited the money in a named bank in his name as agent for the child; this together with evidence that the uncle did in fact deposit money in the bank to the credit of himself as agent of the child made a prima facie case of a complete gift inter vivos from the mother to the child. Jackson v. Gallagher, 128 Ga. 321, 57 S.E. 750 (1907).

- While in a gift from a father to a minor child the law will dispense with some of the formalities of delivery, a mere promise to give is not the equivalent of a gift itself. Donaldson v. Everett, 122 Ga. 318, 50 S.E. 94 (1905).

- Rule as to delivery is not so strictly applied to transactions between members of a family living in the same house, the law in such cases accepting as delivery acts which would not be so regarded if the transaction were between strangers living in different places. Harrell v. Nicholson, 119 Ga. 458, 46 S.E. 623 (1904); Williams v. McElroy, 35 Ga. App. 420, 133 S.E. 297 (1926).

Delivery of keys to personal property accompanied by a declaration that the donor is giving the property to the donee is sufficient evidence to sustain a finding that there has been a constructive delivery of the object. Banks v. Harvey, 98 Ga. App. 196, 105 S.E.2d 341 (1958).

- Debt may be the subject of a gift by the creditor to the creditor's debtor, and is generally referred to as a forgiveness of the debt. The delivery may be accomplished by giving a receipt, even though not under seal and the debt is evidenced by a specialty, by surrendering the instrument evidencing the debt, or even by destroying the instrument, if this is done with intent to cancel the debt; and the fact that the creditor reserves the right to interest on the debt does not affect the validity of the gift. Croxton v. Barrow, 57 Ga. App. 1, 194 S.E. 24 (1937).

- If a gift in writing is not based upon a good consideration, it is a nudum pactum and, in the absence of actual delivery of the property itself, remains ineffective. Cannon v. Williams, 194 Ga. 808, 22 S.E.2d 838 (1942).

- Gift of money represented by a time certificate will not be defeated, if the circumstances indicate that the omission to reduce to writing the evidence of the transfer of the legal title was due to ignorance, accident, or mistake. Culpepper v. Culpepper, 18 Ga. App. 182, 89 S.E. 161 (1916). See also Philpot v. Temple Banking Co., 3 Ga. App. 742, 60 S.E. 480 (1908).

Delivery of nonnegotiable written instrument, without more, is not sufficient to prove a gift. Hill v. Sheibley, 64 Ga. 529 (1880).

- When an uncle wrote out and signed a promissory note payable to a niece and the note was written in a memorandum book and left in a drawer where both the uncle and niece kept their papers, and the niece did not know of its existence until after the uncle's death, this did not constitute a gift. Helmer v. Helmer, 159 Ga. 376, 125 S.E. 849, 37 A.L.R. 1137 (1924).

- When a deposit book issued by a savings bank is delivered with appropriate words of gift by the depositor, with the intention to give to the person to whom it is delivered the deposits entered in the book, this is sufficient to constitute a valid gift of the deposits, without assignment or transfer in writing. Wade v. Edwards, 23 Ga. App. 677, 99 S.E. 160 (1919).

- Mere fact of the deposit of money in the name of a third person without the delivery of the passbook, or other evidence of intention to make a gift, however, will not constitute a valid gift inter vivos, since this may have been done for any one of a number of reasons, each without donative purpose. Ward v. Sebren, 242 Ga. 782, 251 S.E.2d 524 (1979).

- Deposit made in a bank by a parent for the benefit of a child but subject to be drawn out at any time by either is not a gift. Clark v. Bridges, 163 Ga. 542, 136 S.E. 444 (1927).

- See Lanier v. Holt, 18 Ga. App. 185, 89 S.E. 182 (1916).

- Trial court erred granting summary judgment to the executor because the deed contained a recital that it was signed, sealed, and delivered in the presence of the two witnesses, which raised a presumption of delivery, and the girlfriend remained in the home and kept belongings there while the decedent lived in the lake house. Smith v. Tibbits, Ga. App. , S.E.2d (Apr. 22, 2021).

Cited in Underwood v. Underwood, 43 Ga. App. 643, 159 S.E. 725 (1931); Knight v. Wingate, 205 Ga. 133, 52 S.E.2d 604 (1949); Jackson v. Jackson, 206 Ga. 470, 57 S.E.2d 602 (1950); Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951); Barfield v. Hilton, 238 Ga. 150, 231 S.E.2d 755 (1977).

RESEARCH REFERENCES

Am. Jur. 2d.

- 38 Am. Jur. 2d, Gifts, § 16 et seq.

- 38 C.J.S., Gifts, § 13 et seq.

- Necessity of delivery of stock certificate to complete valid gift of stock, 23 A.L.R. 1171, 99 A.L.R. 1077.

Delivery of bill or note of third person by way of gift, 25 A.L.R. 642.

Gift of savings deposit by delivery of passbook, 40 A.L.R. 1249; 84 A.L.R. 558.

Rights in respect of payments made on a note or check which is the subject of a gift, 49 A.L.R. 684.

Declarations or admissions by decedent while in possession of personal property that it belonged to another as sufficient evidence of latter's title in absence of sufficient evidence of gift or other transfer by decedent, 98 A.L.R. 755.

Necessity of delivery where subject of gift is already in possession of donee at time of declaration of gift, 103 A.L.R. 1110.

May proof of delivery essential to gift rest upon subsequent declarations of donor, 124 A.L.R. 1391.

May delivery which will support gift be predicated upon deposit in mail, filing of telegram, or delivery to carrier, 126 A.L.R. 924.

Delivery of key to safe-deposit box or other receptacle as sufficient to consummate gift of contents, 127 A.L.R. 780.

Rights of beneficiary under obligation or deposit payable to him at death of holder or depositor if not previously paid to latter, 131 A.L.R. 967; 155 A.L.R. 174; 161 A.L.R. 304.

Delivery which will support gift of an undivided interest in a chattel or chose in action, 145 A.L.R. 1386.

Opening savings account in sole name of another, without complete surrender of passbook, as a gift, 1 A.L.R.2d 538.

Necessity of delivery of stock certificate to complete valid gift of stock, 23 A.L.R.2d 1171.

Delivery as essential to gift of tangible chattels or securities by written instrument, 48 A.L.R.2d 1405.

Nature and validity of gift made in contemplation of suicide, 60 A.L.R.2d 575.

Gift of automobile, 100 A.L.R.2d 1219.

Joint lease of safe-deposit box as evidence in support or denial of gift inter vivos of contents thereof, 40 A.L.R.3d 462.

Creation of joint savings account or savings certificate as gift to survivor, 43 A.L.R.3d 971.

Delivery of personalty to third person with directions to deliver to donee after donor's death as valid gift, 57 A.L.R.3d 1083.