Jessie Page and the late Bernice Wheale were sisters, and were tenants in common of real property that was their dwelling place. Bernice Wheale was survived by her husband, David Wheale, who, as her sole heir, inherited her one-half interest in the property. In 1984, Wheale delivered two quit-claim deeds conveying the property to Page. That same year, the property was sold to a third person and the proceeds were paid to Page. In 1986, Wheale sought to recover one-half of these proceeds from Page, claiming that his deeds were given solely to facilitate the sale of the property. A jury found an implied trust in favor of Wheale with respect to one-half of the proceeds, and the trial court entered judgment accordingly. Page appeals. Wheale also appeals that part of the judgment denying his request for attorney fees. Viewing Adderholt, Talmadge, and the cited Code sections as a whole, we draw this principle: circumstances may be offered as evidence of an intention (whether or not expressly articulated by each party) that title shall vest in one and beneficial ownership in the other. The scope of such evidence includes all of the facts and circumstances surrounding the transaction. The ultimate inquiry is whether there was, in truth, a mutual understanding, not whether such an understanding was expressed in plain and unambiguous terms. [249 Ga. at 172.] 2. Because this is a case in equity, the trial court had the authority to find the facts without the intervention of a jury. Nonetheless, after giving instructions, 1 the trial judge submitted the case to a jury upon the following interrogatory: By virtue of Mr. David C. Wheale, Jr. 's signing and delivering plaintiff's Exhibit 5 and defendant's Exhibit 2, he transferred legal title in the house at 6235 Peachtree Dunwoody Road to the defendant Mrs. Jessie M. Page. Considering all of the circumstances that would aid you in making a determination, has Mr. Wheale proven that he did not transfer to her at that time all of his beneficial interest in that property? 3. (a) While this interrogatory posed to the jury the ultimate legal issue of the case, it failed to focus on the factual predicate to that issue, i.e., whether there was a mutual agreement between Wheale and Page that Wheale was to retain a beneficial interest in the property. (b) Nor did the charge inform the jury that, in a claim of implied trust, "[t]he ultimate inquiry is whether there was, in truth, a mutual understanding. . . ." (249 Ga. at 172.) (c) Hence, the jury was called upon to decide the ultimate legal issue of the case without adequate guidance as to the essential factual element upon which that issue must be grounded. That circumstance entitles Page to a new trial. 4. As to Wheale's cross-appeal: (a) We affirm the trial court's denial of Wheale's request for attorney fees, there being no abuse of discretion. (b) Wheale's contentions as to Page's fiduciary obligation fail to state an actionable claim relative to the property transfer, and the trial court's refusal to consider this issue was not error. Hartley, Rowe & Fowler, Joseph H. Fowler, Celia M. Hinson, for appellee. | 
