Where, as here, there is no present intention to give indicated, there is no complete renunciation of right by the giver over the thing given, there is no complete relinquishment of the power of revocation shown and no full delivery of possession as a gift, it follows that there is no valid gift.

John H. Cubbedge, Sr. and R. Lawton Grant, Jr., executors of the last will and testament of Margaret C. Bliss, brought an action against Earl C. Brannen. The suit was for money had and received. The petition alleges that Mary C. Bliss died test ate and that John H. Cubbedge and R. Lawton Grant, Jr., duly qualified as executors of her last will and testament; that prior to her death the deceased placed $10,000 in the First Federal Savings & Loan Association in Savannah; that she wished to place more money there but was advised by the manager of the institution that $10,000 was the maximum which could be insured in her name alone, but that she could place another $10,000 in the institution in a separate ccount as joint tenant with another; that she was advised that the funds so deposited could not be withdrawn from the joint account without presenting the pass book; that the said account would therefore be under her sole and exclusive control as long as she retained possession of the pass book; that the deceased secured permission from her nephew, the defendant Earl C. Brannen, to open an additional account in her name and his as joint tenants with rights of survivorship, solely and exclusively for the purpose of securing for herself the benefit and protection of an insured account without any intention to transfer any interest in the funds to the defendant by gift or otherwise; that the defendant expressly consented to this arrangement; that a few days prior to her death the decedent took her pass book to the First Federal Savings & Loan Association for the purpose of withdrawing $1,000 from her account; that she was advised she would lose the accumulated interest on that amount if she withdrew it prior to December 31; that she decided to borrow the sum of $1,000 from the institution and, as required by the rules of the institution she left her bank book there as security for the loan; that a few days later she died, leaving a will which disposed of her entire estate, including all funds on deposit in the First Federal Savings & Loan Association; that the defendant found out that she had left her pass book at the institution, went down and repaid the loan in full from proceeds of said account and withdrew the balance of $9,170.50 from the joint account which he redeposited to his individual account in the same institution. It is alleged that this was a violation of the express oral agreement with the decedent prior to the time the account was opened in their joint names.

The defendant excepts to the order overruling his general and special demurrers to the petition.

This case is almost exactly like a case which was before the Court of Appeals, where questions were certified to the Supreme Court by the Court of Appeals. In response to the certified questions the Supreme Court said, in Clark v. Bridges, 163 Ga. 542 (136 S. E. 444): " 'To constitute a valid gift, there must be the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof' . . . It is generally settled that there must be a present intention to give, full completion and execution of the gift by the donor, and acceptance of the gift by the donee, and furthermore that the donor must have renounced all dominion over the subject mater of the gift, in order to make the transaction binding. . . The cases [of our appellate courts] are practically unanimous that a deposit of money in a bank made subject to check by the third party is not an irrevocable surrender of dominion over the fund to said third party, the depositor retaining the right to 'withdraw' any portion or all of the sum, thus removing the sum so that the third party is unable to exercise authority or dominion. . . It appears, however, that the depositor retained for herself unlimited right to check against the account. This would include the right to withdrawn the deposit altogether, thus removing it from any dominion by the third party. In this particular the transaction fails to measure up to the legal requisites of a valid gift as provided under our law. . . If the facts of the case show that the mother did not unconditionally and completely surrender dominion over the deposit during her life, the fact that it was actually withdrawn after her death would not change the legal status of the deposit."

The trial court did not err in overruling the general demurrers and the special demurrers to the petition as amended.

TOWNSEND, Judge, concurring specially on rehearing.

The petition, which is here on demurrer, recites that there is attached thereto as Exhibit B the signature card of the parties to the deposit. The motion to rehear quotes the contents of the signature card, and, if it is in fact attached to the petition, then the question becomes not one of gift but of contractual survivorship rights under an express written contract of joint tenancy, Nash v. Martin., 90 Ga. App. 235 (82 S. E. 2d 658) would control, and the petition would be subject to general demurrer.

I do not find "Exhibit B" attached to the petition in the record here or elsewhere in the record. Accordingly, in the absence of allegations relating to this contract, I concur in the decision as written.