MILLER, P. J., DOYLE, P. J., and REESE, J.
Miller, Presiding Judge.
appeal involves a dispute over the estate of Jewell Penland
("the decedent"). Appellant Jim Ray-the
decedent's son-petitioned the trial court, relevantly,
for a constructive trust to be imposed on the proceeds from
savings bonds that he alleged rightfully belonged to the
decedent's estate, but which had been redeemed by the
decedent's grandson, Sam Evans. Sam and the decedent's
daughter, Eloise, filed a motion for summary judgment, which
the trial court granted. We conclude that genuine issues of
material fact remain as to whether Sam owed a fiduciary duty
to the decedent and whether he breached that fiduciary duty,
resulting in damages to the decedent's estate.
Accordingly, we reverse the trial court's grant of
summary judgment to Sam and Eloise, and remand the case for
The party moving for summary judgment has the burden of
showing the absence of a genuine issue of any material fact
and if the trial court is presented with a choice of
inferences to be drawn from the facts all inferences of fact
from the proofs proffered at the hearing must be drawn
against the movant and in favor of the party opposing the
motion. A litigant has a right to a trial where there is the
slightest doubt as to the facts. All inferences from the
evidence introduced will be interpreted favorably toward
making an issue of fact. Thus, to prevail on motion for
summary judgment, the movant has the burden to produce
evidence which conclusively eliminates all material issues in
the case. A de novo standard of review applies to an appeal
from a grant of summary judgment.
(Citations omitted.) Whiten v. Murray, 267 Ga.App.
417, 417-418 (599 S.E.2d 346) (2004).
in the light most favorable to Jim as the non-movant, the
record shows that the decedent died testate in 2007 and was
survived by three of her four children-Jim, Eloise, and
Dorothy. Although the decedent's will is not in the
record, it is undisputed that, relevantly, she made specific
financial bequests to family members and further provided
that the residue of her estate would be distributed among
Jim, Eloise, and Dorothy's son, Sam. The parties agree
that the decedent excluded Dorothy as a named beneficiary in
the will due to her inability to properly manage finances.
decedent also co-owned different sets of United States
Government savings bonds with Jim, Eloise or Sam, all of whom
became the sole named owners of the respective bonds after
the decedent died. It is undisputed that Sam had the most
bonds, followed by Eloise, and Jim had the least. Shortly
after the decedent's death in 2007, Sam redeemed all the
bonds he had co-owned with the decedent, worth at least $227,
000. Eloise filed a petition to admit the decedent's will
to probate. The decedent's will was admitted to
probate, and Jim, Eloise and Dorothy became co-executors of
2009, Jim and Dorothy filed the complaint in this case.
Relevantly, they claimed that while the decedent was alive,
she had instructed Sam to return the bonds that he co-owned
with her, so that the decedent would have been the sole owner
of these bonds. They further argued that Sam had a
fiduciary duty to comply with the decedent's instructions
regarding these bonds, and that Sam agreed to do so but then
refused. Jim and Dorothy requested a constructive trust in
favor of Dorothy's estate, on the bond proceeds that Sam
the litigation was pending, Dorothy died intestate, leaving
Sam as her sole heir. Sam was also appointed as the
administrator of Dorothy's estate. The appellees-Sam and
Eloise-moved for summary judgment in the trial court, arguing
that Dorothy's death rendered moot Jim's claims
regarding the constructive trust.
that Jim's claims were in fact moot, the trial court
granted the summary judgment motion. The trial court ruled
that the property in the constructive trust would have been
held for Dorothy's benefit, and her death meant that
title to those assets passed to Sam as her sole heir.
Accordingly, the trial court found that the bond proceeds,
even if considered to be property of the constructive trust,
"ultimately ended up in the correct hands." This
his first enumeration of error, Jim argues that the trial
court erred in ruling that Dorothy's death rendered moot
the claims for the imposition of a constructive trust. We
case is moot when its resolution would amount to the
determination of an abstract question not arising upon
existing facts or rights." (Citation, punctuation and
emphasis omitted.) Scarbrough Group v. Worley, 290
Ga. 234, 236 (719 S.E.2d 430) (2011). Therefore, mootness
arises "when a determination is sought on a matter
which, when rendered, cannot have any practical effect on the
existing controversy." (Citation omitted.) Schoen v.
Cherokee County, 242 Ga.App. 501, 502 (2) (530 S.E.2d
the trial court determined that any constructive trust
imposed on the proceeds of Sam's bonds would have been in
favor of Dorothy, the complaint is clear that Jim sought a
trust in favor of the decedent's estate. The
request for the imposition of the constructive trust was
predicated on the argument that Sam breached a fiduciary duty
to the decedent by not returning the bonds to her so that she
was the sole owner. Therefore, in the event that a
constructive trust were to be imposed on the proceeds of the
bonds, the decedent's estate would hold the
title to that trust-not Dorothy, Dorothy's estate, or Sam
as Dorothy's sole heir.
too, we cannot assume that the bond proceeds in that
constructive trust would have ultimately returned to Sam
through Dorothy because the property of an estate is also
"liable for the payment of claims against the
estate." OCGA § 53-7-40; see Graham v.
Patton, 231 Ga. 391, 394 (1) (202 S.E.2d 58) (1973)
("A residuary legacy is a general legacy into which fall
all the assets of the estate after the satisfaction
of all other legacies and the payment of all debts of the
estate and all costs of administration.") (citation
omitted) (emphasis supplied). There is no telling from the
record whether any portion of those proceeds would first be
used to pay claims against the estate or estate expenses,
before distribution to the beneficiaries. Similarly, there
was no telling whether the amount of money Sam received upon
cashing the bonds would have ...