IN RE ESTATE OF EARSIE L. KIRKMAN
January 19, 2017 Session
from the Chancery Court for Hardin County No. P7-352 James F.
case involves the disposition of several certificates of
deposit that were held in joint tenancy, with right of
survivorship, by Decedent and her daughter, Appellee.
Appellants, beneficiaries of Decedent's estate, argued
that the certificates of deposit were probate assets. The
trial court denied the objection and closed the estate,
finding that the certificates of deposit passed to Appellee
as the surviving joint tenant. Appellants appeal. Affirmed
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
Abernathy, Selmer, Tennessee, for the appellants, Gary
Henley, Angelia Durbin, Jerry Henley, and Wayne Henley.
Mark Donahoe, Jackson, Tennessee, for the appellee, Bobbie
Armstrong, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J, W.S., and Brandon O. Gibson, J.,
L. Kirkman ("Decedent") died testate on July 1,
2008. She was survived by her children and grandchildren:
Claudette Henley,  Angelia Durbin, Jerry Henley, Gary Henley
(together, "Appellants"); and Bobbie Hardin
("Appellee"). Decedent's will devised her
estate, in equal share, to her children or their survivors.
Decedent's daughter, Bobbie Hardin, was designated as the
executrix of the estate.
issue in this appeal is the proper disposition of three
certificates of deposit ("CDs")-two held at Hardin
County Bank and one held at Farmers and Merchants Bank. The
CDs were owned by "Earsie Kirkman or Bobbie Hardin,
" with boxes checked on the signature card to indicate
that the CDs were held in joint tenancy with right of
survivorship. Decedent opened the original CDs decades before
her death, without Appellee's assistance or knowledge. At
the time of Decedent's death, the original CDs had
matured several times, and Appellee had renewed the CDs, in
joint tenancy with Decedent, after each maturation period.
September 9, 2008, Appellee filed a petition to probate
Decedent's will in the Chancery Court of Hardin County
("trial court"). On the same day, the trial court
admitted the will to probate. On January 20, 2009, Appellants
filed a claim against the estate, contending that the
disputed CDs should be included in Decedent's residual
estate. On February 13, 2009, Appellee filed an exception to
Appellants' claim against the estate, stating that the
CDs were nonprobate assets because they were held in joint
tenancy with right of survivorship by Decedent and Appellee;
accordingly, Appellee argued that the CDs passed to her on
Decedent's death. Appellants voluntarily withdrew their
claim against the estate on May 4, 2009.
November 19, 2010, Appellee filed a motion to distribute
funds and close the estate. On November 24, 2010, Appellants
filed an objection to the motion, arguing that the CDs should
be included in the probate estate. The trial court ordered
Appellee to produce copies of the CDs and set the matter for
hearing on March 9, 2012. However, no proof was taken on
March 9, 2012. On March 13, 2013, Chancellor Harmon of Hardin
County recused himself, and the parties agreed that
Chancellor Butler would hear the case by interchange.
5, 2013, the trial court heard the case. The trial court
ordered the estate closed on May 22, 2013, finding that
[t]he crux of the objection to closing the estate centers
around three Certificates of Deposit[, ] which were in
existence on the date of the death of Mrs. Kirkman, July 1,
2008…. All three showed the owners as Earsie Kirkman
or Bobbie Hardin. It is undisputed that the funds represented
by the CDs emanated from Mrs. Kirkman. Mrs. Hardin is Mrs.
Kirkman's daughter. It is undisputed Mrs. Kirkman did not
sign the documents creating the CDs. Whenever the CDs were
renewed, Mrs. Hardin handled it. Each time it was renewed, it
was set up in exactly the same way as before on the same
terms and with the same owners. The only testimony presented
concerning the CDs, besides the documents themselves, was
from Mrs. Hardin, the co-owner of the CDs. She testified she
always followed her mother's instructions as to how to
renew the Certificates of Deposit. She testified her mother
had always created CDs with Mrs. Hardin's name on them.
She further testified that before her death, Mrs. Kirkman
inquired of whether or not the CDs were in order and as a
result, the Hardin County Bank and Farmers and Merchants Bank
sent Mrs. Kirkman and Mrs. Hardin a letter to Mrs.
Kirkman's address confirming that the Hardin County CDs
at issue were joint with the right of survivorship. The
letter was dated March 18, 2008. Mrs. Kirkman died July 1,
2008. Mrs. Hardin testified that she saw the letter and Mrs.
Kirkman saw the letter. There is no evidence that Mrs.
Kirkman attempted to make any change based on the contents of
that letter which is Exhibit 15 to the hearing.
The Court finds that the evidence is clear and convincing
that Mrs. Kirkman intended for the CDs to be joint tenants
with right of survivorship with Bobbie Hardin. While Mrs.
Hardin had no power of attorney, she testified she had
permission from her mother to sign her mother's name to
documents, including the CDs. But even in the absence of
that, Mrs. Hardin being a co-owner, could have cashed in the
CDs at any time, or renew the CDs when they were up for
renewal, because they were in the name of Mrs. Kirkman or
The objection to the Motion to distribute funds and close the
estate of Earsie Kirkman and to discharge the personal
representative is denied.
The Motion to close the estate and distribute funds and
discharge the personal representative is granted.
14, 2013, Appellants filed a motion to alter or amend the
order, arguing that the trial court improperly allowed
Appellee to testify "concerning transactions with, or
statements by" Decedent, in violation of Tennessee Code
Annotated Section 24-1-203, also known as the Dead man's
statute. On September 30, 2013, the trial court denied
Appellants' motion, concluding that
[t]he previous ruling in this case arose out of a three hour
hearing in the [trial court], wherein certain documents were
introduced into evidence and the testimony of Bobbie Hardin
was taken. There was no other evidence presented. The
beneficiaries, the movants in this case, now contend that the
court should have excluded testimony of Ms. Hardin pursuant
to Tennessee Code Annotated [Section] 24-1-203, also known as
the dead man's ...