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In re Estate of Kirkman

Court of Appeals of Tennessee, Jackson

February 15, 2017


          January 19, 2017 Session

         Appeal from the Chancery Court for Hardin County No. P7-352 James F. Butler, Chancellor

         This 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 and remanded.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          Terry Abernathy, Selmer, Tennessee, for the appellants, Gary Henley, Angelia Durbin, Jerry Henley, and Wayne Henley.

          C. Mark Donahoe, Jackson, Tennessee, for the appellee, Bobbie Hardin.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J, W.S., and Brandon O. Gibson, J., joined.



         I. Background

         Earsie L. Kirkman ("Decedent") died testate on July 1, 2008. She was survived by her children and grandchildren: Claudette Henley, [1] 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.

         At 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.

         On 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.

         On 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.

         On May 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 Mrs. Hardin.
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.

         On June 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 ...

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