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In re Estate of Miller

Court of Appeals of Tennessee, Knoxville

June 29, 2017

In re ESTATE OF JAMES E. MILLER

          Session February 27, 2017

         Appeal from the Probate Court for Monroe County No. 2010-117 Dwaine B. Thomas, Judge

         This is a probate case. Vickie Miller (Widow), personal representative of the estate of her late husband, James E. Miller (Decedent), petitioned the trial court for letters of administration. Decedent died intestate on July 17, 2010. At issue is the ownership of Jim Miller Excavating Company, Inc. (the corporation), the company operated by the Decedent. Widow argues that she is the owner of all of the 1, 000 shares of stock that the corporation issued to "Jim Miller and Vicky [sic] Miller JTROS" shortly after the company's incorporation on April 3, 1990. She filed a copy of the stock certificate, dated April 30, 1990. Mechelle Miller and Jamie L. Shannon, Decedent's daughters and heirs of the estate, argue that the stock certificate was invalid and that the corporation's assets should be part of Decedent's estate. The daughters filed a copy of the corporation's bylaws, in which the following language is found: "the Board of Directors shall consist of one individual, to-wit, its sole shareholder, James E. Miller." The trial court granted Widow's motion for summary judgment. Only Mechelle Miller appealed. We hold that there is a genuine issue of material fact as to whether the corporation's directors and incorporators intended that the company would be owned by Decedent and Widow as joint tenants with the right of survivorship. We vacate the trial court's summary judgment and remand for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Vacated; Case Remanded.

          Mark Jendrek, John M. Lawhorn, and Richard E. Graves, Knoxville, Tennessee, for appellant, Mechelle Miller.

          John W. Cleveland, Sr., Sweetwater, Tennessee, for appellee, Vickie C. Miller, personal representative and administrator of the estate of James E. Miller.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         It is not disputed that Jim Miller Excavating Company was duly incorporated. Patrick H. Grant, an accountant who incorporated the business, signed the corporate charter on March 31, 1990. The Secretary of State received it on April 3, 1990. The charter authorizes the issuance of 1, 000 shares of stock. Widow filed the affidavit of incorporator Grant, who testified in pertinent part as follows:

[A]s part of my practice as an accountant, I prepared documents as the incorporator for filing with the Secretary of State of . . . Tennessee to create corporations for my clients.
I met Jim Miller through one of my other bookkeeping clients and agreed to keep his records and prepare his tax returns. . . .
In March, 1990, I incorporated Jim Miller Excavating Co., Inc. Jim Miller was the President, his wife, Vickie Miller was the Vice President and I was the Secretary.
. . . I told him I had better put both names on the stock certificate in case he came to a sudden end. We both laughed. Little did we know he would be murdered 20 years later. I issued the stock to Jim Miller and Vicky Miller JTROS, my abbreviation for Joint Tenants with Right of Survivorship.

         (Paragraph numbering in original omitted.) Grant further stated that in 2000, he turned over the bookkeeping duties of the corporation to another accountant. He ...


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