In re ESTATE OF JAMES E. MILLER
Session February 27, 2017
from the Probate Court for Monroe County No. 2010-117 Dwaine
B. Thomas, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Probate
Court Vacated; Case Remanded.
Jendrek, John M. Lawhorn, and Richard E. Graves, Knoxville,
Tennessee, for appellant, Mechelle Miller.
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.
CHARLES D. SUSANO, JR., JUDGE.
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
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.
numbering in original omitted.) Grant further stated that in
2000, he turned over the bookkeeping duties of the
corporation to another accountant. He ...