        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE



ESTATE OF:                              )
                                                      FILED
CONNIE S. BLIGH, Decedent,              )             February 18, 2000
                                        )
MICHAEL S. BLIGH, Executor,             )             Cecil Crowson, Jr.
                                                     Appellate Court Clerk
                                        )
      Plaintiff/Appellant,              )   A p pe
                                            al No.
                                        )   M1999-02645-COA-R3-CV
VS.                                     )
                                        )   Davidson Probate
LURANA SNIDER,                          )   No. 95P-93
                                        )
      Defendant/Appellee.               )


 APPEALED FROM THE PROBATE COURT OF DAVIDSON COUNTY
               AT NASHVILLE, TENNESSEE

           THE HONORABLE FRANK G. CLEMENT, JUDGE



MICHAEL BRIEN BLIGH
392 Harding Place, Suite 215
Nashville, Tennessee 37211
     Attorney for Plaintiff/Appellant

PAUL R. WHITE
Suite 400, Washington Square
214 Second Avenue North
Nashville, Tennessee 37201
      Attorney for Defendant/Appellee



                      AFFIRMED AND REMANDED



                                            BEN H. CANTRELL,
                                            PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
COTTRELL, J.
                               OPINION


             This is an action by the executor of an estate to collect two loans

made by the decedent to the defendant and to recover the funds represented by

a certificate of deposit withdrawn by the defendant before the decedent’s death.

The Probate Court of Davidson County held that the loans had been repaid and

that the certificate of deposit represented a gift to the defendant. We affirm.



                                        I.



             The decedent, Connie Bligh, and Lurana Snider were friends. Ms.

Bligh lived alone in a large house on West End Avenue in Nashville. Ms. Snider

frequently visited Ms. Bligh to run errands for her and to take her on shopping

trips. In 1986 and 1987 Ms. Bligh made two loans to Ms. Snider.



             In 1990 Ms. Bligh deposited $60,000 in a Federal Savings and Loan

Association, listing herself as the sole owner of the certificate. In 1991 she

changed ownership of the certificate to read, “Mrs. C.L. Bligh or Mrs. Elmer E.

Snider.”



             Ms. Bligh’s health failed in the fall of 1993. On October 25, 1993

Ms. Snider, having possession of the certificate of deposit, withdrew the funds

from the account. The court appointed a conservator for Ms. Bligh in January

of 1994, and she died a year later.



             Ms. Bligh’s nephew, Michael S. Bligh, was appointed executor of

her estate. In 1996 the executor sued Ms. Snider to collect the unpaid loans, and

to recover the funds withdrawn from the certificate of deposit. Ms. Snider’s

answer asserted that the loans had been repaid and that the certificate of deposit

represented a gift to her.
                                       -2-
                                        II.



              To prove the two loans the executor introduced the responses to two

requests for admissions answered by Ms. Snider. The questions and answers are

as follows:

                    3. Admit or deny that on December 17, 1986,
              the defendant Lurana Snider, received $15,000.00
              from the decedent, Connie Bligh, as a loan.

                    RESPONSE: Yes and paid back in full

                     4. Admit or deny that on September 5, 1987,
              the defendant, Lurana Snider, received $5,000.00 from
              the decedent, Connie Bligh, as a loan.

                    RESPONSE: Yes and also paid back in full


The executor then closed his case in chief on the two loans. The court granted

Ms. Snider’s motion to dismiss at the close of the plaintiff’s proof.



              On appeal the executor contends that the admissions are conclusive

and that without positive proof of repayment, they are sufficient to establish Ms.

Snider’s obligation to the estate. In essence he argues that the explanation does

not come into evidence with the admission, because a party cannot admit facts

that it has the burden of proving.



              Rule 36, Tenn. R. Civ. Proc., allows a party to serve a request for

admissions on the opposite party. The rule also places on the party served an

obligation to admit or deny the request in a timely fashion, or the matter may be

taken as admitted. Some answers, however, require qualification, and the rule

takes that fact into account by providing “when good faith requires that a party

qualify an answer or deny only a part of the matter of which an admission is

requested, the party shall specify so much of it as is true and qualify or deny the

remainder.” If the requesting party is not satisfied with the answers, it may move

the court “to determine the sufficiency of the answers or objections.”


                                       -3-
              We know of no authority allowing a party to select and use parts of

a response to a request for admissions.        If some part of the response is

objectionable the rule allows the objecting party to ask the court to resolve the

dispute. A leading treatise on the federal rules describes the procedure in this

way: “The next step is left to the party serving the requests . . . If he wishes to

challenge the sufficiency of the objections, or the sufficiency of the answers, he

may move for such a determination.” 4A Moore’s Federal Practice § 36.06.

Our Supreme Court adopted this procedure in a case involving the failure to

answer a request for admissions. See Tennessee Dept. of Human Services v.

Barbee, 714 S.W.2d 263 (Tenn. 1986).



              We think the defendant was entitled under Rule 36 to explain her

answer to the request. If the plaintiff wished to use the admission without the

explanation, he should have sought an order from the court. There being no

other proof in the record that the loans were still outstanding, the trial judge was

justified in dismissing this part of the action.



                                        III.



              The trial judge held that the decedent had made a gift of the

certificate of deposit to Ms. Snider.



              The executor is correct that Ms. Snider has the burden of proving

the essentials of a gift: donative intent and delivery, First National Bank v.

Howard, 302 S.W.2d 516 (Tenn. Ct. App. 1957). And the proof must be clear,

cogent, and convincing, Parsley v. Harlan, 702 S.W.2d 166, 173 (Tenn. Ct.

App. 1985).



              The evidence showed that Ms. Bligh was a woman of some means,

owning a large home on West End Avenue in Nashville where she rented rooms.

                                        -4-
At one time she kept modest amounts of cash in her home. She used a large safe

in her bedroom and a family member once gave her a smaller safe for Christmas.



             Ms. Snider was described in the record as being like the daughter

that Ms. Bligh never had. She visited Ms. Bligh often and took her on shopping

trips and to doctor’s appointments. When she had to be out of town, Ms. Snider

would arrange for one of her friends to keep in touch with Ms. Bligh.



             On January 17, 1991, Ms. Bligh transferred the ownership of the

certificate of deposit from her sole name to “Mrs. C. L. Bligh or Ms. Elmer E.

Snider.” Later, after preparing a will, Ms. Bligh told a mutual friend that she had

“already taken care of Ronnie (Ms. Snider).”



             Donative intent may be established by showing the love and

affection between the donor and donee. McClure v. Stegall, 729 S.W.2d 263,

266 (Tenn. Ct. App. 1987); Simmons v. Foster, 622 S.W.2d 838 (Tenn. Ct. App.

1981). Here, Ms. Bligh considered Ms. Snider as a daughter; they obviously had

a close relationship for many years. We cannot say that the trial judge erred in

concluding that the proof clearly established Ms. Bligh’s donative intent.



             Delivery is more of a problem because Ms. Bligh’s name remained

on the certificate of deposit. This question has been litigated frequently and has

come to the attention of the legislature on several occasions. Most of the cases

dealing with this question however are of little help because they deal with funds

left on deposit at the death of one of the parties. Therefore, they help decide

rights of survivorship rather than whether the donor made an inter-vivos gift.

Also, the banking statutes are designed to protect the paying bank, not to change

a basic and fundamental form of property ownership in bank deposits. Griffin

v. Prince, 632 S.W.2d 532 (Tenn. 1982).



                                       -5-
             Estate of Haynes v. Braden, 835 S.W.2d 19 (Tenn. Ct. App. 1992)

is one case where the court dealt with the effect of the funds in two accounts

having been withdrawn before the death of the original depositor. The funds

were in joint accounts with rights of survivorship. Shortly before the death of

the depositor, the other party withdrew the funds. The court held that the

chancellor erred in holding that the deceased did not relinquish control before his

death. When the other party withdrew the funds, the gift was complete.



             We should point out that in Estate of Haynes there was an

agreement between the parties and the bank as follows:

                    “We hereby apply for an account as joint tenants
             with rights of survivorship and not as tenants by the
             entirety in Security Trust Federal Savings and Loan
             and for the issuance of evidence thereof in their joint
             names described as aforesaid. You are directed to act
             pursuant to any one or more of the joint signatures,
             shown below, in any manner in connection with this
             account and, without limiting the generality of the
             foregoing, to pay, without any liability for such
             payment, to any one of the survivor or survivors at any
             time. It is agreed by the signatory parties with each
             other and by the parties with you that any funds
             placed in or added to the account by any one of the
             parties are and shall be conclusively intended to be
             a gift and delivery at that time of such funds to the
             other signatory party or parties to the extent of his or
             their pro rata interest in the account. (Emphasis
             added.)”

There is no comparable provision in this case. But this language, as we see it,

only supports a finding of donative intent. The agreement does say that any

funds deposited by either party shall be “delivery” to the other party, but only “to

the extent of his or their pro rata interest in the account.” Each party retained the

right to withdraw the funds at any time and each party retained the right of

survivorship.



             In our opinion the delivery in this case is more clearly established

than it was in Estate of Haynes. Here, Ms. Snider was designated as a joint

owner of the funds giving her the unfettered right to withdraw them. (See Tenn.

Code Ann. § 45-2-703(a) below.) Although Ms. Bligh had the same right, there

                                        -6-
is no indication in the record that she had a continuing interest in the funds by

retaining the right of survivorship, as the donor did in Estate of Haynes. Ms.

Snider held the certificate and Ms. Bligh stated that she had “taken care of

Connie.” Although the Dead Man’s Statute, Tenn. Code Ann. § 24-1-203,

prevented Ms. Snider from testifying that Ms. Bligh had given her the certificate,

she did testify that she had never taken anything from Ms. Bligh’s house without

her permission.



             We think the record clearly showed a delivery to Ms. Snider. The

funds were in an account for which she had the right of withdrawal. She

withdrew the funds. At that point, we think the burden shifted to the estate to

show that the result was contrary to Ms. Bligh’s wishes.



             We do not think our statutes compel a different result. The relevant

statute is Tenn. Code Ann. § 45-2-703. It provides in subsection (a):

             When a deposit has been made or shall hereafter be
             made, in any bank, in the names of two (2) or more
             persons, payable to either, or survivor, such deposit, or
             any part thereof, or any interest or dividend thereon,
             may be paid to either of such persons, whether the
             others be living or not; and the receipt or acquittance
             of such person so paid shall be a valid and sufficient
             release and discharge to the bank for any payment so
             made. . . .



             It also provides in subsections (c) and (e):

                   (c) As used in subsection (c)-(f), “multiple-
             party deposit account” means a deposit account
             (including a certificate of deposit) established in the
             names of, payable to, or in form subject to withdrawal
             by two(2) or more natural persons or any of them,
             including, but not limited to, an account of the type
             described in subsection (a).

             ...

                    (e) Accounts described in subsection (c) shall
             establish the following interests:

                   (1) A designation of “joint tenants with right of
             survivorship,” or substantially similar language, shall
             be conclusive evidence in any action or proceeding of

                                       -7-
             the intentions of all named that title vests in the
             survivor;

                    (2) The designation of a person as “additional
             authorized signatory,” or substantially similar
             language, shall be conclusive evidence in any action
             or proceeding that the person so designated has power
             of attorney with respect to such account and is not an
             owner of such account;

                   (3) Other designations acceptable to the bank
             shall establish interests in accordance with their
             respective provisions; and

                    (4) In the absence of any specific designation in
             accordance with subsection (d), property held under
             the title, tenancy by the entireties, carries a right of
             survivorship; property held under the title, joint
             tenancy, carries no right of survivorship unless a
             contrary intention is expressly stated. Any other
             person to whose order the accounts or certificate of
             deposit is subject shall be presumed to have power of
             attorney with respect thereto and not to be an owner
             thereof. Such presumptions may be rebutted by clear
             and convincing evidence presented in the course of
             legal or equitable proceedings.          Final judicial
             determinations contrary to such presumptions shall not
             affect a bank’s earlier payment in accordance
             therewith, or the limitations on liability conferred by
             the provisions of subsections (1) and (b) or § 45-2-
             707.



             These sections add little to our discussion. No issue is raised about

the bank’s liability for paying the funds to Ms. Snider (subsection (a)); nor is

there any contention that this account was anything but a “multiple-party deposit

account” (subsection (c)). Ms. Snider was not, however, just an “additional

authorized signatory” (subsection (e)(2)); she was designated as an owner of the

account. Therefore, the presumption raised in subsection (e)(4) does not arise.

If the presumption did arise, it would be rebutted by the same clear and

convincing evidence necessary to establish the gift.



             The judgment of the trial court is affirmed and the cause is

remanded to the Probate Court of Davidson County for any further proceedings

necessary. Tax the costs on appeal to Michael S. Bligh, executor.




                                       -8-
                               _______________________________
                               BEN H. CANTRELL,
                               PRESIDING JUDGE, M.S.


CONCUR:




____________________________
WILLIAM C. KOCH, JR., JUDGE



____________________________
PATRICIA J. COTTRELL, JUDGE




                               -9-
