                IN THE COURT OF APPEALS OF TENNESSEE
                                                                          FILED
                                 AT KNOXVILLE                           January 28, 1999

                                                                       Cecil Crowson, Jr.
                                                                       Appellate C ourt
                                                                           Clerk

In Re: THE ESTATE OF MILDRED M. ) C/A NO. 03A01-9808-CH-00267
        VERKSTR OM, deceased,                     )
                                                  ) SULLIVAN PROBATE
                                                  ) NO. P-95-7553(L)
--------------------------------------------------)
GORMA N WADD ELL, Co-Executor of )
the Estate of Mildred M. Verkstrom,               ) SULLIVAN CHANCERY
                                                  ) NO. 27243(M)
        Plaintiff-Appellee,                       )
                                                  ) HON. RICHARD E. LADD,
v.                                                ) CHANCELLOR
                                                  )
EDNA M. GODWIN,                                   )
                                                  )
        Defend ant-App ellant,                    )
--------------------------------------------------)
GORMA N WADD ELL, Co-Executor of )
the Estate of Mildred M. Verkstrom,               ) SULLIVAN CHANCERY
                                                  ) NO. 27244(L)
        Plaintiff,                                )
                                                  )
v.                                                )
                                                  )
BERNICE GA TES, Co-Executrix,                     )
and                                               )
BANK OF TENNESSEE,                                ) AFFIRMED
                                                  ) AND
        Defendants.                               ) REMANDED




ROBERT L. ARRINGTON and WILLIAM S. LEWIS, MOORE, STOUT,
WADDE LL & LEDFO RD. P.C., Kingsport, for Plaintiff-Appellee.

PAU L A. H ARR , Kingspo rt, for Defe ndant-A ppellant.




                                    O P I N IO N


                                                          Franks, J.


             In this declaratory judgment action, the issue on appeal is whether the
monies in an account established by the deceased belongs to her Estate, or passed by

operation of law to appellant, Edna M. Godwin.

              The deceased opened the account in question in 1972 in her name, and

in 1980 added Bernice M. Gates as another signature on the account. On January 24,

1989, deceden t deleted Gates’ name from the accoun t and executed a ne w signature

card as the sole owner and signatory on the account. On May 27, 1994, another

signature ca rd was ex ecuted by the d eceased a nd Edn a Godw in. Subseq uent to

decedent’s death, and after some payments were made from the account, the appellant

transferred the balance of $120,000.00 to herself.

              Following trial on the stated issue, the Chancellor, in his Memorandum

Opinion, said:

              I find that when she [Mrs. Verkstrom] added either sisters name,
              whether it be Mrs. Gates . . . or Mrs. Gates and/or Mrs. Godwin . . . that
              the intent was simply to be an additional signature in the case of her
              disability could have drawn on the account to take care of her in the
              nature of a power of attorney type situation. . . . Mrs. Verkstrom’s intent
              is further shown in E xhibit #4, . . . First, that the original signature card
              of 1972 had only Mrs. Verkstrom’s name. The card of August 8, 1980,
              which is the second card and which added Bernice Gates indicia that
              Mrs. Verkstrom did not intend right of survivorship except to have the
              sister have the power to draw on the account is a fact that in the title of
              the card it did not have right of survivorship shown. In the title of the
              card it’s written on there tha t Mrs. Ve rkstrom is the only one that’s to
              get the bank statement. And added on the back of the card it says “add
              new signature” as the purpose of the card. . . . In the card of 1989, which
              is C on Exhibit #4, Mrs. Verkstrom shows her intent once again by
              putting the account back into her name only. Then on the last card of
              May 27, 1994, D of Exhibit #4, the title of the account is Mildred M.
              Verkstrom or Edna Godwin, not and. There’s a place on there to check
              if it’s to be joint ten ants w ith right o f surviv orship. T hat is no t check ed.
              And the title of the card is not listed with right of survivorship. And on
              the back o f the card is a n explana tion for the n ew card a nd it says to
              change name title only. It does not say anything about right of
              survivorship. So those are the indicia then to support my finding that
              the intent of Mrs. Verkstrom and her sister all through this was that the
              property wo uld remain Mrs. Ve rkstrom’s an d therefore the property in
              both accounts would go into her estate.

The evidence does not preponderate against the factual determinations made by the

Chancellor. T.R.A .P. Rule 13(d).

                                              2
               The signature card executed on January 24, 1989, shows the style of the

account as “Mildred M. Verkstrom”. The next signature card on this account

indicates that the account was an existing account, but opened on May 27, 1994, the

style of the account being “Mildred M. Verkstrom or Edna Godwin”. The account

signature card was signed by Mildred M. Verkstrom and Edna Godwin, and

immediately above their signatures, the following appears:

               Should th is account b e in the nam es of, payable to, or subject to
               withdrawal by two o r more natural persons, de positor(s), designate(s),
               ownership interests shown in the account title above or as checked
               below.

               [Not filled in] Joint tenants with right of survivorship, and
               [Not filled in] Additiona l authorized signer (Pow er of Attorney).

               By his/her signature(s) hereon Depositor(s) certifies the above and
               acknowledges receipt of the Depositor Agreement with disclosures for
               the Account indicated, and agrees to be bound by its terms as well as
               any changes or additions hereafter adopted by bank.

               The account was essentially renewed on January 24, 1989, and

Godwin’s name was added to the account on May 27, 1994, which changes occurred

after the effective date of the 1989 amendment to T.C.A. §45-2-703. Any pertinent

provisio ns of th at Act a re applic able to th is accou nt. See, In Re : Estate of N ichols,

856 S .W.2d 397, 39 8 (Ten n. 1993 ).

               Appellan t offered e vidence th at the bank had classifie d the acco unt in its

records as a joint account with right of survivorship. The Chancellor properly rejected

this as controlling, and pointed out that in the account title there was no indication that

the account was a joint account with the right of survivorship. The bank’s customer

service representative wh o assisted deceased w ith the preparation of the signatu re card

in 1994, had no independent recollection of whether the deceased intended to establish

the account as a joint tenancy with the right of survivorship. She did testify that she

had been instructed by the bank to on ly put both nam es in the acc ount title if it wa s to

be a right of survivorship account. The record establishes that the bank’s customer

                                               3
service manual’s instructions on opening an account is that in the event that the

account is s ubject to w ithdrawls o f two or m ore individu als, then the o wnership

interest must be set forth in the account title at the top of the signature card, or as

checked in one of the designated boxes above the signature lines. It also requires that

one of the boxes must be checked.1

                Under T.C.A. §45-2-703, a designation by the depositor of joint tenancy

with right of survivorship is conclusive evidence of the intention of all named that the

account proceeds pass to the survivor, but with the designation of “additional

authorized signatory” it is conclusive that the person so designated has power of

attorney with respect to such account and is not an owner of such account. Under

T.C.A. §45-2-703, where there is no designation of joint tenancy with a right of

survivorship, or designation of “additional authorized signatory”, accounts held by

joint tenants c arry no right of s urvivorship unless a co ntrary intention is e xpressly

stated.2 Since none of the statutory designations is stated on the signatory card,


    1

        The document in pertinent part states:

        Remember, should the account be in the names of, payable to, or subject to withdrawal by
        two or more individuals, then the ownership interest must be shown in the account title at the
        top of the signature card or as checked in one of the designated blocks. Bank policy requires
        one of the blanks on the signature card to be checked. This must be done before or at the
        time the customer signs the card.

        If a card involving multiple depositors is submitted CIF without an adequate description of
        ownership interest (either in the styling or by checking the appropriate block), the card will
        not be returned and you will be required to obtain another signed card with the appropriate
        ownership interests designated.

    2

         T.C.A. §45-2-703.(e). Accounts described in subsection (c) shall establish the following
interests:

        . . . (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 (a) and (b)

                                                   4
T.C.A. §45-2-703(e)(4) is applicable, which establishes the presumption that the

appella nt had p ossesse d the po wer of attorney o ver the a ccoun t, but no t as an o wner.

It was stipulated that the appellant did not deposit any of the funds in the account and

claimed no prior ownership in any of the funds. There is no clear and convincing

evidence to rebut the presumption that appellant possessed anything other than a

powe r of atto rney relatin g to the a ccoun t.

               We affirm the judgment of the Trial Court and remand with cost of the

appeal asse ssed to the a ppellant.




                                                  __________________________
                                                  Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




       or §45-2-707.


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