Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS:                           ATTORNEYS FOR APPELLEES:

JOHN JOHNSTON                                      STEPHEN H. DOWNS
Wabash, Indiana                                    Wabash, IN



                                                                          Mar 28 2013, 9:19 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

HOWARD OSBORNE and                                 )
KIMBERLY EASTERDAY,                                )
                                                   )
       Appellants-Respondents,                     )
                                                   )
               vs.                                 )      No. 85A04-1209-ES-482
                                                   )
TINA R. BERGER and CARLA HALL,                     )
CO-PERSONAL REPRESENTATIVES OF                     )
THE ESTATE OF ELBERT H. OSBORNE,                   )
DECEASED,                                          )
                                                   )
       Appellees-Petitioners.                      )


                      APPEAL FROM THE WABASH CIRCUIT COURT
                        The Honorable Robert R. McCallen, III, Judge
                              Cause No. 85C01-1102-ES-20


                                         March 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

       Howard     Osborne    (“Osborne”)     and   Kimberly      Easterday   (“Easterday”)

(collectively, “the Objecting Heirs”) appeal the trial court’s order, which approved the

co-personal representatives’, Tina Burger (“Burger”) and Carla Hall (“Hall”)

(collectively, “the Co-Personal Representatives”), amended petition for a final account in

the Estate of Elbert H. Osborne (“Elbert”) and (“the Estate”).

       We affirm.

                                          ISSUE

       Whether the trial court erred by approving the Co-Personal
       Representatives’ amended petition for a final account over the Objecting
       Heirs’ objections.

                                         FACTS

       Elbert had five children, including four daughters—Burger, Hall, Easterday, and

Katherine Stangl (“Stangl”)—and one son, Osborne. Elbert died testate on February 4,

2011. Elbert’s will provided that his estate would be divided equally among his five

children (“the Sibling-Heirs”).

       At the time of his death, Elbert had four joint bank accounts (“the joint accounts”)

with Burger.    These four accounts totaled $77,652.24 and included: (1) a checking

account with $14,089.65; (2) a saving account with $50,448.32; (3) a certificate of

deposit with $3,002.82; and (4) a certificate of deposit with $10,111.45. Elbert also had a

$9,000 life insurance policy, which named Burger as the sole beneficiary.

       On February 23, 2011, the Sibling-Heirs went to the office of attorney for the

Estate. Burger informed the attorney about the joint accounts and initially told the

                                            2
Sibling-Heirs that she would share the joint checking and savings accounts with them.

However, within a few days, Burger decided not to divide the money in the joint

accounts. On February 28, 2011, the Co-Personal Representatives filed a petition to

probate the will and open the Estate, which the trial court granted.1

        Thereafter, some of the Sibling-Heirs indicated that they needed money from the

Estate. On April 6, 2011, Burger took $65,074.93 from the joint accounts and deposited

it into the Estate checking account. The Estate checking account had a balance of

$466.02 prior to Burger’s deposit.

        On April 11, 2011, Burger, as personal representative, made advance distributions

from the Estate to the Sibling-Heirs. Burger wrote checks from the Estate checking

account for $12,500 to all of the Sibling-Heirs, except Stangler who received Elbert’s

Cadillac valued at $12,500. When Burger filled out the check ledger for the checks

written to the Sibling-Heirs, she made a notation that the checks were for “INHERT.” or

“INHER.” (Appellants/Respondents’ Ex. C at 2).

        Also on April 11, Burger also wrote a check from the Estate account for $3,035 to

pay Elbert’s 2010 federal taxes.             Between April and June 2011, the Estate had

approximately an additional $6,000 of expenses that were paid. On June 23, 2011, the

Estate received proceeds of $41,271.07 from an auction of Elbert’s personal property.

On July 5, 2011, the Estate received proceeds, totaling $9,500, from the sale of Elbert’s

mobile home.



1
  The trial court initially ordered that the administration of the Estate was to be unsupervised but later
ordered that it be supervised upon a petition from Osborne.
                                                    3
       Sometime in July 2011, Burger met with her three sisters and discussed the

possibility of sharing some of the joint accounts and her life insurance proceeds with

them, but not Osborne. She gave them a paper showing how she might divide the funds.

The paper indicates that any division of these accounts would have $12,500 deducted

from it.

       On September 16, 2011, the Co-Personal Representatives filed a Personal

Representatives’ Inventory, which listed Elbert’s property that was part of the Estate.

The Inventory also listed the joint accounts but specifically excluded them from being

part of the Estate.

       On January 10, 2012, the Co-Personal Representatives filed a Final Account,

Petition to Settle and Allow Account, and Petition for Authority to Distribute Assets

Remaining and Close Estate (“Final Account”), which they later amended on July 31,

2012. The Final Account indicated that the Estate had a net total of $67,667.74 available

for distribution, which resulted in a $13,533.55 share to be received by each of the

Sibling-Heirs. In the Final Account, the Co-Personal Representatives noted that the

Sibling-Heirs had already received an advance distribution of $12,500 that had been paid

with Burger’s personal funds.

       The Objecting Heirs filed objections to the Final Account, arguing, in part, that the

joint accounts should have been included as a probate asset of the Estate and available for

distribution among the Sibling-Heirs because Burger told the Sibling-Heirs that she

would divide the joint accounts with them. They also asserted that Burger intended for

the joint accounts to be part of the Estate because she deposited the funds in the Estate

                                             4
checking account and then distributed $12,500 to the Sibling-Heirs from the Estate

checking account.

       The Co-Personal Representatives filed a response, arguing that the joint accounts

became Burger’s accounts upon Elbert’s death and explaining that Burger deposited

money from the joint accounts, which were then her accounts, into the Estate checking

account “only for the purpose of making advancements of estate shares to her sibling[-

heirs].” (App. 49).

       On August 22, 2012, the trial court held a hearing on the Final Account and the

objections. During this hearing, the Objecting Heirs argued that the $12,500 distribution

was a gift from Burger to the Sibling-Heirs.

       Burger, however, testified that although she initially told the Sibling-Heirs that she

would share the joint checking and savings accounts, she changed her mind “[w]ithin

days.” (Tr. 59). Burger testified that she especially did not want to share any of the joint

accounts with Osborne because he had not been close to Elbert prior to his death. Burger

testified that she deposited the money from the joint accounts into the Estate checking

account so that she could cover the expense of making early distributions to her Sibling-

Heirs, who had indicated that they needed money. She also testified that when she

deposited the money into the Estate checking account, she did not intend to give up

control of the money and that she knew she could be reimbursed after the auction of

Elbert’s personal property. She also testified that when she distributed the $12,500 to the

Sibling-Heirs, she was giving them an advance from the Estate and not a gift. Burger



                                               5
testified that when she met with her sisters in July 2011 to discuss the possibility of

dividing some of the joint accounts, she told them not to “hold [her] to that.” (Tr. 61).

       During the hearing, Osborne testified that Burger and Elbert were very close and

acknowledged that he was not close with Elbert and had not seen him for approximately

ten years before his death. Osborne acknowledged that the joint accounts were Burger’s

accounts and that he was aware that Burger put money from the joint accounts into the

Estate checking account so that she could make distributions to the Sibling-Heirs and pay

bills for the Estate. He, nevertheless, thought that Burger intended to make a gift and

divide the joint accounts with the Sibling-Heirs.

       On August 24, 2012, the trial court entered an order, determining that the joint

accounts were non-probate assets and approving the Co-Personal Representatives

amended petition on the Final Account over the Objecting Heirs’ objections. In relevant

part, the trial court concluded as follows:

       The court believes that the way things were handled gave rise to numerous
       arguments as to Tina Burger’s intentions with respect to non-probate
       property. However, the joint accounts she held with the Decedent were
       non-probate property. The court believes she put those monies into the
       estate to ensure the estate was solvent and to pay a proportionate share of
       the probate assets to each of the beneficiaries that she felt would cover the
       expected receipts from a later auction and sale of probate assets. Her
       statement that she would include the non-probate property in the estate and
       distribute them to all heirs, followed by a later and different statement
       excluding Howard Osborne from any portion thereof, reflects, in the court’s
       opinion, her exercise of dominion and control over the non-probate
       property and her belief they remained hers, to do with as she pleased.

(App. 7). The Objecting Heirs now appeal.




                                              6
                                        DECISION

       The Objecting Heirs argue that the trial court erred by determining that Burger’s

deposit of funds from the joint accounts into the Estate checking account did not

constitute a gift to the Objecting Heirs and by approving the Co-Personal

Representatives’ amended petition for a final account.

       The trial court here issued sua sponte findings of fact and conclusions thereon.

Sua sponte findings control only as to the issues they cover, and a general judgment will

control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d

1259, 1262 (Ind. 1997). We will affirm a general judgment entered with findings if it can

be sustained on any legal theory supported by the evidence. Id. In reviewing a judgment,

we must determine whether the evidence supports the findings and whether the findings

support the judgment. Id. We will neither reweigh the evidence nor judge the credibility

of the witnesses. In re Trust Created Under Last Will & Testament of Mitchell, 788

N.E.2d 433, 435 (Ind. Ct. App. 2003).

       Before addressing the issue of whether Burger’s deposit of funds from the joint

accounts and payment of $12,500 constituted a gift to the Sibling-Heirs, we note that

issues involving joint ownership of bank accounts are controlled by statute. Specifically,

Indiana Code § 32-17-11-18 provides, in relevant part, that “[s]ums remaining on deposit

at the death of a party to a joint account belong to the surviving party or parties as against

the estate of the decedent unless there is clear and convincing evidence of a different

intention at the time the account is created.”



                                                 7
       The Objecting Heirs do not dispute that the funds in the joint accounts belonged to

Burger upon Elbert’s death. Instead, the Objecting Heirs argue that “Burger made a gift

of the jointly owned non-probate funds when she deposited the funds in the estate

checking account.” Appellants’ Br. at 10.

       An inter vivos gift “is one by which the donee becomes in the lifetime of the donor

the absolute owner of the thing given.” Shourek v. Stirling, 652 N.E.2d 865, 867 (Ind. Ct.

App. 1995) (citing Hopping v. Wood, 526 N.E.2d 1205, 1207 (Ind. Ct. App. 1988)). In

addition to the competency of the donor, a valid inter vivos gift requires a showing that:

(1) the donor intends to make a gift; (2) the gift is completed with nothing left undone;

(3) the property is delivered by the donor and accepted by the donee; and (4) the gift is

immediate and absolute. Fowler v. Perry, 830 N.E.2d 97, 105 (Ind. Ct. App. 2005).

“Succinctly stated, for a valid gift inter vivos of personal property, there must be a

delivery of the property with an intention to give.      The donor must intend to part

irrevocably with absolute title and control of the thing given at the time of making the

gift.” Hopping, 526 N.E.2d at 1207 (citation omitted). “The donor’s intent is generally a

question of fact for the trial court.” In re Estate of Warman, 682 N.E.2d 557, 563 (Ind.

Ct. App. 1997), trans. denied.

       The Objecting Heirs contend that Burger made a gift of the funds in the joint

accounts because she: (1) told the Sibling-Heirs that she would divide funds from the

joint accounts with them; (2) deposited funds from the joint accounts into the Estate

checking account; and (3) distributed $12,500 to four of the five Sibling-Heirs.



                                            8
       The Objecting Heirs, however, fail to recognize that the evidence regarding the

element of Burger’s intent does not support their argument that she made a gift when she

deposited funds from the joint accounts into the Estate checking account and made

advance distributions from the Estate. Burger testified that although she initially told the

Sibling-Heirs that she would share the joint checking and savings accounts, she changed

her mind “[w]ithin days.” (Tr. 59). Additionally, Burger testified that she deposited the

money from the joint accounts into the Estate checking account so that she could cover

the expenses of the Estate, including early distributions to her Sibling-Heirs who had

indicated that they needed money from the Estate. Indeed, Osborne acknowledged that

the joint accounts were Burger’s accounts and that he was aware that Burger put money

from the joint accounts into the Estate checking account so that she could make

distributions to the Sibling-Heirs and pay bills for the Estate. Furthermore, the evidence

reveals that prior to Burger’s deposit of the money into the Estate checking account, the

account had a balance of $466.02 and that she paid Estate expenses, including $3,035 for

Elbert’s federal taxes and $5,283.39 for Elbert’s funeral, after she made the deposit.

Burger also specifically testified that when she deposited the money into the Estate

checking account, she did not intend to give up control of the money and that she knew

she could be reimbursed after money came in from the sale of Elbert’s property.

Furthermore, Burger testified that the $12,500 distribution to the Sibling-Heirs was an

advance distribution from the Estate and not a gift. Indeed, the evidence revealed that

one of the Sibling-Heirs received a car as an advance distribution, thereby supporting

Burger’s testimony.

                                             9
       Because there is evidence from which the court could conclude no gift was

intended, we affirm the trial court. See, e.g., Matter of Estate of Goins, 615 N.E.2d 897,

901-02 (Ind. Ct. App. 1993) (affirming the trial court’s determination that no gifts of a

certificate of deposit and tractor were intended where evidence supported such

determination), reh’g denied, trans. denied.       See also Warman, 682 N.E.2d at 564

(explaining that it is for the trial court to resolve factual conflicts regarding determination

of whether a valid inter vivos gift occurred). The Objecting Heirs’ argument to the

contrary is merely a request for this court to reweigh the evidence and the credibility of

witnesses, which we cannot do.

       Affirmed.

ROBB, C.J., and MAY, J., concur.




                                              10
