                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON

JOHN MARSHALL GEORGE and          )
LINDA SOUTHERLAND JONES,          )
                                  )
           Petitioners/Appellees, ) Shelby Probate No. B-28694
                                  )
VS.                               ) Appeal No. 02A01-9807-PB-00183

RUTH EMERSON SPALDING
WARMATH, Executrix of the Estate )
                                  )
                                  )                               FILED
of BONNIE T. SPALDING, Deceased, )
                                                            May 24, 1999
                                  )
           Defendant/Appellant.   )
                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
          APPEAL FROM THE PROBATE COURT OF SHELBY COUNTY
                       AT MEMPHIS, TENNESSEE
              THE HONORABLE ROBERT S. BENHAM, JUDGE




LEONARD E. VAN EATON
HERSCHEL L. ROSENBERG
VAN EATON & ROSENBERG
Memphis, Tennessee
Attorneys for Appellant


BLANCHARD E. TUAL
Memphis, Tennessee
Attorney for Appellees




AFFIRMED IN PART & REVERSED IN PART




                                                           ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.

      This appeal involves a dispute among the beneficiaries of the estate of Bonnie M.
Spalding (“Spalding”) over funds from several financial accounts. The subject accounts

included a certificate of deposit, a savings account, a checking account, and two money

market investment accounts. Prior to Spalding’s death, the savings account, the checking

account, and the money market accounts had all been maintained as being owned jointly

by Spalding and her daughter, Ruth Emerson Spalding Warmath (“Warmath”), with right

of survivorship. The certificate of deposit had been maintained as being payable on the

death of Spalding to Warmath. Subsequent to Spalding’s death and during the course of

probate proceedings, her deceased daughter’s children (Spalding’s grandchildren), John

Marshall George (“George”) and Lynda Southerland Jones (“Jones”), filed a “Petition to

Contest Monies Passing to [Warmath] and to Set Up a Resulting Trust for All Monies

Passing to [Warmath] as a Result of Joint Accounts with [Spalding] with Right of

Survivorship.” Essentially, George and Jones maintained that Spalding intended that all

her property be divided after her death such that Warmath would receive one-half, George

would receive one-fourth, and Jones would receive one-fourth.            George and Jones

therefore asserted that one-half of any monies from the subject accounts, which passed

directly to Warmath upon Spalding’s death, were held by Warmath in a resulting trust for

the benefit of George and Jones. The trial court did not find and enforce any such resulting

trust as to either the certificate of deposit or the savings account. The trial court did find,

however, “that the proceeds of [the checking] account are properly the property of the

probate estate and should be distributed in accordance with the terms of the will.”

Similarly, the trial court found that the money market investment accounts were properly

assets of the estate. The trial court therefore ordered Warmath “to immediately transfer

the proceeds” from the checking account and the money market accounts to Spalding’s

estate. Based upon our review of the record, we find that George and Jones failed to

present clear and convincing proof to support the establishment of a resulting trust.

Therefore, we reverse the trial court’s judgment as to the checking account and the money

market accounts, and affirm the trial court’s denial of relief as to the certificate of deposit

and the savings account.



                             I. Facts and Procedural History



                                              2
       On January 18, 1989, Spalding executed a Last Will and Testament. According to

the terms of Spalding’s will, if her husband failed to survive her, the assets of her estate

are to be distributed one-half to Warmath, and one-half in trust for Spalding’s other

daughter, Wanda Janice Spalding Southerland (“Southerland”).            In the event that

Southerland was not living at the time of Spalding’s death, then the will provides that

Southerland’s one-half interest is to pass to George and Jones, Southerland’s two children,

in equal shares.



       On November 7, 1989, Southerland died. On May 25, 1993, Spalding’s husband

died. At some point during 1993, after the death of Spalding’s husband, Spalding arranged

to have Warmath’s name added to several of her bank accounts. The signature cards to

both her Union Planters savings account and her Union Planters checking account were

revised to reflect joint ownership between Spalding and Warmath with right of survivorship.

On June 4, 1993, Spalding opened a Leader Federal joint account between Spalding and

Warmath with right of survivorship. Also, on September 21, 1993, Spalding purchased a

Union Planters certificate of deposit that was payable-on-death to Warmath.



       In 1996, Spalding’s overall physical health declined. On May 14, 1996, Spalding

executed a Durable Power of Attorney for Finance, pursuant to which Spalding granted to

Warmath full power and authority over all of Spalding’s financial affairs. In August or

September 1996, Spalding fell and broke her hip, and was admitted to a hospital. On

September 16, 1996, Warmath closed the Leader Federal joint account and transferred

the funds to two Piper Jaffray money market accounts, which were opened under the same

form of ownership, joint between Spalding and Warmath with right of survivorship.

Warmath’s undisputed testimony explained that Warmath transferred the funds in order

for Spalding to benefit from a higher rate of return on the invested funds.



       After Spalding’s hip injury, Spalding spent the remainder of her life in a nursing

home. On December 11, 1996, she died. Thereafter, on January 2, 1997, her will was



                                             3
admitted to probate and Warmath and Bobby Joe Smith were appointed as co-executors.



         As mentioned earlier, George and Jones filed a petition during the probate

proceedings of Spalding’s estate, contesting Warmath’s entitlement to the funds from the

subject accounts. To summarize, the disputed funds are from the following accounts:

         1.       Union Planters certificate of deposit number 410206, which had an original

face amount of $100,000.00, was originally purchased on September 21, 1993, and was

captioned “Bonnie M. Spalding P.O.D. Ruth S. Warmath”;

         2.       Union Planters savings account number XX-XXXXXXX, which contained

approximately $2,600.00 at the time of Spalding’s death, was originally established on July

24, 1973, and was revised at some point after the death of Spalding’s husband to reflect

ownership as “Bonnie M. Spalding or Ruth Spalding Warmath” as joint tenants with right

of survivorship;

         3.       Union Planters checking account number XX-XXXXXXX, which contained

approximately $5,600.00 at the time of Spalding’s death, was originally established on

March 1, 1962, and was revised at some point after the death of Spalding’s husband to

reflect joint ownership between Spalding and Warmath with right of survivorship;1 and

         4.       Two Piper Jaffray money market accounts, which contain approximately

$150,000.00, were funded by all amounts previously held in the prior Leader Federal joint

account, and were established as joint accounts between Spalding and Warmath with right

of survivorship.



         In George’s and Jones’s petition, they alleged that Spalding did not intend for

Warmath to receive all of the funds that were held in the accounts, but, rather, intended

for the funds to pass in accordance with the terms of her will -- one-half to Warmath, one-

fourth to George, and one-fourth to Jones. The trial court did not find and enforce a

resulting trust as to the certificate of deposit and as to the savings account. It did

conclude, however, that the funds from the checking account and the money market


1. This signa ture c ard to the U nion P lante rs ch eck ing ac cou nt wa s late r revis ed ag ain on July 19, 1995 to add
Barbara Townsend as an additional joint tenant with right of survivorship. However, based upon our disposition
of the subject appeal, we need not address th e fur ther r am ificatio ns of Tow nse nd’s addit ional o wne rship
interest.

                                                            4
accounts are properly property of the probate estate to be distributed under the terms of

Spalding’s will.2 The trial court therefore ordered Warmath “to immediately transfer the

proceeds” from the checking account and the money market accounts to Spalding’s estate.

Thereafter, Warmath appealed.



                                                   II. Analysis



A. The Joint Accounts.

         Upon review of this case, we are guided, in part, by Lowry v. Lowry, 541 S.W.2d 128

(Tenn. 1971). In Lowry, the Tennessee Supreme Court set forth the following guiding

principles that are pertinent to the joint accounts in this case:

         [A] joint account agreement with rights of survivorship establishes a contract
         which transfers the account proceeds at death by operation of law. Thus, a
         will disposing of the estate does so without regard to the assets of the joint
         survivorship account; that is, only that property owned at death passed by
         will. 1 Pritchard, Law of Wills and Estates, § 28, (2d ed. Phillips 1955);
         T.C.A. § 32--301; Sadow v. Solomon, 204 Tenn. 190, 319 S.W.2d 83, 85
         (1958), and it is clear that joint survivorship funds are not owned by the
         decedent at death:

                  “The right of survivorship may be created in a joint bank account . . .
                  in which event the proceeds pass to the survivor by operation of law
                  and do not become a part of the assets of the estate in the hands of
                  the personal representative of the decedent.” 2 Pritchard, supra, §
                  621.

                Absent clear and convincing evidence of contrary intent expressed at
         the time of its execution, we hold that a bank signature card containing an
         agreement in clear and unambiguous language that a joint account with
         rights of survivorship is intended, creates a joint tenancy enforceable
         according to its terms; and upon the death of one of the joint tenants, the
         proceeds pass to the survivor.

Lowry, 541 S.W.2d at 131-32 (emphasis added). The Lowry court further stated:

         The establishment of a joint bank account creating a joint tenancy with right
         of survivorship in clear and unambiguous language is subject to the parol
         evidence rule and is generally immune from attack in the absence of fraud,
         misrepresentation, duress, undue influence, mutual mistake, and incapacity.

Id. at 133.



2. W e find it relevan t to note that the relief granted by the trial court was not entirely consistent with the relief
prayed for by Ge orge an d Jone s. Geo rge and Jones sough t enforce men t of a resulting trust for their own
direct benefit, whereby Warmath would be directly liable to George and Jones. Instead, the trial court directed
payment of the f und s to S paldin g’s es tate, w hich wou ld sim ilarly be nefit G eorg e and Jone s indir ectly.
However, because the petition filed by George and Jones was filed as a part of the probate proceedings, and
because no error has been raised on appeal based upon the form of relief gran ted by the trial co urt, we w ill
proceed with reviewing whether any relief (in either form) was appropriate in this case.

                                                          5
        In this case, signature cards or other such agreements containing such clear and

unambiguous language that joint accounts between Spalding and Warmath with rights of

survivorship were intended, were introduced at trial as to the Union Planters savings

account, the Union Planters checking account, and the Piper Jaffray money market

accounts. The ownership reflected on both the savings account agreement and the

checking account agreement was “joint-with survivorship,” and each of these agreements

listed both Spalding and Warmath as account owners. Also, both of these documents,

which were signed by both Spalding and Warmath, further described a joint account with

survivorship by explaining that each of the account owners “intend that upon your death

the balance in the account . . . will belong to the survivor(s).” Similarly, the ownership

reflected on both Piper Jaffray “Co-Owner” agreements was “Joint Tenants With Right of

Survivorship,” and each of these agreements listed both Spalding and Warmath as account

owners. Also, both of these co-owner agreements further described “joint tenants with right

of survivorship” by explaining that if any owner dies, “the entire interest in the joint account

shall be vested in the survivor.”3



         Based upon the foregoing, Warmath’s right of survivorship as to any funds from the

savings account, the checking account, and the money market accounts is enforceable

absent clear and convincing evidence of some contrary intent of Spalding at the time when

Warmath’s name was added to each account. No such clear and convincing evidence was




3. It must be noted that the fact that Warmath unilaterally closed the Leader Federal account and transferred
all such funds to the Piper Jaffray accounts, which were open ed by W arm ath in her individual capacity and
through the power of attorney that had been executed by Spalding, does not affect our review of Spa lding’s
intent as to the P iper Jaffre y accoun t funds u nder the unique fa cts of this c ase. This is because these same
funds were transferred by Warmath directly from the Leader Federal account that was likewise designated
as being a “joint account with right of survivorship” between Spalding and W arma th, the named account
owners. The ac count a greem ent to the e arlier Lead er Fede ral acco unt furth er bore both Spalding’s and
Warm ath’s original signatures and described the “joint account with right of survivorship” by explaining that
“the Account created . . . is and shall become the property of each joint account owner as joint tenants and
that the survivor is entitled to all monies in the account even if the first person to die has a will sp ecific ally
directing disposition to someone else.” Also, the bank officer who opened the Leader Federal accou nt in
1993 testified that she explained the nature of the ownership of the account to Spalding, and that Spalding
understood that Warmath had the right to withdraw money without Spalding’s permission. Moreover, because
this prior Leader Federal account, fr om whic h the Pipe r Jaf frey a cco unt fu nds were take n, wa s orig inally
opened after January 1, 1989, the designation of “joint account with right of survivorship” would have operated
as conclusive evidence of Spalding’s and Warm ath’s intentions that title vests in th e survivo r, had W arm ath
left the funds in the Le ader Fe deral acc ount. See Tenn . Code A nn. § 45- 2-703(e )(1) & (g) (1 993). Based
upon the above facts and circumstances, any allegation raised by George and Jones as to any breach of
W arm ath’s fiduciary duty to Spalding arising from the power of attorney is without merit. The Leader Federal
account funds were jointly owned prior to the exec ution of the pow er of attorn ey. W arm ath a cted entire ly
within her rights and authority when she closed the Leader Federal account and transferred the funds to the
Piper Jaffray accounts.

                                                         6
presented at trial, however. George and Jones primarily relied upon Spalding’s will,

whereby Spalding effectively divided her estate so that W armath receives one-half, George

receives one-fourth, and Jones receives one-fourth, and upon certain statements made by

Spalding expressing an intent that her estate be divided as such between Warmath,

George, and Jones. As the Tennessee Supreme Court previously observed under the

facts of Lowry, Spalding’s will and her oral statements made relating to the division of her

estate in this case were “couched in general terms and did not evidence any specific intent

on the part of [Spalding] to include the joint accounts in the probate estate.” See Lowry,

541 S.W.2d at 132. Warmath’s receipt of all proceeds in the joint accounts is not

necessarily inconsistent with an expression of intent by Spalding that her estate be divided

as set forth in the will, because, under Tennessee law, “joint survivorship funds are not

owned by the decedent at death” and “do not become a part of the assets of the estate.”

Id. at 131. Spalding’s estate can still be divided as set forth under her will absent the joint

account funds.



       At trial, no proof established that any change in ownership of the subject funds or

accounts, to joint with right of survivorship, was the product of fraud, misprepresentation,

duress, undue influence, mutual mistake, or incapacity. In fact, testimony was introduced

that weighed against any such findings.         The record is replete with uncontroverted

testimony that Spalding was at all times a strong-willed, mentally competent individual, fully

capable of handling her affairs and completely able to understand the ramifications of her

actions. To apply the Supreme Court’s language from Lowry, “In view of [Spalding’s]

financial awareness, and her transactions [regarding several different accounts], . . . it

would be presumptuous to say that she was not familiar with the legal aspects of joint

tenancy.” Id. at 132-33. Furthermore, testimony from the bank officer who was present

at the time Spalding executed the savings account signature card established that the

officer explained the nature of a joint account with right of survivorship to Spalding, and that

it was Spalding who chose the type of ownership. Moreover, the same officer testified, as

to the Union Planters checking account, that the ordinary practice and procedure for Union

Planters bank employees who handle such account agreements is to explain to the



                                               7
depositor (Spalding) the rights of available types of ownership. Likewise, the Leader

Federal bank officer who handled the agreement to the Leader Federal account (the

account from which the Piper Jaffrey money market funds came), testified that Spalding

would have chosen the type of ownership and that the rights applicable to such ownership

would have been explained to her.



         Perhaps the strongest testimony within the record to support George’s and Jones’s

position is that Warmath admitted that she originally believed that Spalding added her

name to the checking account simply for the convenience -- for Warmath to be able to write

checks for Spalding on occassion. This testimony, however, does not establish any

mistake on Spalding’s part.                 No proof otherwise established that Spalding did not

undertand or appreciate the nature of a joint account with right of survivorship. Therefore,

absent such proof, it would, again, be presumptuous to say that there existed some mutual

mistake.



B. The payable-on-death account.

         As with joint accounts with right of survivorship and in appropriate circumstances,

payable-on-death funds are no longer owned by the decedent at death and do not become

a part of the assets of the decedent’s estate. Tennessee Code Annotated section 45-2-

704(b), which governs payable-on-death accounts, sets forth the following:

          (1) Any person, or persons jointly as tenants with right of survivorship,
         owning a deposit account may enter into a written contract with any bank
         whereby the balance of the deposit account may be made payable on the
         death of the last surviving owner to another person or persons,
         notwithstanding any provisions of law to the contrary.[4]
          (2) In creating such account, “payable-on-death” or “payable on the death
         of” may be abbreviated to “P.O.D.”
                                              ....
         (4) The interest of a death payee shall be deemed not to vest until the death
         of the owner . . . .
          (5) The following terms shall apply to such account, unless the contract
         provides otherwise:
                  (A) The interest of a death payee in the account vests only if the
                 payee survives the last surviving owner;
                                              ....


4. Cf. Peoples Bank v. Baxter, 41 Tenn. App . 710 , 298 S.W .2d 7 32 (1 956 ) (Ca rney, J., dissenting) (stating
“until the Legislature does so provide, I think that bank accounts, whether checking account or time deposits,
over whic h the depo sitor r etain s full c ontro l up un til the tim e of h is death co nstitute as sets of the estate of the
depositor”).

                                                              8
              (C) If no death payees survives [sic], the account shall remain in the
              estate of the last surviving owner.

Tenn. Code Ann. § 45-2-704(b) (Supp. 1998) (emphasis added). In this case, the Union

Planters certificate of deposit, which was signed by Spalding and was purchased by

Spalding after execution of her will, was purchased as “Bonnie M. Spalding P.O.D. Ruth

S. Warmath.” Therefore, the account was payable-on-death to Warmath, the named death

payee. Because Warmath survived Spalding, the account vested in Warmath upon

Spalding’s death, instead of remaining within Spalding’s estate. Cf. id. § 45-2-704(b)(5)(A)

with id. § 45-2-704(b)(5)(C).



       Even absent section 45-2-704(b), Spalding’s Union Planters certificate of deposit

was a contract between Spalding and the bank, with Warmath listed as a third-party

beneficiary. As with other contracts, “[c]ourts must give effect to the language of a written

contract where such language is plain and unambiguous,” including a plain and

unambiguous payable-on-death provision. Peoples Bank v. Baxter, 41 Tenn. App. 710,

298 S.W.2d 732, 738 (1956). If Warmath is the valid donee third-party beneficiary of the

contract between Spalding and Union Planters, then “it follows that the other next of kin

would have no interest in the proceeds of that certificate of deposit.” Id. at 739.



       Moreover, as we noted earlier with respect to the joint accounts, no proof

established that the P.O.D. designation was the product of fraud, misrepresentation,

duress, undue influence, mutual mistake, or incapacity. As we previously stated, the

record is replete with uncontroverted testimony that Spalding was at all times a strong-

willed, mentally competent individual, fully capable of handling her affairs and completely

able to understand the ramifications of her actions. Moreover, the Union Planters bank

officer who handled the transaction testified that she routinely explained the nature of a

payable on death beneficiary designation to customers prior to their establishing their

accounts.



C. Resulting Trusts.

       The Tennessee Supreme Court has recognized, “The creation of a resulting trust

                                             9
is not a means to avoid the law with regard to joint tenancies with rights of survivorship as

established in Lowry . . . .” In re Estate of Nichols, 856 S.W.2d 397, 402 (Tenn. 1993).

Therefore, in accordance with the foregoing review of the joint accounts in this case,

imposition of a resulting trust as to any such accounts is improper. Moreover, based upon

the foregoing review of the payable-on-death account in this case, we can find no reason

to justify any differing result.



                                      III. Conclusion



       Accordingly, the trial court’s judgment is hereby reversed as to the funds from the

Union Planters checking account and the Piper Jaffray money market accounts, and is

hereby affirmed as to the Union Planters savings account and certificate of deposit. Costs

on appeal are taxed to George and Jones, for which execution may issue if necessary.



                                                         HIGHERS, J.

CONCUR:



CRAWFORD, P.J.,W.S.



FARMER, J.




                                             10
