                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                     June 18, 2001 Session

          IN RE: ESTATE OF FANNIE MAE JOHNSON, DECEASED

                   Direct Appeal from the Probate Court for Shelby County
                           No. B-28101    Robert S. Benham, Judge



                     No. W2000-01510-COA-R3-CV - Filed August 2, 2001


This appeal arises from the trial court’s finding that a bank account was part of Decedent’s estate and
not the property of Executrix. In 1987, Decedent added Executrix to a bank account. Decedent
failed to mark the portion of the card signifying that the account was to have rights of survivorship.
After Decedent died, Executrix conducted an accounting in which she did not include the account.
Beneficiary contested the accounting arguing that account should be part of the estate. Executrix
argued that the addition of her name to the account created a presumption that the account’s right
of survivorship was a gift inter vivos. The trial court found that no presumption existed and that the
account was part of the estate. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed; and
                                       Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS and HOLLY K.
LILLARD, J.J., joined.

Paul A. Robinson, Jr., Memphis, Tennessee, for the appellant, Edna Johnson Wright, Executrix.

Kathleen N. Gomes, Memphis, Tennessee, for the appellee, Rebecca Moore.

                                             OPINION

       In 1987, Fannie Mae Johnson (Decedent) added the name of Edna Johnson Wright to a First
Tennessee bank account which previously had been in Ms. Johnson’s sole name. The signature card
with which Decedent made this change contained the following section:

       Right of Survivorship?      ____ YES                    ____ NO
       Customers Initials    _______________

Neither ‘yes’ nor ‘no’ was checked by Decedent. In addition, Decedent failed to initial this area of
the card.
        In 1988, Decedent executed a will which she changed by a codicil in 1993. In January, 1996,
Ms. Johnson died. The will and codicil were admitted to probate on September, 1997, where Ms.
Wright was appointed to serve without bond.1 Under the terms of the will, Rebecca Moore was to
receive ½ of the interest in certain real property, a $20,000 specific bequest and the remainder of the
estate. Ms. Moore filed a Petition for Inventory and Accounting of Decedent’s estate in early 1999.
When Ms. Wright filed the papers for the accounting, she did not include the First Tennessee
account on the basis of her belief that Decedent had intended the account to have a right of
survivorship. The failure to include this account in the accounting led Ms. Moore to file a protest
with the trial court.

        Ms. Wright argued to the trial court that the act of Decedent adding her name to the account
in 1987 created the presumption of a gift of the right of survivorship to Ms. Wright.2 The trial court
rejected this argument, finding that the account was part of Ms. Johnson’s estate and should have
been included in the accounting. This appeal followed.

         The issue, as we perceive it, is as follows:

         Did the trial court err in holding that the bank account in question was not a joint
         account with rights of survivorship, and thus should be included in the estate of the
         Decedent?

        To the extent that these issues involve questions of fact, our review of the trial court’s ruling
is de novo with a presumption of correctness. See Tenn. R. App. P. 13(d). Accordingly, we may
not reverse the court’s factual findings unless they are contrary to the preponderance of the evidence.
See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); Tenn. R. App. P. 13(d). With
respect to the court’s legal conclusions, however, our review is de novo with no presumption of
correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg,
P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d).

                                                  Status of Account

        “[T]he rule with reference to gifts inter vivos in this State [is] that intention to give and
delivery of the subject of the gift must clearly appear. Doubts must be resolved against the gift. .
. . The burden of proving that a gift was made is upon the donee.” Pamplin v. Satterfield,
265 S.W.2d 886, 888 (Tenn. 1954).



         1
           Due to the fact that only a photocopy of Ms. Johnson’s will could be found, Ms. Wright had previously filed
the will and codicil in Chancery Court to establish its validity.

         2
            Section 45-2-703 of the Tenne ssee Cod e details spec ific requirem ents that m ust be m et in order to create a
right of surviv orship in a joint bank accoun t. Howe ver, those provision s “shall not app ly to any accounts in existence
prior to Januar y 1, 198 9.” Tenn Code Ann. § 45-2-703(g) (2000). Thus, we consider this case in light of the common
law in existence before this statute was enacted.

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        In this case, Ms. Wright argues that Decedent’s act of adding Ms. Wright’s name to her
account created the presumption of a gift of the account’s right of survivorship. We disagree.
The fact that Decedent added Ms. Wright’s name to her account does not show any clear intent
that Decedent intended the account to pass to Ms. Wright’s control after Decedent’s death.
Indeed, the bequests of the Decedent could not be fulfilled in their entirety if the account passed
in such a manner. Nothing at all in the record suggests that it was the intention of the Decedent
that Ms. Wright should be granted any right of survivorship over this account. Ms. Wright has
clearly failed to meet her burden of proof. In light of that fact, we hereby affirm the trial court’s
findings in this matter.

        We note that Ms. Wright has presented several cases from other jurisdictions supporting
the position that Decedent’s act of adding Ms. Wright to her account should create a presumption
either that the addition of her name automatically creates a right of survivorship or that the
addition should be considered a gift inter vivos of the right to survivorship. Upon our review,
however, we note that the majority of those cases involve accounts where a decedent clearly
intended, through the markings on the signature card, that an account was to be a joint account
with rights to survivorship. The remaining cases involve jurisdictions that had a statutory
presumption that joint accounts were either inter vivos gifts between the parties or that they
automatically created a right of survivorship between the parties listed on the account.

        In the case currently before this court, there was no clear expression on the part of the
Decedent that she intended the account to be a joint account with the right of survivorship.
Indeed, the Decedent failed to mark the portion of the signature card that would create such a
right. Tennessee also has no statutory presumptions that pre-1989 joint accounts were either gifts
inter vivos or automatically created accounts with rights to survivorship. Thus, none of the cases
presented by Ms. Wright provided this court with any reason to accept her argument that the
simple act of adding someone’s name to an account automatically created a presumption that the
account was intended to have rights of survivorship or that the account’s right of survivorship
was to be a gift inter vivos.

                                            Conclusion

       Based upon the foregoing conclusions, we hereby affirm the trial court’s ruling. Costs on
appeal are assessed against the Appellant, Edna Johnson Wright, and her surety, for which
execution may issue if necessary.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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