### FILED January 28, 19

99 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

In Re: THE E STAT E OF MI LDRE D 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 Es tat e of Mildred M. Verkst rom, ) SULLI

VAN CHANCERY ) NO. 272 43(

M) Plaintiff- Appellee, ) ) HON. RICHARD E. LADD, v. ) CHANCELL OR ) EDNA M. GODWIN, ) ) Defend ant-App ellant, )

---------------------------- ----------------------) GORMA N WADD ELL, Co-Executor of ) the Es tat e of Mildred M. Verkst rom, ) 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 Plainti ff-Appellee. PAU L A. H ARR , Kingspo rt, for Defe ndant-A ppellant.

O P I N I

O N
Franks, J.

In this decl aratory j udgment action, t he issue on appeal i s whether the2

monies in an account es tablished by the deceased belongs t

o her Estate, or

passed by operation of law to a

ppellant, Edna M. Godwin. The deceased opened the account in question i

n 1972 in her name, and in 1980 added Bernice M. Gates as anot her signature on t

he 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 payment s were made from the account, the appellant transferred t

he balance of $120,000.00 t o herself. Following tria

l on the stat

ed issue, the

Chancellor, i

n his Memorandum Opinion, said:

I find that when she [Mrs. Verkstrom] added eit her sisters name, whether it be Mrs. Gates . . . or Mrs. Gates and/or Mrs. Godwin . . . that the intent was s imply to be an a dditional s ignature in t

he case of her disabili ty could have dr

awn on the account to take c are of her in the nature of a power of att orney ty pe situation. . . . Mrs. Verkstrom’s int ent is further shown in E xhibit #4, . . . First, that the original signature card of 1972 had only Mrs. Verkst rom’s name. The card of August 8, 1980, which is the second car d and which added Bernice Gates indi cia that Mrs. Verkstrom did not i ntend right of sur

vivorship except

to have the sister have t

he power to draw on the account i s a fact that i n the titl e of the card it di

d not have right of survivorship shown. I n the titl e of the card it’s written on there tha t Mrs. Ve rkstrom is the only one that’s to get the bank stat

ement. And added on the back of the ca rd it say s “add new signature” as t

he purpose of the card. . . . In t he card of 1989, which is C on Exhibit #4, Mrs. Verkstrom shows her inte nt once again by putting the ac count back into her na me only. Then on the last card of May 27, 1994, D of Exhibit #4,the titl e of the account is

Mildred M. Verkstrom or Edna Godwin, not and. Ther e’s a place on ther

e 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 t

he card is not l

isted with ri

ght of survivorshi

p. 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 any

thing about right of survivorship. So those are the i ndicia then t

o support my findi

ng that the intent of Mrs. Verkstrom and her sis ter all t hrough this was that

the property wo uld remain Mrs. Ve rkstrom’s an d therefore the property in both accounts would go int o her estate. The evidence does not preponder ate against t

he factual deter

minations made by t

he Chancellor. T.R.A .P. Rule 13(d).3 The signature card e

xecuted on January

24, 1989, shows the st

yle of the account as “Mildred M. Verkst rom”. The next signat

ure card on this a

ccount indicates t

hat the account was an exi sting account,but opened on May 27, 1994, t he style of t he account being “Mildred M. Verkst rom or Edna Godwin”. The account signature car

d was signed by Mildred M. Verkst rom 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 belo w. [Not filled in] Joint tenants with right of s urvivorship,and [Not filled in] Additiona l authorized signer (Pow er of Attorney). By his/her s ignature(s)

hereon Depositor(s ) certifi es the above and acknowledges receipt

of the Depositor Agreement wit h disclosures

for the Account indicat

ed, and agrees to be

bound by its t

erms as well as any changes or addi

tions hereaft

er adopted by bank. The account was essentia lly rene wed on January 24, 1989, and Godwin’s name was added to the account on May 27, 1994, which changes occurred after the effect

ive date of the 1989 amendment t o T.C.A. §45-2-703. Any per tinent 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 joi

nt account with ri

ght of survivorshi

p. The Chancellor proper ly reje cted this as contr

olling, and poi

nted out that i

n the account ti

tle there was no i

ndication tha

t the account was a joi

nt account with t

he right of survi

vorship. The bank’s c

ustomer 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 j oint 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 survi

vorship account. The record establi shes that the bank’s customer1 The document in pertinent p

art states: Remember, should the accoun t 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 checke d 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 c ard. If a card involving multiple depositors is submitted CI F without an adequate description of ownership inte

rest (either in t

he styling o

r by checki

ng the appro

priate block) , the card will not be returned

and you wil

l be required to

obtain anothe

r signed card

with the appro

priate ownership interests designated.

2 T.C.A. §45-2-703.(e) . Accounts described in subsection (c) shall estab lish the following interests: . . . (4) In the absence of

any specific

designation in accordance with subsectio n (d), property held under the

title, tenancy

by the entire

ties, carries a right of surv ivorship; pro

perty held under the title,

joint tenancy,

carries no rig

ht of surviv

orship unless a

contrary inte

ntion is expressly sta

ted. Any ot

her person to w

hose order the

accounts or ce

rtificate of dep

osit is subject shall be presumed to have pow er of attorney with respect thereto and not to be an owner thereof. Such presumptions m ay be rebutted by clear and conv incing evidence presented in the course of legal or equitable p roceedings. Final judicial determinations contrary to such presumptions shall n ot affect a bank’s earlier payment in accordance therewith, or the limitations on liability co nferred by the provisions of subsections (a) and (b) 4 service manual’s

instructi ons on opening an account is that in the e

vent 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 fort

h in the account t

itle at t he top of the signat

ure card, or as checked in one of the desi gnated boxes above the si gnature lines . It also r

equires that one of the boxes must be checked. 1

Under T.C.A. §45-2-703, a desi gnation by t

he depositor of j oint tenancy with right of sur

vivorship is

conclusive evidenc e of the intent ion of all named that

the account proceeds pass

to the survivor, but with the des ignation of “addi tional authorized si gnatory” i

t is conclusi

ve that the pers on so designated has power of attorney with respect t

o such account and is not an owner of such account. Under T.C.A. §45-2-703, where t here is no designat

ion of joint t

enancy with a ri

ght of survivorship,

or designati on 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 stat utory designations is s tated on the si gnatory car

d,or §45-2-707.

5

T.C.A. §45-2-703(e)(

4) is applic able, which esta blishes the pr

esumption that t

he 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 stipul ated that t

he appellant did not deposit any of the funds in the ac count and claimed no prior ownership in any of t he funds. There is no cl ear and convincing evidence to rebut

the presumption t

hat appellant

possessed anyt

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

We affirm the judgment of the Tr ial Court and remand wit h 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.