# FILED
February 18, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENNES SEE

AT NASHVILLE

ESTATE OF: ) CONNIE S. B LIGH, Dece dent, )

) MICHAEL S. BLIGH, Exec utor, )

) Plaintiff/Appell

ant, ) App e

al No. ) M1999-02645-COA-R3-CV VS. ) ) Davidson Probate LURANA SNIDER, ) No. 95P-93 ) Defendant/Appellee. )
APPEALED FROM THE PROBATE COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE FRANK G. CLEMENT, JUDGE

MICHAEL BRIEN BLIGH 392 Harding Place,

Suite 215 Nashville, Tennessee 37211 Attorney for P

laintiff/Appella

nt PAUL R. WHITE Suite 400, Washington Square 214 Second Avenue N

orth Nashville, Tennessee 37201 Attorney for Defendant/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. COTTRELL , J.-2- 

### O P I N IO N

This is an action by the executor of an estate to collect t wo loans made by the decedent

to the defendant and t

o recover the funds

represented by
acertificate

of deposi t withdrawn by the defend ant before the decede nt’s death. The Probate Court of D avidsonCounty held that the loans had been repaid and that t he cer tific ate of depo sit re prese nted a gift to th e defe ndan t. We af firm.

I.

The decedent, Connie B ligh, and Lurana Snider were fr

iends. Ms. Blighlived alone in a larg e house on West End Avenu e in Nashville. Ms. Snider frequently

visited Ms. Bligh to r

un errands for her a

nd to take her on shopping trips. In 1986 and 1987 Ms. Bligh made two loans to Ms. Snider.

In 1990 Ms. Bligh deposited $60,000 in a Federal Savings and Loan Associa tion, listin g herself as the sole owner of the cert

ificate. In 1991 sh

e changed ownership of the ce rtificate to rea

d, “Mrs. C. L. Bligh or Mrs.Elmer E. Snider.”

Ms. Bligh’s health failed in the fall of 1993. On October 25, 1993 Ms. Snider, havin

g possession of the cer

tificate of deposit, withdrew

the funds from the account. T he court appointed a conservator for Ms. Bligh in January of 1994, and she died a year later.

Ms. Bligh’s nephew, Michael S. Bligh, was appointed exec utor of her estate. In 1996

the executor sued Ms . Snider to collec t the unpaid

loans, and to recover the funds w

it hdra wn from the cert ificate of d eposit. Ms . Snider’s
answer asserted that the loans had been repaid a nd that the certificate of deposit represented a gift to her.-3- II.

To prove the two loans the executor introduc ed the responses to two requests for admissions answered by Ms. Snider. The questions and answers are as follows: 3. Admit or deny that on December 1 7, 19 86,

the defendant Lur

a na Snider, rece

ived $15,000.00 from the dece

dent, Connie Bligh,

as a loan. RESPONSE : Yes and paid back i n full 4. Admit or deny

that on Septemb

e r 5, 19 87, the defendant, Lurana Snid er, r eceived $5,00 0.00 from the decedent, Conni

e Bligh, as a loan. RESPONSE : Yes and also paid ba ck in full
The executor then c

losed his case in chie

f on the two loans. The court granted Ms. Snider’s motion to dismiss at the close of the plaintiff’s proof.

On appeal the executor

contends that the

admissions are conclusive and that without positive p roof of repayment, they

are sufficient to establish Ms. Snider’s obligation to the estate. In essence he argues that the explanation does
no t come into eviden

ce with the adm

ission, because a pa

rty cannot adm

it facts that it has the burden o

f proving.

Rule 36, Tenn. R. Ci

v. Proc., allow s a party to serve a request fo r admis sions on the opposite party. The rule also places on the party served an obligation

to admit or deny the request in a timely fashion, or the m atter may be taken as admi tted. Some a nswers, however

, require qualifi

cation, and the rule takes that fact into

account by

providing “when

good faith requires t

hat a party qualify an answer or deny only a part of the

matt e r of which an adm

ission is requested, the party shall specify so much of it as is t

rue and qualify or de

ny the remainder.” If the requesting pa rty is not satisfi

ed with the answer

s, it may m

ove the court “to determine the su fficiency of the answers or o bjections.”-4- We know of no authority

allowing a party

to select and use par

ts of
aresponse to a request for admissions. If so me part of the response is objectionable

the rule allows the

objecting

party to ask the c

ourt to resolve the dispute. A leading treatise on the federal rules describes the procedur e in this way: “The next step is left to the party serving the requests . . .If he wishes to challenge the sufficiency of the objections, or the sufficiency of the answers, h

e may move for such a determinati on.” 4A Moore’s Federal Practice § 36.06. Our Supreme Court ad o pted this procedure i n a case involving the f

ailure to
an swera re quest for admissions. See Tennessee Dept. of Human Services v. Barbee , 714 S.W.2d 263 (Tenn. 1986).

We think the defendant w as entit led under Rule 36 to explain her
answer to the request . If the plaintiff wished to use the adm

ission without the explanation, he should have sought an or der from the c

ourt. There bein

g n o otherproof in

the record that the

loans were still out

standing, the trial judgewas justified in dism

issing this part of the action.

III.

The trial judge held tha t th e decedent had made a gift of the certificate of deposi t to Ms. Snider.

The e x ecutor is correct

that Ms. Snider ha

s the burden of proving the essentials of a gift: donative intent an d deliver y, First National Bank v. Howard , 302 S.W.2d 516 (Tenn. Ct. App. 1957). And the proof must be clear, cogent, and convincing, Parsley v. Harlan , 702 S.W.2d 166 , 173 (Tenn. Ct. App. 1985).

The evidence showed tha t Ms. Bligh

was a woman of som

e means, owning a large home on

West End Avenue in Nash

ville where she re

nted rooms.-5-

Atone time she kept modest amounts of cash in her home. She used a large safe in her bedroom and a family m ember once gave her a smaller safe for Christmas.

Ms. Snider was descr

ibed in the record a

s be i ng like the daughter that Ms. Bligh never had . She visited Ms. Bligh often and took her on shopping trips and to doctor’s appointm ents. When she ha

d to be out of town, Ms

. Snider would arrange for

one of her friends t

o keep in touch with Ms . Bligh.

On January 17, 1991, Ms. B ligh transferred the o wnership of the certificate

of deposit from

her sole name t

o “Mrs. C . L. Bligh or Ms. Elmer E. Snider.” Later, after preparing a will, Ms. Bligh

told a mutual friend that she had “already taken care of Ronnie (Ms. Sn ider).”

Donative intent may be est abl ished by showing the love and affectio n between the donor and don ee. McClure v. Stegal l , 729 S.W.2d 263 , 266 (Tenn. Ct. App. 1987); Simmons v. Foster , 622 S.W.2d 838 (Tenn. Ct. App

. 1981). Here, Ms. Bligh considered Ms. Snider as a daughter; they obviously had a close relationship

for many y

ears. We can

not say that the tr

ial judge erred i

n concluding that the pro

of clearly es

tablished Ms. Bligh’ s donative intent.
Delivery is moreof

a problem because Ms. Bligh’s name rem ained
on the certificate of depo sit. This question has bee n litigated frequent

ly and has
come to the attention of

the legislature on se

veral occasions. Most of the cases dealing with this question however are of little help because they

deal with funds lefton deposit at the death of one of the partie s. Therefore, they help decide rights of survivorship rather than whether t he dono r made an inter -vivos gift. Also, the banking statutes are designed to protect the paying bank, not t

o change
a ba sic and fundamental form of pro perty ownership in bank deposits. Griffi n v. Prince , 632 S.W.2d 532 (Tenn. 1982).-6- Estate of Haynes v. Braden , 835 S.W.2d 19 (Tenn. Ct. App

. 1992) is one case where the court dealt with the e ffect of the funds in two acco unts having been withdrawn befor e the death of the or iginal depositor. T

he funds were in joint ac

counts with rights of s

urvivorship. Shortl

y before the de

ath of the depositor, the other

party withdre

w the funds. The c

ourt held t

ha t the chancellor

erred in holding that t

he deceased did not

relinquish

control before his death. When the other party withdrew the funds, the gift was complete.

We should point out tha t in Estate of Haynes there was an agreement bet

ween the parties a

nd the bank as follows : “We hereby apply

for an account as joint tenants withrights of survivo

rship and not as tenants by the entirety in Security Trust Federal Savings and Loan and for the

issuance of evidence thereof in their j oint names described as afor

esaid. You

are directed to act pursuan t to any one or m ore of the joint sign

atures, shown below, in any m

ann er i n connection with this account and, without limiting the g en erality of the foregoing, to pay, wi thoutany liability for such payment, to any one of the

survivor or survivors at any time. It is a gr eed by the signatory parties with each other and by the parties with y ou that any funds placed i n or added

to the account by any one of the parties are and shall be conclu sively intended to

be a giftand d

elivery at that time of such funds to the othersignatory party or parties to the extent of his or their pro rata in terest

in the account. (Emphasis added.)” There is no com

parable provision in t

his case. But this la

nguage, as we see

it, only supports a finding of donative intent. Th e agreement d

oes say that any funds deposited by either

party sh all be “de livery” to the other party , but only “t o the extent of his or their pro rata interest in the acc

ount.” Each part

y retained the right to withdraw the fu

nds at any ti

me and ea ch party retai

ned the right of survivorship.

In our opinion the delive

ry in this case

is moreclearly established than it was in Estate of Haynes . Here, Ms. S nider was designate d as a joint
owner of the funds giving her the unfettered right to withdraw the m. ( See Tenn. Code Ann. § 45-2-703(a) below.) Although Ms. Bligh had the same right, there-7-

is no indication in the record that she had a continuing inter est in the fu nds by retainingthe right of su rvivorship, as the do nor did in Estate of Haynes . Ms. Sniderheld the certif

icate and Ms. Bligh stated that she had “ta

ken care of Conn ie. ” Although the Dead M an’s Statute, T

enn. Code Ann. § 24- 1-203, prevented Ms. Snider

from testifying that Ms. Bligh had given her the certificate, she did testify that she hadnever taken anything fr

om Ms. Bligh’ s house without her permission.

We think the

record clearly showed a delivery to Ms. Snider. The funds were in an accoun t for which she had t

he right of

withdrawal. S he withdrew the funds. A t that point, we think the burden shi fted to the estate to show that the result was contrary to Ms. Bligh’s w

ishes.

We do not think our statutes compel a different result. The rel

evant statute is Tenn. C

ode Ann. § 45-2-703.It provides in subsect ion (a): When a deposit has been made or shall here afterbe made, in an y bank, in the names of two (2) or more persons, payable to eithe

r, or survivor, suc

h deposit, or any part thereof, or

any interest or

divi dend th ereon, may be pai d to e ither of such persons , whether the others be living or not;

and the receipt or acquittance of such person

so pai d shall be a valid and su fficient release and discharge

to the bank

for any pay

ment so made. . . .
It also provides in subsections (c) and (e): (c) As used in subsection (c)-(f), “multiplepar ty deposit account” m eans a deposit accou

nt (including a certificate of deposit) established

in the names of, payable to, or

in form subject to withdrawal by two(2) or mo re nat ural p erson s or an y of the m, including, b ut not limited to, an a ccount of the type described in subsection (a).

. . . (e) Accou nts d escribed in subsecti on (c) shall establish the follow

ing interests: (1) A designation of “

joint tenants with r

ight of survivorship,” or substantially similar language, shall be conclusive

evidence in

any action or pr

oceeding of-8- the intentions of all nam ed that title

vests in the survivor; (2) The d esign ation of a person as “additional authorized signatory,” o r substantially similar languag e , shall be conclusive e vidence in any ac

tion or proceeding

that the person so designated has power of attorney with respect to such account and is not an owner of such acco

unt; (3) Other designa

t ions acceptable to th

e bank shall establish int

er ests in accordance

with their respective provisions; and (4) In the absence of a

ny specific designatio

n in accordan ce wi th subsection (d), property held under the title, t enancy by the

entireties, car

ries a right of survivorship; property held und er the title, joi

nt tenanc y, carries no right of survivors hi p unless a contr ary in tention is expressly stated. Any other personto whose order the a ccounts or certifi

c at e of deposit is subject shall be presumed to have power of attorney with respec t t hereto and not to be an owner thereof. Such presumpti

ons may be

rebutted by clear and convincing evidence p resented in the

cours e of legal or equitable procee dings. Fina

l ju dicial determinations

contrary to suc

h presumptions sha ll not affect a bank’s earlier payment in accord anc e the rewit h, or the limitati

ons on liability con

ferred by the pro visio ns of subsections (1) a nd (b) or § 45-2- 707.

Thesesections add litt le to our discussi on. No issue is raised about the bank’s liability

for paying the f

unds to Ms. Snide

r (subsect ion (a)); nor is there any contention that this account was any thing but a “m

ultiple-party d

eposit account” (subsection (c)). Ms. Snider was no

t, howeve

r, just an “additional authorized signatory” (subsection (e)(2)); she was designated as an owner of the account. Therefore, the

presumption rai sed in subsection (e) (4) does not arise. If the p resumption

did arise, it would

be rebutted by th

e same clear

and convincing evidence ne

cessary to esta

blish the gift.

The judgment of the

trial court is affirmed an d the cause is remanded to the Probate

Court of Davidson Co

unty for any

further proceedi

ngs necessary. Tax the costs on appeal to Michael S. Bligh, executor.-9- _______________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR:

____________________________ WILLIAM C. KOCH, JR., JUDGE

____________________________ PATRICIA J. COTTRELL, JUDGE