IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 18, 2004

IN RE THE ESTATE OF CLARICE LEE MILLER 

An Appeal from the Probate Court for Davidson County

No. 02P-726 Frank G. Clement, Jr., Judge

No. M2003-01241-COA-R3-CV - Filed June 22, 2004

This case involves the rights of a survivor in a joint bank account. During her lifetime, the decedent

sold certain real property, put the proceeds in a separate bank account, and executed a will leaving

half of the proceeds to her niece. The bank account in which the proceeds were deposited was a joint

account between the decedent and her brother. The brother had power of attorney over the

decedent’s affairs and was the named executor in the her will. After the decedent died, the

decedent’s will was admitted to probate. The brother, as executor, filed a petition asking for

instructions as to the proper disposition of the money in the joint bank account. The trial court held

that, when the funds were placed in the joint bank account, the bequest to the niece was adeemed and

the funds were no longer a part of the decedent’s estate. Therefore, the trial court determined that

the brother, as the joint account holder with a right of survivorship, was entitled to all of the

proceeds. The named beneficiary now appeals. We reverse, concluding that the evidence

preponderates against a finding that the bank account was a joint tenancy with a right of

survivorship. 

 

Tenn. R. Civ. P. 3 Appeal as of Right; Judgment of the Circuit Court is 

Reversed and Remanded

HOLLY M.KIRBY,J., delivered the opinion of the Court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and ALAN E. HIGHERS, J., joined.

Thomas A. Storey, Nashville, Tennessee, for the appellants, Shirley Petty and Mrs. Percy (Judy)

Miller.

Ronald K. Nevin, Nashville, Tennessee, for the appellee, Cecil Miller, Executor of the Estate of

Clarice Lee Miller.
McMurty and Clarice never married. 1

The record does not indicate exactly when Clarice moved to the nursing home. 

2

A copy of that will was not included in the record on appeal, but its existence and the fact that it included a

3

bequest to Petty is not in dispute.

A copy of the power of attorney was not included in the record on appeal, but the fact that it existed is not 4

in dispute.

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OPINION

On December 22, 1972, Percy Miller (“Percy”) and his wife, Judy Miller (“Judy”), purchased

a half interest in residential property located at 168 Chippendale Drive, Hendersonville, Tennessee.

The other half interest was purchased by J. C. McMurty (“McMurty”). McMurty moved into the

house with Percy’s older sister, Clarice Lee Miller (“Clarice”), the decedent in this action.1

Clarice was the oldest of several children whose father had moved out of their home. After

their father left home, Clarice helped take care of the younger children. In an effort to help Clarice

in her declining years, in 1980, Percy and Judy gave Clarice a warranty deed for their half interest

in the Chippendale Drive property. The transfer was made with the understanding that Clarice would

give half of the proceeds from the eventual sale of the house to Percy’s daughter by his first

marriage, Shirley Petty (“Petty”). In 1985, McMurty gave Clarice the other half interest in the

property. 

Clarice lived in the house on Chippendale Drive until it became necessary for her to move

into a nursing home. In June 2000, Clarice sold the property. The net proceeds from the sale 2

amounted to $82,814.29. At that time, or shortly thereafter, Clarice executed her Last Will and

Testament. In accordance with her brother Percy’s request, Clarice’s will included a specific bequest

to Petty of half of the proceeds from the sale of the Chippendale Drive property. Clarice’s brother, 3

James O. Miller (“James”), was the named executor in this will. Clarice had also given James a

general power of attorney to conduct her business affairs during her lifetime. With that power of 4

attorney, James opened a bank account for Clarice at SunTrust Bank, listing three persons as

authorized to sign checks – himself, Clarice, and their brother, Cecil E. Miller (“Cecil”). James

deposited the entire proceeds from the sale of the house into the SunTrust account. No other funds

were co-mingled with the funds from the sale of the property.

James objected to the will that Clarice had made and became angry at her. Consequently,

James withdrew as executor of Clarice’s estate. On May 3, 2001, Clarice executed a document

giving power of attorney to her other brother, Cecil. According to the power of attorney document,

Cecil was authorized to do the following: 

sign checks in [her] stead and transact all banking business for [her]

. . . and to do, execute and perform all and every other act or acts,
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thing or things, in law needful and necessary to be done in and about

the premises, as fully, completely, and amply, to all intents and

purposes whatsoever as [she] might do if acting personally. 

Thus, the power of attorney authorized Cecil to transact business in accordance with Clarice’s

intentions. 

A week later, on May 10, 2001, Clarice executed a new Last Will and Testament appointing

Cecil as the executor. Like the first will, the second will included a specific bequest to Petty of half

of the funds from the sale of the Chippendale Drive property. The bequest in Clarice’s will read:

I desire that one half of the proceeds from the sale of real estate

located at 168 Chippendale Drive, Hendersonville, Tennessee go to

Shirley Petty, the daughter of my deceased brother Percy Miller, as

requested by him. The net proceeds amounted to $82,814.29; the

amount to go to Shirley Petty is $41,407.15. 

The next day, on May 11, 2001, Cecil closed the first account at SunTrust for which he, James, and

Clarice had been authorized signatories. Cecil then opened a second joint bank account, this time

with only Cecil and Clarice being authorized signatories.

On March 25, 2002, Clarice died at ninety-one years of age. Soon thereafter, Cecil closed

the SunTrust account and took the proceeds as the surviving joint account holder.

On April 23, 2002, Cecil filed a small estate affidavit in the probate court, listing Clarice’s

assets and stating that her personal estate was valued at $7,231.34. The affidavit did not include the

monies in the joint SunTrust account. In May 2002, the trial court converted the small estate over

to a full administration, and Clarice’s will was admitted to probate. In accordance with the terms

of Clarice’s will, Cecil was appointed as executor of her estate. A later accounting revealed that

Clarice had $35,484.26 in another bank account at Region’s Bank.

On July 12, 2002, Cecil filed a petition for construction of the will, seeking direction as to

the proper administration of the $41,407.15 bequest to Petty. The petition pointed out that the

proceeds from the sale of the Chippendale Drive propertywere “placed into a joint checking account

at SunTrust Bank prior to the execution of the will and remained in a joint account in the names of

Clarice L. Miller and Cecil Miller at the time of the death of the testator.”

On July 19, 2002, Cecil’s deposition was taken. Cecil testified that, in May 2001, Clarice

had given him power of attorney over her business affairs, and that he used it only to deposit or

withdraw fundsfrom her second SunTrust account for which he and Clarice were signatories. Cecil

said that, although Clarice was mentally alert, she was not physically capable of going to the bank

herself. Cecil admitted that the funds in the account were “all her money,” and that when Clarice

died, the account had in it at least the $82,814.29 in proceeds from the sale of the Chippendale Drive
There is no transcript of the hearing in the record on appeal. 5

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property. Cecil asserted that Clarice did not put the money in the account with the intent of

maintaining it to pay Petty the bequest in the will. Rather, he maintained that Clarice intended for

the money to go to him. Cecil acknowledged that, in Clarice’s will, he was listed only as one of

many beneficiaries who were to receive a share of the remainder estate. Contrary to the clear

language in Clarice’s will, Cecil testified that Clarice had told him many times that the money in the

SunTrust account was his money.

On March 17, 2003, Petty and Percy’s wife Judy (collectively, “respondents”) filed a joint

response to Cecil’s petition, asserting that Clarice “clearly intended that one-half of the sale of the

Chippendale Drive Property go to Shirley Petty with the remainder becoming part of her estate.”

They claimed that Cecil exerted undue influence over Clarice to induce her to create a joint checking

account with a right of survivorship to him. They maintained that there was no evidence that Clarice

intended to give such a substantial part of her estate to Cecil alone; to the contrary, Clarice gave her

power of attorney to Cecil to act on her behalf to carry out her intentions, which were stated

expressly in her Last Will and Testament. Therefore, they asserted, if Cecil took any action contrary

to the intention set forth in Clarice’s will, he exerted undue influence over her or acted without her

knowledge. Thus, the respondents requested that the trial court include the proceeds in the SunTrust

account in Clarice’s estate and have Cecil pay Petty the amount devised to her according to Clarice’s

will.

 

On March 28, 2003, Cecil filed a pleading asserting that, by placing the proceeds of the sale

of the Chippendale Drive property in a joint bank account, Clarice adeemed her specific bequest.

In other words, when Clarice and her brothers opened the joint checking account, the money was no

longer owned solely by Clarice. The joint account was still in existence on May 10, 2001, when

Clarice executed her second will. Cecil argued that the provision in Clarice’s will leaving half of

the proceeds from the sale of the Chippendale Drive property to Petty was inoperative based on the

rule of ademption by extinction, because her disposition of the money interfered with the operation

of the will. Cecil maintained that the rule of ademption by extinction would prevail without regard

to the intention of the testator, because it is predicated upon the principle that the subject of the gift

is annihilated and its condition so altered that nothing remains to which the terms of the bequest can

apply.

On April 1, 2003, the trial court held a hearing on the matter. On April 21, 2003, the trial 5

court entered an order holding that an ademption had occurred and that, consequently, there was no

fund out of which to pay Petty her bequest under Clarice’s will. In reaching that conclusion, the trial

court reasoned:

[T]he proceeds of the sale of real estate bequeathed to Shirley Petty

in Item II of the decedent’s Last Will and Testament was adeemed

and therefore there are no funds from the sale of the real property

available for distribution to Shirley Petty, that the decedent had
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entered into contracts with SunTrust Bank to create joint accounts

with rights of survivorship, that no Power of Attorney was used by

the joint account holders for the creation ofthe joint accounts and that

the contract with the bank prevails over the will. 

Thus, the trial court concluded that the contracts with SunTrust Bank created rights of survivorship

in the joint account holders, and that those contracts prevailed over the terms of the will. From that

order, the respondents now appeal.

On appeal, the respondents argue that the trial court erred in determining that the bequest to

Petty of the proceeds from the sale of the Chippendale Drive property was adeemed when Clarice

opened the joint checking account with Cecil. The respondents assert that Clarice did not intend to

give Cecil a right of survivorship in the proceeds of the sale of the property. Therefore, they argue,

by opening the joint checking account with a right of survivorship, Cecil acted contrary to Clarice’s

intent and took advantage of the fact that she was physically unable to go to the bank to handle her

own affairs. Clarice’s intentions were made clear in her Last Will and Testament, and there is no

evidence that she ever intended to give such a large sum of money to either of her brothers. If

James’ and Cecil’s signatures were included on the signature cards of either of the accounts, the

respondents argue, they should have been included only in a representative capacity with no rights

of survivorship. In the alternative, if there was a contract to create a right of survivorship, the

Respondents argue that Cecil engaged in undue influence, overreaching, or fraud. 

 

We review the trial court’s decision de novo on the record, with a presumption that the trial

court’s findings of fact are correct, unless the evidence preponderates otherwise. Tenn. R. App. P.

13(d). We review the trial court’s conclusions of law de novo, with no presumption of correctness.

Atkins v. Clark, 59 S.W.3d 124, 126-27 (Tenn. Ct. App. 2001). Whether a bequest has been

adeemed by extinction is a question of law, which we review de novo. In re Estate of Hume (The

University of the South v. Klank), 984 S.W.2d 602, 604 Tenn. 1999).

“[A]demption is generally defined as the extinction, alienation, withdrawal, or satisfaction

of the legacy by some act of the testator by which an intention to revoke is indicated: the doing of

some act with regard to the subject-matter which interferes with the operation of the will.” Id.

(quotation omitted). Ademption of a bequest can occur by satisfaction or by extinction. Ademption

by satisfaction occurs when the subject matter of the bequest has been withdrawn from the will by

the testator, giving in his lifetime to a beneficiary the thing he had devised in the will. In such a

situation, the testator’s intent is critical. Rhodes v. Kebke, 167 S.W.2d 345, 348 (Tenn. 1947).

Ademption by extinction occurs, however, when the disposition of property bequeathed in the will

during the testator’s lifetime interferes with the ability to carry out the terms of the will; it occurs

without regard to the intent of the testator. In re Hume, 984 S.W.2d at 604; Akins, 59 S.W.3d at

127. Therefore, as discussed below, the trial court must necessarily have determined that the funds

bequeathed to Petty passed directly to Cecil at Clarice’s death based on the “contract with the bank,”

and that Cecil was entitled to those funds as the joint account holder with a right of survivorship.
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The landmark case of Lowry v. Lowry, 541 S.W.2d 128, 131 (Tenn. 1976), addressed at

length the rights of parties to a joint bank account. In that case, the petitioner was the son of the

decedent. The son held with the decedent two joint savings accounts totaling $28,000. The issue

presented was whether the funds in the joint accounts should have been transferred directly to the

petitioner son, or whether the funds should have been divided equally among the decedent’s five

children under her will. Lowry, 541 S.W.2d at 129. The other children of the decedent argued that

the petitioner was required to show affirmatively that the funds were transferred to him as a gift,

under the general law of gifts. The Tennessee Supreme Court rejected the “gift” theory in favor of

a “contract” theory. Id. at 130-31. Under the “contract” theory, the right of survivorship may be

created in a joint bank account by the execution of a contract stating such terms, and clear language

on a bank signature card is sufficient evidence of such a contract. The Lowry Court stated:

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.

Id. at 132. Thus, under Lowry, rights of survivorship can be established by submitting evidence of

an express contract doing so. The contract is between the depositor and the bank. See Chambers

v. Henry, 628 S.W.2d 740, 742 (Tenn. Ct. App. 1981). Such a contract creates a rebuttable

presumption that the parties signing the contract intended for each party to have a right of

survivorship in the joint account. See Clark v. Brown, 656 S.W.2d 4, 8 (Tenn. Ct. App. 1983). The

presumption can be rebutted by clear and convincing evidence of a contrary intent at the time of the

execution of the contract, or by proof of fraud, undue influence, or overreaching. Id. Subsequent

cases have held that, absent an express contractual provision, the intent to establish rights of

survivorship in a joint bank account can also be proven by extrinsic evidence. Gay v. Phillips, 667

S.W.2d 495, 497 (Tenn. Ct. App. 1983); Merchants Planters Bank v. Myers, 644 S.W.3d 683, 689-

90 (Tenn. Ct. App. 1982); see Simmons v. Foster, 622 S.W.2d 838, 842 (Tenn. Ct. App. 1981).

In the instant case, the signature card signed by Clarice and Cecil establishes a joint account,

but contains no language creating rights ofsurvivorship. Furthermore, the record includes no other

documentary evidence that Clarice entered into an express contract with the bank to create a right

of survivorship in the account at issue. See In re Estate of Bowlin (Bowlin v. Abels), 766 S.W.2d

193, 195 (Tenn. Ct. App. 1988) (holding that, where the deceased failed to contract with the bank

to create a right of survivorship in the joint owner, certificate of deposit was an asset of the estate);

Simmons, 622 S.W.2d at 842 (“The crucial question, then, is whether an agreement existed between

the bank and the decedent to make the joint accounts joint tenancies with the right of survivorship

. . . .”).
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The only evidence on which Cecil can rely to establish a right of survivorship in the joint

bank account is his own uncorroborated testimony:

Q. Did Clarice Miller set up that account or have that account set up at

SunTrust for the purpose of paying Shirley Petty the money that she

was due under Item II in Ms. Miller’s will?

A. No, she did not.

Q. Why did she open a separate account when she had a bank account at

another place?

A. She opened this account as a joint account to go to her two brothers,

James Olney Miller and me, and she was the third one. She said this

was not to be used for any other purpose.

* * *

Q. Did Ms. Clarice Miller have any idea that you were going to claim

this bank account that you set up in her name with her?

A. Yes, she did. She knew I would. She told me many times, “That is

your money.”

In Simmons v. Foster, 622 S.W.2d 838 (Tenn. Ct. App. 1981), the appellate court held that

the contract necessary to create a joint account with the right of survivorship may be proved by oral

testimony. Simmons, 622 S.W.2d at 842. At issue in that case were a joint checking account and

a joint savings account, both in the joint names of the decedent, Mr. Simmons, and his cousin, Mrs.

Cowden, with whom the decedent lived toward the end of his life. The decedent Simmons opened

a joint checking account in the name of Simmons or Cowden. There was no signature card on file

for the joint checking account. Years later, the decedent Simmons opened a joint savings account

in the name of Simmons and Cowden. Although there was no signature card for this account either,

Simmons told the bank officer when he opened the savings account that he wanted Cowden to have

the funds if anything happened to him. Id. at 839. The Simmons court indicated that, because there

was no written contract specifically creating a right of survivorship, the issue was whether there was

any other evidence of a right of survivorship in either of the joint accounts. Id. at 841.

The Simmons court noted that, in contrast to Lowry, supra, there was no bank signature card

for either the joint checking account or the joint savings account, and stated that Cowden was

required to show by other evidence that there was an agreement between the bank and the decedent

to make the joint accounts joint tenancies with a right of survivorship in Cowden. Id. at 841-842.
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The Simmons court held that such an agreement between the bank and the decedent could be proved

by “oral testimony.” Id. at 842. Analyzing the evidence, the Simmons court reached differing

conclusions on the joint savings account and the joint checking account:

In the instant case . . . the testimony establishes such a contract

[between the bank and the decedent to create a joint account with a

right of survivorship] with respect to the joint savings account. We

think it is clear that the depositor, Mr. Simmons, intended for Mrs.

Cowden to receive the balance in the account at his death and so

instructed the bank at the time he opened the account. Therefore, the

right to receive the funds in the joint savings account passed to Mrs.

Cowden at Mr. Simmons’ death.

With respect to the joint checking account, there is no

evidence in the record of such an agreement between the bank and

Mr. Simmons. Nor is there any evidence to prove any of the other

theories by which the right of survivorship may be established.

Therefore, we hold that there was no right ofsurvivorship created and

that the executor is entitled to the funds in that account.

Id.

In this case, as in Simmons, there is no documentary evidence, such as a signature card,

indicating that there was an agreement between Clarice and the bank to make the joint account a

joint tenancy with a right of survivorship. Unlike the joint savings account in Simmons, however,

there is no oral testimony of such an agreement. There is only Cecil’s testimony that Clarice opened

the joint account “to go to her two brothers, James Olney Miller and me, and she was the third one.”

Cecil asserted that in reference to the joint account, Clarice told him, “That is your money.” Such

vague uncorroborated testimony of statements purportedly made by the decedent to Cecil at an

unspecified time is insufficient to establish an agreement between SunTrust Bank and Clarice to

create a joint tenancy with a right of survivorship. This is particularly true in light of the other

evidence in the record indicating that Clarice fully intended that half of the proceeds from the sale

of the Chippendale Drive property be given to Petty at her death. Clarice kept the proceeds from the

sale in a separate account from the time of the sale until her death. On May 3, 2002, she gave Cecil

power of attorney over her banking affairs, and within one week opened a joint bank account in

which she deposited the sale proceeds. In the same week, she executed a second will naming Cecil

as executor and leaving Petty half of the proceeds from the sale of the property. Under all of these

circumstances, we must conclude that the evidence in the record is insufficient to find that the joint

account was a joint tenancy with right of survivorship.

Therefore, we must analyze Cecil’s rights as a joint tenant with no right of survivorship.

Joint tenants without a right of survivorship are presumed to have an equal interest in the funds in

the joint bank account. See In re Estate of Williams (Williams v. Clyce), 1989 WL 22754, at *2
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(Tenn. Ct. App. March 17, 1989). In Williams, certificates of deposit were issued by a bank and

made payable to the decedent and his stepdaughter. Id. at *1. The CDs contained no language

referring to a right of survivorship, and the testimony appeared to indicate that the stepdaughter’s

interest in the CDs was merely custodial. Id. at *4. Consequently, the Williams court analyzed the

stepdaughter’s right in the CDs as a joint tenancy with no right of survivorship:

The rule as to tenancies in common is that although it may be

presumed that the interests of the co-tenants are equal, this

presumption does not apply if there is evidence to the contrary.

Evidence of the proportion contributed by each co-tenant is

persuasive as to the amount of their respective shares. See 20

Am.Jur.2d Cotenancy & Joint Ownership §§ 26, 118. The fact that

the [stepdaughter] contributed nothing toward the purchase of the

CD’s, coupled with evidence that her only interest in the funds was

custodial, compels the conclusion that even if a technical tenancy in

common resulted, the [stepdaughter’s] share was zero. Thus the

Estate is entitled to the entire fund.

Id. at *4. In this case, Cecil admitted that Clarice was the only depositor in the account, stating that

it was “all her money.” This evidence compels the conclusion that, even though Cecil and Clarice

were joint tenants in the SunTrust account, Cecil’s share was zero. See id. 

Accordingly, we must conclude that the evidence preponderates against the trial court’s

conclusion that “the decedent had entered into contracts with SunTrust Bank to create joint accounts

with right of survivorship” and consequently that “the proceeds of the sale of real estate bequeathed

to Shirley Petty in Item II of the decedent’s Last Will and Testament was adeemed . . . .” Therefore,

this finding is reversed. The record is clear that Cecil had no individual interest in the account and

that his interest was merely custodial. Consequently, any funds that were in the SunTrust account

at Clarice’s death would go to Clarice’s estate upon her death. The holding pretermits all other

issues raised on appeal. The cause is remanded to the trial court for further proceedings consistent

with this opinion. 

The decision of the trial court is reversed and remanded to the trial court for further

proceedings. Costs on appeal are to be taxed to Appellee Cecil Miller, Executor of the Estate of

Clarice Lee Miller, for which execution may issue, if necessary.

___________________________________ 

HOLLY M. KIRBY, JUDGE