### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON June 18, 2001 Session IN RE: ESTATE OF FANNIE MA E 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 notthe prope

rty 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 account

ing arguing t hat account shoul d be part of the es

tate. Executrix argued that the addition of

her name to the ac

count c reate d 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; Judgmen

t of the Probate C

ourt Affirmed;

and Remanded
D AVID R. F ARMER , J., delivered the opinion of the cour

t, in which A LAN E. H IGHERS and H OLLY K. L ILLARD , 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 t

o a First Tennessee bank

account which pr

eviously 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 Initi

als

_______________ Neither ‘yes’ nor ‘no’ was checked by Decedent. In addition, Decedent failed to initial this area of the card.1 Due to the fact that onl y a photocopy of Ms. J ohnson’s wil

l could be f

ound, Ms. Wright had previously fil ed the will and codicil

in Chancery Court

to esta blish i ts vali dity.
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 exist ence prior to Januar y 1, 198 9.” Tenn Code Ann. § 45-2-703(g) (2000). Thus,

we consider t

his case in light of the common law in exis

tence befor

e this s tatute was enacted. -2- 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 1⁄2 of the interest in certain real property, a $20,000 specific beque st 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 acc ou nting, she did not include the First Tennessee account on the basis of her belief that Decedent had intended the acco unt 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 cour

t.
Ms. Wright argued to the trial court that the act of Decedent adding her name to the a ccount in 1987 created the presumption of a gift of the right of surv

ivorship to Ms. Wrig

ht. 2 The trial court r ejected this argument, finding that the account was part of Ms. Johnson’s estate and shoul d hav e been included in the accounting. This appeal followed. The issue, as we p

erceive it, is as f

ollows:
Did the trial court err i n holding that the bank account in question was not a joint account withrights 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, w e m ay notreverse 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. 199 6); Tenn. R. App. P. 13(d). With respect to the court’s leg

al conclusions, ho

wever, our revi

ew is de nov o with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsbu r g, 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).-3-

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 disagr ee. 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 ha s clearly failed to meet her burden of proof. I n 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 rig ht of survivorship or that the addition should be c

onsidered a gif

t inter vivos of the right to survivorship. Upon our review, however, we note

that the majority

of those cases inv

olve accounts whe

re a decedent c

learly intended, through the markings on the signature card, that an account was to be a joint ac count 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 rig

ht of survivorship b

etween the part

ies listed on the ac

count. In the case currently befor e 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 c ard that would create such a right. Tennesse

e also has no statut

ory presump

tions that pre-198

9 joint accounts we

re either gifts inter vivos or automatically created accounts with rights to survivorship. Thus, none of the ca ses presented by Ms. Wright provided this court with any re ason to accept her argument that the simple act of adding someone’s name to an account automatically cr eated a presumption that the account was inte

nded to have rig

hts of survivorship

or that the accou

nt’s right of sur

vivorship 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 exe cut ion may i ssu e if nece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE