FILED

October 3, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

 IN THE COURT OF APPEALS OF TENNESSEE 

 

 

 : ANDERSON CHANCERY

 : CA No. 03A01-9604-PB-00131

 :

 :

IN RE: THE ESTATE OF : HON. WILLIAM E. LANTRIP

SALLY B. COGGINS, deceased : CHANCELLOR

 :

 :

 : AFFIRMED AND REMANDED

JERRY SHATTUCK, WITH SHATTUCK & ELLEGE, OF CLINTON, TENNESSEE, FOR

APPELLANT WILMA J. BOWMAN

LYNN M. LAUDERBACK, WITH LAUDERBACK & LAUDERBACK, OF KINGSPORT,

TENNESSEE, and 

HUGH P. CLINE, WITH CLINE, ADKINS & CLINE, OF NORTON, VIRGINIA, FOR

APPELLEE LUCILE B. CARTER

 O P I N I O N 

 Sanders, Sp.J. 

The pivotal issue on this appeal is, if an attorney in

fact issues a check to a bank, drawn on the checking account of her

principal, for which the bank issues a time certificate of deposit

for the amount of the check in the name of the principal "or" the

attorney in fact, and there is no specific provision in the power

of attorney for such transaction and no signature card or contract 
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relating to the certificate of deposit signed by either the

principal or the attorney in fact, upon the death of the principal,

which is entitled to the funds, the principal's estate or the

attorney in fact? We hold the estate is entitled to the funds, and

affirm. 

Sally B. Coggins died intestate in Anderson County in

March, 1992. She left three adult daughters, Wilma J. Bowman,

Lucille B. Carter, and Pauline M. Fletcher, as her surviving next

of kin.

In 1989, due to badly impaired eyesight, Mrs. Coggins

executed a power of attorney designating her daughter, Wilma June

Bowman, as her attorney in fact. As pertinent, the power of

attorney granted Ms. Bowman the following powers: (1) to endorse

checks or drafts payable to me; (2) to make deposits in my bank

account; (3) to sign and issue checks on my account to pay my bills

and make purchases for my benefit; (4) to collect debts owed to me;

(5) to purchase my necessities and execute contracts or agreements

for my needs; (6) to buy or sell stocks, bonds or mutual funds that

my attorney may deem to be in my best interest; (7) to settle,

adjust or compromise any claims for personal injury, property

damage or debt I may have against others or they against me. It

further provided: "In other words, my attorney-in-fact is granted

the power to manage my money and conduct my business affairs in

general and to perform all and every other act or acts, thing or

things, in law needful and necessary in and about the premises, as

fully, completely, and amply, to all intents and purposes

whatsoever as I might or could do if acting personally." 
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It appears Mrs. Coggins's husband, Van R. Coggins, died

in the early part of 1990. After his death Mrs. Coggins had assets

valued at approximately $400,000, consisting primarily of cash,

certificates of deposit, stocks and securities. Between the latter

part of 1990 and Mrs. Coggins's death in 1992, transfers were made,

or attempts to transfer were made, of stocks, securities, and

certificates of deposit in the names of Mrs. Coggins and Wilma J.

Bowman, the attorney in fact, or members of her family, as joint

tenants with the right of survivorship, in the amount of

approximately $170,000.

In April, 1992, after Mrs. Coggins's death, Wilma J.

Bowman and Lucille B. Carter, two of Mrs. Coggins's daughters,

qualified in chancery court, probate division, as co-administrators

of Mrs. Coggins's estate.

In May, 1992, Wilma J. Bowman filed in the court an

inventory of the assets of the estate showing the assets of the

estate to be $226,202.14. The bulk of the assets were certificates

of deposit, savings accounts, checking accounts, and household

furnishings and personal effects with a value of $20,000.

In August, 1993, Wilma Bowman filed a petition for

confirmation of final settlement and to close the estate. She

filed as an exhibit to the petition a list of income and expenses

in the administration of the estate, together with the amount of

assets to be distributed to the heirs of the estate. This

consisted of income of approximately $900, expenses approximately

$1,700 and distributable assets of approximately $205,000.
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Lucille Carter, the co-administrator of the estate with

Ms. Bowman, did not join in the inventory of the estate or the

petition for confirmation of the final settlement, but filed

objections to the petition and inventory and asked the court to

deny the petition for confirmation and final settlement. As

pertinent, Ms. Carter alleged that during the years Ms. Bowman had

been attorney in fact for Mrs. Coggins, she had wrongfully and

without authority caused stocks, securities, and certificates of

deposit to be transferred from Mrs. Coggins's funds into stocks,

securities and certificates of deposit in the joint names of Ms.

Bowman or members of her family and Mrs. Coggins, with the right of

survivorship. The amount involved was $169,000. These funds

rightfully belonged to the estate but had been excluded from the

inventories filed by Ms. Bowman. Ms. Carter asked the court to

deny the petition for confirmation of the proposed settlement filed

by Ms. Bowman, to hold a hearing and declare the $169,000 of assets

to be assets of the estate, and require Ms. Bowman and the other

members of her family to surrender these assets to the estate.

A hearing was ordered, which was originally held before

the clerk and master. The hearings centered around three separate

sets of transactions in which Ms. Bowman, as attorney in fact, was

involved. One group involved stocks and securities of

approximately $70,000 which were placed in the joint names of Ms.

Bowman and Mrs. Coggins. Upon the hearing, the proof showed Mrs.

Coggins had personally signed these transfer documents. The second

set of documents involved two certificates of deposit in the amount

of $10,000 each, one of which was in the joint names of Sally B.

Coggins or Joe Kent Bowman, and the other was in the joint names of

Sally B. Coggins or John Scott Bowman. The record also shows a

check had been drawn on Mrs. Coggins's checking account in First
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American National Bank for $20,000, payable to Sovran Bank for "2

C.D.'s @ $10,000 each." The check was signed by Ms. Bowman under

her power of attorney. 

The record also shows Sally B. Coggins personally signed,

jointly with Joe Kent Bowman, a signature card for the certificate

of deposit which, as pertinent, states: "Joint tenants with right

of survivorship." Also, as pertinent, printed in one of the blocks

on the signature card was "Acct.5SN/TAX ID No. and under this

abbreviation was the number "224-20-4885." Also, attached to the

signature card was a printed form with five separate squares

followed by different printed statements for the person signing to

check the square preceding the statement which was applicable. 

Above the blocks to be checked was printed the following: "Under

penalties of perjury, I certify that" and following the square that

was checked was: "the number shown on this form is my correct

taxpayers identification number." This form was personally signed

by Mrs. Coggins. A joint signature card of like import was also

signed by Mrs. Coggins with John Scott Bowman and the same

certifying attached form was signed by Mrs. Coggins.

The third set of documents around which the hearing

revolved, and the ones at issue on this appeal, are five separate,

purported certificates of deposit in the joint names of Sally B.

Coggins "or" Wilma J. Bowman which were purchased by Wilma Bowman

with Mrs. Coggins's money, between March 5, 1990 and March 2, 1992,

in amounts from $10,000 up to $29,000, for a total of $80,000. 

Mrs. Coggins did not participate in any way in the purchase of

these certificates. She did not sign any signature cards or any

other documents relating to these certificates, and neither did
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Wilma Bowman sign signature cards in connection with the

certificates.

In his report, the clerk and master recommended an order

be entered holding the stocks and securities transferred to the

joint names of Sally B. Coggins and Wilma J. Bowman in the amount

of approximately $70,000, with the right of survivorship, and the

two certificates of deposit of $l0,000 each, in the joint names of

Sally B. Coggins and Joe Kent Bowman and John Scott Bowman,

respectively, with the right of survivorship, all having been

signed by Mrs. Coggins, pass outside the estate of Mrs. Coggins. 

He recommended, however, that the five certificates of deposit in

the names of Sally B. Coggins or Wilma J. Bowman, in the total

amount of $80,000, be declared assets of the estate.

The Appellant filed objections to the report of the clerk

and master and filed a petition pursuant to Rule 53.04, TRCP,

asking the court to reject the recommended report of the clerk and

master insofar as it recommended the certificates of deposit be

declared assets of the estate. 

The Appellee, Lucille Carter, in response to Appellant's

petition, asked the court to affirm the clerk and master's report.

The chancellor conducted a hearing pursuant to

Appellant's petition. Upon the hearing, he, in effect, affirmed

the recommended report of the clerk and master. He held the

certificates of stock and securities on which Mrs. Coggins had

signed transfer documents and the two certificates of deposit on

which she had signed signature cards should pass outside the estate

to the surviving parties. He also held the remaining five
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certificates in the names of Sally B. Coggins or Wilma J. Bowman

should pass to the estate. As pertinent, the court, in his brief

opinion, said: "The remaining certificates were acquired by the

fiduciary and established in her name and the name of the deceased

for which no signature cards were presented. The account is silent

as to any right of survivorship. The proceeds were stipulated to

be solely from the monies of Sally B. Coggins.

"A review of the Power of Attorney convinces me that the

fiduciary did not possess the authority to establish these

accounts. I further find that these accounts are not survivorship

account. 

"I therefore find that these remaining certificates

constitute a part of the decedent's estate and do not in any manner

pass to Wilms J. Bowman."

Ms. Bowman has appealed, saying the court was in error in

holding the five certificates of deposit constituted a part of

decedent's estate and did not pass to her. We cannot agree, and

affirm. 

The issues for review presented by the Appellant in her

brief are as follows: (1) "Can the trial court declare invalid

transactions done at the direction of a principal who was

competent, not under undue influence, aware of the transactions

both before and after the fact; and without hearing evidence to

establish the fairness of the transactions because they were

effected by her agent through a power of attorney due to the

principal's legal blindness and resulting difficulty in writing?"

and (2) "Did the proof in this case and the offer of proof

establish the fairness of the transactions involving the creation

and existence of five certificates of deposit in the name of Sally
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B. Coggins, and her daughter, Wilma J. Bowman, by clear and

convincing evidence?"

The Appellant's 26-page brief, following the above-stated

issues, consists of a restatement of the testimony of the witnesses

in the hearing before the chancellor. Appellant's argument is that

the testimony established there was no undue influence exercised

over Mrs. Coggins. The Appellant, however, fails to cite a single

case or any statute in her brief to support her argument that the

court was in error.

There was no contention on the trial of the case, nor is

there any on this appeal, by the Appellee, Ms. Carter, that Ms.

Bowman exercised undue influence over Mrs. Coggins. Mrs. Coggins

was not a party to purchasing the certificates of deposit here at

issue. It was Ms. Bowman, acting alone, using her power of

attorney and the funds of Mrs. Coggins, who purchased the

certificates of deposit and had her name added as a joint

beneficiary.

In his determination of the case, the chancellor made the

following findings of fact and conclusions of law: 

1."The...certificates were acquired by the fiduciary and

established in her name and the name of the deceased, for which no

signature cards were presented." 2. "The account is silent as to

any right of survivorship." 3. "The proceeds were stipulated to be

solely from the monies of Sally B. Coggins." 5. "A review of the

power of attorney convinces me that the fiduciary did not possess

the authority to establish these accounts." 5. "I...find these

accounts are not survivorship accounts".
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The law and the evidence support each of the findings of

the chancellor. The Appellant, however, does not address a single

one of these specific issues.

The general rule in construing powers of attorney is:

It is the general rule that a power of attorney

must be strictly construed and strictly pursued. 

Under this rule, the instrument will be held to

grant only those powers which are specified, and the

agent may neither go beyond nor deviate from the

power of attorney--in other words, the act done must

be legally identical with that authorized to be

done. For example, an attorney in fact has no power

to make a gift of his principal's property unless

that power is expressly conferred on him by the

instrument or unless such power arises as a

necessary implication from the powers which are

expressly conferred.

Where the mode of exercising power is

prescribed in the instrument in which it is created,

there must be a strict compliance therewith in every

substantial particular.

Where power is conferred on an agent by a power

of attorney, the meaning of general words in the

instrument is restricted by the context and

construed accordingly and the authority given is

construed strictly, so as to exclude the exercise of

any power that is not warranted either by the terms

actually used or as a necessary means of executing

with effect the authority given. Accordingly a

general clause in a power of attorney given for a

specific purpose, authorizing the agent to do "any

and every act" in the principal's name which he

could do in person, must be construed to relate to

the specific purpose, and does not constitute such

agent a general agent.

3 Am.Jur.2d Agency §§ 31, 32, p. 535.

We agree with the chancellor that the attorney in fact

did not possess the authority under the power of attorney to

establish the certificates of deposit and they are void and of no

effect. 

The Appellee relies upon TCA § 34-6-108(c)(6), which

provides: "(c) Nothing contained in this section and § 34-6-109

shall be construed to vest an attorney in fact with, or authorize
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an attorney in fact to exercise, any of the following powers: ....

(6) Change, add or delete any right of survivorship designation on

any property, real or personal, to which the principal holds

title, alone or with others."

We agree this section of the Code would expressly

prohibit the attorney in fact from creating the certificates of

deposit. We observe the statute became effective in 1991 and four

of the certificates predate the statute. The court was correct in

his finding that the certificates of deposit contained no

provision creating a right of survivorship and no signature card

was presented.

We think the case of Lowry v. Lowry, 541 S.W.2d 128

(Tenn.1976) is controlling in the case at bar. In Lowry, our

supreme court adopted the contract theory in this jurisdiction as

the basis for creating a joint tenancy with the right of survivor,

as opposed to the gift theory used in some other states. In

adopting the contract theory, the court said, in effect, a right

of survivorship may be created by a written contract between the

parties and the signature card may be looked to to ascertain the

intent of the parties. Id. 130, 131.

The following quotes are from the Lowry court:

"Although some jurisdictions have adopted the 'gift' theory...we

feel the better reasoned approach utilizes the 'contract' theory."

Id. at 130; "Of primary importance is the case of Melhorn v.

Melhorn, 208 Tenn. 678, 348 S.W.2d 319 (1961)...[T]he Court looked

to the intention of the parties as expressed by the joint

signature card and the testimony of the bank officers, and made it

clear that it considered the joint account a contractual
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undertaking." Id. at 130, 131; "The most recent Tennessee case

relevant to the issue is Iacometti v. Frassinelli, 494 S.W.2d 496

(Tenn.App.1973)....The Court stated that absent a finding of

fraud, undue influence, or overreaching: '...the written agreement

signed by the deceased speaks just as loudly and clearly as if the

deceased herself took the stand and orally expressed the words

written on the paper.' Id. at 500". Id. at 131; "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.

We hold that, absent a signature card or other written

document signed by the parties creating a joint tenancy with the

right of survivorship, none was created.

The decree of the chancellor is affirmed. The cost of

this appeal is taxed to the Appellant and the case is remanded to

the trial court for any further, necessary proceedings.

 __________________________

 Clifford E. Sanders, Sp.J.

CONCUR: 

__________________________

Herschel P. Franks, J. 

__________________________

Charles D. Susano, Jr., J.
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