In Re Estate of Earsie L. Kirkman

02/15/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 19, 2017 Session

IN RE ESTATE OF EARSIE L. KIRKMAN

Appeal from the Chancery Court for Hardin County

No. P7-352 James F. Butler, Chancellor

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No. W2016-00759-COA-R3-CV

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This case involves the disposition of several certificates of deposit that were held in joint

tenancy, with right of survivorship, by Decedent and her daughter, Appellee. Appellants,

beneficiaries of Decedent’s estate, argued that the certificates of deposit were probate

assets. The trial court denied the objection and closed the estate, finding that the

certificates of deposit passed to Appellee as the surviving joint tenant. Appellants appeal.

Affirmed and remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J, W.S., and BRANDON O. GIBSON, J., joined.

Terry Abernathy, Selmer, Tennessee, for the appellants, Gary Henley, Angelia Durbin,

Jerry Henley, and Wayne Henley.

C. Mark Donahoe, Jackson, Tennessee, for the appellee, Bobbie Hardin.

OPINION

I. Background

Earsie L. Kirkman (“Decedent”) died testate on July 1, 2008. She was survived by

her children and grandchildren: Claudette Henley,1 Angelia Durbin, Jerry Henley, Gary

Henley (together, “Appellants”); and Bobbie Hardin (“Appellee”). Decedent’s will

1

Claudette Henley died on January 17, 2012; on March 2, 2012, the trial court ordered the

substitution of Claudette Henley’s son, Wayne Henley.

devised her estate, in equal share, to her children or their survivors. Decedent’s daughter,

Bobbie Hardin, was designated as the executrix of the estate.

At issue in this appeal is the proper disposition of three certificates of deposit

(“CDs”)—two held at Hardin County Bank and one held at Farmers and Merchants Bank.

The CDs were owned by “Earsie Kirkman or Bobbie Hardin,” with boxes checked on the

signature card to indicate that the CDs were held in joint tenancy with right of

survivorship. Decedent opened the original CDs decades before her death, without

Appellee’s assistance or knowledge. At the time of Decedent’s death, the original CDs

had matured several times, and Appellee had renewed the CDs, in joint tenancy with

Decedent, after each maturation period.

On September 9, 2008, Appellee filed a petition to probate Decedent’s will in the

Chancery Court of Hardin County (“trial court”). On the same day, the trial court

admitted the will to probate. On January 20, 2009, Appellants filed a claim against the

estate, contending that the disputed CDs should be included in Decedent’s residual estate.

On February 13, 2009, Appellee filed an exception to Appellants’ claim against the

estate, stating that the CDs were nonprobate assets because they were held in joint

tenancy with right of survivorship by Decedent and Appellee; accordingly, Appellee

argued that the CDs passed to her on Decedent’s death. Appellants voluntarily withdrew

their claim against the estate on May 4, 2009.

On November 19, 2010, Appellee filed a motion to distribute funds and close the

estate. On November 24, 2010, Appellants filed an objection to the motion, arguing that

the CDs should be included in the probate estate. The trial court ordered Appellee to

produce copies of the CDs and set the matter for hearing on March 9, 2012. However, no

proof was taken on March 9, 2012. On March 13, 2013, Chancellor Harmon of Hardin

County recused himself, and the parties agreed that Chancellor Butler would hear the

case by interchange.

On May 5, 2013, the trial court heard the case. The trial court ordered the estate

closed on May 22, 2013, finding that

[t]he crux of the objection to closing the estate centers around three

Certificates of Deposit[,] which were in existence on the date of the death

of Mrs. Kirkman, July 1, 2008…. All three showed the owners as Earsie

Kirkman or Bobbie Hardin. It is undisputed that the funds represented by

the CDs emanated from Mrs. Kirkman. Mrs. Hardin is Mrs. Kirkman’s

daughter. It is undisputed Mrs. Kirkman did not sign the documents

creating the CDs. Whenever the CDs were renewed, Mrs. Hardin handled

it. Each time it was renewed, it was set up in exactly the same way as

before on the same terms and with the same owners. The only testimony

presented concerning the CDs, besides the documents themselves, was

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from Mrs. Hardin, the co-owner of the CDs. She testified she always

followed her mother’s instructions as to how to renew the Certificates of

Deposit. She testified her mother had always created CDs with Mrs.

Hardin’s name on them. She further testified that before her death, Mrs.

Kirkman inquired of whether or not the CDs were in order and as a result,

the Hardin County Bank and Farmers and Merchants Bank sent Mrs.

Kirkman and Mrs. Hardin a letter to Mrs. Kirkman’s address confirming

that the Hardin County CDs at issue were joint with the right of

survivorship. The letter was dated March 18, 2008. Mrs. Kirkman died

July 1, 2008. Mrs. Hardin testified that she saw the letter and Mrs.

Kirkman saw the letter. There is no evidence that Mrs. Kirkman attempted

to make any change based on the contents of that letter which is Exhibit 15

to the hearing.

***

The Court finds that the evidence is clear and convincing that Mrs.

Kirkman intended for the CDs to be joint tenants with right of survivorship

with Bobbie Hardin. While Mrs. Hardin had no power of attorney, she

testified she had permission from her mother to sign her mother’s name to

documents, including the CDs. But even in the absence of that, Mrs.

Hardin being a co-owner, could have cashed in the CDs at any time, or

renew the CDs when they were up for renewal, because they were in the

name of Mrs. Kirkman or Mrs. Hardin.

***

The objection to the Motion to distribute funds and close the estate

of Earsie Kirkman and to discharge the personal representative is denied.

The Motion to close the estate and distribute funds and discharge the

personal representative is granted.

On June 14, 2013, Appellants filed a motion to alter or amend the order, arguing

that the trial court improperly allowed Appellee to testify “concerning transactions with,

or statements by” Decedent, in violation of Tennessee Code Annotated Section 24-1-203,

also known as the Dead man’s statute. On September 30, 2013, the trial court denied

Appellants’ motion, concluding that

[t]he previous ruling in this case arose out of a three hour hearing in the

[trial court], wherein certain documents were introduced into evidence and

the testimony of Bobbie Hardin was taken. There was no other evidence

presented. The beneficiaries, the movants in this case, now contend that the

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court should have excluded testimony of Ms. Hardin pursuant to Tennessee

Code Annotated [Section] 24-1-203, also known as the dead man’s statute.

The testimony was objected to at the time of its presentation and the court

overruled the objection.

The court has already spoken in its previous ruling to the importance

of the intent of the parties in this case. The court also has noted the

opportunity Ms. Kirkman had by virtue of the letter from the bank to make

the changes if she wanted to. At least as to the two original Certificates of

Deposit that were set up as joint CDs, Ms. Hardin had the right to renew

those CDs in any fashion she desired since she was a co-owner. The fact is

she renewed them as joint.

***

After review of the notes taken by the court at the hearing, review of

the certificates of deposit introduced into evidence, the bank letter, the

position of both parties in this case, arguments of counsel, and entire record

of this cause, the court finds that the Bradley criteria have not been met by

the movants and, the court finds that the Motion to Alter or Amend should

be overruled.2

Appellants appeal.3

II. Issues

Appellants raise four issues for review, as stated in their brief:

2

In its order, the trial court also found that the Appellants’ objection to the closing of the estate

violated the one-year statute of limitations enumerated in Tennessee Code Annotated Section 30-2-310.

Because Appellants were not claimants against the estate (having withdrawn their claim), Tennessee Code

Annotated Section 30-2-310 is not applicable. Rather, Appellants are proceeding as beneficiaries of

Decedent’s estate.

3

Appellants filed their first notice of appeal on October 24, 2013. On February 11, 2014, this

Court entered an order, finding that it lacked subject matter jurisdiction to hear the case because the trial

court had not entered a final order. In re Estate of Earsie L. Kirkman, No. W2013-02839-COA-R3-CV

(Tenn. Ct. App. Feb. 11, 2014). On February 19, 2014, the trial court entered an order, stating that “in

accordance with Rule 54.02 of the Tennessee Rules of Civil Procedure, the Court expressly determines

that there is no just reason for delay, and does further expressly direct the entry of a Final Judgment as to

the claims adjudicated.” On March 17, 2014, this Court again dismissed the appeal because the trial court

made no final ruling on the issue of attorney’s fees; thus, the order appealed was not final. In re Estate of

Earsie L. Kirkman, No. W2013-02839-COA-R3-CV, 2014 WL 1030528 (Tenn. Ct. App. Mar. 17, 2014).

On March 17, 2016, the trial court granted the motion for approval of attorney’s fees. Subsequently, on

April 11, 2016, Appellants perfected their appeal to this Court.

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1. Did the Trial Court err in determining that the account documents

“utilized” by the involved Bank created a right of survivorship in favor

of Bobbie Hardin, in the absence of the signature of Earsie L. Kirkman,

the sole owner of the monies evidenced by the three (3) involved

Certificates of Deposit?

2. Did the Trial Court err in permitting and allowing, over the objection of

the Appellants/Beneficiaries, the testimony of Bobbie Hardin, Executrix

of the Estate of Earsie L. Kirkman, deceased, concerning transactions

with, or statements by, the deceased?

3. Did the Trial Court err in relying upon the objectionable testimony to

rule in favor of the Appellee/Executrix?

4. Did the Trial Court err in denying the Appellants[’]/Beneficiaries[’]

Post-Trial Motion to Alter or Amend [the] Order?

III. Standard of Review

This case was tried without a jury. Therefore, we review the trial court’s findings

of fact de novo with a presumption of correctness unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d). The trial court’s conclusions of law, however, are

reviewed de novo and “are accorded no presumption of correctness.” Brunswick

Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008). “Decisions

regarding the admission or exclusion of evidence are entrusted to the trial court’s

discretion. Thus, reviewing courts will not disturb these decisions on appeal unless the

trial court has abused its discretion.” State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)

(citing State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004); State v. James, 81 S.W.3d

751, 760 (Tenn. 2002)). An abuse of discretion will be found only where the trial court

“applied incorrect legal standards, reached an illogical conclusion, based its decision on a

clearly erroneous assessment of the evidence, or employed reasoning that causes an

injustice to the complaining party.” Id. (citing Konvalinka v. Chattanooga-Hamilton

County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).

IV. Analysis

The pivotal issue in this appeal is whether the CDs properly passed to Appellee on

Mrs. Kirkman’s death. Decedent’s intent determines the disposition of the CDs. See

Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 689 (Tenn. Ct. App. 1982) (“In

this jurisdiction, the contract approach to questions of joint ownership has supplanted the

common law approach of joint tenancy with its requirement of four unities. Under the

contract theory, the formal requirements of an inter vivos gift are likewise irrelevant, and

the issue is whether the parties intended to create a right of survivorship.”) (internal

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citations omitted) (emphases added). To establish a testator’s intent, a court may

consider, for example, “signed bank signature cards which express the contractual right

of survivorship,” or the parties may present extrinsic evidence to demonstrate intent as to

the type of ownership. Estate of Bowlin v. Ables¸ 766 S.W.2d 193, 195 (Tenn. Ct. App.

1988).

Here, Appellee’s testimony is the only evidence from which we may adduce

Decedent’s intent in establishing the CDs. At trial, Appellee testified that she became

aware of the CDs in the 1980s when she began to assist Mrs. Kirkman with her business

affairs. By that time, Mrs. Kirkman had unilaterally established the CDs in joint tenancy

with Appellee. As noted by the trial court, as a joint tenant, Appellee shared in the

property in equal ownership of the whole and, thus, was entitled to the funds from the

CDs after each maturation period. See 20 Am. Jur. 2d Cotenancy and Joint Ownership §

4 (2016) (describing the general rights of joint owners). Appellee never exercised this

right; instead, Appellee testified that she renewed the CDs in her name and Mrs.

Kirkman’s name, as joint tenants with right of survivorship, because it was Mrs.

Kirkman’s wish to have the CDs remain in joint tenancy. The exhibits indicate that, at

the time of Decedent’s death, the CDs were held by Appellee and Decedent as joint

tenants with right of survivorship. In the absence of any countervailing evidence, we

conclude that the trial court correctly held that the CDs passed to Appellee as the

surviving joint tenant.

In addition to providing no evidence to counter Appellee’s testimony, concerning

Decedent’s intent, Appellants have made no argument that Appellee: (1) exercised undue

influence over Mrs. Kirkman; (2) had a confidential relationship with Mrs. Kirkman; or

(3) committed any fraudulent act. Rather, Appellee testified that Mrs. Kirkman had lived

alone since the mid-1970s, “was her own boss,” maintained her own property, and

received her own mail, including all information about her finances. The mere fact that

Appellee is Mrs. Kirkman’s daughter is insufficient, standing alone, to support a finding

of undue influence or fraud. See Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977) (“[a]

normal relationship between a mentally competent parent and an adult child is not per se

a confidential relationship and it raises no presumption of invalidity…”); Harper v.

Watkins, 670 S.W.2d 611, 827-28 (Tenn. Ct. App. 1983) (“the relationship of a parent

and child standing alone does not create a confidential relationship, the first requisite

toward the presumption of undue influence.”). Appellee also testified that she was not

present at the time Decedent opened the CDs, and she was not aware, until she began

helping Decedent with her business affairs, that Decedent had established the CDs.

Given that the only evidence is that Decedent acted independently in initially establishing

the CDs in joint tenancy with Appellee, and given that the CDs were always renewed as

joint tenancies, there is simply no evidence to suggest that Appellee “destroy[ed]

[Decedent’s] free agency” or otherwise usurped Decedent’s intent when Appellee

renewed the CDs as joint tenancies with right of survivorship. Bills v. Lindsay, 909

S.W.2d 434, 440 (Tenn. Ct. App. 1993).

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Appellants contend that Tennessee Code Annotated Section 45-2-703 acts as a

statutory bar to Appellee’s ownership of the CDs because Decedent did not sign the

signature card when the CDs were last renewed before Decedent’s death. Although the

parties agree that Decedent did not sign the signature cards, which were admitted as

exhibits,4 Appellants’ reliance on this statute is misplaced. This Court has held that the

Tennessee Code Annotated Section 45-2-703(d)(1) requirement that the signature card be

signed by both parties “[w]hen opening a multiple-party deposit account” does not apply

to certificates of deposit. Roberts v. Roberts, 827 S.W.2d 788, 796 (Tenn. Ct. App.

1991). In Roberts, we specifically held that “[t]he reference [in Tenn. Code Ann. § 45-2-

703(d)(1)] is obviously to the signature card[,] which was ordinarily used by banks for

accounts subject to withdrawals. The statute does not apply to certificates of deposit[,]

which require no signature card and provide no withdrawal until maturity.” (emphasis

added). Accordingly, the fact that Decedent did not sign these signature cards is not

dispositive, or even relevant, to the question of whether Decedent intended to establish

the CDs as joint tenancies with right of survivorship.

Finally, Appellants argue that the trial court erred in allowing Appellee to testify,

over their objection. Appellants’ brief states broadly that “[t]he entirety of [Appellee’s]

testimony should have been excluded,” under the Dead man’s statute, Tennessee Code

Annotated Section 24-1-203, which provides:

In actions or proceedings by or against executors, administrators, or

guardians, in which judgments may be rendered for or against them, neither

party shall be allowed to testify against the other as to any transaction with

or statement by the testator, intestate, or ward, unless called to testify

thereto by the opposite party.

(emphasis added). This Court has defined the term “transaction,” as used in the Dead

man’s statute, as follows:

A “transaction” within the meaning of the [Dead Man’s Statute] is an action

participated in by witness and decedent, or something done in decedent’s

presence, to which, if alive, he could testify of his personal knowledge, and

the term embraces every variety of affairs, the subject of negotiations,

actions or contracts. It has also been said that personal transactions and

communications with a person since deceased include every method by

4

We note that the three signature cards are the only three exhibits in the record; however, the

parties reference sixteen exhibits filed in the trial court. Because these additional exhibits are not included

in the record, we cannot consider them. Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009)

(“This Court’s review is limited to the appellate record and it is incumbent upon the appellant to provide a

record that is adequate.”) (citing Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 713 (Tenn.

2005)).

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which one person can derive any impression or information from the

conduct, condition or language of another.

In re Estate of Lang, No. E2006-00279-COA-R3-CV, 2007 WL 2198449, at *5 (Tenn.

Ct. App. July 31, 2007) (quoting Brown v. Fuqua, 9 Tenn. App. 22, 1928 WL 2168

(Tenn. Ct. App. 1928)). The Lang Court further explained that:

[t]he test laid down for ascertaining what is a ‘transaction with’ the

deceased, within the intendment of the statute, is ‘to inquire whether, in

case the witness testify falsely, the deceased, if living, could contradict it of

his own knowledge.’

Id. at *6 (quoting Newman v. Tipton, 466, 234 S.W.2d 994, 996 (Tenn. 1950) (citing

Bankers’ Trust Co. v. Bank of Rockville Ctr. Trust Co., 168 A. 733, 739 (N.J. 1933))).

In the first instance, Appellants’ brief does not specifically indicate which portions

of Appellee’s testimony should be subject to the Dead man’s statute, and it is illogical

that “the entirety of [Appellee’s] testimony should have been excluded” under the statute.

“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case

or arguments for him or her, and where a party fails to develop an argument in support of

his or her contention or merely constructs a skeletal argument, the issue is waived,”

Sneed v. Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010).

However, in the interest of full adjudication of Appellants’ issues, we exercise our

discretion to proceed with an analysis of the applicability of the Dead man’s statute.

Tenn. R. App. P. 13(d). We exercise this discretion only because Appellants’ objections,

under the Dead man’s statute, are preserved in the record. In order to preserve an issue

for appellate review, a party must raise the issue in the trial court. Specifically, “[f]ailing

to make a timely, specific objection in the trial court prevents a litigant from challenging

the introduction of inadmissible evidence for the first time on appeal.” Wright v. United

Servs. Auto. Ass’n, 789 S.W.2d 911, 914 (Tenn. Ct. App. 1990). Having reviewed the

transcript, we find two instances where Appellants objected to Appellee’s testimony on

the ground of preclusion under the Dead man’s statute:

Q. When did you first become aware that [Mrs. Kirkman] had CDs or

had been depositing or creating CDs?

A. Possibly in the [19]80s… when she first let me do her bank work for

her. I knew at that time. I was legally – could do it legally and she

would at that point tell me that she wanted them renewed.

MR. ABERNATHY: Your Honor, please. I believe the [D]ead man’s

statute excludes testimony by a party that they had with the

deceased. We would object to that.

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MR. DONAHOE: The specific allegation that he raises is M[r]s.

Kirkman’s state of mind in creating the CDs. There is no other way

to present the evidence than what her intent was and what her

instructions were to this witness as far as the creation of the CDs.

THE COURT: I’m going to allow the testimony. It’s a preface of her

taking some action in response to this conversation. Plus I’m not

sure that this is excluded under the [D]ead man’s statute except it

has to do with some transactions between the parties.

It’s a little unclear about that at this point. So I’m going to let

that in at this point.

Q. Did you at some point discover either by talking with your mother or

by seeing the documentation from the banks that she had created a

joint CD with you on it?

A. Yes, sir. The one from Farmer’s Merchant’s Bank with her

signature had her name or my name. There was one that my brother

left her when he died.

At that point when she moved the CD from as I think at that

time it was with National Bank. At that point she already

established both names.

***

Q. Was there ever a discussion you had with your mother about these

CDs? Did you discuss that from time to time?

A. When they were to be renewed, yes, we did discuss it. She would

tell me exactly what she wanted me to do with them.

MR. ABERNATHY: I don’t want to be a Jack in the Box and object each

time, but obviously my objection continues to Ms. Hardin testifying

about any discussion she had with her mother.

THE COURT: Well, I’m going to overrule the objection based on the

grounds I stated before. Transactions between the executrix – I

mean, the deceased and plus the – she took action based on these

conversations.

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And I understand your objection, Mr. Abernathy, but I am

going to overrule it. If I’m wrong the Court of Appeals can change

it.

As set out above, the Dead man’s statute precludes Appellee’s testimony

concerning “conversations” or “transactions” with Decedent. Accordingly, Appellants’

objections to Appellee’s testimony concerning her conversations with Decedent

regarding renewal of the CDs should have been sustained under the Dead man’s statute.

Specifically, the Dead man’s statute bars Appellee’s testimony that: (1) Decedent “[told]

[Appellee] that [Decedent] wanted [the CDs] renewed;” and (2) when the CDs were

renewed, Appellee and Decedent “did discuss it. [Decedent] would tell [Appellee]

exactly what she wanted [Appellee] to do with them.” Although the trial court abused its

discretion in allowing the foregoing portions of Appellee’s testimony, see State v. Banks,

271 S.W.3d at 116, the admission of improper evidence of a fact in issue is harmless

where the verdict or judgment is supported by sufficient competent evidence. Berke v.

Chattanooga Bar Ass’n, 436 S.W.2d 296, 304 (Tenn. Ct. App. 1968). We now turn to

review the remaining evidence that is not subject to the Dead man’s statute.

Although the portions of Appellee’s testimony referencing conversations with

Decedent regarding the CDs is not admissible, the germane portion of Appellee’s

testimony is not the conversations she had with Decedent, but rather that Appellee,

through her own reconnaissance, discovered that Decedent had initially established the

CDs in joint tenancy with Appellee. In the portions of her testimony set out above,

Appellee states that she first discovered the CDs well after Decedent opened them and

that Decedent established the CDs without Appellee’s knowledge: “At that point

[Decedent] already established [the account in] both names.” Appellee’s own research

and subsequent discovery of the CDs is not a “transaction between” Decedent and

Appellee; it is a fact that Appellee discovered on her own and, as such, is not precluded

under the Dead man’s statute. Because there is material evidence, outside the Dead man’s

statute, to support the trial court’s ultimate holdings, we conclude that the trial court’s

overruling of Appellants’ Dead man’s statute objection was harmless error. Berke, 436

S.W.2d at 304.

From the permissible testimony, we can reasonably glean that Decedent intended

the CDs to be held in joint tenancy with Appellee. As evidenced by the exhibits, at the

time of Decedent’s death, the disputed CDs were still held in joint tenancy with Appellee.

In other words, the evidence supports the trial court’s finding that Decedent initially

intended to establish the CDs in joint tenancy with Appellee, and the structure of the CDs

never changed. Accordingly, the trial court properly held that the CDs passed directly to

Appellee and were not probate assets.

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V. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. The case is

remanded to the trial court for such further proceedings as may be necessary and are

consistent with this opinion. Costs of the appeal are assessed, in equal part, to the

Appellants, Gary Henley, Angelia Durbin, Jerry Henley, and Wayne Henley, and their

surety, for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

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