Nowlin v. Parker

358 S.E.2d 258, 183 Ga. App. 137, 1987 Ga. App. LEXIS 1920

• Court: Court of Appeals of Georgia
• Decided: May 11, 1987
• Docket: 73659
• Status: Published

Opinions

McMurray, Presiding Judge.

On December 7, 1984, Mozelle C. Nowlin (decedent) executed her “Last Will and Testament” naming as primary beneficiaries her children, Bryan Tillman Nowlin, Jr. (Nowlin) and Bobbie June Parker (Parker). Other than specific bequests, decedent provided that her property was to be divided equally between Nowlin and Parker.

On December 13, 1984, decedent died and on December 17, 1984, her “Last Will and Testament” was filed in the Probate Court of Cobb County, Georgia. Simultaneously, “Letters Testamentary” issued to Parker as executrix of decedent’s estate. On January 17, 1985, Nowlin filed a petition seeking removal of Parker as executrix of decedent’s estate. In his petition, Nowlin alleged that Parker misappropriated estate assets by converting funds derived from certain savings certificates, formerly owned by decedent, to her own use. In an order filed February 6, 1985, the Judge of the Probate Court of Cobb County found that Parker had not misappropriated estate funds because the savings certificates at issue were held in joint capacity by decedent and Parker and as such remained with Parker as the surviving party. Nowlin appealed to the Superior Court of Cobb County, Georgia for de novo review.

On November 11, 1985, Parker filed a motion for summary judgment and a supporting affidavit which showed that Parker and decedent jointly owned a passbook savings account and three certificates of deposit with Lockheed-Georgia Employee’s Federal Credit Union. (The first savings certificate was issued on July 7, 1983, in the principal amount of $20,000; the second savings certificate was issued on January 5, 1984, in the principal amount of $10,000; and, the third savings certificate was issued on July 25, 1984, in the principal amount of $16,000.) From this evidence, Parker argued that she is entitled to the proceeds of the joint accounts, citing OCGA §§ 7-1-810 (4) and 7-1-813 (a).

OCGA § 7-1-810 (4) defines a joint account as “an account payable on request to one or more of two or more parties, whether or not mention is made of any right of survivorship.” OCGA § 7-1-813 (a) provides, in pertinent part, that “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.”

The affidavit submitted in support of Parker’s motion for summary judgment was that of R. W. Hampton, the “Assistant Manager” of the Lockheed-Georgia Employee’s Federal Credit Union. Corroborating the presumption created by the above Code sections, Mr. Hampton referred to each of the certificates of deposit in his affidavit, and deposed that “[a]t the time said joint [accounts were] created by [decedent], there was no evidence manifested by her of an intention to have said [accounts] belong to her estate as opposed to the surviving joint owner, Bobbie June Parker.” Referring to the joint passbook savings account, Mr. Hampton deposed that the “membership agreement” of the savings account “provides that in the case of the death of one of the joint owners, that the survivor shall be entitled to all rights of ownership as to said passbook account.”

In opposition, Nowlin submitted the deposition of Odell Allen, the decedent’s sister, who testified that she had related to decedent that she (Odell Allen) had her own daughter’s name put on her certificates of deposit in case something happened to her (Odell Allen). In this regard, Allen testified that decedent “had [Parker’s name] put on her certificates . . . [s]trictly for convenience in case something happened. It was not [decedent’s] intent that those certificates and her money go to [Parker].” Upon cross-examination, Allen testified that neither she nor decedent was aware that the survivor of a joint account would become the owner of the account.

From this evidence, the trial court entered an order excluding the testimony of Allen as inadmissible hearsay and concluded “that the sums remaining on deposit with the Lockheed-Georgia Federal Employee’s Credit Union were held in a joint account and as such belong to the surviving party, Bobbie June Parker, as against the estate of the Deceased, Mozelle C. Nowlin.” The trial court further held that Parker “has not violated her oath of office and should not be removed as the executrix of the estate.” Nowlin appeals. Held:

Nowlin contends the trial court erred in excluding the testimony of Odell Allen as inadmissible hearsay. From this contention, Nowlin argues the trial court erred in granting summary judgment in favor of Parker because Allen’s testimony was sufficient to raise an issue of fact concerning decedent’s intent in creating joint ownership in the certificates of deposit with Parker.

Assuming, without deciding, that Allen’s testimony was admissible in opposition to Parker’s motion for summary judgment, we find insufficient evidence in Allen’s deposition to rebut the statutory presumption of survivorship as an incident to the creation of the joint assets. As stated above, OCGA § 7-1-813 (a) requires “clear and convincing evidence of a different intention at the time the account is created” to rebut the presumption that “a joint account [shall] belong to the surviving party ... as against the estate of [the non-surviving party].” Although Allen testified that she advised decedent to create joint accounts with someone, she did not testify that decedent told her that she intended to create an interest with Parker in the certificates of deposit other than that prescribed by OCGA § 7-1-813 (a). On the contrary, at the time the joint certificates of deposit were created Allen testified that she did not witness decedent manifest an intent contrary to the creation of joint assets. Allen’s conclusion that decedent did not intend to create joint assets “with rights of survivor-ship” in the certificates of deposit was not based on what decedent told her, it was based on Allen’s erroneous conclusion as to the effect of the creation of joint assets. Further, the statutory presumption is supported by the fact that decedent’s will, which she executed after the creation of the joint assets, makes no reference to the disposition of the savings certificates. Consequently, finding no “clear and convincing evidence” to contradict the statutory presumption, we find the trial court properly entered summary judgment in favor of Parker. See Lastinger v. Johnson, 148 Ga. App. 453, 454 (3, 4) (251 ); White v. Royal, 150 Ga. App. 57 (256 SE2d 662); and Collins v. Collins, 176 Ga. App. 79 (335 SE2d 307).

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Ca,rley, Sognier and Benham, JJ., concur. Been, P. J., Pope and Beasley, JJ., dissent.