Hart v. Jackson

• Decision Date: 16 October 1992
• Citation: Hart v. Jackson, 607 So.2d 161 (Ala. 1992)
• Parties: Ruby H. HART, Individually and as Administratrix of the Estate of Minnie H. Tillman, Deceased v. R. Milton JACKSON, et al. 1910604.
• Court: Alabama Supreme Court

Page 161

607 So.2d 161

Ruby H. HART, Individually and as Administratrix of the Estate of Minnie H. Tillman, Deceased v. R. Milton JACKSON, et al.

1910604.

Supreme Court of Alabama.

Oct. 16, 1992.

Edward P. Turner, Jr. and Halron W. Turner of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, and James D. Evans, Butler, for appellant.

William L. Utsey of Utsey, McPhearson & Christopher, Butler, and Wylynn Gilmore-Phillippi of Gilmore & Gilmore, Grove Hill, for appellees.

HORNSBY, Chief Justice.

This appeal is from a final settlement of the estate of Minnie H. Tillman. The estate was administered by Ruby H. Hart, who has appealed both as administratrix and individually. Hart challenges the trial court's determination that the decedent's estate and Hart each owned one-half of two joint bank accounts and that attorney fees from an earlier will contest concerning the estate were payable from the assets of the estate. We affirm.

Hart is Tillman's sole surviving sibling. Tillman executed a will in 1977 leaving the bulk of her estate to Hart. After Tillman's death, her other heirs at law, R. Milton Jackson and others, contested the 1977 will on the basis of lack of testamentary capacity, and they succeeded in a jury trial. This court affirmed the trial court's judgment. Hart v. Jackson, 510 So.2d 202 (Ala.1987).

In this case the judgment of final settlement of the estate was entered after a hearing conducted by the trial court without a jury. Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's findings on issues of fact; its judgment based on those findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So.2d 877 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978).

I. JOINT BANK ACCOUNTS

Hart first contends that she is entitled to the entire proceeds of the two bank accounts held jointly in the names of Hart and the decedent, Tillman, and that the trial court erred in determining that she is entitled to only one-half of those funds. Jackson does not challenge the trial court's decision to grant one-half of the funds to Hart but contends that Hart is entitled to no more than one-half.

Interests in joint bank accounts are determined according to the statute in effect at the creation of the account. Jones v. Jones, 423 So.2d 205 (Ala.1982). This Court has also held that Ala.Code 1975, § 35-4-7, the provisions of which have been in effect since 1852, governs ownership of funds held jointly in an account for which there is insufficient evidence of the date of creation. Ex Parte Lovett, 450 So.2d 116 (Ala.1984).

Carefully reviewing the record, we find insufficient evidence to show when the two bank accounts were created. Neither the bank nor Hart produced a signature card or other instrument of creation for either account. Moreover, neither of the accounts specifically referred to any survivorship rights. Therefore, the trial court properly applied § 35-4-7 to determine the ownership of these accounts.

Hart must comply with the requirements of § 35-4-7 to be entitled to the entire proceeds of the accounts as a joint tenant with right of survivorship. Section 35-4-7 reads as follows:

"When one joint tenant dies before the severance, his interest does not survive to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated."

(Emphasis added.)

Hart did not produce the instrument creating the bank accounts, and she produced no evidence that the instruments creating the accounts included a provision for joint tenancy "with right of survivorship." Hart relies on bank statements and checks that have both names on them and relies on what she says was the bank's policy regarding accounts. The bank statements and checks are silent as to survivorship. Hart's reliance on what she describes as the bank's policy of treating "or" accounts as joint accounts with right of survivorship is not germane to the question of ownership interests between the alleged owners of the accounts. The bank's right to make payments to the survivor of a joint account according to Ala.Code 1975, § 5-5A-41, exempts the bank from liability. It does not "empower the bank to determine ownership of a joint account in its depository. Rather, title is determined in accordance with the intentions of the parties, 'stated in the instrument creating such tenancy.' " Jones, 423 So.2d at 207 (quoting Ala.Code 1975, § 35-4-7).

Hart failed to prove that the instrument creating the account indicated an intent that the joint tenancy be with right of survivorship. See § 35-4-7. Therefore, the trial court properly refused to grant the entire proceeds of the accounts to Hart on a survivorship basis.

Hart contends that Ala.Code 1975, § 5-1-25, governs ownership rights as to the accounts. Section 5-1-25 creates a presumption of donative intent, which would grant full ownership of the funds of both accounts to Hart as the survivor. After thoroughly reviewing the record, we disagree with Hart's argument. Although Hart has produced some evidence that the accounts were created before 1970, there is no showing of the exact date of creation. If the accounts were created prior to 1970, they may have been created after 1958, when the predecessor to § 5-1-25 became effective; that statute or its predecessor was in effect from 1958 to 1980. They may also have been created during the period 1953 to 1958, while Ala.Code of 1940, Title 5, § 128(2a), was in effect. Because of the lack of evidence of the precise date of creation, the trial court properly applied § 35-4-7. Ex Parte Lovett, supra.

The trial court held that Hart was entitled to one-half of the funds in the joint accounts. The trial court had authority under § 35-4-7 to split the funds between Hart and Tillman's estate. See, e.g., Best v. First National Bank of Birmingham, 494 So.2d 387, 388 at n. 2 (Ala.1986) (construing § 35-4-7 to permit a division of the interests in certificates of deposit jointly owned by the decedent and the survivor); Briscoe v. Latta, 471 So.2d 405 (Ala.1985) (partitioning ownership of certificates of deposit between the estate and the survivor as to "or" certificates); Parr v. Godwin, 463 So.2d 129, 134 (Ala.1984) (Torbert, C.J., dissenting) (stating that "under § 35-4-7, a grant of personal property ... creates in [the named owners] a tenancy in common with respect to such property unless ... the instrument creating the estate ... clearly indicate[s] that a joint tenancy with right of survivorship was intended"). Accordingly, we affirm the trial court's holding that the joint bank accounts were owned one-half by the estate and one-half by Hart.

II. ATTORNEY FEES

Hart next argues that the trial court erred in awarding attorney fees to be paid from the estate to the attorneys who represented the will contestants. Attorney fees are recoverable under Alabama law as part of the costs of an action only where they are authorized by statute, where they are provided for in a contract, or where they can be awarded by special equity, such as a proceeding where the efforts of an attorney create a fund out of which fees may be paid. Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So.2d 1238 (Ala.1985); Eagerton v. Williams, 433 So.2d 436 (Ala.1983); Shelby County Commission v. Smith, 372 So.2d 1092 (Ala.1979).

The trial court expressly relied on Ala.Code 1975, § 43-8-196, in awarding fees to the contestants' attorneys. This section provides in pertinent part:

"The costs of any contest under the provisions of this article must be paid by the party contesting if he fails; otherwise, it [sic] must be paid by the plaintiff or out of the estate, or in such proportion by the plaintiff or out of the estate as the court may direct...."

(Emphasis added.) Section 43-8-196 plainly authorizes the court to order that costs be paid out of the estate where, as here, the contestants did not fail.

Although the statute refers to "costs," this Court has construed that term to include attorney fees. Bleidt v. Kantor, 412 So.2d 769 (Ala.1982) (interpreting the 1975 Code's predecessor to § 43-8-196); Clark v. Clark, 287 Ala. 42, 247 So.2d 361 (1971) (construing the 1940 Code's predecessor to § 43-8-196). In Clark, this Court relied on what is now Ala.Code 1975, § 34-3-60, as a justification for holding that the word "costs" in the predecessor to § 43-8-196, included attorney fees. Id. Section 34-3-60 reads, in pertinent part, as follows:

"In all actions and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust [in Clark the Court held that an executor is a trustee, and that the executor's administration of the estate of a decedent is that of a trustee] ... the court having jurisdiction of such action or proceeding may ascertain a reasonable attorney's fee, to be paid to the attorneys or solicitors...