Parker v. Bozian

• Decision Date: 21 March 2003
• Citation: Parker v. Bozian, 859 So.2d 427 (Ala. 2003)
• Parties: Sara PARKER, as executrix of the estate of Effie Roney Wilson, deceased v. Marguerite W. BOZIAN.
• Court: Alabama Supreme Court

859 So.2d 427

Sara PARKER, as executrix of the estate of Effie Roney Wilson, deceased v. Marguerite W. BOZIAN.

1012252.

Supreme Court of Alabama.

March 21, 2003.

Charles D. Decker, Dothan, for appellant.

Richard W. Whittaker, Enterprise, for appellee.

MADDOX, Retired Justice.

This appeal involves the administration of an estate. The legal issue presented is whether a legacy of a certificate of deposit, designated in the will by the testatrix as "CD Account # XXX-XXXXXXX with the First Bank of Dothan, Dothan, Alabama," was a specific bequest that adeemed when the testatrix transferred the funds in the specified certificate-of-deposit account into two separate certificate-of-deposit accounts, of approximately equal value, numbered 2843 and 2844.

Sara Parker, the executrix of the estate and the appellant here, argues that the certificate of deposit designated in the will as "CD Account # XXX-XXXXXXX with the First Bank of Dothan, Dothan, Alabama" (hereinafter "CD 1274") did not exist at the time of the testatrix's death and that therefore an ademption had occurred.

The legatee of CD 1274, Marguerite W. Bozian,¹ the appellee here, argues that no ademption occurred because the funds represented by CD 1274 were used by the testatrix to obtain two certificates of deposit that were for a longer term and that paid a higher rate of interest than did CD 1274; that the two certificates of deposit into which the funds from CD 1274 were deposited were designated as being in the testatrix's portfolio at First Bank; and that the renumbering of the two certificate-of-deposit accounts was for the convenience of the bank.

The trial judge, in a bench trial, heard conflicting ore tenus evidence. The evidence was conflicting regarding the reason for the testatrix's dividing the proceeds of CD 1274 and opening two certificate-of-deposit accounts, of approximately equal value. Parker, who is the legatee of the sizable residuary estate, contends that the testatrix took this action because Bozian was talking about putting the testatrix in a nursing home. Bozian argues that the testatrix took the action she took with regard to CD 1274 because she wanted to deposit the money for a longer term and to get a higher rate of interest. Bozian also argues that the testatrix took similar action at other banks where she had certificate-of-deposit accounts, in order to get a higher rate of interest.

The trial judge found in favor of Bozian, and Parker appealed. We affirm.

Facts

Effie Roney Wilson died on April 20, 2001. Parker, a niece, was appointed the executrix of Wilson's will, which was executed by Wilson on April 27, 1995. Wilson, in "Item Two" of her will, made specific devises of sums of money to several individuals and to a church, and in "Item Four" she gave "[a]ll the rest, residue and remainder of my estate ... to Sara Parker."

The dispute between the parties revolves around the construction of "Item Three" of her will, which reads as follows: "I give, devise and bequeath to Marguerite W. Bazian [sic], my CD Account # XXX-XXXXXXX with the First Bank of Dothan, Dothan, Alabama."

Because a dispute arose between Parker, as executrix, and Bozian, the legatee, regarding the interpretation of Item Three, Bozian filed an action against Parker seeking a declaration that the funds in the two certificate-of-deposit accounts were given to her under Wilson's will. She asked the trial court to order Parker to transfer the funds in those certificate-of-deposit accounts to her.

In her complaint she alleged that Wilson, on March 16, 1992, deposited $69,646.50 with First Bank, and received a six-month certificate of deposit, with automatic renewal provisions, and that First Bank designated the account as CD 1274. She further alleged that on the last maturity date of CD 1274, March 16, 2000, Wilson "transferred, swapped, or rolled the matured existing funds (identified as CD 1274) into another account or contract

... for the purpose of increasing the rate of interest from 4.5% to 7%." In her declaratory-judgment action, Bozian further alleged that "[a]t the time of the swap, roll over, or transfer, the funds on deposit with the Bank were divided into two accounts, one being designated as CD account number 2843 (CD 2843) in the amount of $49,594.98, and the other being designated as CD account number 2844 in the amount of $49,594.97," and that "[t]he new CD accounts were derived solely and fully from the existing CD 1274."

The evidence presented shows that, before Wilson executed her will, she had previously opened a certificate-of-deposit account at First Bank, into which she deposited $69,646.50 for a six-month term. The certificate of deposit was dated March 16, 1992, bore the number 1274, and contained automatic renewal provisions at maturity. No beneficiary was listed on the account; it is undisputed that the funds were payable to Wilson's estate upon her death.

On March 16, 2000, the maturity date for CD 1274, Wilson was taken to First Bank by Shelby Parker, Parker's husband. The evidence is uncontradicted that on that date the CD 1274 account was the only account Wilson had at First Bank; it is also undisputed that at that time First Bank was paying interest at the rate of 4.5% on CD 1274, but was paying an interest rate of 7% on a 24-month certificate of deposit.

Lisa Merritt, the bank officer who assisted Wilson, testified at the trial. Although she testified that she could not recall the specific transaction, she did testify that Wilson did not add any money to, or subtract any money from, the CD 1274 account, which at that time amounted to $99,189.95. Wilson transferred the entire amount in CD 1274 into two separate 24-month certificates of deposit, CD 2843 and CD 2844, the interest on which was 7%. Merritt testified that the bank numbered the two certificates of deposit as 2843, in the amount of $49,594.98, and 2844, in the amount of $49,594.97. Merritt testified that even though the two new certificates of deposit had different numbers than did the original certificate of deposit, the moneys in the two accounts represented by the certificates of deposit remained under the same portfolio number with the bank, and were the "same money."²

At the time of Wilson's death, Parker refused to give Bozian the funds in the two certificates of deposit, because she was of the opinion that the certificate of deposit enumerated in the will had been closed out and the gift to Bozian had adeemed.³ Parker and Bozian are first cousins; they were described at trial as being favorite nieces of Wilson.⁴ Regarding the facts of this case, Parker testified that before Wilson died she did not know Wilson had a certificate of deposit at First Bank, but she testified, over objection, that at about the time Wilson made the change in the certificate of deposit at the bank Wilson mentioned to her that Bozian was asking Wilson which nursing home she would prefer, and that Wilson was upset about this.

Bozian testified, without objection, that in 1995 when she executed her will, Wilson said to her, "I've taken care of you." Bozian also testified that shortly before her death Wilson had told her she had greatly increased the benefit to Bozian because she was able to get a higher interest rate.⁵ It is undisputed that Wilson did not change her will after she split CD 1274 into two CDs, although the record shows that Parker and her husband offered to carry Wilson to a lawyer to change her will if she wanted to change it.⁶ Bozian also presented evidence indicating that within two weeks of the date Wilson changed her CD 1274 at First Bank, she went to other banks in Dothan and readjusted her certificates of deposit in those banks to secure higher interest rates on those certificates of deposit.

George Liverani, whose second wife was a niece of Wilson's, helped Wilson with some of her bookkeeping. He balanced her checkbook and kept a record of the interest income she made on CDs that she had, except when she changed the term on the CDs. He testified that he no longer took care of them after that. Mr. Liverani was asked if he knew of any animosity between Bozian and Wilson, and he said that he was not aware of any. He was asked approximately how much money Wilson had in the various banks, and he testified that "[t]he last figure I gave Ms. Effie in her checkbook was roughly around $880,000." He further testified that the money was "[i]n six banks and CD's." It is undisputed that if the bequest of CD 1274 is considered to have adeemed, the deposits in the two CDs will go to Parker, as the residuary legatee, and that Bozian will get nothing.

Scope of Review

It is axiomatic that when a trial judge, sitting without a jury, receives evidence ore tenus, his or her findings of fact, based on that evidence, are presumed to be correct and a judgment based on those findings will not be reversed unless the judgment is unsupported by the evidence or is plainly and palpably wrong. In Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)(opinion on return to second remand), this Court stated:

"`[W]e will not disturb the trial court's findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.' Williams v. Lide, 628 So.2d 531, 534 (Ala.1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). However, the ore terms rule does not extend to cloak a trial judge's conclusions of law, or incorrect application of law to the facts, with a presumption of correctness. As this Court has held, `when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment.' Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993)."

See Ex parte Hurricane Freddy's, Inc., [Ms. 1010643, Sept. 27, 2002] ___ So.2d ___, ___ (Ala.2002). See also Watkins v. Central Contracting, Inc., 603 So.2d 899, 901 (Ala.1992), where this Court said:

"We note that when a trial...