CASEY v. CASEY Court of Appeals of Arkansas No. CA 98-900, 1999 WL 138783 March 10, 1999 GRIFFEN, J. Meverine Casey appeals from a decision filed on March 31, 1998, by the Faulkner County Probate Court. Appellant contends: 1) that the trial court erred in denying her claim for statutory allowance; 2) that the trial court erred in allowing appellee s unverified claim against the estate; 3) that the trial court erred in finding that the appellee was the owner of joint accounts left by the decedent; and 4) that the trial court erred in denying her interest in the estate pursuant to Arkansas Code Annotated Section 28-9-214(2) (1987). We disagree and affirm. Quention Casey died testate on June 1, 1996, survived by appellant (his estranged wife), no children, and thirteen siblings. Appellant was married to decedent for seven years before they separated in February 1996. Sometime after they separated, the decedent executed a new will that provided for appellant to take nothing from his estate. The decedent also directed that appellee s name be placed on his checking account and that appellee s name be placed on two certificates of deposit at Superior Federal Bank in Conway, Arkansas. The decedent transferred title to an automobile to appellee one week before he died. Appellant filed an election to take against the will and a petition for award of statutory allowances. The appellee is the executor and brother of the decedent. Appellant objected to the executor s inventory, claiming (1) that personal property in her possession was not part of the estate, and (2) that a joint savings and checking account, automobile, and promissory note should be considered part of the estate. The appellee filed an unverified claim for expenses of over $5000.00, which appellant challenges. The probate court granted appellant a $1000.00 statutory allowance, satisfied by the finding that appellant removed household items from the marital home during the pendency of the divorce action. The court granted the appellee s claim for expenses. The court found that the joint bank accounts, automobile and promissory note were not part of the estate and denied the appellant s claim as an heir of the estate under Ark.Code Ann. 28-9-214(2). Claim for Statutory Allowance Appellant argues that the trial court erred by satisfying her allowance with personal property she removed from the marital home. Appellant argues that the removed property belonged to her; however, she also claims that even if the property belonged to the estate that such a finding would have no bearing upon her rights under the statute based on her claim that, as the widow of a spouse who died without issue, she is entitled to all the property. Furthermore, 1
appellant argues that division of property in contemplation of divorce has the strong odor of a property settlement. Lastly, the appellant contends that the allowance should be $2000 instead of $1000. The appellee argues that the trial court did not deny the statutory allowance, but determined that the property in appellant s possession was an asset of the estate and should be assigned as appellant s allowance. Appellee controverts appellant s claim that she is the sole beneficiary of the estate. The appellee argues that the controversy over the property included in the inventory was properly resolved by the trial court and that the amount of appellant s allowance is proper. Probate cases are reviewed de novo on appeal, and this court will not reverse the findings of the probate judge unless they are clearly erroneous. This court gives due deference to the probate judge s superior position to determine the credibility of witnesses and the weight to be given their testimony. The right of the surviving spouse to take against the will is governed by Arkansas Code Annotated section 28-39-401 (1987). In the event of an election, Ark.Code Ann. 28-39-401(b)(1) provides that the surviving spouse receives dower in addition to homestead rights and statutory allowances in the decedent s property as if he died intestate. However, [I]f, after the assignment of dower... and the payment of all statutory allowances, taxes, and debts, and the satisfaction of all testamentary gifts and devises, there shall remain some residue of the... estate which is not disposed of by will, then... the surviving spouse will take by inheritance the undisposed residue. Ark. Code Ann. 28-39-401(b)(3). The public policy embodied by the statute is disallowed only in limited situations, such as when the electing spouse was married to the decedent for less than a year.... The statutory allowance provisions specify that: (a)(1) In addition to their homestead, dower, and curtesy rights, the surviving spouse and minor children of a decedent, or either in the absence of the other, shall be entitled to have assigned to them out of the property owned by the decedent at the time of his or her death, personal property, tangible or intangible, to be selected prior to the sale thereof by the personal representative or after sale out of the proceeds thereof, by the surviving spouse, if there is a surviving spouse or, otherwise, by the guardian of the minor children, when such personal property is of the value of two thousand dollars ($2,000) as against distributees or the value of one thousand dollars ($1,000) as against creditors. 1 Ark.Code Ann. 28-39-101 (1987). The statutory allowance is intended for the use of the widow regardless of the claims of creditors against the estate; therefore, the statute of descent and distribution does not apply to the 1 In 2004 the Legislature updated these amounts to $4,000 and $2,000 respectively. 2
allowance. A widow s right to statutory allowances is not dependent upon her possession of any property of the estate. Subsection (d) of the statute provides that the provisions of subsection (a) are cumulative; thus, the most that a widow could claim as an allowance is $2000 total. See Ark.Code Ann. 28-39-101(d)(1987). Despite conflicting testimony, the probate court found that the estate s assets included those items of tangible personal property listed by the executor and items in appellant s custody. The weight and credibility of witness testimony is for the trier of fact, and we do not conclude that the probate judge abused his discretion in resolving the conflicting testimony to find that the items of property which appellant removed were part of the decedent s estate. Under the statute, appellant is entitled to a $1000 allowance against creditors or a $2000 allowance against distributees. See Ark.Code Ann. 28-39-101. Appellant is mistaken in asserting that her allowance entitles her to all the property as widow without issue. The probate court provided appellant a statutory allowance of $1000 against creditors, satisfied by the tangible property she removed from decedent s home. Additionally, the court provided appellant an additional $1000 allowance against beneficiaries of the estate in the event that the value of the assets exceeded the pending claims. The court found that the executor s claims for expenses, discussed below, exceeded the value of the remaining assets. Thus, there were no additional assets from which appellant could claim an allowance as against distributees. Based upon our de novo review of the record, we do not conclude that the probate judge was clearly erroneous in his findings. Appellant was properly allowed a $1000 allowance against creditors, satisfied by the property which she had previously removed from the marital home.... Joint Accounts as Assets in the Estate Appellant argues that the court erred in finding that appellee was the owner of decedent s bank accounts. Appellant argues that the appellee does not meet the requirements of an inter vivos donee. The appellee argues that the he, individually, not the estate (as appellee), was found to be the owner of the accounts. The appellee argues that the burden of proof was met in establishing that the bank accounts were joint bank accounts and that Randell Casey had the proper ownership rights. Arkansas has a statute governing the ownership of bank accounts and deposits held in two or more names. It provides that: (1)(A) Unless a written designation to the contrary is made to the banking institution... when a deposit has been made or a certificate of deposit purchased in the names of two (2) or more persons and in form to be paid to any of the persons so named, or the survivors of them, the deposit or certificate of deposit and any additions thereto made by 3
any of the persons named in the account shall become the property of those persons as joint tenants with right of survivorship. (2)(A) If the person opening the account or purchasing the certificate of deposit designates in writing to the banking institution... [that] the certificate of deposit is to be held in joint tenancy or in joint tenancy with right of survivorship, or... shall be payable to the survivor or survivors of the persons named... then the account or certificate of deposit and all additions thereto shall be the property of those persons as joint tenants with right of survivorship. (C) The opening of the account or the purchase of the certificate of deposit in this form shall be conclusive evidence in any action or proceeding to which... the surviving party is a party of the intention of all the parties to the account or certificate of deposit to vest title to the account or certificate of deposit, and the additions thereto, in such survivor. Ark.Code Ann. 23-32-1005 (1994). Compliance with this section provides conclusive evidence of the intention of the parties to create a joint tenancy with right of survivorship. Nall v. Duff, 305 Ark. 5, 805 S.W.2d 63 (1991). There need only be substantial compliance with this section. Even where the certificate references survivorship, this section requires that the purchaser sign a writing that states his intention that the funds be paid to the alternative payee on the purchaser s death; the writing must be more than the designation as payee and the signature on the signature card. Martin v. First Sec. Bank, 279 Ark. 273, 651 S.W.2d 70 (1983). In Nall, the checking account and certificate of deposit were opened in the purchaser and appellant s names, and the purchaser designated in writing on the signature cards that the accounts were payable to the survivor. The designation of survivorship in Nall was not in the parties own handwriting, but was recited on the signature card. Because the court held that the survivorship was properly created, the estate was not entitled to the money from the accounts. Here the probate court held that the jointly owned accounts, including the bank accounts, became the property of the joint tenants. Specifically, the court stated: Jointly Owned Property. The Court holds that all of the jointly held accounts, including the bank accounts that were in the joint names of the deceased and Randell Casey or Meverine Casey, became the property of the joint tenants, namely Randell Casey and Meverine Casey. That the assignment of the promissory note to Randell Casey is the property of Randell Casey. The only evidence in the abstract regarding joint bank accounts involves Geanise Holman s testimony concerning the signature cards on a specified certificate of deposit and on a particular checking account. Holman is employed at Superior Federal, and testified that the signature card on the certificate of deposit indicates that it is a joint account with right of 4
survivorship. The card for the checking account indicates that it is payable on death to Randell Casey. No other written evidence from the bank is provided on the issue of survivorship. However, this evidence is sufficient under Nall, with respect to these two particular accounts, in creating a survivorship right in Randell Casey. We affirm as to the finding of joint tenancy with the right of survivorship in respect to the two accounts referenced by Holman s testimony because we cannot conclude that the probate judge s decision was clearly erroneous. To the extent that appellant challenges the finding regarding any other accounts or joint property, such accounts or property were not noted in the argument or abstract and are not before us on appeal. Appellant s Asserted Interest in the Estate Pursuant to Ark. Code 28-9-214(2) Appellant asserts that the probate court erred by not applying the provision of the table of descents, Ark.Code Ann. 28-9-214. Appellant argues that, because she took her statutory election, the decedent died intestate as to her. Thus, continues appellant s argument, she is entitled to the intestacy share of his estate. The appellee argues that the election to take against the will is governed by Ark.Code Ann. 28-39-401, and not by the table of descents. Accordingly, the appellee argues that the appellant s rights are limited to dower, homestead and statutory allowances. Because the residue of the estate is left to Randell Casey, appellee argues that there is nothing which appellant may take by intestacy or to satisfy her dower. Election to take against the decedent s will is not governed by the intestacy table of decent and distribution. We are not persuaded by appellant s argument that the statutes apply because decedent died intestate as to her. The appellee is correct that the election to take against the will is governed by Arkansas Code Annotated section 28-39-401. Furthermore, the statute provides that the right to take dower is additional to [the widow s] homestead rights and statutory allowances[.] Ark.Code Ann. 28-39-401(b)(1) (1987). Dower statutes allow the surviving spouse one-third (1/3) part of the personal estate whereof the deceased spouse died seized or possessed. Ark.Code Ann. 28-11-305. The same dower is authorized in the bonds, bills, notes, books, accounts, and evidences of debt as the surviving spouse would be entitled to take out of the personal property or cash on hand of the deceased spouse. Ark.Code Ann. 28-11-306. The surviving spouse is entitled to dower without deduction for any debts or claims or expense of administration. However, the right of dower in personal property does not accrue until the decedent s death; the decedent may sell, mortgage or dispose of property at his pleasure. The probate court found that, after payment of the allowances and claims, there were no further assets of the estate that would be subject to distribution... and no further assets against which the widow could claim dower. It is clear that the court satisfied the appellant s 5
allowance and the executor s expenses out of the personal property of the decedent. As there was no error in the finding that the certificate of deposit and checking account were not part of the estate, we do not conclude that the trial court was clearly erroneous in excluding those from the decedent s estate. The decedent is free to dispose of his property as he chooses, even to the exclusion of any property subject to dower. It cannot be said that the trial court erred in finding that there were no assets against which appellant could claim a dower interest. Affirmed. 6