DARLENE HARRISON, RICK SUMPTER, AND CHARLES SUMPTER v. COMMUNITY TRUST BANK, FSB; FIRST AND FARMERS BANK OF SOMERSET; SHARON SUMPTER WALKUSKI, CO-INDEPENDENT PERSONAL REPRESENTATIVE OF THE ESTATE OF RICHARD SUMPTER, DECEASED; JACK R. POINTON, CO- INDEPENDENT PERSONAL REPRESENTATIVE OF THE ESTATE OF RICHARD SUMPTER
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RENDERED: February 19, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002821-MR
DARLENE HARRISON,
RICK SUMPTER, AND
CHARLES SUMPTER
APPELLANTS
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 95-CI-000065
v.
COMMUNITY TRUST BANK, FSB;
FIRST AND FARMERS BANK OF SOMERSET;
SHARON SUMPTER WALKUSKI,
CO-INDEPENDENT PERSONAL REPRESENTATIVE
OF THE ESTATE OF RICHARD SUMPTER,
DECEASED; JACK R. POINTON, COINDEPENDENT PERSONAL REPRESENTATIVE OF
THE ESTATE OF RICHARD SUMPTER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, MCANULTY, AND MILLER, JUDGES.
MILLER, JUDGE:
Darlene Harrison, Rick Sumpter, and Charles
Sumpter bring this appeal from a September 8, 1997, judgment of
the Pulaski Circuit Court.
We affirm.
The facts are these:
on August 25, 1994.
Richard Sumpter (decedent) died
The decedent had a safety deposit box at
First and Farmers Bank in Somerset, Kentucky.
The decedent's
personal representatives--Jack R. Pointon and Sharon Walkuski-opened the safety deposit box and found, among other things, four
certificates of deposit (CDs).
One was solely in the decedent's
name and is not relevant to this appeal.
The remaining three CDs
were individually contained in “little red books.”
inside each CD was a handwritten note.
Apparently,
The relevant items found
in the safety deposit box were summarized as follows by
appellees:
1. CD #064473 from First and Farmers Bank in
an amount of $60,000.00 to Richard Sumpter,
payable on death to Richard John Sumpter and
a note enclosed and signed by Richard John
Sumpter, which said: “I Richard John Sumpter
bear no claim to C.D.s in Richard Sumpter's
name. 11/12/92
Ric a Su p r “
h rd mte
2. CD #061207494-5 from First Federal Bank
in an amount of $100,000.00 to Richard
Sumpter or Darlene Smith and a note enclosed
and signed by Darlene Smith, which said: “My
n m iso th C.D . fo th p rp s o gttin inu nec vra e I h v n in ret, o c imtoits
a e n is
r e u oe f e g s ra c oe g. a e o te s r la
v lu wa s ee I t blo g toRic a Su p r, o h eta . D a n Sm ; X D a n
a e h t o vr.
e ns
h rd mte r is s te
rlee ith
rlee
F. Sm 5-1-92 Witns: Ov J. G in 381-60-3212.”
ith
es a u n
3. CD #061207495-3 from First Federal Bank
in an amount of $100,000.00 to Richard
Sumpter or Charles Sumpter and a note
enclosed and signed by Charles “Chuck”
Sumpter, which said: “Myn m iso th C.D . fo th p rp s o
a e n is
r e u oe f
gttin inu nec vra e I h v n in ret o c imtoit wa s ee I t blo g toRic a
e g s ra c oe g. ae o te s r la
h t o vr.
e ns
h rd
Su p r o h eta . Ch c Su p r X Ch c Su p r Witns Ov J. G in ”
mte r is s te uk mte
uk mte
es a u n
A dispute arose between the estate and Richard John
Sumpter, Darlene Smith, and Charles “Chuck” Sumpter regarding
ownership of the three CDs.
circuit court without a jury.
The matter was heard before the
On September 8, 1997, the court
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determined that the estate properly held ownership of the three
CDs in question.
This appeal followed.
Appellants contend that the circuit court erroneously
admitted certain evidence.
Specifically, appellants contend that
the circuit court should not have admitted the handwritten notes
found with each CD in question.
Appellants maintain that the
handwritten notes do not specify any particular CD and that they
were written or signed some time before the CDs were actually
created.
Ky. Rev. Stat. (KRS) 391.315(1) states in relevant part
as follows:
Sums 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.
[Emphasis added.]
We believe appellants' objections go to the weight given the
notes rather than the admissibility of same.
We view the notes
as relevant, probative evidence bearing upon whether the decedent
intended to create joint accounts with rights of survivorship
under KRS 391.315(1).
Additionally, appellants argue that the notes were
inadmissible because they failed to conform with the mandates of
KRS 391.320.
Appellants maintain that this statute dictates the
sole method available to decedent for “changing the form of the
account.”
KRS 391.320 states in relevant part as follows:
The provisions of KRS 391.315 as to rights
of survivorship are determined by the form of
the account at the death of a party. This
form may be altered by written order from any
party able to request present payment without
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the joinder of any other party given to the
financial institution to change the form of
the account or to stop or vary payment under
the terms of the account. The order must be
signed by said party, received by the
financial institution during the party's
lifetime, and not countermanded by other
written order of the same party during his
lifetime. [Emphasis added.]
We believe the provisions of KRS 391.320 are relevant only in
changing the status of soundly-created joint accounts with rights
of survivorship.
In contrast, the issue presented in this appeal
is whether the decedent ever created joint accounts with rights
of survivorship.
situation.
Indeed, KRS 391.315(1) addresses such a
It clearly provides that sums remaining in a joint
account naturally go to the surviving party “unless there is
clear and convincing evidence of a different intention at the
time the account is created.”
We believe the handwritten notes
are admissible to prove decedent's different intention at the
time the CDs were created.
Hence, we are of the opinion that the
court did not err in admitting these handwritten notes into
evidence.
Next, appellants assert that the circuit court
committed reversible evidence by admitting hearsay evidence.
evidence was summarized by appellants as follows:
Judy Rutledge, Sumpter's former girlfriend,
stated that Sumpter had asked her to place
her name on a Certificate of Deposit in order
to obtain FDIC insurance. Likewise, Dinah
Young, a longtime friend of Sumpter,
testified--again over the objection of
Appellants' counsel--that he had also told
her that he had placed the Certificates of
Deposit in the Appellants' names for
insurance purposes . . . .
-4-
The
Even if such evidence constituted hearsay, we are of the opinion
that its admission was harmless error.
103.
Kentucky Rule of Evidence
Indeed, we are unable to conclude that absent the admission
of this evidence a reasonable possibility exists that the result
would have been different.
S.W.2d 302 (1987).
See Crane v. Commonwealth, Ky., 726
Ova Guinn, the decedent's girlfriend,
testified the decedent put CDs in his name and someone else's
name solely for the purposes of securing federal depositor's
insurance.
Indeed, two of the notes found with the CDs confirm
such testimony.
Upon the whole, we are of the opinion that any
error in admitting the complained of hearsay evidence was
harmless.
Last, appellants contend that the circuit court erred
by concluding that clear and convincing evidence existed that the
decedent did not intend to create joint accounts with rights of
survivorship.
We disagree.
Considering the handwritten notes
and bank personnel testimony that FDIC insurance was important to
the decedent, we believe clear and convincing evidence existed
that the CDs were held jointly for the sole purpose of obtaining
FDIC insurance.
Indeed, the evidence overwhelmingly suggests
that decedent did not intend to jointly share ownership of the
CDs or to divest his estate of their ownership.
As such, we are
of the opinion that the circuit court did not commit reversible
error by concluding that the decedent's estate owned the subject
CDs.
For the foregoing reasons, the judgment of the circuit
court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES/WALKUSKI
AND POINTON:
David Austin Tapp
Somerset, KY
John T. Mandt
Somerset, KY
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