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03/24/97 MATTER ESTATE ROSE S. DEJARNETTE v. VERA

March 24, 1997

IN THE MATTER OF THE ESTATE OF ROSE S. DEJARNETTE, DECEASED, DOROTHY MEIS, CATHERINE BURNS, FRANK DEJARNETTE, SHIRLEY GALLOWAY, WILLIAM STOLL, JOHN THOMAS STOLL, MERRITT STOLL, WILLIAM HUFF, JUDY GORDON, AND NORMAN HUFF, PETITIONERS-APPELLANTS, AND DONALD A. BEHLE, SPECIAL ADMINISTRATOR OF THE ESTATE OF ROSE S. DEJARNETTE, DECEASED, PETITIONER,
v.
VERA LECOURIS, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Logan County. No. 93P96. Honorable Gerald G. Dehner, Judge Presiding.

As Corrected April 14, 1997. Released for Publication April 22, 1997. As Corrected April 23, 1997. As Corrected May 1, 1997. As Corrected September 16, 1997.

Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable John T. McCullough, J. - Concur. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Rose DeJarnette gave her power of attorney to her cousin, Vera Lecouris. Thereafter, Vera arranged for Rose's funds to be placed in joint tenancy accounts with Vera and for Vera to be named beneficiary of a life insurance policy and a pension fund. In this citation proceeding, the trial court ordered Vera to reimburse Rose's estate for various amounts Vera claimed were inter vivos gifts but allowed Vera to keep the joint accounts and other assets. Rose's legatees appeal. We reverse and remand in part and dismiss the appeal in part.

I

Rose was born in 1907 and died June 19, 1993. From 1977 until the time of her death, she resided at Walnut Ridge Nursing Home (Walnut Ridge). In 1979, Rose gave her cousin, Hester Huff, power of attorney over her affairs. When Hester's health began to fail, in 1988, Rose executed another power of attorney, in which Vera was also named. Vera became sole attorney-in-fact upon Hester's death in August 1990.

Rose did some estate planning after her husband's death in November 1971. In late 1971, she executed a form making Hester the beneficiary of her life insurance policy with Equitable Life Insurance. In 1972, she made Hester the designated recipient of the death benefit of her pension with Teachers' Retirement System (TRS). In Rose's 1972 last will and testament, she devised Hester her grandmother's watch, a life estate in one-half of her real property (the remainder to go to Hester's "bodily lineal descendants") and one-quarter of her residuary estate. Lyle Stoll, another cousin of Rose's, was devised a life estate in the other one-half of the real property (the remainder to Hester's bodily lineal descendants) and also was to receive one-quarter of the residuary estate. The remaining one-half of the residue was to be split equally among 28 named persons, Vera among them.

Rose did not change her estate plan after Lyle died in 1986. After Hester's death, Rose's savings account and checking account at the State Bank of Lincoln (Lincoln) were changed in September 1990 to joint tenancy with Vera. Rose's signature appears on signature cards authorizing these changes. Vera testified she filled out the cards and brought them to Rose at Walnut Ridge, Rose signed them, and Vera returned them to the bank.

Rose also signed a Bank of Chestnut (Chestnut) signature card in September, 1990, which Vera had obtained, filled out, brought to Rose for her signature, and returned to the bank. That document, which states on its face that it "goes with your time certificate of deposit [(CD)] No. 1554," directs that the account be made joint between Rose and Vera. However, Rose did not have a CD No. 1554 at Chestnut. William Glaze, a loan officer at Chestnut, testified that 1554 was Rose's customer number, and the document had the effect of changing all of Rose's CDs at the Chestnut to joint tenancy with Vera.

In October 1990, joint checking account No. 121-045 was opened at Chestnut. Rose's and Vera's signatures appear on the signature card. Again, Vera testified she filled out the card, brought it to Rose at Walnut Ridge for her signature, and took it to the bank. That account was funded with $12,555.03 Vera obtained by using the power of attorney to cash some United States Treasury E bonds (E bonds) held in Rose's name alone. Vera testified she did that because Hester had allowed Rose's Medicare supplemental insurance to lapse, and Vera felt it was important to have cash on hand in the event of an emergency. On October 9, the day after the account was opened, Vera wrote herself a check on the account in the amount of $2,555.03, with the notation, "1989 Business." On the same date, she wrote herself a check for $2,500 from the Lincoln joint checking account, with the notation, "1990 Business Gift." Vera testified these two transfers were at Rose's direction. They were part of the funds the trial court ordered Vera to reimburse the estate.

In October 1990, TRS wrote Vera indicating it could not accept a form she had sent in nominating herself as beneficiary of Rose's TRS pension. In November, Rose signed a form, filled out by Vera, making Vera the beneficiary of Rose's TRS pension. In December 1990, Rose signed a form, which Vera had filled out, making Vera the beneficiary of Rose's life insurance.

On August 15, 1991, Norman Huff, Hester's son and one of the petitioners, went with Vera to visit Rose. He spent between 2 and 2 1/2 hours with her. He testified that Rose recognized him, knew who he was, and seemed clearheaded and able to communicate effectively. Norman wrote a letter in March 1994 to counsel for Vera regarding the visit, and that letter was introduced into evidence. The letter contained the following paragraph:

"I told Rose that we had found Mother's [(Hester's)] copy of Rose's will in the file cabinet and when I read it I noticed that Vera may have been left out. I wasn't sure! She informed me very abruptly that if there was anything left when she passed away, Hester's kids would get her farm ...


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