Succession of Carolyn Gauthier Bargeman

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-817

SUCCESSION OF CAROLYN GAUTHIER BARGEMAN

VERSUS

GEORGE BARGEMAN AND ETTA D. BARGEMAN

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 61-912
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Candyce G. Perret, Charles G. Fitzgerald, and Guy E. Bradberry,
Judges.

REVERSED AND RENDERED.

Kody Cannon
John-Michael Lomzenski
Sigler Arabie & Cannon
630 Kirby Street
Lake Charles, Louisiana 70601
(337) 439-2033
Counsel for Plaintiff/Appellant:
Drusilla A. Jones, as Executrix of the
Succession of Carolyn Gauthier Bargeman

La Koshia R. Roberts
1011 Lakeshire Drive, Suite 402
Lake Charles, Louisiana 70601
(337) 436-3308
Counsel for Defendants/Appellees:
George Bargeman
Etta D. Bargeman

FITZGERALD, Judge.

This appeal stems from a dispute as to the ownership of the funds held in five

joint bank accounts.

FACTS AND PROCEDURAL HISTORY

In essence, Drusilla Jones, in her capacity as the executrix of the Succession

of Carolyn Gauthier Bargeman, filed suit against the defendants, George Bargeman

and Etta Bargeman, seeking to have the disputed funds classified as estate assets.

Carolyn died testate in March 2022. Carolyn’s spouse, Willie Bargeman, died

eight years earlier in June 2014. A judgment of possession in Willie’s succession

was signed in September 2014. That judgment recognized Carolyn as the sole owner

of three Capital One bank accounts. A few months later, in November 2014, Carolyn

opened two more Capital One accounts. At that time, all five Capital One accounts

were registered in Carolyn’s name alone. 1

Two years later, in November 2016, Carolyn added her brother-in-law,

George, and his wife, Etta, as additional joint account holders on all five accounts.

The estimated cumulative balance of the accounts at that time was $303,954.86.

Carolyn died five years later. At the time of her death, the accounts had an estimated

balance of $291,209.05. The dispute before us concerns the ownership of the funds

in these five accounts: the Succession argues that the funds belong solely to

Decedent’s estate; George and Etta, on the other hand, argue that they are entitled to

a portion of the funds as joint owners.

In May 2022, the Succession filed suit against George and Etta. Trial was

held on September 8, 2022. At the close of evidence, the trial court took the matter

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The accounts consisted of two checking accounts, two savings accounts, and one
certificate of deposit.

under advisement. The trial court then issued written reasons on September 16, 2022,

and a written Judgment was signed on September 29, 2022. In short, the trial court

found that each party—the Succession, George, and Etta—owned an equal one-third

interest in all account funds.

The Succession appealed, asserting four assignments of error:

(1) The trial court erred as a matter of law and fact in concluding that
there was a transfer of legal ownership of the funds held in the
Accounts upon George’s and Etta’s addition as co-owners upon
execution of signature cards by the Decedent in November 2016.

(2) The trial court erred as a matter of law in not analyzing if the
Decedent intended to irrevocably donate an interest in the funds
held in the Accounts to George and Etta upon their addition as
co-owners to the Accounts in November 2016.

(3) The trial court erred as a matter of law and fact in concluding that
the Accounts were owned in indivision and presumption of co-
ownership was not rebutted under La. C.C. art. 797, upon finding
of fact that Decedent was the only owner of account who made
deposits into the account and that George’s and Etta’s only use
of the account was the use of funds held in the Accounts to pay
for the Decedent’s care and expenses.

(4) The trial court erred as a matter of law in concluding that the
Accounts were subject to La. R.S. 6:1255(A) and that its
provisions were dispositive of ownership of the funds held in the
Accounts to George and Etta upon the Decedent’s death.

LAW AND ANALYSIS

Third Assignment of Error

In determining ownership of the contested account funds, the trial court first

had to decide whether the Succession rebutted the presumption of co-ownership

under La.Civ.Code art. 797. Thus, we begin our analysis by reviewing the

Succession’s third assignment of error: whether the trial court erred in finding that

the presumption was not rebutted. And we review this assignment using the manifest

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error-clearly erroneous standard. Sylvester v. Fontenot, 10-1115 (La.App. 3 Cir.

3/9/11), 58 So.3d 675.

Louisiana Civil Code Article 797 provides that “[o]wnership of the same thing

by two or more persons is ownership in indivision. In the absence of other provisions

of law or juridical act, the shares of all co-owners are presumed to be equal.” A

different panel of this court addressed this article in Sylvester, 58 So.3d at 681-82

(citations omitted), explaining as follows:

As can be ascertained from the final sentence of Article 797, there is a
presumption that a joint bank account is owned in equal shares by each
depositor. That presumption can be rebutted by appropriate evidence.
However, the deposit of funds into a joint account does not by itself
effect a transfer of the ownership of those funds.

In Sylvester, the joint account at issue was registered in both plaintiff and

defendant’s names. The plaintiff in that case testified that the deposited funds

consisted entirely of her separate property. The defendant disagreed, testifying that

her separate funds had also been deposited into the account. Hence, the source of

the account funds was disputed. On this evidence, the trial court found that the

presumption of co-ownership had not been rebutted. And this finding was affirmed

on appeal.

By contrast, in Kitchen v. Guarisco, 01-1016, pp. 3-4 (La.App. 4 Cir. 2/20/02),

811 So.2d 112, 114, the plaintiff-administratrix overcame the presumption of co-

ownership by establishing that

(i) the accounts were all in the names of [the decedent] and [her
daughter] Vivian W. Guarisco; (ii) the accounts all listed the decedent’s
name as the lead name; (iii) the accounts all bore the decedent’s Social
Security number as the federal tax identification number; (iv) all the
1099 statements on the accounts were sent to decedent’s home address;
(v) the decedent reported all the interest income on the accounts on her
tax returns; and (vi) the accounts all listed as the owner/contact address
decedent’s home address.

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According to the fourth circuit, the “plaintiff’s establishment of these factors

sufficed to shift the burden to defendant.” Id.

Similarly, the trial court in the matter before us made the following findings

of fact:

Here, the evidence established that [Decedent] was the only joint owner
who made deposits to the account. The funds so deposited came from
her Social Security payments. However, at the time they were added
to the accounts, [Decedent] told George and Etta Bargemen that they
would be co-owners of the account and could use the funds to take care
of her. They thereafter acted as her caretakers for the following five
years, until her death in 2022. George and Etta Bargemen made no
deposits into the account. However, George and Etta Bargemen made
the withdrawals from the account, for use as [Decedent’s] caretakers
and paying her bills for her.

The trial court’s findings were based on the record evidence, which consists

of witness testimony, bank statements, account summaries, account signature cards,

Decedent’s probated will, and two Form 1099s reflecting interest payments for the

years 2019 and 2020. And this evidence shows that George and Etta were added as

joint account holders on Decedent’s accounts in November 2016, that Decedent was

the sole owner of all funds in the accounts at the time George and Etta were added,

that Decedent was subsequently the only named joint account holder who made

deposits into the accounts, that Decedent’s monthly income from her employment

as a nursing assistant continued to be deposited into the accounts, that Decedent’s

monthly Social Security benefits continued to be deposited into the accounts, that

the accounts bore Decedent’s Social Security number as the federal tax identification

number, that Decedent reported all interest income on the accounts on her tax

returns, that Decedent used the funds held in the accounts for the payment of her

recurring monthly expenses, that George and Etta’s withdrawals were never used for

their personal expenses, that George and Etta’s withdrawals were used only for the

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care of Decedent and the payment of her expenses, that Decedent executed her Last

Will and Testament in February 2022, and that Decedent bequeathed the bank

account funds to her three nieces.

Additionally, the Succession presented testimony that Decedent had no

children, that George and Etta were added to the accounts in the event Decedent

became incapacitated, and that George and Etta assisted Decedent in managing her

affairs when her health deteriorated. Even George admitted that Decedent was the

sole owner of all account funds from November 2016 until her death in March 2022.

Based on all this, we conclude that the trial court clearly erred in determining

that the Succession did not rebut the presumption of co-ownership under

La.Civ.Code art. 797.

First, Second, and Fourth Assignments of Error

Once the presumption of co-ownership was overcome by the Succession, the

burden at trial shifted to George and Etta to prove that they had an ownership interest

in the account funds. To this end, George and Etta could have presented evidence

that their separate funds were deposited into the accounts. But George conceded that

this never happened. It is also undisputed that none of the accounts designated

George or Etta as a payable-on-death beneficiary, meaning that the account funds

did not pass as non-probate assets. And finally, neither George nor Etta is a legatee

in Decedent’s will, meaning that ownership of the subject funds was not transferred

by donation mortis causa. So George and Etta were left with one option: proving

that Decedent transferred an ownership interest to them by inter vivos donation. This

brings us to the Succession’s remaining assignments of error.

The Succession asserts that the trial court erred in concluding that ownership

of the account funds transferred to George and Etta when Decedent executed the

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account signature cards and thus added them as joint account holders in November

2016. The Succession also asserts that the trial court erred in failing to determine

whether ownership was transferred by inter vivos donation. And in its final

assignment, the Succession asserts that the trial court erroneously applied La.R.S.

6:1255(A). All three assignments have merit.

In its written reasons, the trial court found that ownership was transferred to

George and Etta in November 2016 because Decedent was “an intelligent woman

who understood her actions” and that the “papers [signature cards] that were

provided to [Decedent] at the time she added George and Etta to the accounts were

clear and laid out the information necessary for an understanding of what a joint

account was and the effects of that type of account.” In support, the trial court

pointed to La.R.S. 6:1255(A), which states as follows:

If two or more persons opening or holding a withdrawable
account shall execute a written agreement with the savings bank
providing that the account shall be payable to any one of them or the
survivor of them, the account, and any balance thereof which exists
from time to time, shall be held by them as joint owners, and, unless
otherwise agreed, any payment by the savings bank to any of such
persons shall be a complete discharge of the savings bank’s obligation
as to the amount so paid. A pledge of such account by any holder or
holders including minors authorized to withdraw amounts from such
accounts shall, unless otherwise specifically agreed, be a valid pledge
and transfer of the account and shall not operate to sever or terminate
the joint and survivorship ownership of all or any part of the account.

At the outset, we note that the trial court failed to apply the correct law. More

particularly, La.R.S. 6:1255(A) immunizes financial institutions from liability for

distributing account funds to a joint account holder; the statute is not dispositive of

ownership, nor does it affect the application of relevant donation laws. The correct

law is La.Civ.Code art. 1468 (donations inter vivos). In short, the trial court legally

erred in applying La.R.S. 6:1255(A); the trial court legally erred in concluding that

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Decedent’s execution of account signature cards constituted a transfer of ownership;

and the trial court legally erred in failing to determine whether ownership was

transferred by inter vivos donation. Because these legal errors are inherently

prejudicial, we will determine de novo whether Decedent intended to irrevocably

donate to George and Etta an ownership interest in the account funds.

Louisiana Civil Code Article 1468 states that “[a] donation inter vivos is a

contract by which a person, called the donor, gratuitously divests himself, at present

and irrevocably, of the thing given in favor of another, called the donee, who accepts

it.” Article 1468 sets forth four essential elements for a valid gratuitous donation

inter vivos: (1) the present divesting of a thing by the donor, (2) the irrevocable

divesting of a thing by the donor, (3) the giving of a thing by the donor to the donee,

and (4) the acceptance of the donation by the donee. Elements (1) through (3) pertain

to divestment and donative intent. However, the form requirements for this type of

donation must also be met. And importantly, the burden of proving the donation is

on the donee, and the proof to support the donation must be clear and convincing. 2

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Many cases require strong and convincing evidence. However, “clear and convincing”
and “strong and convincing” evidence refer to the same burden of persuasion. Compare Succession
of Woolfolk, 71 So.2d 861 (La.1954), with Talbot v. Talbot, 03-814 (La. 12/12/03), 864 So.2d 590.
In Talbot, 864 So.2d at 598, the supreme court provided the following statement of law:

In civil cases, a party who has the burden of proof must prove the fact in
issue by a preponderance of the evidence, and not by some artificially created
greater standard. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993); Jordan v.
Travelers Ins. Co., 257 La. 995, 245 So.2d 151, 155 (1971); McCormick on
Evidence § 339, at 421 (5th ed.1999). Only in exceptional controversies is the clear
and convincing standard applied in civil cases “where there is thought to be special
danger of deception, or where the court considers that the particular type of claim
should be disfavored on policy.” McCormick, supra, at 421; Succession of Lyons,
452 So.2d [1161, 1165 (La.1984)]. The clear and convincing standard requires a
party to prove the existence of a contested fact is highly probable, or much more
probable than its non-existence. McCormick, supra, at 421; Succession of Lyons,
452 So.2d at 1165.

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In Butler v. Reddick, 431 So.2d 396 (La.1983), the Louisiana Supreme Court

concluded that the mere fact that funds were placed into a joint account did not

establish the decedent’s donative intent, and it reversed the trial court’s finding to

the contrary. The supreme court noted that “there [was] no corroboration of a

donative intent, only the self-serving testimony of the donee that [the decedent]

wanted her to have the money. ‘[T]estimony as to the oral declarations . . . of a dead

man are of . . . little weight[.]’” Id. at 399 (quoting Succession of Zacharie, 119 La.

150, 43 So. 988, 990 (1970) (first, second, and third alterations in original)).

Donative intent was also at issue in Succession of Love, 16-245 (La.App. 3

Cir. 9/28/16), 201 So.3d 1027. In that case, a panel of this court affirmed the trial

court’s finding that the decedent (James) transferred ownership of two bank accounts

to his wife (Rebecca) through a valid donation inter vivos. Ultimately, donative

intent was established based on the considerable evidence presented at trial,

including the testimony of various witnesses regarding James’s intent to transfer the

bank accounts to Rebecca. James knew he was dying, and he wanted to financially

take care of his wife without the necessity of legal proceedings. As this court

explained:

[James] donated all of the funds to her via the signature cards and he
executed a power of attorney in authentic form to facilitate that transfer.
He was ill and dying and had no intention of going to the bank or taking
control of the funds. In making the accounts Rebecca’s accounts as
well, he gave up the exclusive rights to control the accounts, and in the
power of attorney, he reinforced Rebecca’s right to control the
accounts.

Id. at 1038 (emphasis in original).

By comparison, there is no indication here that Decedent added George and

Etta as joint account holders because she was attempting to dispose and otherwise

divest herself of the account funds in anticipation of her immediate death. Indeed,

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it is undisputed that George and Etta were added to the accounts in 2016, more than

five years prior to Decedent’s death.

Finally, in Successions of Wayne, 18-1177 (La.App. 1 Cir. 5/31/19)

(unpublished opinion), the first circuit reversed the trial court’s finding as to

donative intent. The appellate court explained that the daughter did not provide

strong and convincing proof that her deceased parents irrevocably divested

themselves of a checking account because they continued to retain control over the

account. And even though the daughter was added to her parents’ joint checking

account in 2001 via signature card, the first circuit noted that the signature card was

insufficient to establish donative intent, particularly since the daughter testified that

she was added for the purpose of assisting her parents in paying their bills; the

checking account statements demonstrated that the decedents retained control of the

account; and the daughter’s testimony—without any corroborative evidence—that a

verbal donation was made to her in June 2012 was insufficient to satisfy her

heightened burden of proof.

Like Successions of Wayne, the Decedent here retained control and use of the

bank accounts. She continued to deposit her own personal funds into the accounts,

and she used the accounts to pay her bills and expenses until her death. In addition,

Drusilla, the executrix, testified that George and Etta were added as joint account

holders in the event Decedent become incapacitated. The mere fact that George and

Etta were added as joint account holders only established that they had a right of

withdrawal of funds from the accounts. In re Succession of Elie, 10-525, p. 4

(La.App. 3 Cir. 11/3/10), 50 So.3d 262, 265 (“The right of withdrawal, or having

one’s name listed on the account, is not tantamount to ownership.”).

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George, who was ninety-two years old at the time of trial, acknowledged that

he was older than the decedent. He noted that all funds in Decedent’s accounts from

2016 until her death in 2022 were solely her funds and that he never added his

personal funds. George wrote checks from the joint accounts to cover Decedent’s

bills. He never paid taxes on the interest income attributable to those accounts. He

admitted that Decedent’s will did not name him as a beneficiary. Yet he believed

that he would get the money from the joint accounts upon Decedent’s death because

he was listed as a joint account owner. George also explained that the decedent told

him that “if anything happens to me—when I go, it goes to you.”

Contrary to George’s testimony, Drusilla testified that Decedent wanted her

three nieces to be taken care of upon her death. Drusilla’s testimony is supported by

Decedent’s will which bequeaths the accounts to her nieces. Drusilla testified that

although Decedent added George and Etta to her accounts to help care for her during

her final years, she did not intend for them to have her assets upon her death. Drusilla

explained that she was Decedent’s life-long friend. Drusilla emphasized that George

and Etta became joint account holders to assist Decedent in paying her bills,

including home health services, medication, and other necessities.

In the end, the signature card is insufficient to establish donative intent; the

checking account statements overwhelmingly demonstrate that Decedent retained

control of the accounts; George could not identify an amount of any of his deposits

since he did not deposit money into the accounts; and George’s testimony alone—

without any corroborative evidence—that a verbal donation was made to him before

Decedent’s death is insufficient to satisfy his heightened burden of proof. As such,

we hold that the Succession is the sole owner of the disputed funds.

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DECREE

For the above reasons, the September 29, 2022 Judgment of the trial court is

reversed, and it is ordered that the Succession of Carolyn Gauthier Bargeman is the

sole owner of the account funds at issue in this appeal, which are being held on

deposit in the registry of the district court below. The costs of this appeal are

assessed to the defendants, George and Etta Bargeman.

REVERSED AND RENDERED.

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