Bearman v. Camatsos
| Decision Date | 11 December 1964 |
| Citation | 19 McCanless 231,385 S.W.2d 91,215 Tenn. 231 |
| Parties | , 215 Tenn. 231 Joseph BEARMAN v. Nina CAMATSOS. |
| Court | Tennessee Supreme Court |
Caruthers Ewing, Elizabeth Evans and Erich W. Merrill, Memphis, guardian ad litem, for petitioner.
Charles H. O'Brien, R. L. Pearson, Memphis, for respondent.
This is an issue devisavit vel non. The jury decided that the Memphis will was the will of the testator, John George Camatsos. Their verdict was concurred in by the Circuit Judge. On appeal the Court of Appeals in a divided court reversed and remanded. We granted certiorari, and, after hearing argument, reading the many briefs and authorities there cited, and making an extensive independent investigation, we now have the matter for disposition.
John George Camatsos, the testator, was of Greek birth but a naturalized American citizen. He resided in Memphis, Tennessee, and had considerable holding there. On one of his visits to Greece he married the respondent, Nina Camatsos. She came to Memphis with her husband, remained for a short time and then returned to Greece.
In May of 1956 the testator made a will in Shelby County, Tennessee, (herein called the Memphis will), leaving one-third of his gross estate to his wife and the remaining two-thirds, out of which all expenses were to be paid, to other named beneficiaries and charities. Shortly after he made this will he went to Greece on a visit where his health became impaired and he died. Prior to his death, however, he executed a will (called the Greek will herein) which left his entire estate to his wife. At this time he also executed a separate document revoking specifically the Memphis will.
After the death of the testator, the petitioner, who was named executor under the Memphis will, filed that will for probate in common form in the Probate Court of Shelby County, Tennessee. At the same time the respondent filed, as an answer to the probate proceedings instituted by the petitioner, a certified copy of the Greek will, the revocation document, and an alleged certified copy of the probate proceedings in Greece, seeking to probate the Greek will in Tennessee by ancillary probate under § 32-501 et seq., T.C.A.
In response to these actions by the parties the Probate Court of Shelby County, Tennessee, certified the cause to the Circuit Court for a trial on the issue devisavit vel non with a jury. After some preliminary sparring with pleadings, the issue came on to be tried and the jury found that the true will of the testator was that known herein as the Memphis will. During the course of the trial a copy of the Greek will was excluded from any consideration by the jury because it was not, according to the trial judge, properly certified. The trial court did, however, allow the jury to consider a copy of the revocation agreement.
The parties stipulated during the course of the trial that the deceased, John George Camatsos, was a naturalized American citizen at the time of his death in 1958, and that his legal residence was Shelby County, Tennessee. It was further stipulated that he was temporarily residing in Greece at the time of his death.
We have recognized a number of times the validity of an oral stipulation made during the course of a trial. Shay v. Harper, 202 Tenn. 141, 303 S.W.2d 335. Further, an open court concession by the attorneys in the case constitutes a binding stipulation in this State. Phelan v. Phelan, 43 Tenn.App. 376, 309 S.W.2d 387.
When a party makes a concession or adopts a theory by stipulation and his cause of action is determined on this concession or theory, then that party must abide by his decision even on appeal by certiorari. Lewis & Sons v. Ill. Cent. R. Co., 150 Tenn. 94, 259 S.W. 903; Stearns v. Williams, 12 Tenn.App. 427.
These stipulations will be rigidly enforced by the courts of this State. State ex rel. Weldon v. Thomason, 142 Tenn. 527, 221 S.W. 491; Tucker v. International Salt Co., 209 Tenn. 95, 349 S.W.2d 541.
Accordingly, the oral stipulation by the parties that the legal residence of the testator was Shelby County, Tennessee, controls and is binding on this appeal.
Legal residence means the same thing as domicile. A person may have two or more residences but only one domicile, or legal residence. Boone v. Boone, 3 Tenn.App. 141; Howell v. Moore, 14 Tenn.App. 594; Middle Tenn. Electric Membership Corp. v. State ex rel. Adams, 193 Tenn. 513, 246 S.W.2d 958; State ex rel. Sprague v. Bucher, 38 Tenn.App. 40, 270 S.W.2d 565; Snodgrass v. Snodgrass, 49 Tenn.App. 607, 357 S.W.2d 829.
Therefore, for the purposes of this appeal, the testator was domiciled in Shelby County, Tennessee. It is urged by the respondent that the Tennessee ancillary probate of foreign wills statute (§ 32-501 et seq., T.C.A.) applies notwithstanding the domicile of the testator. This contention is based upon the following wording as found in § 32-503, T.C.A.:
'If upon the hearing, it appears to the satisfaction of the court that the will has been duly proved, allowed and admitted to probate outside of the state, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, which probate shall have the same force and effect as the original probate of a domestic will.'
At first glance, this wording seems to sustain, by a literal interpretation, the contention of the proponents of the Greek will. However, when one examines the interpretation placed upon this and similar statutes from sister states, it becomes evident that such is not the case.
'A statute providing for the probate or record of a will duly allowed and proved elsewhere than in the state ordinarily applies only in case of a foreign will; and, therefore, a will made in one state or country by a resident of another state or country is probatable in the latter state or country as a domestic, and not as a foreign, will, although it has been proved and allowed in the state or country where made, * * *.' 95 C.J.S. Wills § 350, p. 198.
'In other words, in the absence of st...
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