Carver v. Anthony

• Decision Date: 18 July 1951
• Citation: 35 Tenn.App. 306,245 S.W.2d 422
• Parties: CARVER et al. v. ANTHONY et al.
• Court: Tennessee Court of Appeals

Page 422

245 S.W.2d 422

35 Tenn.App. 306

CARVER et al. v. ANTHONY et al.

Court of Appeals of Tennessee, Eastern Section.

July 18, 1951 Certiorari Denied by Supreme Court, Dec. 14, 1951.

D. K. Thomas and Frank B. Bird, both of Maryville, and Erma Greenwood and R. R. Kramer, both of Knoxville, for Carver et al.

Hugh De Lozier and Goddard & Gamble, all of Maryville, for Anthony et al.

McAMIS, Judge.

This is a will case coming to this court by the separate appeals of the proponents and contestants. The case originated in the County Court of Blount County where John W. Anthony, Administrator of the estate of W. D. Carver, deceased, and Kathleen Carver Effler offered for probate as the will of W. D. Carver two paper writings dated, respectively, December 27, 1933, and March 10, 1934.

In the Circuit Court the trial judge held the paper executed in 1933 non-testamentary in character and, on that ground, directed a verdict for contestants. The 1934 paper was admitted to probate as a properly executed and witnessed will effective as to personal property only. The latter action was on a directed verdict for proponents on the theory that proponents had established, prima facie, that the deceased intended it to operate as his will and that contestants had offered no proof to the contrary. We consider first the question of the testamentary character of what will be herein referred to as the 1933 paper. It reads:

'Administrator of W. D. Carver--

Dec. 27--1933

Townsend Tenn--

I want my Sister Candis Jenkins to take Kathleen our adopted Daughter to Have Full control of Her give Her The Proper Instruction--Keep Her in School--In case She will not obey Take Leagle Proceedings and Have Her go to the Reform School--for I do not want any Disgrace are Reproach Brought on Her--She must Have a Boss that Will correct Her at this age of Life Candis Jenkins to have Full charge of My Property--To Live in Same--are Rent to some Nice Family that Will take Care of the House. and use the Proceeds for The Family--This is What I want Candis Jenkins to do--Candis this is the Only thing that Greaves me is The Leaving Kathleen without Protection--Will You Protect Her. and Keep The Poor Sweet Orphan from a Disgrace In case Belle and I must go--and Take a chance on Being repaid latter some way--

W. D. Carver--' It is conceded that this paper is entirely in the handwriting of the deceased and that, if testamentary in character, it is entitled to probation as the holographic will of W. D. Carver. The questions are whether or not it is testamentary in character and whether a court of probate can construe it for the purpose of determining whether it was intended to operate as a will.

Contestant Kathleen Carver Effler was reared in the home of W. D. Carver and wife who took her into their home in 1921 when she was a few months old. She was treated as their daughter and was often referred to by W. D. Carver as his adopted daughter. It was stated at the trial, however, by her counsel that they had been unable to find any record of an adoption proceeding. There was no proof on that point offered by either party. Kathleen continued to live in the Carver home until 1935 when, at the age of 16, she married and established a home of her own. Although disputed, there is substantial evidence that she continued to hold the affections of W. D. Carver until his death on November 10, 1949.

In McCutchen v. Ochmig, 1 Baxter, 390, 60 Tenn. 390, it was said in reference to paper writings offered as holographic wills: 'It must appear to be a will, and this requisite may be supplied by any words that unequivocally show that the writer intended it as a posthumous disposition of his estate, both real and personal, or that he intended by it to dispose of his personalty alone. For it is a question of intention at last, and the Court and jury are to determine whether it be a will as to both species of property, or a will as to either. But the first and paramount question is, whether it be a will at all under the statute. * * * There must be a depository for the paper writing, and it must be so lodged and deposited as a will, and for safe-keeping as such, and of this deposit and lodgment there must be affirmative and positive proof. No mere inference or conjecture of the intention of the writer in such case can answer the requirements of the statute.'

Druen v. Hudson, 17 Tenn.App. 428, 68 S.W.2d 146, 149, cites McCutchen v. Ochmig, supra, and holds that animus testandi is shown if the writing offered for probate discloses an intention on the part of the writer that it should control and direct the disposition of his property after death and 'the words of the writings propounded for probate 'unequivocally show that the writer intended it as a posthumous disposition of his estate".

The statute, Code, § 8090, only requires that to be a will the paper offered for probate shall purport to be a disposition of the writer's property after his death, however informal the expressions used, and without regard to whether the language employed by the writer is sufficient for the purpose intended, that being a matter of construction by the proper court after the testamentary character of the instrument has been established. Sizer's Pritchard on Wills and Executors, 283, 284, Sec. 232; Reagan v. Stanley, 11 Lea 316, 79 Tenn. 316, 322; Pulley v. Cartwright, 23 Tenn.App. 690, 137 S.W.2d 336.

It is well settled that the form of a paper does not affect the right to have it probated if it was the intention of the deceased that it should operate after his death even though not aware at the time that he had performed a testamentary act. Jones v. Jones, 163 Tenn. 237, 43 S.W.2d 205.

Although, generally, questions of construction are not within the jurisdiction of the probate court, Condry v. Coffey, 163 Tenn. 508, 43 S.W.2d 928, we think the cases above cited clearly imply that the probate court has power to construe the paper offered to the extent of determining whether or not it is testamentary in character. The power to probate an instrument as a will necessarily includes the power to determine whether or not it is a will and if that depends upon construction to construe it. It would be an unsound practice for probate courts to be compelled to probate a paper as a will when, by a fair construction, it is not a will at all. Jurisdiction carries with it power to determine every issue or question properly arising in the case. 21 C.J.S., Courts, § 135.

The accepted view seems to be that on probate or contest the probate court has power to construe a paper offered for probate for the purpose of determining whether or not it is testamentary in character and should be admitted to probate. Page on Wills, Section 567; 57 Am.Jur. 530, Wills, Sec. 777; Ragland, Adm'r, v. Wagener, 142 Texas 651, 180 S.W.2d 435, 152 A.L.R. 1232.

As said by the California Supreme Court in Re Plaut, 27 Cal.2d 424, 164 P.2d 765, 162 A.L.R. 837, 840, the only issue before the court on probate or contest is whether the paper offered is or is not the will of the deceased and the power to construe will be exercised to the extent it is necessary to the determination of that issue but no further.

We think the learned trial judge correctly construed the 1933 paper as nontestamentary in character. The principal concern of the writer seems to have been to provide for the control and protection of Kathleen who is referred to as the writer's adopted daughter, for which purpose or as compensation the sister was to have control of 'my property'. If Kathleen was an adopted daughter as assumed it could be that the writer had in mind that she would inherit the property and, being only about 12 years of age, would need a guardian to have her custody and control the property.

While, perhaps, the natural inference is that the paper was written in contemplation of death, it does not say that it is not to take effect at once or only after the death of Belle, the writer's wife. In either of those events it would not be a will as wills take effect only at the death of the testator. While the writing is addressed to 'Administrator of W. D. Carver' which is suggestive of testamentation and that the writing is not to become operative during the life of the writer, it is significant that Candis Jenkins is not named as executor ('Administrator') and it is of even greater significance that no disposition of property is made. Candis Jenkins, it is true, was to 'take charge of' and use or rent out the property and use the proceeds if rented. But whose property was it to be considered, 'my property', or Kathleen's? Was Candis Jenkins to account for the use of the property or for the rent? The writing does not say.

As we have seen, a will is an instrument taking effect at death and disposing of property and whether this writing was intended to operate as a will must not be left to speculation and conjecture.

The writing of March 10, 1934, is in the form of a will and purports to give all the real and personal property of W. D. Carver to his 'adopted daughter, Kathleen'. It concludes: 'This being my last will, I being in my right mind and good Health.' It was found at deceased's home among his valuable papers. It is typewritten in form and we think it is fairly apparent that it was written by Mr. Carver, a layman, without the assistance of a lawyer. A blank space was provided for the testator to sign and two other spaces each followed by the word 'Witness' appear immediately below the first space. W. D. Carver's signature appears on the first line. Three witnesses familiar with his handwriting testified that it was genuine. S. P. McNeil signed as a witness on the top line provided for witnesses. The other is blank. McNeil's testimony is that he worked with Mr. Carver in a freight office for many years and, while not being able to remember the occasion, 'I have it in my mind that Bill (Carver) brought it to me and laid it down on...