Crain v. Brown

• Decision Date: 01 May 1991
• Citation: 823 S.W.2d 187
• Parties: Mary Frances CRAIN, Emily Brown Sand, Paul Richard Brown, and Judy Brown Jackson, Contestants-Appellants, v. Carl Benton BROWN, Sr., Executor, Charles G. Brown, James Porter Brown, Jr., and Loy T. Brown, Proponents-Appellees. In re In the Matter of the ESTATE OF James Porter BROWN, Sr., Deceased.
• Court: Tennessee Court of Appeals

Page 187

823 S.W.2d 187

Mary Frances CRAIN, Emily Brown Sand, Paul Richard Brown and Judy Brown Jackson, Contestants-Appellants, v. Carl Benton BROWN, Sr., Executor, Charles G. Brown, James Porter Brown, Jr., and Loy T. Brown, Proponents-Appellees In re In the Matter of the ESTATE OF James Porter BROWN Sr., Deceased.

Court of Appeals of Tennessee Western Section, at Nashville.

May 1, 1991.

Application for Permission to Appeal

Denied by Supreme Court

Sept. 3, 1991.

Thomas N. Bateman and Gregg A. Stinson, Clarksville, for appellants.

John S. Bryant, Nashville, for appellees.

CRAWFORD, Judge.

This is an appeal by contestants in a will contest. Contestants are Mary Frances Crain, daughter of testator, and Emily Brown Sand, Paul Richard Brown and Judy Brown Jackson, grandchildren of testator and children of Paul L. Brown, testator's deceased son. Proponents of the will are the testator's four surviving sons--Carl Benton Brown, Sr., also named as executor in the will, Charles G. Brown, James Porter Brown, Jr., and Loy T. Brown.

The complaint alleges that a paper writing dated September 13, 1982, previously admitted to probate in common form, is not the lawful will of testator because he lacked testamentary capacity and because he was unduly influenced by the proponents of the will. Proponents' answer denies the material allegations of the complaint and joins issue thereon.

James Porter Brown, Sr., was born on January 27, 1885. He founded Porter Brown Limestone Company, Inc., in Springfield, Tennessee in the 1920's and he and his five sons worked together in the business until Brown, Sr., at age 70, retired from the company in 1950. Paul L. Brown, the eldest son, acted as president of the company until he died in 1980.

In 1964, while living in Florida, Brown, Sr., executed a will which basically left his estate in trust for the benefit of his wife for her lifetime and which, after her death, equally divided the estate among his children and/or the heirs of a deceased child. In 1972, Brown, Sr., and his wife moved back to Springfield, Tennessee from Florida and in January of 1982, Brown, Sr.'s wife died. On September 13, 1982, the will in question was executed at Security Federal Savings & Loan Association in Springfield, Tennessee. Benton testified that his father decided he wanted to make a new will and that he requested Benton to get someone to prepare it. Benton Brown procured the services of Robert Crenshaw. Crenshaw is a Certified Public Accountant and a licensed attorney in Nashville, Tennessee. He had performed tax and legal work for the limestone company and various other family owned corporations since about 1958. Crenshaw had never had any business contacts with Brown, Sr., and was unsure he had ever actually met Brown, Sr., prior to the meeting to discuss the 1982 will.

Benton drove Crenshaw to Brown, Sr.'s home where Crenshaw discussed with Brown, Sr., what was desired in the will. Benton was present during this discussion but did not participate. During this meeting, Crenshaw recommended that Brown, Sr., execute a power of attorney to be used in case of any emergency. He also recommended, as part of a total estate plan, that Brown, Sr., consider making gifts of his stock in Porter Brown Limestone Company, Inc.

Approximately two weeks after the initial meeting, Crenshaw contacted Benton to make an appointment to return to Brown, Sr.'s home with the prepared will, and during this call he also discussed the terms of the will with Benton. On September 13, 1982, Benton drove Crenshaw to Brown, Sr.'s home, where Crenshaw read the will to Brown, Sr., and explained it to him. The will was read to Brown, Sr., because Brown, Sr., had a problem with his vision. Following the reading and explanation of the will by Crenshaw, Benton drove Brown, Sr., and Crenshaw to the Springfield office of Security Federal Savings & Loan Association where the will was executed before Daryle Walker and Margaret Clark as attesting witnesses. The witnesses to the will and Jean Cooper, the notary public, who administered the oath and took the testimony of the subscribing witnesses in their affidavit were all employees of Security Federal. They were familiar with Brown, Sr., because he was a regular banking customer there. Brown, Sr., also executed a power of attorney appointing Benton as his attorney-in-fact which bears a date of September 14, 1982, but which is acknowledged before the same notary public, Jean Cooper. Benton testified that his recollection was that the power of attorney was executed on the date which is shown on the document.

The September 13, 1982, will consists of two pages with five numbered paragraphs. Paragraph 1 provides for payment of debts and taxes out of the residuary clause. Paragraph 2 bequeaths equally all the capital stock in Porter Brown Limestone Company, Inc., owned by Brown, Sr., at his death equally to his four surviving sons, Benton, Lloyd, Charles and Porter, Jr. Paragraph 3 gives all of his other real and personal property to his surviving sons and daughters in equal one-sixth shares. Paragraph 4 gives $100 each to the three children of Brown, Sr.'s deceased son, Paul, and states that Brown, Sr., makes the distinction between Paul's children and his other sons and their children because of financial support given to Paul during his lifetime in certain business ventures. Paragraph 5 appoints Benton to serve as executor without bond, with the alternate executor to be Charles Brown.

After the will was executed, Benton placed the document in his personal lock box because Brown, Sr.'s lock box was too full to accommodate the paper writing. Benton subsequently burned the 1964 will. The contestants were never informed of the existence of the 1982 will until after Brown, Sr.'s death.

Crenshaw was not sure who paid for his services in preparing the will and power of attorney. Benton was under the impression that the limestone company paid for the services.

In 1982, 1983 and 1984, Brown, Sr., made inter vivos gifts of stock to the four surviving sons in equal shares. He stated to Calvin Smith, the secretary-treasurer of Porter Brown Limestone Company, Inc., that he was making these gifts in order to get the stock out of his estate and reduce his estate taxes.

The contestants conceded that Brown, Sr., possessed testamentary capacity. However, contestants contended that his age and physical condition was such that he was vulnerable to undue influence.

Brown, Sr., had previously undergone cataract surgery and his vision was sufficiently poor that he claimed a tax exemption for blindness on his federal income tax return. Daryle Walker, the manager of Security Federal Savings & Loan Association's Springfield office, and one of the witnesses to the will, testified that he did not recall Brown, Sr., having extraordinary difficulties with his vision. Benton Brown testified that his father was not totally blind and could read his wrist watch, get about the house, read his mail and keep up with his utility bills, monthly bank statements and cancelled checks. Brown, Sr.'s next door neighbor testified that Brown, Sr., held things up close in order to see them, but was able to see them. Brown, Sr.'s banker at Commerce Union Bank testified that Brown, Sr., was not totally blind and was able to sign documents at the bank. Mr. Head, a Springfield merchant, testified that Brown, Sr., saw well enough to measure the dimensions of a dishwasher which was sold to him in July of 1987. Jean Cooper, the notary public involved with the will and power of attorney and an employee of Security Federal, testified that she waited on Brown, Sr., regularly for a period of years before and after the execution of the will and although she knew he had some vision problems she did not know that he was "legally blind." Brown, Sr.'s physician testified that although Brown, Sr., was considered legally blind he was not totally blind and was able to read some with glasses. Calvin Smith, the secretary-treasurer of Porter Brown Limestone Company, Inc., testified that Brown, Sr., could see to read tax documents if he held them up close. Emma Jean Reynolds, Brown, Sr.'s housekeeper from May of 1978 until his death in April of 1988, testified that Brown, Sr., was able to spray fruit trees, pick fruit, go to the mailbox daily and read his mail and his wrist watch. Brown, Sr.'s physician testified that Brown, Sr. had a "moderate hearing deficit" and that he wore a hearing aid in his right ear "satisfactorily."

Other witnesses testified that Brown, Sr., wore a hearing aid and he could hear and understand and they had no difficulty communicating with him. He was generally described as active and independent for his advanced age and lived alone after his wife's death in 1982 until he entered a nursing home for the last three months of his life. He would participate in grocery shopping when people would drive him to the store and he managed his own bank account. He went to the courthouse in 1984 to vote in the presidential election and he was generally known by his friends and acquaintances as very strong willed and independent minded. His physician testified that in 1982 he was "not weak and feeble" and that his judgment was not impaired.

The first issue presented for review is whether the trial court erred by admitting testimony which was irrelevant and which newly discovered evidence shows is false.

Contestants assert two points: first, the trial court erred by admitting irrelevant evidence; and, two, that the trial court erred by not granting a new trial based on newly discovered evidence.

This issue is directed to the testimony of Calvin Smith, a witness for the proponents, elicited on direct examination. Smith was formerly secretary-treasurer of Porter Brown Limestone Company, Inc., and was chief financial officer for the company. We quote from the transcript:

Q. Can you compare for us, Mr. Smith, the financial condition...