Fransioli v. Podesta

• Decision Date: 16 December 1939
• Citation: 134 S.W.2d 162,175 Tenn. 340
• Parties: FRANSIOLI et al. v. PODESTA.
• Court: Tennessee Supreme Court

134 S.W.2d 162

175 Tenn. 340

FRANSIOLI et al. v. PODESTA.

Supreme Court of Tennessee.

December 16, 1939

Appeal from Circuit Court, Shelby County; Harry Adams, Judge.

Will contest proceeding between Elizabeth Stagner Podesta proponent, and Emma Fransioli and others, contestants. From a judgment sustaining the will as to personalty, the contestants appeal.

Affirmed.

DeHAVEN Justice.

Charles Podesta died May 14, 1933. On September 19, 1933, his widow Elizabeth Stagner Podesta, presented for probate in common form a paper writing dated July 21, 1915, duly attested purporting to be the last will and testament of the deceased. The will was admitted to probate. The testator, by the will, left his entire estate to his widow, but directed that she pay a legacy of $6,000 to his sister, Elizabeth Podesta, and a like legacy to another sister, Mrs. Emma Fransioli. Thereafter, on January 6, 1936, the widow, while acting as executrix under the will of July 21, 1915, presented for probate in solemn form a paper writing entirely in the handwriting of deceased and signed by him, of the following tenor:

"March 26, 1933.

I will all to my wife.

Chas. Podesta."

The widow asked that the instrument be declared to be the holographic last will and testament of her husband, Charles Podesta, and that it be duly admitted to probate as such. The sisters, Elizabeth Podesta and Mrs. Emma Fransioli, as beneficiaries under the attested will, appeared and contested the attempt to probate the alleged holographic will and requested that a complete transcript of the record including the original of the will of July 15, 1915, theretofore probated, and the original paper writing of March 26, 1933, be certified to the circuit court for the trial of the issue devisavit vel non. On the trial of this issue, the jury found that the holograph "is the last will and testament of Charles Podesta, deceased," and judgment was entered declaring the same to be "the true, whole and last will" of the deceased.

On contestants' appeal, the Court of Appeals reversed the judgment of the trial court upon the ground that contestants' motion for a directed verdict in their favor should have been sustained. The Court of Appeals said, "The whole controversy here is in relation to that requirement of the statute that the alleged holograph shall have been found after his death among his valuable papers." And, "The proponent here has failed to show that the writing offered for probate was found among the valuable papers of the deceased, and the trial judge should have sustained the contestants' motion for a directed verdict upon this ground. *** Let a judgment be entered here reversing the judgment of the circuit court and setting aside the probate of said writing as the holographic will of the deceased." The decision is reported in 21 Tenn.App. 577, 113 S.W.2d 769, 771, 778. Both proponent and contestants applied to the court for writs of certiorari, but both applications were denied.

Thereafter, on August 11, 1938, the widow of Charles Podesta filed her petition in the probate court to have the paper writing of 1933 probated as a written will of personalty as a codicil to and a part of the will of 1915. The sisters forthwith filed a contest upon the grounds that the said paper writing was not a valid will of personalty, that proponent was judicially estopped from proceeding with said petition to have the paper writing admitted to probate as a written will of personalty because by the former proceedings in this cause she attempted to have the paper writing in question established as the last will of Charles Podesta, deceased. And the further objection that the issues raised in the petition were decided or could have been decided by the court on the former hearing and are, therefore, res adjudicata. Contestants moved the court to certify the contest with a complete transcript of the record, including the attested will, to the circuit court for trial of the issue devisavit vel non. The original will had remained in the former cause in the circuit court and the new cause was consolidated with the former cause. The case was then submitted to the trial judge, sitting without a jury, on an agreed statement of facts embodying the entire record on the former contest. The trial court, after overruling contestants' pleas as "not sustained by law or fact," found and adjudged:

"It is therefore by the court ordered, adjudged and decreed that the paper writing dated March 26, 1933, reciting 'I will all to my wife, Chas. Podesta' entirely in the handwriting of Charles Podesta and signed by him, is his last will and testament as to personal property; that the paper writing dated July 21, 1915, signed by Charles Podesta and attested by R. R. Carrington and B. W. Barfield, is his last will and testament as to real estate; and that the two instruments together, as aforesaid constitute the whole and true last will and testament of Charles Podesta."

Contestants have appealed to this court from the judgment of the trial court. The assignments of error involve two ultimate questions: (1) That the first judgment in the former contest bars the admission to probate of the paper writing of date March 26, 1933, as a will of personalty, and (2) That the facts in evidence negative testamentary intent and render the said paper writing invalid as a will of personalty.

(1) It is insisted by contestants that the decree of the Court of Appeals in the former contest is res adjudicata of the question of proponent's right to probate the paper writing of March 26, 1933, as a will of personalty. The decree of the Court of Appeals denied to proponent the right to probate the paper writing in question as a holographic will because it was not found among the valuable papers of the deceased. The "whole controversy", according to the opinion of the Court of Appeals, was in relation to this requirement of the statute. The court did not adjudge the question of whether the paper writing was valid as a will of personalty. But, it is insisted by contestants that this question might have been made by proponent in the former contest and, hence, the rule of res adjudicata applies.

It was the legal duty of the widow when she discovered the paper writing of 1933 to present it for probate. Durell et al v. Martin et al., 172 Tenn. 97, 103, 110 S.W.2d 316. The destruction or concealment of a will with intent to prevent the probate thereof is made a felony by section 10942 of the Code. The widow offered the writing for probate as the holographic will of the deceased. Under section 8090 of the Code a holographic will is sufficient to pass the title to land. All requisites set forth in section 8090 must, however, be complied with in order to establish such a will. Brogan v. Barnard, 115 Tenn. 260, 90 S.W. 858, 112 Am.St Rep. 822, 5 Ann.Cas. 634. State v. Goodman, 133 Tenn. 375, 181 S.W. 312; Reagan v. Stanley, 11 Lea 316, 79 Tenn. 316. The Act of 1784 (Code, section 8089 et seq.) prescribes no form of solemnity for the execution of a will of personalty different from the requirements of the common law, except as to nuncupative wills. Allen v. Huff, 1 Yerg. 404, 407; Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557; Orgain v. Irvine, 100 Tenn. 193, 43 S.W. 768. ...