Green v. Lanier
| Citation | 456 S.W.2d 345,61 Tenn.App. 487 |
| Parties | Mrs. George GREEN, Administratrix, Estate of George Allen Lanier, Complainant, v. Elizabeth Ezell LANIER, Appellant, and W. C. Lanier and Mary C. Lanier, Appellees, Defendants. |
| Decision Date | 02 January 1970 |
| Court | Court of Appeals of Tennessee |
Tyler Berry, Berry & Berry, Franklin, for complainant.
Allen Shoffner, Shelbyville, Mebry Covington, Jr., Franklin, James R. Sasser, Goodpasture, Carpenter, Woods & Courtney, Nashville, for defendants.
This is a suit by Mrs. George Green, administratrix with the will annexed of George Allen Lanier, deceased, for an interpretation of the will of the deceased. From a decree favorable to the brother and sister of deceased, the widow has appealed.
The provision of the will requiring interpretation is as follows:
The property of the deceased which would be affected by an interpretation of the will is as follows:
1. Williamson Co. Bank--
Checking Acct. $ 2,303.63
2. Williamson Co. Bank--
Savings Acct. 124.22
3. First Federal Savings &
Loan Assn. Savings
Acct. 12,336.65
4. First Franklin Federal
Savings & Loan Assn.--
Savings Acct. 15,047.71
It is the insistence of the appellant widow that the words 'except my bank account' in Item II, above, refer to the first named asst, the checking account, and that she is entitled to one half the remaining assets under Item III, above.
It is the insistence of appellees, brother and sister, that the words 'my bank account' in both Item II and Item III refer to all of the above listed assets, and that they are entitled to all of same without participation of the widow.
The chancellor heard oral evidence as to the circumstances and intentions of the testator and decreed as follows:
The assignments of error complain of the allowance of pleadings and evidence dehors the written will, the failure to consider other evidence dehors the will, and the conclusions of the chancellor, cited above.
A consideration of all the assignments of error and review of the action of the court generally will be facilitated by a recitation of the uncontroverted facts forming the background of this dispute.
George Allen Lanier and his wife, Elizabeth Ezell Lanier, were a childless couple who lived together on a farm in Williamson County for sixty years. In their declining years, they utilized the services of a neighbor, a Mr. George Green, to handle some of their business affairs, and Mr. Green was named as executor in the will under discussion.
Later, Mrs. George Green, the complaint herein, became attorney-in-fact for both of the old people. The record does not disclose, but presumably this was because of the death or disability of Mr. Green.
The old people had a singular financial relationship, at least in their latter years, in that they carefully and equally divided their cash funds, each taking one half and depositing it to his or her separate credit or otherwise disposing of it as he or she saw fit. Just when this arrangement began is not disclosed by the record.
The deceased had discussed with at least one relative the matter of making a will dividing his property equally between his wife and his relatives, and told said relative that 'Mr. Berry said it would not hold up.'
The will of deceased is typewritten and witnessed by two officers of the Williamson County Bank, of Franklin, Tennessee. Neither of these gentlemen testified in this care. The will is dated July 15, 1965. On that date, the records show the following credits to deceased:
Williamson County Bank--
Checking Account $1,097.81
Williamson County Bank--
Savings Account 114.80
First Franklin Federal Savings
& Loan Assn. (Franklin) 6,368.49
First Federal Savings & Loan
Assn. (Nashville) 4,000.00
The account records show that the checking account was used frequently for deposits and withdrawals; that the savings account was static except for interest accruals; that the First Franklin Federal Savings and Loan Association account was somewhat active, receiving seven deposits and no withdrawals in the first seven months of 1965 preceding the execution of the will; and that the First Federal Savings and Loan Association (Nashville) account was completely inactive, representing an initial deposit of $4,000.00 in 1960, and the withdrawal and transfer of same to First Franklin Savings and Loan Association in August 1965, shortly after the execution of the will.
In May, 1967, G. A. Lanier and wife Lizzie Ezell Lanier, sold their farm to Thomas L. McCall for a consideration of $25,000.00. One half of the proceeds was paid to the wife and placed to her credit in a savings and loan association. The other half of the proceeds was paid to G. A. Lanier and placed to his credit in First Federal Savings and Loan Association in Nashville. This account shows no entry except interest until the death of deceased.
As a result of the foregoing transactions and other minor deposits and withdrawals the status of the affairs of deceased with the said bank and savings and loan associations at the time of his death was as set out heretofore.
Although no issue is made in this cause concerning same, it is noteworthy that the funds at the said savings and loan associations and in said bank were transferred to the checking account of the estate in August 1967. The record of the checking account of the estate discloses a balance of $30,962.43 on June 4, 1968, which presumably remains on deposit without interest pending this appeal.
Although not a material issue in this cause, the matter of dissent was discussed by counsel at the trial and mentioned in one of the briefs. One counsel thought the widow had a year to dissent. The solicitor for the complainant administratrix thought she had only nine months to dissent and stated as a fact that no dissent had been filed.
Section 31--605 T.C.A. provides that the widow may dissent within nine months after probate of the will. The will in this case was probated on August 3, 1967. Nine months thereafter was May 3, 1968. The original bill was filed herein on July 9, 1968.
Section 31--609 T.C.A. provides that in event of litigation, the widow shall have an additional year within which to dissent, or such additional time as the court may allow. There is no evidence in this record that a dissent was filed or extension granted at any time.
Section 31--607 provides that upon request of the widow the executor or administrator shall disclose to her the condition of the estate to enable her to act as her interest may require. There is no evidence in this record that the widow ever made such a request. Her attorney-in-fact, Mrs. George Green, was and is also the administratrix and complainant herein.
With the foregoing background considerations, the fundamental and determinative issue must now be resolved, that is, does the wording of the will, 'my bank account' effectively exclude the widow from participation in the distribution of the proceeds of any of the funds of deceased listed above.
The appellees insist that there is sufficient uncertainty in the meaning of the will to admit oral testimony of the intention of the testator and that such testimony in this record conclusively shows the intent of the testator to exclude the widow from all cash funds of his estate.
Appellees cite Treanor v. Treanor, 25 Tenn.App. 133, 152 S.W.2d 1038 (1941) wherein this Court stated the issue to be one of punctuation, and the punctuation was corrected to give the words of the will a meaning consistent with the orally expressed intention of the testator. The will was clearly ambiguous, and only a change of punctuation or deletion of words would give meaning to it. This Court chose to change punctuation, rather than to delete words. In so doing, this Court said:
'We are of the opinion that a correct interpretation of the will is reached by discarding the semicolon after the word 'dispose' and inserting a comma after the word 'entitled,' as contended by the defendants and as held by the Chancellor.
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...152 S.W.2d 1038, 1041 (Tenn. Ct. App. 1941); see also Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn. 1992); Green v. Lanier, 456 S.W.2d 345, 494 (Tenn. Ct. App. 1970). "Any other rule would place it practically within the power of others to make a new will for the testator, so as to mee......
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