In re Estate of Eden

• Decision Date: 15 November 1995
• Citation: 99 S.W.3d 82
• Court: Tennessee Court of Appeals
• Parties: In the Matter of ESTATE OF Jim EDEN, Deceased. Georgia Bradley, Plaintiff/Appellant, v. Betty Lewis, Agnes Hendsley, and Bertie Carver, Executors, Defendants/Appellees.

Page 82

99 S.W.3d 82

In the Matter of ESTATE OF Jim EDEN, Deceased.

Georgia Bradley, Plaintiff/Appellant, v. Betty Lewis, Agnes Hendsley, and Bertie Carver, Executors, Defendants/Appellees.

Court of Appeals of Tennessee, at Nashville.

November 15, 1995.

Published Pursuant to Tenn. Ct. App. R. 11.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas A. Travaglini, Madison, for the Plaintiff/Appellant.

A. Russell Brown, Lafayette, for the Defendants/Appellees.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which SAMUEL L. LEWIS, J., and BEN H. CANTRELL, P.J., M.J., joined.

This appeal arises from a dispute over a will in which a 93-year-old man left his estate to three of his four surviving daughters. The daughter who was not named in her father's will challenged the validity of the will after her sisters propounded it for probate in the Chancery Court for Trousdale County. The chancery court transferred the case to the Circuit Court for Trousdale County where a jury found in favor of the will. The daughter who contested the will has appealed. We have determined that no reversible error was committed in the circuit court proceeding and, therefore, affirm the circuit court's judgment and remand the case to the chancery court for further probate proceedings.

I.

Jim Eden was a lifelong resident of Trousdale County. He and his wife lived in and around Hartsville and raised twelve children. Mr. Eden's wife died in 1981, and Mr. Eden outlived most of his children — seven of whom had died by the mid-1980's. Mr. Eden lived alone after his wife's death and was largely self-sufficient. He took meals regularly with one of his daughters who lived next door and sought assistance occasionally from two other daughters, one of whom lived in Macon County and the other in Davidson County. He did his own banking, conducted his other business, and was a wellknown figure around Hartsville.

Mr. Eden had prepared several different wills over the years. In 1986 when he was eighty-six years old, he requested a lawyer in Hartsville to prepare a will that left his entire estate to Betty Eden Lewis, Agnes Hendsley, and Bertie Carver, the three surviving children who had been of most assistance to him and his wife over the years. On October 30, 1986, Mr. Eden executed a simple, one-page will stating:

After the payment of all debts and legal obligations of my estate, it is my wish that my daughters, Betty Eden Lewis, Agnes Sykes, and Bertie Eden Carver, have and use for the remainder of their lives all the property, personal, real and mixed, owned by me at my death, with the power to sell, mortgage, use or consume such property for their needs in their sole and absolute discretion. This property shall be divided equally between the parties mentioned above.

The will did not mention Mr. Eden's only surviving son, Jay Eden, who lived in Clay County and who was gravely ill or his oldest surviving daughter, Georgia Bradley, who had been living in North Carolina since 1952.

Mr. Eden maintained cordial relations with all his children during the last years of his life. His only surviving son died in 1988. He also saw less of Ms. Bradley than his other daughters because she lived over five hundred miles away, but Ms. Bradley talked with him by telephone and visited him periodically. Mr. Eden finally gave up driving his automobile following an automobile accident in the mid-1980's. His family began to notice a deterioration in his mental acuity by the summer of 1989. He was hospitalized in September 1989 and was later placed in a nursing home in Lebanon. He died on May 8, 1992, at the age of ninety-three. He left behind an estate worth approximately $150,000, including $130,500 in cash.

Mr. Eden was survived by four daughters. Mses. Lewis, Hendsley, and Carver filed a petition in the Chancery Court for Trousdale County to probate their father's will. Ms. Bradley contested the will on the grounds that her father lacked testamentary capacity and that he "unintentionally forgot to include her in the distribution." The chancery court transferred the case to the Circuit Court for Trousdale County for a jury trial in accordance with Tenn.Code Ann. § 32-4-101.¹ Following a trial in June 1994, a jury upheld the validity of Mr. Eden's will, and on August 8, 1994, the circuit court entered a judgment, stating that Mr. Eden was "of sound mind and disposing memory at the time he executed his will on October 30, 1986" and remanding the case to the chancery court to complete the probate proceedings.

II. Contest Distinguished From Construction

Will contests differ from will constructions. The two types of proceedings have different purposes and, accordingly, different rules of evidence and procedure. Will contests involve factual questions which are submitted to a jury, while will constructions involve matters of law for the court. It is thus important for trial courts to determine initially whether a particular controversy involves issues of contest or construction or both.

A will contest is a proceeding brought for the purpose of having a will declared void because the testator lacked the requisite mental capacity to make a will or because the will was procured by undue influence or fraud. Stacks v. Saunders, 812 S.W.2d 587, 590-91 (Tenn.Ct. App.1990); Muse v. Sluder, 600 S.W.2d 237, 240 (Tenn.Ct.App.1980). It is an in rem proceeding, Lillard v. Tolliver, 154 Tenn. 304, 323, 285 S.W. 576, 581-82 (1926); Rogers v. Russell, 733 S.W.2d 79, 84 (Tenn.Ct.App.1986), that is intended to test only the external validity of the will. Stacks v. Saunders, 812 S.W.2d at 590; Rogers v. Russell, 733 S.W.2d at 84. All persons claiming an interest in a will may become parties to the proceeding, and the decision in a will contest is conclusive upon all the world. Petty v. Call, 599 S.W.2d 791, 793 (Tenn.1980).

The purpose of a suit to construe a will is to ascertain and give effect to the testator's intention. Williams v. Estate of Williams, 865 S.W.2d 3, 5 (Tenn.1993); Warrick v. Wright, 884 S.W.2d 126, 128 (Tenn.Ct.App.1994); Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn.Ct.App.1989). Construction suits recognize the testator's right to direct the disposition of his or her property and thus, limit a court to ascertaining and enforcing the testator's directions. Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn.1990).

Trial courts should decide contest and construction issues separately when they are presented in the same case. The better procedure is to first submit the contest to a jury who will decide the factual issues affecting the validity of the will. If the jury decides against the will, then the case is at an end, and the trial court should enter judgment accordingly. If the jury decides in favor of the will, then the trial court itself should decide the issues of construction since they are questions of law. Presley v. Hanks, 782 S.W.2d at 487.

In this case, Ms. Bradley challenged her father's will on the basis of his mental capacity to make a will and on his failure to name her specifically in the will. Accordingly, her suit presented both questions of contest and of construction. The issue of Mr. Eden's testamentary capacity presents a basic issue of contest. The next issue, however, presents an issue of construction insofar as Ms. Bradley asserts that the will is void as a matter of law for failing to disinherit her expressly or by necessary implication. We will therefore review the jury verdict on capacity first and then discuss the construction question.

III. Contest over Validity of the Will

Ms. Bradley has raised several issues with regard to her will contest. She asserts that the trial court should have excluded two witnesses' testimony regarding their conversations with Mr. Eden about his will. She also challenges the denial of her requested jury instructions. Finally, she asserts that there was no material evidence to support the jury's verdict. We will address each of these issues in turn after describing the basic procedure to be followed on a will contest.

A. Procedure on a Will Contest

The question presented in a will contest proceeding is whether the paper offered for probate is or is not the testator's valid will. Green v. Higdon, 891 S.W.2d 220, 222 (Tenn.Ct.App.1994); Carver v. Anthony, 35 Tenn.App. 306, 312-13, 245 S.W.2d 422, 425 (1951). The proceeding originated in the chancery practice of sending the case to a court of law to try the question of the validity of the will. Green v. Higdon, 891 S.W.2d at 222. The form of action is sui generis and regulated entirely by statute. Jones v. Witherspoon, 182 Tenn. 498, 503-04, 187 S.W.2d 788, 790 (1945); Arnett v. Weeks, 27 Tenn. (8 Hum.) 547, 549 (1847); Cude v. Culberson, 30 Tenn.App. 628, 637, 209 S.W.2d 506, 511 (1947).

When a contest is presented, the probate court should certify the will and contest to the circuit court for trial, Tenn. Code Arm. § 32-4-101; Green v. Higdon, 870 S.W.2d 513, 520 (Tenn.Ct.App.1993), unless the contestant elects to have the contest tried in the probate court pursuant to Tenn.Code Ann. § 32-4-109. Once the contest has been set for trial, Tenn.Code Ann. § 32-4-104 (1989) requires the parties to formulate the issues to be tried "under the direction of the court." The general issue in a contest proceeding is "[d]id he make a will or not." Green v. Higdon, 891 S.W.2d at 222.

The proponents of the will have the initial burden of proving that the will was duly executed. See In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn.1987). This may be accomplished using the testimony of living witnesses and by showing that the will complies with all formalities of law. See In re Estate of King, 760 S.W.2d 208, 210 (Tenn.1988). Proof of due execution makes out a prima facie case of the will's validity because it gives rise to a presumption that the testator was capable of making a will. Curry v. Bridges, 45 Tenn.App. 395, 407, 325...