In re Estate of Greenamyre

• Decision Date: 07 December 2005
• Docket Number: No. M2003-00964-COA-R3-CV.,M2003-00964-COA-R3-CV.
• Citation: 219 S.W.3d 877
• Parties: In re ESTATE OF Edward Louis GREENAMYRE.
• Court: Tennessee Court of Appeals

219 S.W.3d 877

In re ESTATE OF Edward Louis GREENAMYRE.

No. M2003-00964-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

April 16, 2004 Session.

December 7, 2005.

Permission to Appeal Denied by Supreme Court March 12, 2007.

Rankin P. Bennett, Cookeville, Tennessee, for the appellant, Gretta Guyton Stanger.

Joy Buck Gothard, Cookeville, Tennessee, for Anna L. Ham.

Kenneth S. Williams, Cookeville, Tennessee, for the appellees, Jiro Ishibashi and Hideo Ishibashi.

Dale Bohannon, Cookeville, Tennessee, for the appellee, Carol Gibbons.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S. delivered the opinion of the court, in which WILLIAM B. CAIN, J., joined. FRANK G. CLEMENT, JR., J., filed a separate opinion concurring in part and dissenting in part.

This appeal involves a dispute regarding the fate of specific bequests in a will prepared by a college professor without the assistance of counsel. The professor's mental capacity declined after he prepared the will, and the Chancery Court for Putnam County appointed a conservator for the professor who, with the court's approval, auctioned off his personal property, including property subject to specific bequests in the professor's will. After the professor died, his executrix petitioned the trial court to construe several provisions of his will. The trial court heard the matter without a jury and, relying on In re Estate of Hume, 984 S.W.2d 602 (Tenn.1999), concluded that several of the specific bequests had been adeemed by extinction. The trial court also concluded that the parties attorney's fees and the court costs should be paid from the intestate funds in the estate. On this appeal, one of the beneficiaries of an adeemed bequest takes issue with the court's conclusion that she was not entitled to the proceeds from the sale of the property bequeathed to her and that she was not entitled to recover all of her attorney's fees. The professor's sole surviving heir at law takes issue with the trial court's decision to award this beneficiary any attorney's fees. We have determined that the trial court's decision regarding the fate of the specific bequests of personal property is correct but that the trial court erred with regard to the award of attorney's fees.

I.

Edward Louis Greenamyre was an anthropologist who served as a professor in the Department of Sociology and Philosophy at Tennessee Technological University in Cookeville, Tennessee. He studied and conducted extensive research in East Asia and was married to Fusako Ishibashi Greenamyre.

On April 12, 1994, Dr. Greenamyre executed a will that he had apparently prepared without the assistance of counsel. The will named Ms. Greenamyre as Dr. Greenamyre's sole beneficiary; however, it also contained detailed provisions regarding the disposition of Dr. Greenamyre's property if Ms. Greenamyre died first. In the event that Ms. Greenamyre predeceased Dr. Greenamyre, the will contained specific bequests to Gretta Guyton Stanger,¹ Dr. and Ms. Edmond D. Dixon,² Henry W. Mannle,³ and Jiro and Hideo Ishibashi.⁴ The will contained no residuary clause. Dr. Greenamyre named Ms. Greenamyre as his executrix, but he designated Carol Gibbons, a secretary employed in the Department of Sociology and Philosophy, to serve as his executrix if Ms. Greenamyre died before he did.

Ms. Greenamyre died first, and Dr. Greenamyre was eventually placed in The Renewal Center in Carthage, Tennessee. In April 1998, The Renewal Center petitioned the Chancery Court for Putnam County to appoint a conservator for Dr. Greenamyre because he lacked the capacity to manage his resources or to protect himself. The petition identified Dr. Anna Lois Ham of Louisiana, Dr. Greenamyre's first cousin, as his closest living relative. It also requested that Kelly Tayes of the Office of the Public Guardian for the Upper Cumberland Development District be appointed as Dr. Greenamyre's conservator. Dr. Stanger also sought to be named conservator.

Following a hearing on May 1, 1998, the trial court appointed Ms. Tayes as the conservator for Dr. Greenamyre's person and property. The court also appointed Charles L. Hardin as Dr. Greenamyre's guardian ad litem. On June 25, 1998, Ms. Tayes filed a petition seeking permission to sell Dr. Greenamyre's personal property at auction. She stated that he owned household goods and furnishings, two automobiles, and other personal property that he would not need in the future. She supported this petition with the affidavit of Dr. Greenamyre's physician stating that Dr. Greenamyre would never be able to return home. The trial court entered an order on July 6, 1998 authorizing the public auction.

Dr. Greenamyre's personal property was sold at public auction on August 11, 1998. Among the items sold were a 1.8 carat diamond ring,⁵ a ruby ring,⁶ a woman's Rolex watch,⁷ two men's Rolex watches,⁸ and two automobiles.⁹ The auction grossed $61,692.00 and netted $50,993.30. Ms. Tayes deposited the auction proceeds in Dr. Greenamyre's checking account at Union Planters Bank. The trial court confirmed the sale on August 28, 1998.

On April 21, 1999, Ms. Tayes filed a property management plan reflecting that Dr. Greenamyre's assets consisted of $329,625.57 in cash and certificates of deposit at Union Planters Bank, First Tennessee Bank, and Regions Bank. In addition, the report stated that Dr. Greenamyre's monthly income was $3,615.42¹⁰ and that his monthly expenses were $2,800.00. Ms. Tayes stated that her intention was to deposit the funds in the Regions Bank savings account and one of the Regions Bank certificates of deposit into a J.C. Bradford money market account as soon as the certificate of deposit matured.¹¹ She also stated that it was her intention to pay Dr. Greenamyre's expenses from his income and that she planned to use the principal only if Dr. Greenamyre's income was insufficient to pay his expenses. On May 10, 1999, the trial court entered an order approving this management plan.

Dr. Greenamyre died on December 5, 2000 at the age of seventy. On January 23, 2001, Ms. Gibbons filed a petition in the trial court to probate Dr. Greenamyre's April 12, 1994 will. On August 20, 2001, Ms. Gibbons filed an inventory valuing Dr. Greenamyre's estate at $592,594.11. Thereafter, questions arose regarding the fate of Dr. Greenamyre's bequests to Dr. Stanger, the Dixons, and Jiro and Hideo Ishibashi. Ms. Gibbons also had questions about Dr. Greenamyre's instructions regarding his funeral and burial expenses, the safe-keeping of his six cats, and a $25,000 contribution to the Twin Cities Buddhist Association.

Dr. Stanger insisted that she was entitled to receive an amount equal to the balance in Dr. Greenamyre's Union Planters Bank account on May 4, 1998 when the conservatorship was created,¹² as well as the proceeds from the sale of the personal property she would have received under Dr. Greenamyre's will. The Dixons insisted that they were entitled to receive an amount equal to the proceeds from the sale of Dr. Greenamyre's art and the three Rolex watches. Jiro and Hideo Ishibashi asserted that they were entitled to all of the certificates of deposit in Dr. Greenamyre's name when he died, regardless of the source of the funds used to purchase these certificates. Finally, Dr. Ham asserted that she was Dr. Greenamyre's sole heir at law and, therefore, that she was entitled to the remainder of Dr. Greenamyre's estate under the rules of intestate succession because Dr. Greenamyre's will did not contain a residuary clause.

Ms. Gibbons also faced one other ambiguity as Dr. Greenamyre's executrix. Dr. Greenamyre's will instructed her to use the proceeds of "any travel insurance policy to which I have subscribed or will subscribe in the future" (1) to pay for his funeral and burial expenses, (2) to make a $25,000 donation to the Twin Cities Buddhist Association, and (3) to arrange for the safe-keeping of his six cats. Dr. Greenamyre apparently had no travel insurance policies in force at the time of his death, but his estate contained sufficient funds to pay these expenses.

Accordingly, on March 5, 2002, Ms. Gibbons filed a complaint requesting the trial court to address four questions regarding the construction of the will. She named as defendants all the persons receiving special bequests in Dr. Greenamyre's will. The first question involved the bequest to Dr. Stanger of "[a]ll cash in any checking account at Citizens Bank held singly or jointly in my name." The second question involved the bequest of the Rolex watches to the Dixons. The third question involved the bequest of "[a]ny certificates of deposit listed in my name at the time of my death" to Jiro and Hideo Ishibashi. The final question sought the court's permission to use other funds in the estate to pay for Dr. Greenamyre's funeral expenses, the safekeeping of his six cats, and the $25,000 contribution to the Twin Cities Buddhist Association.

On April 3, 2003, following hearings on December 10, 2002 and February 18, 2003, the trial court entered an order construing Dr. Greenamyre's will. The most significant decision made by the trial court, at least as far as this appeal is concerned, involved the legal effect of the sale of Dr. Greenamyre's personal property in 1998. Relying on In re Estate of Hume, 984 S.W.2d 602 (Tenn.1999),¹³ the trial court concluded that the sale worked an ademption by extinction of the specific bequests of personal property to Dr. Stanger and the Dixons. Accordingly, the trial court determined that Dr. Stanger was only entitled to the $8,474.68 balance in Dr. Greenamyre's Union Planters Bank account at the time of his death and that the Dixons were entitled to nothing.

The trial court also determined that Dr. Ham was the sole intestate beneficiary and heir of Dr. Greenamyre and that Jiro and Hideo Ishibashi were entitled to the certificates of deposit and their pro rata share of interest on these funds. In addition, the court determined that...