Love v. Cave

• Decision Date: 19 May 1981
• Citation: 622 S.W.2d 52
• Parties: Charles LOVE, et al., Plaintiffs-Appellees, v. Payne CAVE, et al., Defendants-Appellants.
• Court: Tennessee Court of Appeals

Page 52

622 S.W.2d 52

Charles LOVE, et al., Plaintiffs-Appellees, v. Payne CAVE, et al., Defendants-Appellants.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

May 19, 1981.

Rehearing Denied July 14, 1981.

Appeal Denied by Supreme Court Sept. 21, 1981.

Fred M. Hartman, Greeneville, for plaintiffs-appellees.

James E. Stevens, Greeneville, John M. Foley, Jack W. Bowers, Knoxville, for defendants-appellants.

OPINION

SHRIVER, Judge by Designation.

I

-THE CASE-

This suit involves the estate of Robert M. Love who died testate in Wayne County Michigan, where he then resided and where he had certain assets consisting of money on deposit and the contents of a lock box in a bank there. He also died possessed of valuable real estate in Greene County, Tennessee, his original home, and a substantial amount of money on deposit and by certificate of deposit in the Greene County Bank. S. G. Wells qualified in Greene County Tennessee as administrator of the estate and later discovered the will of the deceased in the lock box in the Michigan Bank, which will and the contents of the lock box he brought back to Greene County, Tennessee.

Mr. Wells was replaced as administrator C.T.A. by the appointment of Payne Cave, defendant in this suit.

Subsequently, Plaintiffs Charles Love and Stanley Love were appointed co-administrators C.T.A. of Robert M. Love after the will had been held to be invalid due to the incapacity of the testator at the end of three trials and two appeals to the Court of Appeals.

Cave seeks compensation for his services as administrator C.T.A. and John M. Foley, appellant, seeks attorney's fees and expenses as attorney for Administrator Cave.

Appellant Lutheran's Home for Children, Inc., seeks reversal of the order of dismissal of its suit for declaratory judgment as to its right to proceed against the Love estate in the Michigan courts.

The Trial Court allowed the claim of Cave for services as Administrator C.T.A. but denied Foley's claim against the estate for attorney's fees in representing the administrator, hence his appeal.

The Trial Court also dismissed the counter-suit of the Lutheran Home for Children which judgment was also appealed.

-Issues on Appeals-

Appellant Foley presents the issue:

"Did the Court err in disallowing the attorney fees sought by the administrator and John M. Foley, Attorney, for services performed for the administrator under probate proceedings including a will contest"?

Appellant Williams-Henson Home For Children, Inc., presents the issue:

"Did the Court err in dismissing the counter complaint of Williams-Henson Lutheran Home for Children, Inc. seeking a declaratory judgment as to assets of the estate which were removed from the domicilliary state of the deceased, and other relief"?

II

-PROCEEDINGS BELOW-

The original complaint was filed April 1, 1980 in the Chancery Court at Greeneville, Tennessee by Charles and Stanley Love as co-administrators of Robert M. Love, deceased, reciting inter alia, that plaintiffs, along with other heirs of the deceased, contested the writing which purported to be the Last Will and Testament of Robert M. Love and after three jury trials, two appeals to the Court of Appeals of Tennessee, and a ruling by the Supreme Court of Tennessee, it was established that the said writing is not a valid will of said deceased due to the incapacity of the testator to execute same; that subsequent to the final ruling of the Courts on the matter, plaintiffs were granted Letters of Administration of said estate, said order being dated March 20, 1980.

The plaintiffs pray (a) for process, (b) that defendant be compelled to surrender all assets of the estate to plaintiffs as co-administrators, and that defendant, Cave, be perpetually enjoined from further interfering in the administration of said estate, (c) for damages and (d) for general relief.

By Amended Complaint John M. Foley, attorney for Williams-Henson Lutheran Home For Children, was made a party defendant, and the prayers thereof were that administration of the estate be transferred from the County Court to Chancery Court and the claim of the additional defendant be declared invalid.

By a Second Amended Complaint Williams-Henson Lutheran Home For Children was made a party defendant and plaintiffs prayed that said defendant be restrained from in any way further interfering with the orderly administration of the Love estate.

The answers of the several defendants joined issue on the material points of the controversy and both Foley and the Lutheran Home For Children filed counter claims for relief.

By Order of July 12, 1980 the Chancellor ruled that defendant Payne Cave had no further interest in the administration of the Love estate since the writing dated July 24, 1973 was found not to be the last Will and Testament of the deceased, and Cave was ordered to file an accounting and deliver the assets of the estate to the Clerk and Master.

The question of the fee for John M. Foley was set down for an evidentiary hearing which was had and the fees claimed by Foley were denied.

On August 27, 1980 the Chancellor filed the following Memorandum Opinion:

-Chancellor's Memo-

"S. G. Wells was appointed administrator of the estate of Robert M. Love on March 14, 1975, by the Probate Court of Greene County. During the course of his administration he located a will purportedly executed by Mr. Love in Wayne County, Michigan, which bequeathed and devised his entire estate to a children's Home in Knoxville, Tennessee. The sole beneficiary prevailed upon the probate Court of Greene County to remove Mr. Wells as administrator C.T.A. and to appoint it nominee, Robert Payne Cave, as successor administrator C.T.A.

"The heirs at law of Mr. Love instituted a will contest which, after three trials and two appeals, resulted in a judgment declaring the will void on account of the lack of mental capacity to execute it. Mr. Cave was thereafter removed as administrator and ordered to surrender all assets of the Estate to a successor administrator.

"Mr. Cave now seeks compensation for his services as administrator C.T.A. Since he had a duty to defend the will, he is entitled to reasonable compensation therefor. He is also entitled to recover his lawful expenses, as filed, except Mr. Foley's fee which will be later discussed.

"Mr. Cave is allowed a fee of $1,200.00 for his services as administrator.

"The claim of Mr. Foley presents a problem. He is the attorney for the Children's Home, which, of course, takes nothing from the estate in view of the judgment of invalidity. Mr. Foley, however, represented Mr. Cave, the administrator C.T.A. He was never formally employed by Mr. Cave; he arrogated himself the duty and responsibility of representing Mr. Cave, because of his interest in the Children's Home.

"Mr. Foley represented himself as attorney for the Children's Home, see Exhibits 2 and 3; and the Court believes that his participation in the representation of the Administrator C.T.A. was occasioned by his interest in the beneficiary whom he admittedly represented. The Court is also mindful of the fact that the administrator C.T.A., although a practicing attorney; is nevertheless entitled to an attorney; but upon consideration of all the circumstances, and especially since the services of Mr. Foley did not benefit the estate of Robert M. Love, the Court is of the opinion that the estate is not liable for his fee.

"The counterclaim of the Children's Home is dismissed for lack of evidence.

/s/ William H. Inman

WILLIAM H. INMAN"

The foregoing Memo was incorporated in a Final Order of August 29, 1980 granting Payne Cave itemized expenses amounting to $4,553.53 and a $1,200.00 for services as administrator C.T.A., but denying Foley's claim for attorney's fees chargeable to the estate.

III

-OUR CONCLUSIONS-

We will consider first the issue presented by appellant Williams-Henson Home For Children, to wit, Did the Court err in dismissing the counter complaint of appellant which seeks a declaratory judgment as to certain assets of the estate of Robert M. Love, deceased?

The matter of granting or denying a declaratory judgment is largely discretionary with the Chancellor. In Southern Fire & Cas. Co. v. Cooper, 200 Tenn. 283, 292 S.W.2d 177, it was said that the Trial Court has a very wide discretion as to whether it will render a declaratory judgment and the Trial Court's action in refusing to make such a declaration will not be disturbed on appeal unless such refusal is arbitrary. In interpreting the statute, T.C.A. § 23-1102 et seq., our Supreme Court in Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, held that jurisdiction to render a declaratory judgment is discretionary. Also see Nicholson v. Cummings, 188 Tenn. 201, 217 S.W.2d 942.

Included in the transcript of the record herein is the opinion of the Court of Appeals written by Judge Goddard in "Estate of Robert M. Love, Deceased, Charles Love et al. vs. Payne Cave, Admr. et al. " (Affirmed by the Supreme Court) wherein it was stated that it was on appeal from a judgment entered upon a jury verdict finding against the Will (of Robt. M. Love) in a suit brought by the heirs of the testator's brothers and sisters.

Among the issues ruled upon was the question of material evidence to support the verdict and judgment and "Did the Circuit Court of Greene County, Tennessee, have jurisdiction over the subject matter of this case, the estate of deceased who died in Michigan with no legal residence or domicile in Tennessee at the time of death"?

It is pointed out in the Opinion that S. G. Wells was appointed by the Greene County Probate Court as administrator of the Love estate and was later removed on motion of the Williams-Henson Lutheran Home for Children, sole beneficiary under the Will, and Payne Cave was appointed in his stead as administrator with the Will annexed whereupon, the case was certified to the Circuit Court for trial on the issue...