Needham v. Doyle

• Citation: 286 S.W.2d 601,39 Tenn.App. 597
• Parties: L. B. NEEDHAM, Administrator c/t/a et al. v. William Cecil DOYLE.
• Decision Date: 15 September 1955
• Court: Court of Appeals of Tennessee

Page 601

286 S.W.2d 601

39 Tenn.App. 597

L. B. NEEDHAM, Administrator c/t/a et al. v. William Cecil DOYLE.

Court of Appeals of Tennessee, Western Section.

Sept. 15, 1955 Certiorari Denied by Supreme Court Feb. 3, 1956.

Holmes & Holmes, Trenton, for L. B. Needham, administrator, c. t. a.

W. R. Landrum, Trenton, for Boyd Moore.

W. R. Kinton, Sr., Trenton, for William Cecil Doyle.

BEJACH, Judge.

This cause involves an appeal by L. B. Needham, administrator c/t/a under the will of William H. Needham, deceased, and of Boyd Moore, claiming to be a beneficiary under said will, from the judgment of the Circuit Court of Gibson County, Tennessee, which granted a peremptory instruction holding said will invalid. The cause was certified to the Circuit Court of Gibson County by the County Court of Gibson County for probate of the will in solemn form. This certification was the result of a petition filed February 4, 1953 by William Cecil Doyle, which petition is sworn to by Doyle. This verified petition alleges that at the August term of the County Court, a paper writing purporting to be the last will and testament of William H. Needham, deceased, was admitted to probate in common form, and that L. B. Needham was appointed administrator with the will annexed, November 29, 1951. The petition alleges that the legatees and devisees under said paper writing are petitioner, William Cecil Doyle and Mrs. Lou Della Needham, who died prior to the death of testator, William H. Needham, and who left as her only child, Boyd Moore, of Bradford, 14th Civil District of Gibson County, Tennessee who claims the portion of the estate bequeathed to his mother, Mrs. Lou Della Needham.

The petition charges that said instrument is not the will of the said William H. Needham, deceased, because after the death of the said Lou Della Needham, the said William H. Needham revoked the clause in said will in which he bequeathed unto her his personal property with the exception of a few articles of small value, by written instrument to which he affixed his signature, and that said paper writing is not the last will and testament of the said William H. Needham, deceased, and that said clause in said paper writing was revoked and adeemed in the lifetime of the said William H. Needham.

The petition prays, 'That process issue to compel the said L. B. Needham, administrator with the will annexed, and Boyd Moore, both of whom live in Gibson County, Tennessee, to appear at the next term of this Court, and answer this petition; that petitioner be permitted to contest said will, and that the fact of the contest, together with said original paper writing, be certified to the Circuit Court of Gibson County, at Trenton, Tennessee, to the end that an issue be there made to try the validity of the same.' The petition is verified by William Cecil Doyle before a Notary Public in Brazos County, Texas, he being in the service of the United States in the Air Corps at that time, and being there stationed at that time, as well as at the time of the trial of this cause in the Circuit Court. Pertinent parts of the order of the County Court are quoted, as follows:

'William Cecil Doyle having filed his petition in this Court showing that he is one of the heirs and distributees of William H. Needham, deceased, and praying that he be allowed to contest the validity of the paper writing admitted to probate at the August term, 1952, of this Court, as the last will and testament of the said William H. Needham, deceased; * * * It is ordered by the Court that the Clerk make out and certify a complete transcript of the record and proceedings in this Court and transmit the same, together with the original instrument admitted to probate as the will of William H. Needham, deceased, as aforesaid, and the prosecution bonds entered into by the parties to the Circuit Court of Gibson County at Trenton, Tennessee.'

The alleged will of William H. Needham, deceased, is in the words and figures, as follows:

'Last Will and Testament of William H. Needham.

'I, William H. Needham of Milan, R.F.D. 3, Gibson County, Tennessee, being of disposing memory, do make this as my last will and testament thereby revoking any and all former Wills by me at any time made.

'Item 1. I direct that all my just debts, including funeral and burial expenses, and expenses of administration, be paid by my Executor out of the first moneys that may come into her hands.

'Item 2. I give, devise and bequeath to my wife Lou Della Needham, the use of my farm where we now live as long as she remains my widow, with the definate request and demand that she keeps the Fire Insurance and State and County Tax paid each year as they become due and collectable, I also give and bequeath to my said wife Lou Della Needham, all the personal property that I may die possessed of money Notes, Bonds, or what ever it may consist of, except One dresser herein after described by Item 3. at the time of my said wife's remarriage if at any time, or at her death, my said farm located in the 13th civil district of Gibson County and where we now live, my Grand Son, William Cecil Doyle is to become in possession of the farm in fee simple.

'Item 3. I devise and bequeath to my Grand Son William Cecil Doyle One Oak Dresser, which dresser has been in my home for many years, and which dresser I desire that he have it immediately upon my death.

'Lastly: I hereby nominate and appoint my said wife Lou Della Needham my sole executor, without Bond, and if it does not interfere with the Laws of the State that she not be required to make any statement to the Court other than the simple filling (sic) of this my last will and testament.

'In witness whereof I have hereunto set my hand this the 4th day of May, 1945.

'William H. Needham

'Signed by the said William H. Needham, as and for his last Will and testament, in the presence of us the undersigned, who, at his request, and in his sight and presence, have subscribed our names hereto as attesting witnesses, the day and date above written.

'Ralleigh McCoy

'S. L. Frazier.'

After the cause had reached the Circuit Court of Gibson County, on August 10, 1954, L. B. Needham, administrator c/t/a, and Boyd Moore filed a declaration which is as follows:

'The plaintiff produces in open court a writing purporting to be the last will and testament of W. H. Needham, deceased, dated _____, and avers that same is the last will and testament of said W. H. Needham, deceased, and offers to prove the same in solemn form.'

To this declaration the defendant, William Cecil Doyle, filed on August 13, 1954, a plea or pleas, as follows:

'The defendant, William Cecil Doyle, for plea to the declaration filed in this cause says that said paper writing is not the last will and testament of the said William H. or W. H. Needham, deceased, and demands a jury to try the cause.

'And for further plea the said William Cecil Doyle says that if the will is found to have been executed so as to be probated under the laws of the State of Tennessee, the second item of said will as propounded, in which the said W. H. Needham bequeathed certain personal property to his wife, who died prior to his death, was revoked and adeemed by the said W. H. Needham in his lifetime, and also demands a jury to try the cause.'

Proponents of the will made a motion to strike the pleas of the defendant, said motion being based upon the contention that the petition of William Cecil Doyle, filed in the County Court and sworn to by him, created a judicial estoppel which would prevent a general contest of the validity of the will by him,--the position taken by proponents in that regard being, that he conceded the validity of the will except as to the disposition of personalty, which he claimed had been revoked, and that he was judicially estopped by his sworn petition to make a general contest of the validity of the will. The defendant, Doyle, then presented an affidavit which shows that he had learned of the ground for attacking the will in its entirety, only a day or two before the trial; and explained his earlier lack of information on that subject by reason of the fact that he was in the Air Corps of the United States. His counsel made a motion to remand the cause to the County Court so that the petition could there be amended. After considerable argument by counsel, the trial judge declined to remand the cause to the County Court, but did allow in the Circuit Court an amendment to the petition filed in the County Court so as to establish a general contest of the will on the issue of devisavit vel non. After a jury was empanneled, the testimony of the two subscribing witnesses to the will, S. L. Frazier and Ralleigh McCoy, were offered before the jury. Part of the testimony of the two subscribing witnesses, S. L. Frazier and Ralleigh McCoy, which we deem material to the issues of this cause, is quoted, as follows:

From direct examination of S. L. Frazier by Mr. Holmes:

'Q. 5. Did you know Mr. W. H. Needham during his lifetime? A. Yes.

'Q. 6. I will ask you whether or not you had occasion to sign his will as a witness? A. Yes, sir.

'Q. 7. Mr. Frazier, I will ask you to look at the signatures on this page and the second one appears to be 'S. L. Frazier'. I will ask you if that is your signature? A. I think it is, yes, sir.

'Q. 8. This will is dated back in 1945. Do you remember that as being about the time you signed this will? A. I just don't remember.

'Q. 9. Just don't remember about the time? A. No.

'Q. 10. Where were you when you signed the will? A. Over at Mr. Henry Webb's office.

'Q. 11. Was Mr. Henry Webb's office at that time in Milan? A. Yes, sir.

'Q. 12. And that is where you were when you signed the will? A. Yes.

'Q. 13. How did you happen to go to Mr. Webb's office? A. I was over there at the Farmers-Peoples Bank in Milan and him and Rolleigh McCoy came in there and wanted----

'Q. 14. By 'him' who do you mean, Mr. Needham? A. Mr. Willie Needham...