Re: the Estate of Luther Gaston Garrett, 99-01282
| Decision Date | 12 October 2001 |
| Docket Number | 99-01282 |
| Parties | IN RE: THE ESTATE OF LUTHER GASTON GARRETT |
| Court | Court of Appeals of Tennessee |
Appeal from the Chancery Court for Fentress County, No. P-96-15
Billy Joe White, Chancellor
The testator, a father of six, left a will which devised to one of his children a specific tract of land which, according to the will, was described in an attached survey map. No survey map was attached to the will. Appellant, the recipient of that bequest, disagreed with his siblings about the size of the tract to which he was entitled. After hearing both parties' evidence, the trial court found that the testator's intent was to devise separate seven acre tracts to both Appellant and one of his brothers with the remainder of the estate's property to be divided equally among the six children. Appellant then commenced this appeal. We affirm in part and reverse in part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is
Affirmed in Part, Reversed in Part and Remanded
Patricia J. Cottrell, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and William B. Cain, J., joined.
Phillips Smalling, Byrdstown, Tennessee, for appellant Keith Edward Garrett.
James P. Romer, Jamestown, Tennessee for appellees Priscilla Louise Wright, Susan Yvonne Wright, Christopher Ross Garrett, Patrick Kent Garrett, and David Denver Garrett.
The testator, Luther Gaston Garrett, the father of six children, left a holographic will which contained only one specific bequest, with the remainder of his estate to be divided equally among his six children. The specific bequest was a tract of land to his son, Keith Garrett, Appellant, and the son's wife, Pamela Garrett. This dispute, between Keith Garrett and his five siblings, arises over how many acres are to be included in that bequest.
At the time of his death in January of 1996, the testator owned approximately one hundred fifty acres of land. The five siblings of Keith Garrett describe the land as consisting of three separate tracts, as follows:
the Falls tract, and Lot 19A of City Lake Estates, known as the Gaston Garrett home tract consisting of approximately 19 acres; the Wayne Davis tract of 100 acres, out of which the 7 acre tract willed to Keith and Pam Garrett and on which they have their house is located, the 7 acre tract on which David Garrett has built his house is located, and upon which the cemetery exists where Gaston Garrett is buried; and the third tract is the Allardt farm on the Taylor Place Road.
The Falls tract and the Wayne Davis tract were contiguous. On that basis, Keith Garrett considered them a single tract and referred to them as the "homestead," a tract of approximately 120 acres. Thus, Keith Garrett takes the position his father owned only two tracts of land: the homestead and the Allardt farm property, which consisted of approximately thirty-eight acres.
Keith Garrett moved onto the Wayne Davis tract in 1974 or 1975. Since 1975, Keith Garrett helped his father maintain the land. Sometime after executing the will in question in 1984, the testator completed a house on the Falls tract. David Garrett began building a house on the Wayne Davis tract, sometime in the 1980s or 1990s.1
Shortly before his death, the testator called all his children to his bed side. At that time, he read them his will and gave each a check.2 The will he read to the children was the holographic will the testator had prepared in 1984. It contained only one specific bequest which stated:
I give, devise and bequeath to my son, Keith Edward, and present wife, Pamela Jo Hurley Garrett, a certain tract of land more particularly described in a survey map attached to this document. The deed to this tract of land is to be processed by my executors, provided I precede the above mentioned in death; however, in case either or both of the above mentioned precede me in death, I will make adjustment or codicil concerning property mentioned and attached. When the above mentioned deed is processed, it is not to be taken as any future part of Keith Edward Garrett's further share in my estate, based on past understanding between us and other considerations.
When the will was found after the testator's death, no survey map was attached thereto. The will named as executors all four of Gaston Garrett's sons. It contained the following in terrorem clause:
I would hope that I have reared and raised six children that are reasonable, fair, and unselfish; therefore, any of my heirs that should bring legal process in a Court of law against another heir or heirs of my estate and object to the probate shall be cut off from any share whatsoever in my estate and I further direct that the bequests to such persons shall be considered as part of my residuary estate.
The will was amended once during its existence as evidenced by a handwritten notation dated January 17, 1995 changing the name of a person to contact regarding legal advice or in the event any conflict or difference should arise as to equity or fairness.
After his father's death, Keith Garrett filed a petition to admit will for probate and appointment of executor. The petition named his siblings as respondents. Keith Garrett sought appointment as executor of his father's estate and, requested, inter alia, that the will be admitted into probate. He asserted that under the will, he was to "receive one tract and child's portion of the second tract."
Appellant's siblings filed a response requesting that all four co-executors named in the will be appointed executors. The filing also asserted that Keith Garrett's claim of entitlement to a tract was "misleading" because he "was to receive a 7 acre tract where his home is located and a 1/6 interest in the other parcels of real property excluding a 7 acre tract on which the decedent permitted David Garrett to construct his home, which gift to David Garrett was given in about 1988 after Gaston Garrett authored his will in 1984." The siblings requested, among other things, that the court hear proof pursuant to Tenn. Code Ann. § 32-3-101, et seq., if the heirs could not agree to a fair and equitable distribution at the appropriate time. The siblings submitted a tentative plan for distribution of the estate with their filing. This plan proposed in part that Keith and Pam Garrett will get seven (7) acres where their house is located in accordance with a survey by Andy Potter done in about 1979 which is in the possession of Keith Garrett. This tract is not to be taken as any future part of KEITH EDWARD GARRETT'S further share in the estate, as stated in the will.
David Garrett will receive the house he has built on the Wayne Davis Tract and seven (7) acres surrounding the house in accordance with a gift made by our father prior to the time of his death.
The trial court entered an agreed order admitting the testator's will for probate and administration. All four male siblings were appointed co-executors. Hand written in the lower margin of this order was the following:
By approval of this order counsel for Keith Garrett does not acknowledge the existence of the seven (7) acre survey and it is recognized that an issue exists on this matter.
The trial court heard evidence on this matter. At the hearing, Appellant testified that he was claiming 121 acres under the will. This included the land on which his brother David's house, the family cemetery, his father's house, and his own house were located. Appellant stated that in 1984, when the will was written, he was the only child living on the land, and it was meant to be his. He testified:
In '84, that's what Daddy meant. I was the only one interested. They were all going on with their lives. I have done a whole lot to improve that place, and I don't have any guilt about wanting the whole place. I believe that's exactly what it states.
Pam Garrett, Appellant's wife, testified that some time around 1984, the testator came to her house and told her, "I fixed that place over here so that nobody could ever bother you." She admitted that he did not explain the means he used to effectuate these arrangements.
The eldest son, Chris Garrett, testified that the family was at an impasse about the distribution of the estate, and he requested that the court construe the will and decide on the distribution. He testified that when his father came to him shortly after writing the will:
one of the major things that he was interested in is protecting Keith's homeplace, Pam's homeplace, and at that time he told me seven acres was the amount of land that he intended to be cut off, but he couldn't give them a deed right now because Keith had a previous marriage that might jeopardize the land, so he wouldn't cut a deed at that time.
Chris Garrett denied that his father had ever expressed an intention that Appellant receive the entire 121 acre tract. He recalled that his father intended to give David seven acres as well. Chris Garrett testified that when his father called all the children to his sick bed to read the will, there was no survey present. He asserted that except for the seven acres to Appellant and seven acres to David, the property was to be divided evenly into sixths.
The second eldest son, Patrick Garrett, testified that his father had intended for Keith to have seven acres. Patrick Garrett recalled seeing a survey map. He stated:
Just before Dad died. When he gave up the checks out, approximately the 10th of January, I was sitting with him, and he reached in his lock box, and picked the survey up and said, "Keith, here, you will need this survey of your tract." He didn't attach it, but he had it separate and he handed it to Keith.
Patrick Garrett testified that he had not seen the survey since. When asked if he had seen the survey previously, he testified:
I knew it was there, and paper, and yes it was there. And, in fact, when he called...
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