Rogers v. Russell
| Decision Date | 25 September 1986 |
| Docket Number | No. 85-251-II,85-251-II |
| Citation | 733 S.W.2d 79 |
| Parties | J. Michael ROGERS, as guardian for Tracee Rogers and Keely Rogers, Plaintiffs/Appellees, v. Ann RUSSELL, Kenneth Russell, and Sundee Russell, Defendants/Appellants, Steven Russell, Defendant. |
| Court | Tennessee Court of Appeals |
George R. Fleming, Sr., Fleming, Fleming & Ross, Clarksville, for defendants/appellants.
William L. Harbison, Kenneth R. Jones, O'Hare, Sherrard & Roe, Nashville, for plaintiffs/appellees.
This appeal involves the probate of the will Sadie M. Warden executed on August 18, 1977. Her great grandchildren filed this will for probate following Mrs. Warden's death in 1981. Mrs. Warden's daughter and the daughter's children of her second marriage contested this will in part on the grounds of lack of testamentary capacity, undue influence, and the alleged "irrevocability" of the joint will Mrs. Warden had executed with her husband on April 1, 1968. These issues were certified to the Circuit Court for Houston County for a jury trial pursuant to Tenn.Code Ann. § 32-4-101 et seq. The jury found in favor of the 1977 will after a five day trial.
Mrs. Warden's daughter and her children have perfected this appeal. They do not take issue with the jury's decision concerning the validity of the manner in which Mrs. Warden's 1977 will was prepared and executed. They assert that they were entitled to a directed verdict on their claim that Mrs. Warden's 1977 will was invalid because the joint will she executed with her husband in 1968 became irrevocable upon her husband's death. They also challenge the trial court's jury instructions concerning this theory. We hold that Tenn.Code Ann. § 32-4-101 et seq. did not give the trial court the subject matter jurisdiction to consider the claim that Mrs. Warden's 1977 will was invalid because its execution allegedly violated her contract with her late husband to dispose of her estate in accordance with the terms of their joint will executed in 1968. Thus, we affirm the judgment certifying to the Chancery Court for Houston County that the 1977 will is Mrs. Warden's valid last will and testament.
Sadie M. Warden and her husband, Wiley C. Warden resided in Houston County for many years. Mr. Warden ran a saw mill and later operated a store on Highway 49 and Yellow Creek Road. Mr. and Mrs. Warden owned a home on Yellow Creek Road across from their store as well as a farm known as the Cooksey farm. They were a frugal couple who managed their affairs carefully.
The Wardens' daughter, Ann, was born in 1920. She was their second and only surviving child. Ann married Harry Wells. Her first child, Randee, was born in 1944. Ann divorced her first husband a year after Randee was born and married her second husband, Kenneth Russell, in 1946. She had four children with her second husband. 1 Ann had a progressively severe alcohol problem from 1962 through 1969 brought on by the retardation of her oldest son and problems with the oldest daughter of her second marriage. Her condition caused her parents a great deal of concern. She was able to bring her alcoholism under control in 1969.
Ann Warden Russell's first daughter, Randee, married Michael Rogers and gave birth to two children. 2 These children were Sadie Warden's only great grandchildren. Randee divorced her husband in 1976 and died in a freak accident in 1980.
Sadie and Wiley Warden executed a joint will on April 1, 1968. At that time, they owned some property as tenants by the entirety and other property in their individual name. By this will, both Sadie and Wiley left their entire estate to their survivor "in fee simple and absolutely." The will also provided for the creation of a trust in the event the survivor was adjudged legally incompetent. The trustee was specifically authorized to invade the corpus of this trust to care for the survivor.
The Wardens were also concerned about Ann's alcohol and health problems. Thus, their 1968 will also provided for the creation of a spendthrift trust for Ann upon the death or incompetency of the survivor. Upon Ann's death, the will provided that the residue of the Wardens' estate should be distributed to their grandchildren in equal shares when the youngest grandchild became of legal age. The bequest to any child deemed to be incompetent was limited to a $250 trust.
Wiley Warden died on August 6, 1968. The joint will he and his wife had executed four months earlier was duly probated on August 10, 1968. Sadie Warden was appointed executrix. She continued to operate the store on Yellow Creek Road until she sold it in 1970. She also remained in the home across the street from the store. She was able to live on her own and to take care of herself. She expected her daughter, grandchildren and great grandchildren to visit her, and they often did. Mrs. Warden enjoyed these visits and continued to take an active interest in her family and her church.
Mrs. Warden first thought about executing a new will as early as 1973. She finally executed a new will on August 18, 1977. The prospect of Mrs. Warden executing a new will caused great dissension among her daughter and grandchildren. Ann Russell and Rena Russell Trent thought that Randee Rogers would try to obtain the house on Yellow Creek Road that Mrs. Warden had promised to give to Rena. These fears ultimately proved to be unfounded. However, it is this dispute that ultimately caused Ann Russell and her children to contest Mrs. Warden's 1977 will.
Mrs. Warden's 1977 will specifically revoked all earlier wills and was significantly different from the joint will she and her husband had executed in 1968. In accordance with her promise, she left her house on Yellow Creek Road to Rena Russell Trent together with a $3,000 trust for its maintenance and upkeep. She also created a $13,200 trust to pay Ann Russell's medical expenses and a $2,000 trust for the maintenance and support of her retarded grandson, Kenneth Russell. She directed that the Cooksey farm be sold and that the proceeds be divided in six equal shares to be distributed among her daughter, her three granddaughters, and her two great granddaughters. The will's residuary clause directed that the remainder of her estate be divided equally among her three granddaughters and her two great granddaughters.
Ann Russell was appointed her mother's conservator in May, 1979 over her mother's objections. She began to actively manage her mother's affairs later that year and did so until her mother died in December, 1981. Mrs. Warden never attempted to set aside this conservatorship although she discussed it from time to time. The value of Sadie Warden's estate at the time of her death was estimated between $163,000 and $225,000.
Ann Russell petitioned the Chancery Court to appoint her as the administrator of her mother's estate as if she had died intestate. However, the father of Mrs. Warden's two great grandchildren had already filed a petition to probate her August 18, 1977 will in solemn form. Ann Russell and the children of her second marriage decided to contest the 1977 will and to offer the 1968 joint will for probate. The Chancellor entered a order pursuant to Tenn.Code Ann. § 32-4-101 et seq. certifying this matter to the Circuit Court for a trial to determine whether the August 18, 1977 document was Mrs. Warden's will. The jury determined that it was, and this appeal ensued. 3
The Jurisdiction of the Circuit Court in a Tenn.Code Ann. § 32-4-101
We must first consider whether the circuit court in a Tenn.Code Ann. § 32-4-101 proceeding to contest a will can hear and decide a contestant's claim based upon an alleged testamentary contract by the testator. Mrs. Warden's great grandchildren, as proponents of the 1977 will, challenged the ability of Ann Russell and her children to do so in their motion in limine filed prior to trial. However, the trial court overruled this motion and allowed this question to go to the jury.
The proponents of the 1977 will prevailed at trial and thus, understandably, have not directly raised this issue on appeal. The question is jurisdictional, however, and thus Tenn.R.App.P. 13(b) permits this Court to raise and decide this issue on our own motion. Dalton v. Dean, 22 Tenn.App. 56, 57, 117 S.W.2d 973, 974 (1938).
This case appears to be the first time a Tennessee court has addressed the question of whether contestant in a Tenn.Code Ann. § 32-4-101 et seq. proceeding should be permitted to assert its rights under an alleged contract not to dispose of one's property contrary to the terms of a joint will. 4 We have determined that a will contest proceeding is not the proper forum to assert these contractual rights. Our decision is based upon a recognition of the purpose of a will contest proceeding as well as a recognition of the difference between the testamentary and contractual aspects of a joint will.
A joint will is nothing more than the separate wills of more than one person contained in the same instrument. Richmond v. Richmond, 195 Tenn. 704, 709-10, 227 S.W.2d 4, 6 (1950). While joint wills have been recognized as valid in Tennessee, Popejoy v. Peters, 173 Tenn. 484, 487, 121 S.W.2d 538, 539 (1938) and Epperson v. White, 156 Tenn. 155, 160, 299 S.W. 812, 813 (1927), their use has been discouraged because of the very problems made obvious by this case. See 1 H. Phillips & J. Robinson, Pritchard on the Law of Wills and Administration of Estates § 23, at 30 (4th ed. 1983) [hereinafter cited as "Pritchard"]; McMurray, Joint and Mutual Wills in Tennessee: Validity, Contractual Limitations, and Effect on the Estate Tax Marital Deduction, 42 Tenn.L.Rev. 305, 322 (1975); and 1 W. Bowe & D. Parker, Page on the Law of Wills § 11.1 at 553 (rev. 1960) [hereinafter cited as "Page"].
The most persistent problems stemming from the execution of a joint will relate to the contractual...
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