Smith v. Smith

• Decision Date: 26 February 1949
• Citation: 232 S.W.2d 338,33 Tenn.App. 507
• Parties: SMITH v. SMITH et al.
• Court: Tennessee Court of Appeals

232 S.W.2d 338

33 Tenn.App. 507

SMITH v. SMITH et al.

Court of Appeals of Tennessee, Eastern Section.

February 26, 1949.

Certiorari Granted by Supreme CourtJune 18, 1949.

Affirmed by Supreme CourtDec. 17, 1949.

R. E. Armstrong, Kingsport, C. H. Massengill Blountville, for plaintiff in error.

E M. Woolsey, Ernest B. King, Bristol, for defendants in error.

ANDERSON, Presiding Judge.

This was a proceeding for the probate of a script as the holographic will of Fred E. Smith, deceased, of Bristol, Tennessee.It was tried in the Law Court at Bristol upon an issue of devisavit vel non.There was a verdict against the propounded instrument.A judgment was entered accordingly, and the proponents appealed in error.

The determinative question is presented by the proponents' contention that under applicable principles of law there was no material evidence to support the verdict, and hence that their motion for a directed verdict sustaining the script as the holographic will of the deceased, should have been granted.

Fred E. Smith died on December 29, 1946, survived by his widow, Bessie A Smith, and four children, Alexander Smith Shipley, June Smith Esser, Martha A. Smith and Judy Smith McIver, as his only heirs.The propounded script is dated October 31, 1942.The deceased's estate consisted of both real and personal property worth $40,000 to $50,000.Following his death, no will having been found, his widow, Bessie A. Smith, and Bert E. Smith, a brother, qualified as joint administrators of the estate on January 4, 1947.Bessie A. Smith resigned the trust and was succeeded by E. M. Esser, husband of June Smith Esser, who qualified on January 31, 1947, as a joint administrator, with Bert E. Smith.

On the first Sunday in February, 1947, the propounded instrument was found in a drawer of a desk in the business office occupied by the deceased at and prior to his death.

The undisputed evidence showed that this instrument, including the signature, is wholly in the handwriting of the deceased Fred E. Smith; and as the case was developed, the issue narrowed to the single question of whether the deceased intended the instrument to operate as his will.

The original is in the transcript, and is in the following language, with abbreviations, interlineations and erasures reproduced exactly as they appear, insofar as it is possible to do so on a typewriter:

'Last Will and Testament

'After all legal indebtedness paid, in appreciation valuable financial aid and wise counsel, 10% to Bert E. Smith or Bert E. Smith, Jr. if Bert E. Smith deceased, if both deceased to revert to my general estate, 10% to three causes, Home Mission Committee of Holston Presbytery, King College, Bristol YMCA, equally.$1000.00 Bessie A. Smith, Remainder to my children, Alexander Smith Shipley, June Smith Esser, Martha Hamilton Smith and Judith (Judy) Smith, share and share alike.

'Such real and personal property that may be vested in me at my death shall be sold and converted into cash, before final distribution is made.

'Executor not to be limited by time to convert, except limited to 5 yrs after my death until final distribution made.Advise early disposition.

'Share to Martha Hamilton Smith held in trust by executor, acting as trustee $40.00 Mo. until married and lived continuously with husband 2 yrs.If severe illness trustee distribute as in his discretion is needed.

'Appoint Bert E. Smith, my brother, executor, if deceased or physically unable Bert E. Smith, Jr, my nephew.

'May serve without bond as executor and/or trustee Those of my children who may have completed a college education and to whom I have entered a charge shall be accounted for in settlement.

'Oct. 31-1942

Fred E. Smith.'

The entire instrument was written with a pencil on one piece of yellow paper approximately 8 1/2 by 13 inches in size, such as is usually found in business offices in pads and used for scratch paper and memoranda.

The words crossed out in the first line were marked over heavily with a pencil so as to almost obliterate them.As indicated, they appear to have been, 'and personal'.The words, 'Advise early disposition', in the last line of the third paragraph, have the appearance of having been written with a different pencil, or at least one with a different lead.

The deceased was 59 years of age at the time of his death.For many years he operated an insurance business in Bristol under the firm name of 'SKM Agency'.He had attended college for two years and was an experienced and apparently successful business man.He was habitually careful and precise in executing his business transactions, and exacted like conduct on the part of his employees, of whom there were four at the time of his death.

The yellow pads of paper, on one sheet of which the propounded script is written, were customarily used by the deceased for making memoranda and rough drafts of instruments preparatory to putting them in final form.Sometimes he drafted letters on such paper, which were turned over to his secretary to be typewritten.In his business office the deceased had an iron safe, or 'vault', in which were kept his 'insurance policies, deeds of trust and things like that, wrapped up in a bundle with a string tied round them'.Records of his business, 'some church papers', contracts and letters, were also kept in the safe.After his death no papers of any permanent value were found elsewhere.

Shortly after the deceased died, a search for a will was made at his business office and elsewhere, but, as stated, none was found, and administrators of his estate were accordingly appointed and qualified.In the prosecution of their trust, they re-organized the insurance business and sold the controlling interest therein.On the first Sunday in February, 1947, the day before the purchaser was to take over the business, Messrs. Esser and Shipley, sons-in-law of the deceased, went to the office in which the business was conducted, for the purpose of separating the personal belongings of the deceased from those of the business.While so engaged, Esser discovered the propounded script in one of the bottom drawers of an open desk which had been customarily used by the deceased in the prosecution of his business.The desk had been searched before by Esser and his co-administrator, Bert Smith, in an effort to locate a will, and Esser was unable to explain why the script had not been discovered at that time.Referring to the discovery of the will, Esser testified: 'This was on a tablet form, I mean the tablet, and it was lying in the desk drawer in the left hand side desk drawer, with some old books and some old seals of SKM Incorporated, long time ago, and some other things'.Elsewhere he testified that the books were 'old, out-of-date insurance books', and 'this (the script) was lying down flat, just flat.I don't know whether it was on top or middleway or on the bottom, but I happened to pull it out and look at it to see what it was, whether to throw it away or not; when I looked at it I read it and turned around and showed it to Shipley'.Whether the sheet on which the instrument had been written had been detached from the yellow pad at the time it was found, does not clearly appear; but the pad seems to have been found in the same drawer.

Shipley testified substantially to the same effect and added that the corporate seals found in the bottom desk drawer were those of a corporation or corporations with which the deceased had formerly been identified.In the other drawers of the desk were found some current receipts 'and things like that', but nothing of a permanent value.

With respect to the use to which the drawers were put, the decedent's secretary testified that he'had some of his insurance claims and pending stuff in there and * * * personal letters and statements and books, things like that in there, I don't know what else he had.'Elsewhere she testified that in the safe were kept all of the records of the business, or as much as could be put in there, 'some church papers', contracts and letters, and 'things like that'.

The evidence by which the foregoing facts were shown is without substantial conflict and, as said, it is contended that they require as a matter of law that the propounded instrument be admitted to probate.The case for the proponents has been presented elaborately and with much ability.We have given it the very careful consideration which it deserves.

By the Acts of 1941, Chapter 125, the legislature adopted an act to make uniform the execution of wills.This comprehensive statute was intended to cover the whole subject.Section 5 deals with holographic wills, and had the effect of repealing much stricter provisions relating to the same subject.Northcross v. Taylor,29 Tenn.App. 438, 197 S.W.2d 9, 12.The only statutory requirements now are that the signature and all material provisions of the propounded instrument must be in the handwriting of the testator and his handwriting be proved by two witnesses.

But as was true under the former statute, CodeSec. 8090, a testamentary intent must accompany the performance of the statutory requirements and this must be proven in a manner which conforms to applicable rules of evidence and procedure.Otherwise the script cannot be accepted as a will.Marr v. Marr,39 Tenn. 303;Hooper v. McQuarry,45 Tenn. 129;McCutcheon v. Ochmig,60 Tenn. 390;Douglass v. Harkrender,62 Tenn. 114.

Testamentary intent does not depend necessarily upon the testator's understanding that in executing the particular paper he was making a will.If he manifests a clear intention to dispose of his property after his decease and observes the statutory formalities, it is immaterial what he thought the instrument was which ...