Smith v. Weitzel

• Decision Date: 01 April 1960
• Citation: 47 Tenn.App. 375,338 S.W.2d 628
• Parties: Helen Walters SMITH and Myrtle Walters, Blackwell v. William M. WEITZEL, Maurice L. Weitzel, Betty McCleod, Corinne Walters.
• Court: Tennessee Court of Appeals

Page 628

338 S.W.2d 628

47 Tenn.App. 375

Helen Walters SMITH and Myrtle Walters, Blackwell v. William M. WEITZEL, Maurice L. Weitzel, Betty McCleod Corinne Walters.

Court of Appeals of Tennessee, Middle Section, at Nashville.

April 1, 1960 Certiorari Denied by Supreme Court Sept. 9, 1960.

Alexander W. Cortner, Clarksville, E. J. Walsh, Quentin Householder, Nashville, Marks & Fleming, Clarksville, for plaintiff in error.

Watkins, McGugin & Stewart, W. P. Cooper, Nashville, for defendant in error.

SHRIVER, Judge.

I.

This is an appeal in error from a judgment of the Third Circuit Court of Davidson County, Tennessee, wherein there were admitted to probate eight envelopes containing certain stock certificates as parts of the entire last will and testament of Nan Dabney Hughes, deceased.

In the reply brief of the defendant in error, Corinne Walters, counsel make the following pertinent statement as to the question to be considered on appeal;

'This is a will contest case in which the contestants (appellants here) raise no question respecting the intention of the testatrix, testamentary capacity, fraud or undue influence.

'The sole question is whether purely technical considerations shall be permitted to defeat the manifest intention of the testatrix.

'The jury and trial judge rejected those technical objections. They are now being urged on this Court by the appellants, who were the contestants below.

'The Circuit Court admitted to probate a number of papers as together constituting the whole Last Will and Testament. Appellants concede that two of the papers are testamentary but they contest the probate of the remaining papers. The contestants are beneficiaries under both the uncontested papers and the contested papers.

'The only question presented is whether the contended papers are parts of the whole Last Will and Testament and entitled to probate as such. Their right to probate might rest (1) in their own virtue as testaments or (2) in being extrinsic papers made parts of the Will by legally sufficient integration.'

A clear and concise statement of the history of the proceedings in the County Court as presented to the Circuit Court is contained in the declaration of the Southern Trust Company, Executor of the estate of Nan Dabney Hughes, deceased, which declaration was filed in the Circuit Court of Davidson County.

Said declaration is as follows;

'1. On May 16, 1957, the County Court of Davidson County, Tennessee, admitted to probate a Will of Nan Dabney Hughes, deceased, dated June 30, 1949, and a Codicil thereto dated December 19, 1953, as being her entire Last Will and Testament. The Southern Trust Company, a corporation with its principal office in Clarksville, Montgomery County, Tennessee, qualified and was appointed Executor on May 16, 1957, and is still serving in that capacity.

'II. The Executor, being uncertain of its duties and obligations under said Will as probated, filed its original bill in Part II of the Davidson County Chancery Court on June 18, 1957, in the cause of Southern Trust Company v. Corinne Walters et als, (Rule Docket Number 79092), for a construction of said Will. In this Chancery cause the question arose as to whether or not seven envelopes containing valuable securities constituting the major part of the assets of testatrix's estate should be considered as parts of her entire Last Will and Testament in addition to the Will and Codicil already probated; whereupon, the Chancellor suspended the proceedings until this question could be presented and determined in the County Court.

'III. Following the suspension of the proceedings in said Chancery Court, Maurice L. Weitzel, William M. Weitzel (individually and as executors under the will of Junie V. Weitzel), Betty McLeod, and Corrinne Walters filed petitions in said County Court to have the aforementioned seven envelopes probated as parts of testatrix's Last Will and Testament. The Southern Trust Company, as set out in its answers to said petitions (particularity its answer to the petition of Corinne Walters and cross-petition), produced the envelopes in question and other writings of testatrix to said County Court so that it could be determined what papers and/or writings, in addition to the testatrix's previously probated will and codicil, if any, to be probated as parts of her entire Last Will and Testament.

'To all of the foregoing petitions Myrtle Walters Blackwell and Helen Walters Smith filed a demurrer; and at the hearing of the cause in the County Court on February 24, 1959, His Honor, the County Court Judge, held that a contest had been and was presented and ordered the fact of contest and the entire record, including the aforementioned petitions, answers, cross-petition and demurrer, to be certified to the Circuit Court.

'IV. The description of the seven envelopes containing the securities constituting assets of the estate of testatrix and other paper writings of hers, all of which were produced in the County Court, is fully set out in the Executor's answer to the petition of Corinne Walters and in its cross-petition, which answer and cross-petition constitutes a part of the record certified to this Court. All of the material allegations in said answer and cross-petition are incorporated herein by reference and adopted and made a part hereof as though set out fully herein.

'V. The contest as certified to this Court concerns only the above mentioned seven envelopes, and the Executor, being advised that the contest in this Court is a proceeding in rem involving the distribution of testatrix's estate and not an action between parties, does not assume a position of either plaintiff or defendant in this cause relative to said envelopes. The Executor will, on the hearing of this matter, produce the envelopes in question so that it can be determined if said envelopes do or do not constitute parts of the entire Last Will and Testament of testatrix, Nan Dabney Hughes.'

'Alexander W. Cortner /s/

'Alexander W. Cortner, Attorney for the Executor, Southern Trust Company.'

A declaration was also filed by the plaintiffs, Maurice L. Weitzel, and William M. Weitzel, as individuals and as executors of Mrs. Junie V. Weitzel, deceased, and Betty McLeod joined in said declaration.

Plaintiff, Corinne Walters, also filed a declaration in the Circuit Court, said declaration averring among other things;

'Plaintiff Corinne Walters produces in open Court eight envelopes (and their contents) each containing endorsements and other writings on its cover; all in the handwriting of the deceased, Nan Dabney Hughes, all of which were found in the bank lock box of said decedent after her death, and which are identified, incorporated, and included by reference in the documents dated June 30, 1949, and December 19, 1953, which have been probated as her Last Will and Testament and as a Codicil thereto on May 16, 1957, in the County Court of Davidson County, Tennessee, and duly recorded therein in Book 69, page 447.'

The declarations of all of these parties aver that the envelopes and their contents are subject to probate as parts of the Last Will and Testament of Nan Dabney Hughes which they propose to prove in solemn form.

In the Circuit Court the contestants filed a demurrer which clearly sets out the various grounds upon which they rely. These grounds being included in the assignments of error will be discussed hereinafter.

The demurrers were heard and overruled by Circuit Judge, Henry F. Todd, following which special pleas and replications thereto were filed.

The trial Judge entered an order setting out the issues to be submitted to the jury wherein it was recited that the proponents produced in open court certain paper writings which included the original will of June 30, 1949, the codicil thereto of December 19, 1953, and listed the various envelopes with the names of the proposed recipients thereon which the proponents aver constitute all of the Last Will and Testament of Nan Dabney Hughes, deceased, and offer to prove same in solemn form and demand a jury to try the cause.

The decree then recites;

'And the contestants, Helen Walters Smith and Myrtle Walters Blackwell, come and defend and aver that they admit that the said documents dated June 30, 1949 and December 19, 1953, are the last will and testament of Nan Dabney Hughes, but deny that said envelopes and/or any of them or any of their contents constitute any part of the valid last will and testament of Nan Dabney Hughes.

'This order is entered by the Court to make up the issues in this cause in lieu of pleadings heretofore filed by the parties in this Court and cause.

'Entered June 18, 1959.

'Henry F. Todd /s/

'Judge'

As hereinabove indicated, the cause was tried before the Judge and a jury with the issue submitted to the jury as to whether the papers in question constitute a part of the Will of Nan Dabney Hughes, and the jury found the issues in favor of the proponents. The decree of the Court setting out and describing the Will, the Codicil and the various envelopes, recites that they do in fact constitute the whole Last Will and Testament of Nan Dabney Hughes and are admitted to probate in solemn form as such.

After a motion for a new trial was heard and overruled, the cause was appealed in error to this Court.

II.

Nan Dabney Hughes was an educated, cultured woman of mature years who had considerable business experience. She had a substantial estate consisting of a valuable home-place with household furniture and furnishings located in Nashville, Tennessee, and considerable personal property constiting mainly of common stocks which were found in envelopes in her lock-box in the First National Bank of Clarksville, Tennessee.

It is seen that there is no question made as to the validity and binding effect of the Will executed June 30, 1949 and the codicil dated December 19, 1953, both which Will and Codicil were originally probated in the County Court of Davidson...