In Re Estate of Dawson Lewis ( 2020 )

10/28/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 3, 2020
IN RE ESTATE OF DAWSON LEWIS
Appeal from the Chancery Court for Gibson County
No. 23190-P George R. Ellis, Chancellor
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No. W2019-01839-COA-R3-CV
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The petitioners filed a petition to probate the will of the decedent. The will offered for
probate had markings on the provisions concerning the appointment of executors to the
will and the payment of the head stone. The petitioners filed an affidavit stating that they
had no knowledge concerning who made the markings on the decedent’s will. The Trial
Court entered an order denying the petition to probate the will, finding that the markings
on the will “negated it from being accepted to Probate” and that the decedent had, therefore,
died intestate. The petitioners appealed. We reverse the judgment of the Trial Court and
remand for the decedent’s will to be admitted to probate.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT
and CARMA DENNIS MCGEE, JJ., joined.
Floyd S. Flippin, Humboldt, Tennessee, for the appellants, Gail Forte and Freda Lewis.1
OPINION
Background
In January 2018, Dawson Lewis (“Decedent”) executed a last will and testament.
Decedent subsequently died in May 2019. In June 2019, Decedent’s daughters, Gail Forte
and Freda Lewis (“Petitioners”), filed a petition seeking to probate Decedent’s last will and
testament. Petitioners filed an affidavit certifying that they had provided notice to
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The appellees, Anna Anderson-Lewis, Don Anderson, James A. Lewis, Dennario Carr, Antwaun Carr,
Crystal Hayes, and Tauvi Carr, declined to file a responsive appellate brief in this matter.
Decedents’ surviving heirs that they were beneficiaries of the estate by sending them a
copy of Decedent’s will. The petition and affidavit identified Anna Anderson-Lewis, Freda
Lewis, Gail Forte, Don Anderson, James A. Lewis, Bonnie Leshoure, Dennario Carr,
Antwaun Carr, Crystal Hayes, and Tauvi Carr as beneficiaries to the estate.
Decedent’s last will and testament appointed Gail Forte and Freda Lewis as the
executors of the will. The document contains markings on the will drawing a line through
the part of the will appointing Gail Forte as an executor and a line through the sentence
directing the funds from which the expense for his head stone was to be taken. There was
no evidence on the face of the document concerning who made the markings. The last will
and testament was signed by Decedent, as well as two witnesses. The date on the will
reflects the document was executed in January 2018. The two witnesses also executed an
affidavit declaring in part that they witnessed the execution of Decedent’s last will and
testament, that Decedent signed the will in their sight and presence, that they attached their
signatures to the will at the request of Decedent, that they signed the will in the presence
of Decedent and each other, and that Decedent appeared to be of sound mind at the time of
the will’s execution.
Petitioners also filed a joint affidavit with their petition for probate stating as
follows:
Comes now Affiants, Freda Lewis and Gail Forte, and after being duly
sworn, make oath as follows:
1. Neither Affiant knows who marked through Gail Forte’s name as Co-
Executor of the Will of Dawson Lewis, deceased, nor do they know who
marked through the language regarding the expense of the head stone to come
out of the funds of Gail Forte and Freda Lewis.
2. Your Affiants have no problem with Freda Lewis serving alone as
Executor or Gail Forte serving. If the Court deems appropriate for Gail Forte
to resign, she will.
3. Your Affiants would show that the expense for the head stone was prepaid
prior to the death of Dawson Lewis, and therefore, that expense would not
be needed.
The foregoing would be the testimony of the Affiants if called upon to give
evidence at trial.
Both Petitioners signed the joint affidavit, and their signatures were notarized.
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The Trial Court subsequently entered an order in September 2019 denying the
petition for probate, which provided as follows in its entirety:
This matter came on to be heard upon the Petition for Probate, the
Affidavits of [Petitioners], the statements of counsel for Petitioners, and upon
the entire record of this cause from all of which the Court denied the Petition
for Probate and specifically found the markings on said Will negated it from
being accepted to Probate and therefore [Decedent] died intestate.
IT IS, THEREFORE, CONSIDERED AND ORDERED BY THE
COURT that the Petition for Probate be and the same is hereby denied. Costs
are assessed against Petitioners.
Petitioners timely appealed to this Court. Pursuant to Tennessee Rule of Appellate
Procedure 24(d), Petitioners filed a notice with the Trial Court that they would not be filing
a transcript of the proceedings or statement of evidence, stating that no evidence had been
presented to the Trial Court “other than the contents of the record, upon which the Court
summarily dismissed the Petition for the reasons stated in the Order entered September 17,
2019.”
Discussion
Although not stated exactly as such, Petitioners raise the following as an issue for
our review on appeal: whether the Trial Court erred by denying the petition for probate
upon its finding that the markings on Decedent’s last will and testament negated its
acceptability for probate. This Court has stated regarding probate proceedings:
Proceedings to admit a will to probate are in rem proceedings.
Jennings v. Bridgeford, 218 Tenn. [287,] 294-95, 403 S.W.2d [289,] 292
[(1966)]; Reaves v. Hager, 101 Tenn. [712,] 718, 50 S.W. [760,] 762
[(1899)]; 1 PRITCHARD § 45, at 73; 3 PAGE ON WILLS § 26.51, at 141.
Their function is to provide the court with the information it needs to decide
the proper distribution of the res, i.e., the estate. Fransioli v. Podesta, 175
Tenn. 340, 347, 134 S.W.2d 162, 165 (1939); Lillard v. Tolliver, 154 Tenn.
[304,] 312-13, 285 S.W. [576,] 578-79 [(1926)]; 1 PRITCHARD § 45, at 73.
In making this determination, the court’s polestar is the intent of the testator
or testatrix. In re Dye’s Estate, 565 S.W.2d 219, 221 (Tenn. Ct. App. 1977).
The proceedings are designed not to advance the interests of the living parties
but rather to vindicate the right of the decedent to dispose of his or her
property as he or she saw fit. Jennings v. Bridgeford, 218 Tenn. at 293-94,
403 S.W.2d at 291-92; Hodges v. Bauchman, 16 Tenn. (8 Yer.) 186, 188-90,
1835 WL 929, at *1-2 (1835).
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In re Estate of Boote, 198 S.W.3d 699, 717 (Tenn. Ct. App. 2005).
Concerning the applicable standard of review for probate proceedings, this Court
has stated:
The construction of wills is a question of law for the court. Presley v. Hanks,
782 S.W.2d 482, 487 (Tenn.Ct.App.1989). The validity of a will is a
question of fact, as determined from all the evidence, intrinsic or extrinsic,
as to whether the testatrix intended the writing to operate as a will. In re
Estate of Cook, No. E2001-02062-COA-R3-CV, 2002 WL 1034016 at *2
(Tenn. Ct. App. May 23, 2002) (citing Scott v. Atkins, 44 Tenn. App. 353, 314
S.W.2d 52, 56 (Tenn. Ct. App. 1957)). A review of findings of fact by a trial
court is de novo upon the record, accompanied by a presumption of
correctness; we must affirm findings of fact unless the preponderance of the
evidence is otherwise. Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992
S.W.2d 403, 404 (Tenn. 1999). Review of questions of law is de novo,
without a presumption of correctness. See Nelson v. Wal Mart Stores, Inc.,
8 S.W.3d 625, 628 (Tenn. 1999).
In re Estate of Ward, No. W2010-00287-COA-R3-CV, 2010 WL 2712530, at *2 (Tenn.
Ct. App. July 9, 2010).
In this case, Decedent executed his last will and testament in January 2018 in the
presence of two witnesses as required by Tennessee Code Annotated § 32-1-104 (Supp.
2020). Pursuant to Tennessee Code Annotated § 32-2-110 (2015), those two witnesses
executed an affidavit certifying that Decedent signed the will in their sight and presence,
that they signed the will as witnesses at the request of Decedent and in the presence of
Decedent and each other, and that Decedent appeared to be of sound mind when executing
the will. Tennessee Code Annotated § 32-2-110 provides an avenue for a party to prove
the requirements in section 32-1-104 without the need for live testimony from the witnesses
to the will. See In re Estate of Harris, No. W2016-01768-COA-R3-CV, 2018 WL
6444136, at *3 (Tenn. Ct. App. Dec. 10, 2018). Tennessee Code Annotated § 32-2-110
provides that an affidavit containing the sworn statements of the witnesses to the will
stating the facts for which they would testify in court in order to prove the will “shall be
accepted by the court of probate when the will is not contested as if it had been taken before
the court.” No one challenged the will’s compliance with Tennessee Code Annotated §
32-1-104 during the probate proceedings.
The issue on appeal concerns the markings on the last will and testament after its
execution. Lines had been drawn over one provision in the will appointing Gail Forte as
an executor of the will but Freda Lewis’s name in that same provision remained untouched.
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A line also had been drawn through a sentence directing the funds for Decedent’s head
stone to be paid from Petitioners’ share of the estate. As a result of these markings, the
Trial Court denied Petitioners’ request to admit Decedent’s will to probate, finding the
entire will to be unacceptable for probate and determining that Decedent died intestate.
The Trial Court stated in its order that its ruling was based on “the Petition for
Probate, the Affidavits of Gail Forte and Freda Lewis, the statements of counsel for
Petitioners, and upon the entire record of this cause.” This is consistent with Petitioners’
appellate brief which states that no evidence was presented at the time of the hearing. The
record before us reflects no evidence of any contest to the will or its validity. The only
sworn statements before the Trial Court concerning the markings were by Petitioners in
their joint affidavit. In such affidavit, Petitioners denied that they had any knowledge of
the identity of the individual who made the markings on the will. There was no other
evidence presented as to these markings. Following this hearing, the Trial Court’s order
stated only that “the markings on [Decedent’s] Will negated it from being accepted to
Probate” and that Decedent had died intestate, without providing further explanation.
We note that markings on a will do not necessarily mean that the entire will has
been revoked by the testator. Tennessee Code Annotated § 32-1-201 (2015) provides as
follows concerning the revocation of a will:
A will or any part thereof is revoked by:
(1) A subsequent will, other than a nuncupative will, that revokes the prior
will or part expressly or by inconsistency;
(2) Document of revocation, executed with all the formalities of an attested
will or a holographic will, but not a nuncupative will, that revokes the
prior will or part expressly;
(3) Being burned, torn, cancelled, obliterated or destroyed, with the intent
and for the purpose of revoking it, by the testator or by another person in
the testator’s presence and by the testator’s direction; or
(4) Both the subsequent marriage and the birth of a child of the testator, but
divorce or annulment of the subsequent marriage does not revive a prior
will.
This Court has held that a testator can revoke by physical act specific provisions of
a will, while leaving the remaining provisions intact. See In re Estate of Warren, 3 S.W.3d
493, 495 (Tenn. Ct. App. 1999); In re Estate of Dye, 565 S.W.2d 219, 221 (Tenn. Ct. App.
1977). “For a revocation to be valid, concurrence of an intention to revoke and some act
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by the testator manifesting that intention is required.” In re Estate of Dye, 565 S.W.2d at
221. In cases regarding revocation of a will, the key is the intent of the testator. See id.;
Cozart v. Jones, 1986 WL 624, at *3 (Tenn. Ct. App. Jan. 3, 1986).
On appeal, Petitioners argue that the trial court erred by finding that Decedent had
died intestate due to the lack of evidence demonstrating an intent by Decedent to revoke
his will and Tennessee’s presumption against intestacy. As early as 1875, the Tennessee
Supreme Court in Hearn v. Alexander, 3 Tenn. Cas. (Shannon) 224 (1875), applied a
presumption against intestacy when construing the meaning of a will. Since then,
Tennessee courts have recognized a presumption against intestacy, which provides that
“when a person makes a will there is a presumption that the person did not intend to die
intestate as to any part of his or her property.” In re Estate of McFarland, 167 S.W.3d 299,
303 (Tenn. 2005); see also Tenn. Code Ann. § 32-3-101 (2015) (codifying the common
law presumption against intestacy). This presumption has been consistently utilized when
construing the meaning of a will so as to prevent either partial or full intestacy when the
testator has executed a will so long as “‘the words used, by any fair interpretation, will
embrace the property not otherwise devised, unless a contrary intention appears from the
context.’” In re Walker, 849 S.W.2d 766, 768 (Tenn. 1993) (quoting McDonald v. Ledford,
140 Tenn. 471, 475, 205 S.W. 312, 313 (1917); see also In re Estate of McFarland, 167
S.W.3d at 303; In re Estate of Milam, 181 S.W.3d 344, 355 (Tenn. Ct. App. 2005); In re
Tipler, 10 S.W.3d 244, 249 (Tenn. Ct. App. 1998).
In Cozart v. Jones, this Court applied that presumption to a case concerning whether
a testator had revoked his will by marking changes onto the face of the will. 1986 WL 624,
at *4, 7 (Tenn. Ct. App. Jan. 3, 1986). In that case, the trial court ultimately concluded that
the testator had not intended to revoke his existing will but that he had only intended to
make changes to the will in the future, leaving his existing will in effect until he executed
a new will. Id. at *1. In affirming the trial court’s decision, the Cozart Court applied the
presumption against intestacy, determining the existing will remained valid and had not
been revoked. Id. at *7. We hold that the common law presumption against intestacy is
relevant to the present case concerning whether Decedent intended to revoke his last will
and testament by drawing lines through two provisions in the will if indeed it was Decedent
who drew the lines.
In the present case, Decedent had not destroyed the last will and testament or written
anything on it to reflect that he intended to revoke his last will and testament, nor had he
executed a subsequent document revoking the January 2018 will. The markings on the
will, which consisted of lines drawn through only two provisions, do not demonstrate an
intent by Decedent to revoke his will in its entirely. Although a testator’s action of drawing
through provisions of a will can support a revocation of those provisions, there is no
evidence in this case that Decedent was the person who made the markings on the will or
that he intended to revoke portions of the will. The only proof in the record is Petitioners’
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joint affidavit stating that they are unaware who made the markings on the will. This was
not challenged during the probate proceedings. We note that no initials were located near
the markings to demonstrate the identity of the person making the markings. Additionally,
no evidence was presented of any individual witnessing Decedent make any markings on
the will, of any person identifying the markings on the will as those of Decedent, or
concerning whether Decedent made comments prior to his death regarding revision of his
will. Moreover, no one was present contesting the will in its entirety or any provisions
within the will. The record lacks evidence demonstrating an intent by Decedent to revoke
any portions of his will, only the presence of unexplained lines drawn through two
provisions in the will that had not been attributed to Decedent.
As such, there is insufficient evidence to support that Decedent made the markings
on the will or that he intended to revoke those portions of the will, much less a revocation
of the entire will. We, therefore, reverse the Trial Court’s order denying the petition to
probate Decedent’s will. Upon remand, the Trial Court is instructed to enter an order
admitting Decedent’s last will and testament to probate.
Conclusion
The judgment of the Trial Court is reversed, and this cause is remanded to the Trial
Court for further proceedings consistent with this Opinion. The costs on appeal are
assessed against the appellants, Gail Forte and Freda Lewis, in their capacity as executors
of the estate.
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D. MICHAEL SWINEY, CHIEF JUDGE
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