In Re Estate of Joe Marce Abbott

08/02/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 2, 2018
IN RE ESTATE OF JOE MARCE ABBOTT, DECEASED
Appeal from the Chancery Court for Gibson County
No. RD #22375-P George R. Ellis, Chancellor
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No. W2017-02316-COA-R3-CV
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This case involves the last will and testament of the deceased, Joe Marce Abbott. Upon
the death of the deceased, his daughter, Marce Harvey, filed a petition in the trial court
seeking to probate the deceased’s will. The validity of the will is not contested by any
beneficiary or other person. The court, however, apparently acting sua sponte, held that
the will failed to comply with Tenn. Code Ann. §§ 32-1-103 (2015), 32-1-104 (Supp.
2017), and 32-2-110 (Supp. 2017). As a consequence of this determination, the court
rescinded its previously-entered order to probate because, as the court stated, the will
“does not meet the requirement of the Laws of the State of Tennessee.” The petitioner
appeals. We reverse.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS and KENNY W. ARMSTRONG, JJ., joined.
Harold R. Gunn, Gibson County, Tennessee, for the appellant, Marce Harvey.
No appearance by or on behalf of appellee Michael J. Harvey.
OPINION
I.
The putative will was executed on February 15, 2016. It is notarized and includes
the signatures of the petitioner and the deceased’s son, Michael J. Harvey. They are the
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only named beneficiaries under the will. Ms. Harvey is named as the executor of the
deceased’s estate.
On February 28, 2016, the deceased died. On January 23, 2017, the deceased’s
daughter filed a petition to probate. On the same day, an order to probate was entered by
the trial court. As previously indicated in this opinion, there is no indication in the record
that the will is or has ever been contested.
After her father’s death, petitioner settled a claim on his behalf against the United
States Department of Veterans Affairs for $135,000. The settlement check was made
payable to the estate but was addressed for mailing to the probate court. At a hearing on
July 7, 2017, the court determined that petitioner would have to post a $135,000 bond
before she could receive the proceeds from the check.1 The deceased’s son was present at
the hearing, but his sibling, the petitioner, was not.
On July 20, 2017, petitioner moved to disqualify the probate judge. The matter
was appealed to this Court, pursuant to Supreme Court Rule 10B, and we held, in an
opinion released November 8, 2017, that the judge “was not required to recuse himself
based on the evidence presented to the trial court or to this Court.” We vacated the
court’s order filed October 4, 2017 regarding the validity of the will. The matter was
remanded for further hearing regarding the validity of the will.
On November 17, 2017, a new order was entered by the court. The court rescinded
its order to probate filed January 23, 2017, holding that the will at issue failed to comply
with Tenn. Code Ann. §§ 32-1-103, 32-1-104, and 32-2-110. On November 27, 2017,
petitioner filed this appeal.
II.
Petitioner has presented the following issues for our review:
Whether the will is invalidated because it is signed by
interested witnesses.
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As to the settlement check:
[i]t is [] fixed in the jurisprudence of this State that it will be presumed
that one who undertakes to make a will does not intend to die intestate as
to any of his property; and, if possible, courts will construe a will so that
it disposes of all the testator's property if such can be done by any fair
interpretation or allowable implications from the words used.
Williamson v. Brownlow, 219 Tenn. 464, 470, 410 S.W.2d 878, 880–81 (1967) (citations omitted). The
court is to best effect the intent of the testator, “insofar as the same does not conflict with some positive
rule of law or public policy.” Id.
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Whether the will meets the requirements of Tenn. Code Ann.
§ 32-1-104.
Whether Tenn. Code Ann. § 32-2-110 applies absent the
executrix’s request for affidavits from the attesting witnesses.
Whether the Clerk and Master may open mail addressed to
one other than her, but having the Clerk and Master’s mailing
address.
III.
The issues before us pertain to matters of law. Hence, we review them with no
presumption of correctness accorded to the trial court’s judgment. Thurmond v. Mid-
Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d, 512 516-17 (Tenn.
2014) (citing Myers v. AMISUB (SFH), Inc., 382 S.W.3d, 300, 307 (Tenn. 2012); Leach
v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004)). This case involves statutory interpretations,
which are also a matter of law. We also review such issues with no presumption of
correctness:
[T]his Court’s primary duty is to ascertain and effectuate
legislative intent without broadening a statute beyond its
intended scope. In fulfilling this duty, we construe statutes in
a reasonable manner which avoids statutory conflict and
provides for harmonious operation of the laws. Our analysis
always begins with the words the General Assembly has used
in the statute. If the statutory language is clear and
unambiguous, we apply its plain meaning, understood in its
normal and accepted usage, without a forced interpretation.
Where statutory language is ambiguous, we consider the
overall statutory scheme, the legislative history, and other
sources.
Thurmond, 433 S.W.3d at 516-17 (internal citations and quotation marks omitted).
IV.
The court’s November 17, 2017 order stated that the will “violated T.C.A. 32-1-
103 by not stating that the witnesses were competent.” The trial court further commented
that there “were two signatures of Marce Harvey and Michael J. Harvey. If they were
witnesses they were ‘interested’ and [hence] there were not two ‘disinterested’ witnesses
on the writing.”
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Tenn. Code Ann. § 32-1-103 states that:
(a) Any person competent to be a witness generally in this
state may act as attesting witness to a will.
(b) No will is invalidated because attested by an interested
witness, but any interested witness shall, unless the will is
also attested by two (2) disinterested witnesses, forfeit so
much of the provisions therein made for the interested witness
as in the aggregate exceeds in value, as of the date of the
testator's death, what the interested witness would have
received had the testator died intestate.
(c) No attesting witness is interested unless the will gives to
the attesting witness some personal and beneficial interest.
Tenn. Code Ann. § 32-1-103. Upon review of the will, we find that it contains language
stating that the witnesses were competent, “[w]e are of sound mind and proper age to
witness a will and understand this to be his/her will….” While Tenn. Code Ann. § 32-1-
103 discusses interested and disinterested witnesses, it clearly states that a will is not
invalidated because it is attested to by an interested witness. Tenn. Code Ann. § 32-1-
103(b).
There is another aspect of Tenn. Code Ann. § 32-1-103 that needs to be addressed.
We focus on the language pertaining to the situation that occurs if an interested witness –
in other words, a single interested witness – attests to a will that is “[not] attested to by
two disinterested witnesses.” That provision is simply not implicated here because both
of the attesting witnesses are “interested.” Stated another way, what is bad for one is bad
for the other, and what is good for one is good for the other. Given the facts of this case,
this portion of § 32-1-103(b) is simply not implicated in this case.
V.
The court stated, in its November 17, 2017 order, that:
[T]his document in is (sic) violation of T.C. A 32-1-104 (sic)
in that there was no signification that the deceased had signed
the will in front of two or more witnesses nor that the
witnesses signed in front of testator nor each other.
Proper execution of a will requires compliance with Tenn. Code Ann. § 32-1-104. See
Tenn. Code Ann. § 32-1-104 (2017). “The presence of an attestation clause in a will
creates a rebuttable presumption that the recitations in the attestation clause regarding the
will's execution are true and correct and that the will was properly executed.” In re
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Estate of Hill, No. E2006-01947-COA-R3CV, 2007 WL 4224716, at *10 (Tenn. Ct.
App. Nov. 30, 2007) (citing Jackson v. Patton, 952 S.W.2d 404, 406-07 (Tenn. 1997); In
re Estate of Ross, 969 S.W.2d 398, 400 (Tenn. Ct. App. 1997); Whitlow v. Weaver, 478
S.W.2d 57, 63 (Tenn. Ct. App. 1970)).
The will at issue includes a clause at the end stating, in part, that:
the above named Testator who signed, published, and
declared this instrument to be his/her Last Will and Testament
in the presence of us and each of us, who thereupon at his/her
request, in his/her presence, and in the presence of each other,
have hereunto subscribed our names as witnesses thereto.
Pursuant to Tenn. Code Ann. § 32-1-104(a), the above quoted material includes language
stating that the deceased signified to the attesting witnesses that the instrument was the
deceased’s will. It states that the deceased signed in the presence of the attesting
witnesses. The will further recites that the attesting witnesses signed in the presence of
the deceased and in the presence of each other. Following the above material are the
signatures of the decedent, Ms. Harvey, Mr. Harvey, and a notary. All signatures are
dated February 15, 2016. There is no indication in the record that anyone contests the
recitations or the signatures.
VI.
In its November 17, 2017 order, the trial court stated that, “[n]one of the
requirements of T.C.A. 32-2-110 was on the document.” No elaboration was provided.
Tenn. Code Ann. § 32-2-110 states that:
Any or all of the attesting witnesses to any will may, at the
request of the testator or, after the testator's death, at the
request of the executor or any person interested under the
will, make and sign an affidavit before any officer authorized
to administer oaths in or out of this state, stating the facts to
which they would be required to testify in court to prove the
will, which affidavit shall be written on the will or, if that is
impracticable, on some paper attached to the will, and the
sworn statement of any such witness so taken shall be
accepted by the court of probate when the will is not
contested as if it had been taken before the court.
Tenn. Code Ann. § 32-2-110. Tenn. Code Ann. § 32-2-110 is permissive; it permits the
use of witness affidavits to prove a will. It “authorizes the use of an affidavit of attesting
witnesses in lieu of live testimony only if a will is uncontested.” In re Estate of
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Chastain, 401 S.W.3d 612, 620 (Tenn. 2012). There are no such affidavits in the record.
That absence does not affect our decision in any way.
VII.
The petitioner argues that the trial court erred when it required her to post a bond
before she could receive the proceeds of the check from the Department of Veterans
Affairs. She relies upon the fact that the deceased’s will does not require a bond. While
that fact is true, it has nothing to do with the court’s directive that the petitioner had to
file a bond regarding this single asset of the estate. The court did not err in requiring the
petitioner to post a bond in this case.
VIII.
Upon remand, the trial court is instructed to enter an order admitting the
deceased’s will to probate. Furthermore, it is clear that the check from the Department of
Veterans Affairs in the amount of $135,000 is an asset of the estate to be divided equally
between the petitioner and her brother.
IX.
The judgment of the trial court is reversed. This matter is remanded for such
further proceedings as may be necessary consistent with this opinion. The costs on appeal
are assessed to the petitioner in her capacity as executor of this estate.
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CHARLES D. SUSANO, JR., JUDGE
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