In Re Estate of Martha Maxine Childress
Date Filed2023-12-21
DocketE2022-00897-COA-R3-CV
Cited0 times
StatusPublished
Syllabus
In this will contest initiated by four of the testator's grandchildren, the trial court determined that the execution of the testator's will met the statutory requirements for admitting the will to probate and, accordingly, dismissed the will contest. The grandchildren-contestants appealed. We affirm.
Full Opinion (html_with_citations)
12/21/2023
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 3, 2023
IN RE ESTATE OF MARTHA MAXINE CHILDRESS
Appeal from the Chancery Court for Blount County
No. 2021CH14 Telford E. Forgety, Jr., Chancellor
___________________________________
No. E2022-00897-COA-R3-CV
___________________________________
In this will contest initiated by four of the testator’s grandchildren, the trial court
determined that the execution of the testator’s will met the statutory requirements for
admitting the will to probate and, accordingly, dismissed the will contest. The
grandchildren-contestants appealed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which W. NEAL MCBRAYER
and KENNY ARMSTRONG, JJ., joined.
Gary L. Edwards, II, Johnson City, Tennessee, for the appellants, Mary Dawn Verdery,
Gary L. Edwards, II, Heather Rowland, and Alison Ellis.
Benjamin Reed, Maryville, Tennessee, Rocky H. Young, Louisville, Tennessee, and
William Phillip Reed, Maryville, Tennessee, for the appellees, Martha Rutter and Anne
Young.
Rosemary Hilliard, Cindy Childress, and Kenneth William Childress, III, pro se appellees.1
OPINION
I. BACKGROUND
In October 2020, Martha Maxine Childress (“Testator”) passed away at age 94 in
1
On March 16, 2023, these three appellees filed a letter stating that they would not file an appellate
brief, but that they agree with the appellants’ brief filed on January 18, 2023.
Blount County, Tennessee. At the time of death and for years before, Testator lived in her
own cottage at Asbury Place, an independent living facility in Maryville. Testator’s
husband predeceased her. Together, they raised five children: Kenneth William Childress,
II (deceased 2005); Mary Edwards (deceased August 2019); Martha Rutter; Anne Young;
and Madelon Lycans. Mary and Martha were twins.2 The late Mary’s four children are
Testator’s grandchildren and the appellants in this action: Mary Dawn Verdery; Gary
Edwards, II; Heather Rowland; and Alison Ellis (collectively, “Contestants”).
On December 18, 2020, appellees Martha and Anne petitioned the Blount County
General Sessions Court to probate a three-page document containing a purported execution
date of July 31, 2019, and which is entitled LAST WILL AND TESTAMENT OF
MARTHA MAXINE CHILDRESS (“2019 Will”). The 2019 Will appoints Martha and
Anne as co-executors of Testator’s estate. By order entered December 28, 2020, the
General Sessions Court accepted the 2019 Will for probate and approved Martha and Anne
as co-executors. Letters Testamentary issued.
On January 19, 2021, Contestants filed a “notice of will contest with response to
petition and complaint.” Therein, Contestants alleged that the 2019 Will was not duly
executed and was “not a valid and enforceable testamentary instrument.” Contestants
offered for probate a copy of Testator’s three-page last will and testament executed on July
30, 2007 (“2007 Will”).3 Contestants further alleged that Martha, Anne, and Madelon had
made certain distributions of assets and had unjustly enriched themselves. Contestants
requested that their will contest be transferred to the Blount County Chancery Court (“trial
court”). This was done by agreed order entered February 12, 2021.
Following the requested transfer and a hearing, the trial court entered an order dated
January 3, 2022, finding that “competing documents have been presented to the Court as
the last will and testament of [Testator],” thus presenting a threshold devisavit vel non4
issue for determination. The action proceeded to a March 2, 2022, bench trial on the issue
of whether the 2019 Will was duly executed and, therefore, was Testator’s valid last will
and testament. Martha, Anne, Kenneth William Childress, III, and Kathy Childress Turney
testified.5 Additionally, the two witnesses to the 2019 Will, Kelly Cunningham and
2
For simplicity, we will refer to certain individuals by their first name. We intend no disrespect.
3
The 2007 Will also names Martha and Anne as co-executors of the estate. The residuary clause
of the 2007 Will differs from that of the 2019 Will.
4
“The issue devisavit vel non means ‘Did he make a will or not?’ It originated in the chancery
practice of sending the question to a court of law to try the validity of a paper asserted and denied to be a
will.” Green v. Higdon, 891 S.W.2d 220, 222 (Tenn. Ct. App. 1994) (citation omitted).
5
Kenneth William Childress, III is a grandchild of Testator whose father, Kenneth William
Childress, II, predeceased Testator. Kathy Childress Turney is Testator’s former daughter-in-law.
-2-
Jennifer Sovern, as well as its notary, Meloney Walker, testified. None of the witnesses at
trial witnessed the execution of the 2007 Will. Much of the evidence adduced at trial
focused on the third and final page of the 2019 Will, reproduced below:
IN WITNESS WEIEREOF, I have hereunto set my hand on this day of July, 2019 .
Y- ? -7 „ r!.y.2.,J2
MAR. MAXINE CIFT„.1 DRESS
The foregoing instrument consisting of three type-written pages, this included, was at
Jacksboro, Campbell County, Tennessee, this ,3
day of July, 2019, signed, sealed,
published, and declared by the above-named Testatrix, to be her Last Will and Testament in the
presence of all of ns at one time, and at the same time we, at her request and in her presence and
in the presence of each other, have hereunto subscribed our names as attesting witnesses, and we
do verily believe that the said Testatrix is of sound and disposing mind and memory at the date
hereof.
TNT.AIVIE ADDRESS
1- , Z. )„.,„„_)---,
c9 -"Loi-Vg-
CERTIFICATE
STATE OF TENNESSEE
w COUNTY" OF 0) 1
/3u r -r -t-
Before me, the undersigned authority, on this day personally .a.Rpeared MARTHA
MAXINE CHILDRESS, 1• .e...11.4 rioxil-Aci-t- &— and n
known to me to be the testatrix afid the witnesses, respectively, whose names are signed to the
attached or foregoing instrument, and all of these persons being by me fi rst duly sworn,
MARTHA MAXINE CIDELDRESS, the testatrix declared to me and to the witnesses in my
presence that said instrument is her Last Will and Testa/I-Tent and that she had willingly signed,
and executed it in the presence of said witnesses as her free and voluntary act for the purposes
therein expressed; and said witnesses stated before me that the foregoing will was executed and
acknowledged by the testatrix as her Last Will and Testament in the presence of said witnesses,
who in her presence and at her request, and in the presence of each other, did subscribe their
names thereto as attesting witnesses on. the day of the date of said will, and that the testatrix at
the time of the execution of said Last Will and Testament, was over the age of 18 years and of
sound and disposing itnind and memory.
77"i ct , t
MARTHA
(?4Z—
MAXINE CHILI)
Subscribed, sworn and acknowledged before me by MARTHA. MAXINE
CHTUDRESS, the testatrix, subscribed and sworn pefore me by witnesses,
Ke.) IC' _unni an d lexvn ►--F-e_r ,
this
y ofJuly, 2019.
NOT PUBLIC
I/1111%
00,E _
My Commission Expires: f I 19
.- Are
OP
WillsIchildress.Martha.3/bw TENNEs ...
- • :
Page Three of Three •=. 151 —Or4Ry
.•
-5•„" v r CO\ 3 „
-3-
Ms. Walker, Ms. Cunningham, and Ms. Sovern all testified that they were
employees of Asbury Place in July 2019. They did not know Testator personally, nor had
they met the executors, Martha and Anne. The undisputed trial testimony was that:
Testator initiated a request to have the 2019 Will witnessed and notarized; Testator
presented to the front office at Asbury Place to have this request fulfilled; Ms. Walker
received word that Testator was there to execute a will; Ms. Walker asked Ms. Cunningham
and Ms. Sovern to come to the front office; all four women gathered together around a
desk; no other individual was present; Ms. Cunningham and Ms. Sovern knew they were
witnessing Testator’s will; Testator signed the 2019 Will while in Ms. Cunningham’s and
Ms. Sovern’s presence; Ms. Cunningham wrote her own name and the address of Asbury
Place in the attestation clause6 and did so in the presence of Testator and in the presence of
Ms. Sovern; Ms. Sovern wrote her own name and the address of Asbury Place in the
attestation clause and did so in the presence of Testator and in the presence of Ms.
Cunningham; In the self-proving affidavit which is found below the word CERTIFICATE,
Ms. Walker wrote the word “Blount” after the words “COUNTY OF”; Ms. Walker printed
the name Kelly Cunningham and printed the name Jennifer Sovern in the two blank spaces
following the words “Before me, the undersigned authority, on this day personally
appeared MARTHA MAXINE CHILDRESS”; Ms. Walker printed the names Kelly
Cunningham and Jennifer Sovern in the two blank spaces near the bottom of the document
following the words “subscribed and sworn before me by witnesses”; all of the
aforementioned events took place on July 31, 2019, in Blount County, Tennessee.
Following the close of proof, the trial court issued its bench ruling containing
findings of fact, conclusions of law, and the ultimate holding that the 2019 Will “was duly
executed within the meaning of the law of the State of Tennessee,” so it constituted
Testator’s valid last will and testament. In that oral ruling, the court commented on the
differences between the residuary clauses of the 2007 Will and the 2019 Will, but reiterated
that the sole issue for determination was whether the 2019 Will was duly executed. The
transcript of the court’s bench ruling was incorporated into the trial court’s final order
entered June 8, 2022, wherein the court reiterated that the 2019 Will constitutes Testator’s
last will and testament. The trial court dismissed the will contest. Contestants appealed.
6
An attestation clause is
[a] provision at the end of an instrument ([especially] a will) that is signed by the
instrument’s witnesses and that recites the formalities required by the jurisdiction in which
the instrument might take effect (such as where the will might be probated). The attestation
strengthens the presumption that all the statutory requirements for executing the will have
been satisfied.
In re Estate of Guy, No. M2001-02644-COA-R3CV, 2002 WL 31890908, at *1 n.1 (Tenn. Ct. App. Dec.
31, 2002) (quoting Black’s Law Dictionary 124 (7th ed. 1999)).
-4-
II. ISSUES
We restate the issues on appeal as follows:
A. Whether the 2019 Will satisfied the statutory requirements for execution of an
attested will.
B. Whether the trial court made findings concerning the residuary beneficiaries of the
2019 Will which are now binding on the parties.
III. STANDARD OF REVIEW
We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is otherwise.
See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916(Tenn. 2000). This presumption of correctness applies only to findings of fact and not to conclusions of law. Campbell v. Fla. Steel Corp.,919 S.W.2d 26, 35
(Tenn. 1996). “In order for the evidence to preponderate against the trial court’s findings of fact, the evidence must support another finding of fact with greater convincing effect.” Wood v. Starko,197 S.W.3d 255, 257
(Tenn. Ct. App. 2006). Statutory interpretation presents a question of law which we review de novo, according no deference to the legal conclusions made by the trial court. In re Estate of Stringfield,283 S.W.3d 832, 834
(Tenn. Ct. App. 2008).
IV. DISCUSSION
A.
On appeal, Contestants and the appellees, Martha and Anne, agree that the “primary
issue” is whether the 2019 Will, “was duly executed in accordance with Tennessee law.”
Upon careful study of the transcript, we see that the facts relevant to this issue are
undisputed. Thus, it is a question of law subject to our de novo review. See In re Estate
of Chastain, 401 S.W.3d 612, 617–18 (Tenn. 2012); see also In re Estate of Abbott, No. W2017-02316-COA-R3-CV,2018 WL 3689490
, at *1 (Tenn. Ct. App. Aug. 2, 2018).
The General Assembly “has the authority to prescribe the conditions by which
property may be transferred by will in this State.” In re Estate of Chastain, 401 S.W.3d at
618(citing Epperson v. White,299 S.W. 812, 815
(Tenn. 1927); Eslick v. Wodicka,215 S.W.2d 12, 15
(Tenn. Ct. App. 1948)). As to the specific requirements for execution of an
attested will such as the 2019 Will at issue here, it must be signed by the testator and by at
least two witnesses as follows:
-5-
(1) The testator shall signify to the attesting witnesses that the instrument is
the testator’s will and either:
(A) The testator sign;
(B) Acknowledge the testator’s signature already made; or
(C) At the testator’s direction and in the testator’s presence have
someone else sign the testator’s name; and
(D) In any of the above cases the act must be done in the presence of
two (2) or more attesting witnesses;
(2) The attesting witnesses must sign:
(A) In the presence of the testator; and
(B) In the presence of each other.
Tenn. Code Ann. § 32-1-104(a). As to the statutory “presence” requirement, the term “is generally construed according to the circumstances of each case.” In re Estate of Ross,969 S.W.2d 398, 401
(Tenn. Ct. App. 1997) (citation omitted). This Court has previously observed that “[b]ecause a testator may acknowledge a signature already made, there is no requirement that the witnesses actually see the testator make his signature on the will.” In re Estate of Fant, No. W2016-02498-COA-R3-CV,2017 WL 3492007
, at *5 (Tenn. Ct.
App. Aug. 15, 2017).
The consistent, unrebutted testimony in the record from the individuals who were
in the room with Testator on July 31, 2019 establishes that the above statutory requirements
were met. For instance, Ms. Cunningham recalled:
Q. And who was present when all this – when this signing happened?
A. It was Mel[oney], Jennifer, and then Ms. Childress.
Q. And were you all in the presence of each other and watching each other
sign this document?
A. Yes.
Q. And to your belief, did everyone understand that this was the Will of Ms.
Childress?
-6-
A. Yes.
The witnesses and the notary recalled that Testator initiated a request to the Asbury
Place front office to have the 2019 Will executed, and Ms. Cunningham and Ms. Sovern
knew that they were witnessing Testator’s will. See Tenn. Code Ann. § 32-1-104(a)(1). At the top of the third page, Testator signed the 2019 Will “Martha Maxine Childress” while in Ms. Cunningham’s and Ms. Sovern’s presence. SeeTenn. Code Ann. § 32-1
- 104(a)(1)(A), (D). Ms. Cunningham wrote her own name in the attestation clause and did so in the presence of Testator, seeTenn. Code Ann. § 32-1-104
(a)(2)(A), and in the presence of Ms. Sovern. SeeTenn. Code Ann. § 32-1-104
(a)(2)(B). Ms. Sovern wrote her own name in the attestation clause and did so in the presence of Testator, seeTenn. Code Ann. § 32-1-104
(a)(2)(A), and in the presence of Ms. Cunningham. SeeTenn. Code Ann. § 32-1-104
(a)(2)(B).
Tennessee Code Annotated section 1-3-105, which defines terms used throughout
the code, defines “signature” or “signed” as including “a mark, the name being written near
the mark and witnessed, or any other symbol or methodology executed or adopted by a
party with intention to authenticate a writing or record, regardless of being witnessed[.]”
Tenn. Code Ann. § 1-3-105(30). In Taylor v. Holt, this Court held that a computer- generated signature on the testator’s will, which was observed by two witnesses who later signed the will, constituted “any other symbol or methodology executed” by the testator “with intention to authenticate a writing” under the definition of “signature” in section 1- 3-105, and thus satisfied the requirements of section 32-1-104. Taylor v. Holt,134 S.W.3d 830
, 832–33 (Tenn. Ct. App. 2003). Contestants take issue with the fact that the two
witnesses “merely printed their names in the attestation clause,” as opposed to inscribing
their names in cursive, so “neither witness intended her printed name in the attestation
clause to be her signature so as to authenticate the attestation to the will.” However, such
a conclusion finds no support in the record. The testimony was simply that each witness
inscribed her name in the Testator’s presence and in the presence of the other witness, and
that everyone knew they were gathered together to witness Testator’s will. There is no
dispute that each witness’s name inscribed in the attestation clause is in her own
handwriting. Under these circumstances, we conclude that each of the two witnesses
signed the 2019 Will in accordance with section 32-1-104(a) and section 1-3-105(30).
Contestants also point out that the attestation clause on page three of the 2019 Will
erroneously states that on July 31, 2019, the instrument was signed, sealed, published, and
declared by Testator in Jacksboro, Campbell County, Tennessee, instead of in Maryville,
Blount County, Tennessee, as the testimony clearly established. Contestants imply without
citation to legal authority that the location error, in some unspecified way, bears on whether
the 2019 Will was duly executed. First, section 32-1-104(a) does not require an attested
will to specify a location where it is to be executed. Second, section 32-1-104(a) does not
require an attestation clause at all. Third, Contestants have not developed their argument
-7-
to explain how the location error in the attestation clause invalidates the 2019 Will despite
the uncontroverted testimony of the attesting witnesses concerning the statutory
requirements. Respectfully, this argument is unavailing.
“[C]ourts will sustain a will as legally executed if it can be done consistently with
statutory requirements.” In re Estate of Fant, 2017 WL 3492007, at *5 (citing Leathers v. Binkley,264 S.W.2d 561, 563
(Tenn. 1954)). With all the foregoing considerations in
mind, we hold that the 2019 Will qualifies as a duly executed testamentary instrument
pursuant to Tennessee Code Annotated section 32-1-104(a) and should be admitted to
probate. Accordingly, we affirm the trial court’s June 8, 2022 order.
B.
Finally, Contestants assert that the trial court’s comments about the differences
between the residuary clauses of the 2007 Will and the 2019 Will constitute a binding
holding that Mary’s “residuary share did not lapse to [Martha, Anne, and Madelon]” under
the 2019 Will. Contestants cite the following excerpt:
I would observe this, that the Court understands that if you look at the 2019
Will versus a previous will, the 2007 Will, there is a significant change. . . .
[T]he residuary clause of the 2019 Will says, I hereby give, devise, and
bequeath the rest, residuary, and remainder of my estate, et cetera, et cetera,
et cetera, to be divided among my living children . . . namely [Mary],
[Martha], [Anne], and [Madelon]. So the testator specified in the 2019
residuary clause that it’s to be divided among my living children, four of
them. . . . Kenneth William Childress, II . . . was already deceased at the time
she made the Will. So the effect of the 2019 residuary clause would be to
divide the residuary among the four living children, as I’ve already read, to
the exclusion of the family of her deceased son, Kenneth William Childress,
II.
Now, if you look at the 2007 Will, the residuary there said I hereby give,
devise, and bequeath the rest and residue and remainder, et cetera, et cetera,
et cetera, as follows. My surviving children [Mary], [Martha], [Anne], and
[Madelon] shall each receive an equal one-fifth share per stirpes. My
deceased son’s, Kenneth William Childress, II, one-fifth share will pass to
his wife, Kathy, and his children, Cindy, Kenneth William Childress, III,
[and] Rosemary Childress, to be divided equally among them, share and
share alike. That’s what [Testator] had said in 2007. She said something
differently in 2019.
Our Supreme Court has “recognized that a trial court’s order ‘should be construed
with reference to the issues it was meant to decide, and should be interpreted in light of the
-8-
context in which it was entered.’” Williams v. City of Burns, 465 S.W.3d 96, 120(Tenn. 2015) (quoting Morgan Keegan v. Smythe,401 S.W.3d 595, 608
(Tenn. 2013)). For
context, immediately before making the observations quoted above, the trial court
reiterated—as it had several times during the presentation of evidence—that:
By the way, there is – the only issue in this case, a little bit unusual in a will
contest case, the only issue is whether or not the Will was duly executed.
There is no issue of undue influence or incompetency on the part of the
testator. The only question in this will contest is was the Will duly executed
within the meaning of the law of the State of Tennessee, and the Court is
constrained to hold that the answer to that question is, yes, it was duly
executed, and is, therefore, the valid Last Will and Testament of Martha
Maxine Childress.
Immediately after its observations about the differences in the two residuary clauses, the
trial court explained what was meant by those observations:
[Y]ou could raise the question, well, why would our grandmother have said
that in 2007 and said something different in 2019? . . . Well, I don’t know.
There’s been no evidence on that. But here’s the point of that: Testators
don’t have to have a reason for changing their Will. They can have a good
reason, a bad reason, [or] no reason at all so long as they’re mentally
competent and not under undue influence, they can put anything in their Will
or take anything out of their Will that they want to. So what was Martha
Maxine Childress’ motivation here? I don’t know. There’s been no evidence
on that. But once again, in the context of this case, it doesn’t make any
difference. . . . Was the Will duly executed within the meaning of the law of
the State of Tennessee? I’ve already ruled upon that. And once the Court
rules upon that, [in] the case where there is no issue raised about competency
or undue influence, that is the end of the inquiry.
Accordingly, the action to contest the Will is dismissed.
(Emphasis added).
Here, the transcript and final order leave no doubt that the sole issue under the trial
court’s consideration was whether the 2019 Will offered for probate and later contested
met the statutory requirements of execution. We decline Contestants’ invitation to expand
the trial court’s ruling.
-9-
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the chancery court. The case
is remanded for such further proceedings as may be necessary and consistent with this
opinion. Costs of the appeal are taxed to the appellants, Mary Dawn Verdery, Gary L.
Edwards, II, Heather Rowland, and Alison Ellis.
_________________________________
JOHN W. McCLARTY, JUDGE
- 10 -