Chapter 1
Execution of Wills

Part 1
Execution Generally

32-1-101. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Person” includes either man or woman, single or married; and
  2. “Will” includes codicil.

Acts 1941, ch. 125, § 1; C. Supp. 1950, § 8098.1; T.C.A. (orig. ed.), § 32-101.

Cross-References. Jurisdiction of chancery courts of probate and related matters, title 16, ch. 16, part 2.

Living wills, title 32, ch. 11.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 1, 2, 4-6, 11, 24, 82, 194, 224, 986, 1034.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-501 — 4-503, 4-505, 4-506.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 11.

Law Reviews.

Attorney v. Client — Privity, Malpractice, and the Lack of Respect for the Primacy of the Attorney-Client Relationship in Estate Planning, 68 Tenn. L. Rev. 261 (2001).

Booby Traps in Drafting Wills (Raymond B. Witt, Jr.), 25 Tenn. L. Rev. 345 (1958).

Confused by tax reforms? Follow these 10 key rules for better estate planning in Tennessee (Dan W. Holbrook), 37 No. 8 Tenn. B.J. 12 (2001).

Effects of the Enactment of the 1941 Wills Act, 17 Tenn. L. Rev. 447 (1943).

Ethics — Petty v. Privette: Exclusion of Attorney Liability in the Area of Estate Administration, 23 Mem. St. U.L. Rev. 687 (1993).

Holographic Wills, 17 Tenn. L. Rev. 440 (1943).

Some Aspects of Estate Planning In Tennessee (Alec Brock Stevenson), 2 Vand. L. Rev. 265 (1949).

Survey of Tennessee Property Law, IV. Transfers of Land (Beverly A. Rowlett), 48 Tenn. L. Rev. 72 (1981).

Symposium: The Role of Federal Law in Private Wealth Transfer: A Fresh Look at State Asset Protection Trust Statutes, 67 Vand. L. Rev. 1741 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Federalizing Principles of Donative Intent and Unanticipated Circumstances, 67 Vand. L. Rev. 1931 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Is Federalization of Charity Law All Bad? What States Can Learn from the Internal Revenue Code, 67 Vand. L. Rev. 1621 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, The Stored Communications Act and Digital Assets, 67 Vand. L. Rev. 1729 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff, 67 Vand. L. Rev. 1665 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Disclaimers and Federalism, 67 Vand. L. Rev. 1871 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Federal Visions of Private Family Support, 67 Vand. L. Rev. 1835 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: In Search of the Probate Exception, 67 Vand. L. Rev. 1533 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer:  Introduction, 67 Vand. L. Rev. 1531 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: The Creeping Federalization of Wealth-Transfer Law, 67 Vand. L. Rev. 1635  (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769 (2014).

The Form of Wills (Ernst Rabel), 6 Vand. L. Rev. 533 (1953).

The Holographic Codicil (Ronald Lee Gilman), 18 No. 3 Tenn. B.J. 60 (1982).

Uniform Wills Act of 1941, 17 Tenn. L. Rev. 370 (1943).

Value definition clauses: The basics (Dan W. Holbrook), 37 No. 3 Tenn. B.J. 33 (2001).

Wills — Attestation — Subscribing Witness Denies Facts of Attestation Clause, 20 Tenn. L. Rev. 396 (1948).

Wills, Estates and Trusts (William J. Bowe), 6 Vand. L. Rev. 1126 (1953).

Wills — Probate of Extrinsic Documents as Part of Testamentary Disposition, 28 Tenn. L. Rev. 593 (1961).

NOTES TO DECISIONS

1. Constitutionality.

The act entitled “An act to make uniform the execution of wills and repealing all acts in conflict therewith” was not unconstitutional for being broader than caption. McClure v. Wade, 34 Tenn. App. 154, 235 S.W.2d 835, 1950 Tenn. App. LEXIS 138, 28 A.L.R.2d 104 (Tenn. Ct. App. 1950).

2. Repeal of Prior Acts.

This act is in direct and irreconcilable conflict with the statutes theretofore existing which are repealed by necessary implication. McClure v. Wade, 34 Tenn. App. 154, 235 S.W.2d 835, 1950 Tenn. App. LEXIS 138, 28 A.L.R.2d 104 (Tenn. Ct. App. 1950).

3. Necessity of Compliance with Provisions.

Compliance with the statutory conditions prescribed is essential to the execution of a will. Eslick v. Wodicka, 31 Tenn. App. 333, 215 S.W.2d 12, 1948 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1948); Lawrence v. Lawrence, 35 Tenn. App. 648, 250 S.W.2d 781, 1951 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1951).

Money deposited in a savings and loan association under “discretionary revocable trust agreement” by which the depositor could draw out funds at any time or completely withdraw the account with the funds going to the beneficiary upon the death of the depositor was a valid gift to take effect at death although not in compliance with the statute relating to the execution of wills. Leader Federal Sav. & Loan Asso. v. Hamilton, 46 Tenn. App. 368, 330 S.W.2d 33, 1959 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1959).

4. Statute Comprehensive.

This part is comprehensive and intended to cover the whole subject matter involving the execution of wills in this state. Northcross v. Taylor, 29 Tenn. App. 438, 197 S.W.2d 9, 1946 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1946).

5. Instruments Constituting Will.

A paper writing properly executed with the formalities required for making a will which appoints a personal representative and gives that representative certain powers but does not make any disposition of property may be admitted to probate as a will. Delaney v. First Peoples Bank, 214 Tenn. 355, 380 S.W.2d 65, 1964 Tenn. LEXIS 484 (1964).

6. Codicils.

Where a widow filed a declaratory judgment petition with a third codicil that was previously undiscovered attached, prior to the trial court entering an order admitting the will and the first two codicils to probate in solemn form, the trial court had an obligation to bring the proceedings to a halt and conduct an inquiry into whether the widow had standing to pursue a will contest under T.C.A. § 32-4-101 and not doing so was reversible error. The third codicil, if admitted to probate, would undoubtedly have operated as a partial revocation of the earlier will and codicils under T.C.A. § 32-1-201(1) and T.C.A. § 32-1-101(2). In re Estate of Boote, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 663 (Tenn. Ct. App. 2005), rehearing denied, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 804 (Tenn. Ct. App. 2005), appeal denied, In re Estate of Boote v. Shivers, — S.W.3d —, 2006 Tenn. LEXIS 355 (Tenn. 2006).

Collateral References.

Amount of allowance from decedent's estate for widow and family where not fixed by statute. 90 A.L.R.2d 687.

Fact that instrument is designated or otherwise identified as a copy as affecting its status as will. 81 A.L.R.2d 1112.

Statute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath. 94 A.L.R.2d 921.

32-1-102. Persons qualified to make a will.

Any person of sound mind eighteen (18) years of age or older may make a will.

Acts 1941, ch. 125, § 2; C. Supp. 1950, § 8098.2; T.C.A. (orig. ed.), § 32-102.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 1, 4, 74, 79.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 5.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

The Form of Wills (Ernst Rabel), 6 Vand. L. Rev. 533 (1953).

NOTES TO DECISIONS

1. Appointment of Conservator — Effect.

Fact that conservator has been appointed for a person does not, per se, prevent such person from making a valid will. Tucker v. Jollay, 43 Tenn. App. 655, 311 S.W.2d 324, 1957 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1957).

2. Undue Influence.

Summary judgment for will contestants was not proper where the will proponent was friends with the decedent and testified that the decedent asked him to type up the will with computer software because there were questions of fact as to whether a confidential relationship existed in that domination and control was an issue of fact. Barlowe v. Brevard (In re Estate of Brevard), 213 S.W.3d 298, 2006 Tenn. App. LEXIS 569 (Tenn. Ct. App. 2006), appeal denied, In re Estate of Brevard v. Brevard, — S.W.3d —, 2007 Tenn. LEXIS 85 (Tenn. 2007).

Collateral References.

Admissibility and probative force of adjudication of insanity on issue of testamentary capacity. 7 A.L.R. 581.

Alzheimer's disease as affecting testamentary capacity. 47 A.L.R.5th 523.

Blind person's testamentary capacity. 9 A.L.R. 1416, 37 A.L.R. 603.

Codicil as validating will invalid because of want of testamentary capacity. 87 A.L.R. 836, 21 A.L.R.2d 821.

Convict's capacity to make will. 84 A.L.R.3d 479.

Effect of guardianship of adult on testamentary capacity. 89 A.L.R.2d 1120.

Epilepsy as affecting testamentary capacity. 16 A.L.R. 1418.

Insane delusion as invalidating will. 175 A.L.R. 882.

Law in effect at time of execution of will or at time of death of testator as controlling. 129 A.L.R. 862.

Life tenant's power to anticipate or enjoy principal as including power to devise. 2 A.L.R. 1281, 27 A.L.R. 1381, 69 A.L.R. 825, 114 A.L.R. 946.

Prostitution, inmate of house of. 16 A.L.R. 457, 31 A.L.R.2d 321.

Soldiers' and sailors' will, capacity of minor to make. 137 A.L.R. 1311, 147 A.L.R. 1297, 148 A.L.R. 1384, 149 A.L.R. 1452, 150 A.L.R. 1417, 151 A.L.R. 1453, 152 A.L.R. 1450.

Testamentary capacity as affected by use of intoxicating liquor or drugs. 9 A.L.R.3d 15.

32-1-103. Witnesses — Who may act.

  1. Any person competent to be a witness generally in this state may act as attesting witness to a will.
  2. 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.
  3. No attesting witness is interested unless the will gives to the attesting witness some personal and beneficial interest.

Acts 1941, ch. 125, § 3; C. Supp. 1950, § 8098.3; T.C.A. (orig. ed.), § 32-103.

Cross-References. Affidavit of witnesses to prove will, § 32-2-110.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 4, 7, 152, 209, 228, 236, 1032.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

The Form of Wills (Ernst Rabel), 6 Vand. L. Rev. 533 (1953).

Collateral References.

Amount or value of testamentary gift as affecting application of statute invalidating will attested by beneficially interested witness or limiting the benefit to such witness. 73 A.L.R.2d 1230.

Beneficiary under nuncupative will as witness thereto. 28 A.L.R.2d 796.

Competency of attesting witness who is not benefited by will except as it revokes an earlier will. 64 A.L.R. 1306.

Competency of named executor as subscribing witness to will. 74 A.L.R.2d 283.

Exception or proviso in statute invalidating testamentary gift to subscribing witness, saving the share witness would take in absence of will. 95 A.L.R.2d 1256.

Husband or wife of beneficiary as attesting witness to will. 25 A.L.R. 308.

Membership in, or other connection with, club, society, association or corporation as disqualifying one as witness to will in which it is beneficiary. 53 A.L.R. 211.

Necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix. 17 A.L.R.3d 503.

Necessity that attesting witness realize instrument was intended as will. 71 A.L.R.3d 877.

Proof, or possibility of proof, of will without testimony of attesting witness as affecting application of statute relating to invalidation of will, or of devise or legacy, where attesting witness is beneficiary under will. 133 A.L.R. 1286.

32-1-104. Will other than holographic or nuncupative — Signatures.

  1. The execution of a will, other than a holographic or nuncupative will, must be by the signature of the testator and of at least two (2) witnesses as follows:
    1. The testator shall signify to the attesting witnesses that the instrument is the testator's will and either:
      1. The testator sign;
      2. Acknowledge the testator's signature already made; or
      3. At the testator's direction and in the testator's presence have someone else sign the testator's name; and
      4. 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:
      1. In the presence of the testator; and
      2. In the presence of each other.
    1. For wills executed prior to July 1, 2016, to the extent necessary for the will to be validly executed, witness signatures affixed to an affidavit meeting the requirements of § 32-2-110 shall be considered signatures to the will, provided that:
      1. The signatures are made at the same time as the testator signs the will and are made in accordance with subsection (a); and
      2. The affidavit contains language meeting all the requirements of subsection (a).
    2. If the witnesses signed the affidavit on the same day that the testator signed the will, it shall be presumed that the witnesses and the testator signed at the same time, unless rebutted by clear and convincing evidence. If, pursuant to this subsection (b), witness signatures on the affidavit are treated as signatures on the will, the affidavit shall not also serve as a self-proving affidavit under § 32-2-110. Nothing in this subsection (b) shall affect, eliminate, or relax the requirement in subsection (a) that the testator sign the will.

Acts 1941, ch. 125, § 4; C. Supp. 1950, § 8098.4; T.C.A. (orig. ed.), § 32-104; Acts 2016, ch. 843, § 1.

Amendments. The 2016 amendment added (b).

Effective Dates. Acts 2016, ch. 843, § 2. April 19, 2016.

Cross-References. “Signature” defined, § 1-3-105.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 4, 7, 10, 48, 192, 196, 202, 204, 205, 237, 1032, 1033.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-601.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 11, 14.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Probate—Taylor v. Holt: The Tennessee Court of Appeals Allows a Computer Generated Signature to Validate a Testamentary Will, (Chad Michael Ross), 35 U. Mem. L. Rev. 603 (2005).

Procedure and Evidence — 1955 Tennessee Survey (Edmund M. Morgan), 8 Vand. L. Rev. 1071 (1955).

The Form of Wills (Ernst Rabel), 6 Vand. L. Rev. 533 (1953).

Attorney General Opinions. Notarization of signatures of witnesses to living wills, OAG 98-032, 1998 Tenn. AG LEXIS 32 (2/9/98).

NOTES TO DECISIONS

1. Constitutionality.

2. —Witness Clause.

Requirement in Uniform Wills Act that testator sign or acknowledge will in presence of two witnesses, and they being in the presence of each other does not violate Fourteenth Amendment of United States Constitution on ground that it becomes possible for witness to swear that will was not witnessed in presence of each other, thus destroying will. McClure v. Wade, 34 Tenn. App. 154, 235 S.W.2d 835, 1950 Tenn. App. LEXIS 138, 28 A.L.R.2d 104 (Tenn. Ct. App. 1950).

3. Construction and Interpretation.

4. —Compliance with Conditions Essential.

Compliance with the prescribed conditions is essential to the execution of a will. Eslick v. Wodicka, 31 Tenn. App. 333, 215 S.W.2d 12, 1948 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1948).

Compliance with the conditions prescribed by this section is essential to the execution of a will. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

5. —Realty and Personalty.

This section makes no distinction in the requirements as to execution, between a will of realty and a will of personalty, and excepts from its provisions only holographic and nuncupative wills. Fann v. Fann, 186 Tenn. 127, 208 S.W.2d 542, 1948 Tenn. LEXIS 526 (1948); Ball v. Miller, 31 Tenn. App. 271, 214 S.W.2d 446, 1948 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1948).

6. Signature of Testator.

Where testatrix attempted to sign will in presence of attesting witnesses but after commencing to write something stated that her hand was too nervous and that she could not write but for the witnesses to go ahead and sign and that she would sign later, and she thereafter signed the will but not in the presence of the witnesses, although she did thereafter acknowledge her signature to one of the witnesses, the will was not executed according to this section and not entitled to probate. In re Estate of Wait, 43 Tenn. App. 217, 306 S.W.2d 345, 1957 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1957).

Purported will was invalid because the requirements for execution of an attested will prescribed by T.C.A. § 32-1-104(1) were not satisfied when the decedent failed to sign the will but signed the separate affidavit of attesting witnesses; that he may have intended to sign the will and believed he did so was immaterial, since a court could not excuse compliance with § 32-1-104. In re Estate of Chastain, 401 S.W.3d 612, 2012 Tenn. LEXIS 816 (Tenn. Nov. 16, 2012).

7. Testamentary Intent.

It could not be said that animus testandi was lacking where testatrix marked handwritten paper “Codicil to my Will” and placed same with obituary notice and list of pallbearers even though will itself was kept in another place. Northcross v. Taylor, 29 Tenn. App. 438, 197 S.W.2d 9, 1946 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1946).

The fact that the testator intends, at the time of the execution of a will, to make changes therein, does not prevent the existence of his intention to make the will in question, and does not render it invalid. Richberg v. Robbins, 33 Tenn. App. 66, 228 S.W.2d 1019, 1950 Tenn. App. LEXIS 85 (Tenn. Ct. App. 1949).

Both testator's request that the attesting witnesses act as such and his declaration that the instrument is his will may be implied from his acts, conduct and attending circumstances. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

8. —Declaration by Testatrix.

Where a testatrix did not signify to her attesting witnesses that the instrument they signed was the will of the testatrix the instrument was not entitled to probate. Lawrence v. Lawrence, 35 Tenn. App. 648, 250 S.W.2d 781, 1951 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1951).

9. Witnessing.

Where testatrix was dying and physician signed for her at her request, and two witnesses were requested to sign, but one failed to do so, there was a failure to witness the will as required by the statute. Ball v. Miller, 31 Tenn. App. 271, 214 S.W.2d 446, 1948 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1948).

Where will devising all earthly possessions to dog was executed in accordance with statute, and second will, providing funds for care of dog and devising remainder to named devisee was not properly witnessed, nor was it in handwriting of testator, only first instrument was entitled to probate. Richberg v. Robbins, 33 Tenn. App. 66, 228 S.W.2d 1019, 1950 Tenn. App. LEXIS 85 (Tenn. Ct. App. 1949).

Where a witness to a will gives conflicting testimony as to whether he or she was aware that the document being witnessed was a will, there is no positive evidence contradicting the attestation clause since the witness' statements cancel each other and the presumption of proper execution remains. In re Estate of Ross, 969 S.W.2d 398, 1997 Tenn. App. LEXIS 601 (Tenn. Ct. App. 1997).

Affidavit was inaccurate because the witnesses did not sign the “foregoing” will, they only signed the affidavit and their signatures did not appear anywhere else in the document, and because the affidavit referred to the will as a “foregoing” document, it could not be concluded that the affidavit was part of the will so as to have satisfied statutory will execution requirements; thus, the decedent died intestate. In re Estate of Morris, — S.W.3d —, 2015 Tenn. App. LEXIS 62 (Tenn. Ct. App. Feb. 9, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 524 (Tenn. June 15, 2015), superseded by statute as stated in, Parker v. Parker, — S.W.3d —, 2017 Tenn. App. LEXIS 48 (Tenn. Ct. App. Jan. 26, 2017).

Probate court erred in holding that a decedent's will and accompanying affidavit were not in strict statutory compliance and in denying admission of the will to probate because the witnesses'  signatures were integrated into the will pursuant to the statute, the accompanying affidavit was statutorily required to contain a statement concerning the testator's capacity, the three witnesses, all of whom were long-time employees of the decedent, testified that he was of sound mind and disposing memory when he executed the purported will, and the decedent acknowledged his signature on the will when he asked one of the witnesses to step across the room to witness it. In re Estate of Fant, — S.W.3d —, 2017 Tenn. App. LEXIS 560 (Tenn. Ct. App. Aug. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 95 (Tenn. Jan. 23, 2018).

10. —Signing in Presence of Each Other.

While testator may sign or acknowledge his signature already made in the presence of two witnesses, the witnesses must sign in the presence of the testator and in the presence of each other and not acknowledge their signatures already made. Eslick v. Wodicka, 31 Tenn. App. 333, 215 S.W.2d 12, 1948 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1948).

11. —Signing in Presence of Testator.

Witnesses must sign will in presence of testator, acknowledgment of signatures being insufficient. Eslick v. Wodicka, 31 Tenn. App. 333, 215 S.W.2d 12, 1948 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1948).

Relatively short distances, such as across a bank lobby, may not prevent a testator and witnesses from being in each others' presence and where the circumstances indicate that the witness was aware of the testator's presence and that there was no substitution, the requirements of the statute are satisfied. In re Estate of Ross, 969 S.W.2d 398, 1997 Tenn. App. LEXIS 601 (Tenn. Ct. App. 1997).

Trial court did not abuse its discretion in denying proponents motion under Tenn. R. Civ. P. 60.02(5) on the ground that an agreed order declaring a will invalid and agreeing to administer an estate as intestate had prospective effect because the proponents did not demonstrate any extraordinary circumstances. In re Estate of Morris, — S.W.3d —, 2017 Tenn. App. LEXIS 741 (Tenn. Ct. App. Nov. 13, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 198 (Tenn. Mar. 15, 2018).

Proponents were not entitled to relief under Tenn. R. Civ. P. 60.02(4) on the ground that an agreed order declaring a will invalid and agreeing to administer an estate as intestate had prospective effect because no issues remained unresolved as to the execution of the will; the parties agreed that the will was not properly executed and that the decedent died intestate, and pursuant to the final agreed order, the proponents were responsible for filing the inventory and accounting. In re Estate of Morris, — S.W.3d —, 2017 Tenn. App. LEXIS 741 (Tenn. Ct. App. Nov. 13, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 198 (Tenn. Mar. 15, 2018).

Contestants did not waive any claim that the relief the proponents sought under Tenn. R. Civ. P. 60.02 was unconstitutional by failing to give notice to the attorney general because the contestants were not questioning the validity of subsection (b) or its retroactive application to certain wills; rather, the contestants argued the retroactive application of the statute was constitutionally impermissible because the will contest was concluded by final judgment before the statute's enactment. In re Estate of Morris, — S.W.3d —, 2017 Tenn. App. LEXIS 741 (Tenn. Ct. App. Nov. 13, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 198 (Tenn. Mar. 15, 2018).

Subsection (b) did not permit proponents of a will to relitigate the will contest on the basis that the applicable law was amended because the will contest was fully and fairly litigated in accordance with the law as it existed at that time; the court of appeals concluded that the will was not properly executed pursuant to the statute's requirements, the supreme court denied certiorari, and the parties entered an agreed final judgment conceding the will contest. In re Estate of Morris, — S.W.3d —, 2017 Tenn. App. LEXIS 741 (Tenn. Ct. App. Nov. 13, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 198 (Tenn. Mar. 15, 2018).

12. —Request of Witnesses.

A request to the attesting witnesses to act as such need not be given by the testator in person but may be given by a third person as his agent or representative. Miller v. Thrasher, 36 Tenn. App. 88, 251 S.W.2d 446, 1952 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1952); In re Estate of Bradley, 817 S.W.2d 320, 1991 Tenn. App. LEXIS 276 (Tenn. Ct. App. 1991).

As a matter of law, it is not essential that an express request be made by the testator to the attesting witnesses that they witness the signing of his will. This may be implied from his acts and conduct, and from the facts and attending circumstances. In re Estate of Bradley, 817 S.W.2d 320, 1991 Tenn. App. LEXIS 276 (Tenn. Ct. App. 1991).

13. Proof of Execution.

Where one attesting witness testified he was not sure whether he signed without other witness being present but that his impression was that they were not in the room together, and the other witnesses testified affirmatively that they did not sign in the presence of each other the presumption in favor of validity of the will from proof that signatures were genuine was overcome and will was not entitled to probate. Fann v. Fann, 186 Tenn. 127, 208 S.W.2d 542, 1948 Tenn. LEXIS 526 (1948).

Evidence of due execution of a will is not confined to the attesting witnesses but may be proved by other competent evidence including the testimony of persons who were not subscribing witnesses but who were present at the execution of the will. Miller v. Thrasher, 36 Tenn. App. 88, 251 S.W.2d 446, 1952 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1952).

Where first witness stated that testatrix came into his office with a paper purported to be her will, and that after she signed the will he signed it and also had his secretary seated close by sign as second witness the will was valid though witnesses to will did not remember every detail of signature and attestation where contestants failed to introduce any affirmative evidence that will had not been legally and regularly executed in accordance with requirements of this section. Leathers v. Binkley, 196 Tenn. 80, 264 S.W.2d 561, 1954 Tenn. LEXIS 346 (1954).

In will contest on trial of issues devisavit vel non the general burden is upon the proponent of the will to establish that the paper propounded as a will was the voluntary act of a capable testator and that the formalities required by law were complied with in its execution, but unless the testator was illiterate or there are circumstances of suspicion surrounding the case it is not necessary for the proponents to prove the testator's capacity or that he had knowledge of the contents of the will. Needham v. Doyle, 39 Tenn. App. 597, 286 S.W.2d 601, 1955 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1955).

Where according to undisputed proof testatrix requested three attesting witnesses to witness her will and following her request the will was signed by her and then by the attesting witnesses in the presence of the testatrix and of each other the requirements of this section were met. Lyman v. American Nat'l Bank & Trust Co., 48 Tenn. App. 328, 346 S.W.2d 289, 1960 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1960).

Proof of the genuine signatures of the testator and two competent attesting witnesses of a will along with an attestation clause reciting that the will was executed according to this section created a rebuttable presumption of fact of due execution of the will and made a prima facie case for the proponent. Whitlow v. Weaver, 63 Tenn. App. 651, 478 S.W.2d 57, 1970 Tenn. App. LEXIS 309 (Tenn. Ct. App. 1970).

Testimony by attesting witnesses to will denying the recitations of the attestation clause was admissible to rebut the presumption of due execution and made an issue for the jury as to whether the attesting witnesses spoke the truth at the time they signed the attestation clause or when they testified at the trial. Whitlow v. Weaver, 63 Tenn. App. 651, 478 S.W.2d 57, 1970 Tenn. App. LEXIS 309 (Tenn. Ct. App. 1970).

Testimony of a witness to a will was admissible to rebut the presumption in favor of the will's valid execution, thereby creating an issue for the jury. Dobson v. Shortt, 929 S.W.2d 347, 1996 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1996).

14. Execution on Sunday.

Will executed on Sunday is not invalid. Tucker v. Jollay, 43 Tenn. App. 655, 311 S.W.2d 324, 1957 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1957).

15. Presumptions.

Attesting clause to will raised presumption that recitals therein were true. Needham v. Doyle, 39 Tenn. App. 597, 286 S.W.2d 601, 1955 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1955).

16. Jury Questions.

In will contest where there was conflicting testimony as to whether or not attesting witnesses signed in the presence of each other and as to whether or not testator stated that the instrument was his will, question as to whether or not will was validly executed should have been submitted to the jury. Needham v. Doyle, 39 Tenn. App. 597, 286 S.W.2d 601, 1955 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1955).

17. Illustrative Cases.

Material evidence supported the jury's verdict that the father's handwritten document was not a formal will under T.C.A. § 32-1-204, because: (1) A witness testified that neither he nor the other witness to the document were in the father's presence or each other when they signed the document as eyewitnesses; and (2) The witness testified that the father did not refer to the document as his last will and testament but rather only asked the witness to do him a favor in signing it. Blackburn v. Blackburn, 253 S.W.3d 603, 2007 Tenn. App. LEXIS 692 (Tenn. Ct. App. Nov. 14, 2007), appeal denied, In re Estate of Blackburn, — S.W.3d —, 2008 Tenn. LEXIS 240 (Tenn. Apr. 7, 2008).

Because the decedent's adult stepchild did not have the authority to sign the decedent's will on behalf of the decedent, the trial court's instructing the jury that the stepchild could sign the will on behalf of the decedent was error. However, the error was harmless as the appellate court was unable to conclude that the error more probably than not affected the outcome of the verdict. Johnson-Murray v. Burns, 525 S.W.3d 625, 2017 Tenn. App. LEXIS 168 (Tenn. Ct. App. Mar. 14, 2017).

Collateral References.

Acknowledgment of signature by testator or witness to will as satisfying statutory requirements that testator or witness sign in the presence of each other. 115 A.L.R. 689.

Admissibility of evidence other than testimony of subscribing witnesses to prove due execution of will, or testamentary capacity. 63 A.L.R. 1195.

Attesting witnesses, necessity that subscription of, to will be made in presence of each other. 99 A.L.R. 554.

Blind person, execution of will of. 9 A.L.R. 1416, 37 A.L.R. 603.

Body of instrument, testator's name in, as sufficient signature where statute does not require will to be signed at end. 29 A.L.R. 891.

Character as witness of one who signed will for another purpose. 8 A.L.R. 1075.

Codicil as validating defectively executed will or codicil or one never executed. 87 A.L.R. 836, 21 A.L.R.2d 821.

Effect of mistake of draftsman (other than testator) in drawing will. 90 A.L.R.2d 924.

Experimental evidence as to possibility of testator seeing and hearing attesting witnesses. 8 A.L.R. 59, 85 A.L.R. 479.

Failure of attesting witness to write or state place of residence as affecting will. 55 A.L.R.2d 1053.

Illegibility of signature, effect of. 64 A.L.R. 208.

Jury question as created by presumption of due execution of will. 40 A.L.R.2d 1223.

Liability of one drawing an invalid will. 65 A.L.R.2d 1363.

Manner of signing as affecting sufficiency of signature of testator. 31 A.L.R. 682, 42 A.L.R. 954, 114 A.L.R. 1110.

Mental capacity of testator, duty of attesting witness with respect to. 35 A.L.R. 79.

Necessity of, and what amounts to, request on part of testator to the witnesses to attest or subscribe will. 125 A.L.R. 414.

Necessity that attesting witness to will not signed by testator in his presence shall have seen latter's signature on paper. 127 A.L.R. 384.

Privilege as to communications to attorney in connection with drawing of will. 64 A.L.R. 184, 66 A.L.R.2d 1302, 75 A.L.R.4th 1144.

Proof of due execution of lost will. 41 A.L.R.2d 393.

Revocation of will as affecting codicil and vice versa. 7 A.L.R.3d 1143.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will. 49 A.L.R.3d 1223.

Sufficiency of testator's acknowledgment of signature from his conduct and the surrounding circumstances. 7 A.L.R.3d 317.

Validity of a will signed by testator with the assistance of another. 98 A.L.R.2d 824.

Validity of will as affected by fact that witnesses signed before testator. 91 A.L.R.2d 737.

Validity of will signed by testator's mark, stamp, or symbol, or partial or abbreviated signature. 98 A.L.R.2d 841.

Validity of will written on disconnected sheets. 38 A.L.R.2d 477.

What constitutes the presence of the testator in the witnessing of his will. 75 A.L.R.2d 318.

Wills: place of signature of attesting witness. 17 A.L.R.3d 705, 1 A.L.R.5th 965.

32-1-105. Holographic will.

No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator's handwriting must be proved by two (2) witnesses.

Acts 1941, ch. 125, § 5; C. Supp. 1950, § 8098.5; T.C.A. (orig. ed.), § 32-105.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 4, 8, 210, 214, 216, 221, 222, 319.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 15, 55.

Law Reviews.

Decedent's Estates-In re Tipler: The Adoption of the Doctrine of Facts of Independent Significance in Tennessee, 31 U. Mem. L. Rev. 207 (2000).

Property Law — Wills — Effect of Lapsed Residuary Gifts in the State of Tennessee, 73 Tenn L. Rev. 711 (2006).

The Form of Wills (Ernst Rabel), 6 Vand. L. Rev. 533 (1953).

The Holographic Codicil (Ronald Lee Gilman), 18 No. 3 Tenn. B.J. 60 (1982).

The Holographic Problem — The Case Against Holographic Wills (Richard Lewis Brown), 74 Tenn L. Rev. 93 (2006).

Wills — Holographic Codicil — Publication of An Invalid Typewritten Will, 8 Vand. L. Rev. 924 (1955).

Wills — Proving a Holographic Will, 19 Tenn. L. Rev. 856 (1947).

Wills, Trusts and Estates (Herein of Future Interests) — 1955 Tennessee Survey (W. J. Bowe), 8 Vand. L. Rev. 1158 (1955).

NOTES TO DECISIONS

1. Construction with Prior Acts.

The effect of this provision, excluding the requirement that a holographic will must be placed with the valuable papers of the deceased, or given to another for safekeeping is to reduce the place of deposit from an essential factor to an evidential circumstance relevant to the animus testandi. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

2. Essential Statutory Requirements.

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. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

This section dispenses with the requirement that the propounded instrument must have been found among the valuable papers of the decedent or lodged in the hands of another for safekeeping; but under the general rules of evidence, the place where the propounded paper was kept by the writer and found after his death is still a circumstance of no little probative value to be considered along with all the other facts and circumstances upon the question of whether he intended it to operate as a will. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

A holographic will needs no formalism and therefore two continuous papers, found with valuables, entirely in decedent's handwriting showing intent to make a will and make it available, was entitled to probate, although written in indelible and regular pencil, not dated or signed, and not naming an executor as promised. Nicley v. Nicley, 38 Tenn. App. 472, 276 S.W.2d 497, 1954 Tenn. App. LEXIS 136 (Tenn. Ct. App. 1954).

Fact that certain typewriting from old will appeared on the same page as the holographic will did not invalidate the holographic will. In re Estate of Jones, 44 Tenn. App. 323, 314 S.W.2d 39, 1957 Tenn. App. LEXIS 159 (Tenn. Ct. App. 1957).

Where two holographic wills were presented for probate some significance must be attached to the fact that one will was witnessed and signed by two witnesses while the other was not subjected to such formality. In re Will of Padgett, 51 Tenn. App. 134, 364 S.W.2d 947, 1962 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1962).

Substance of a holographic will prevails over the form, and the fact that the document in question had an informal nature did not mean that it could not be a holographic will, as testamentary intent controls; nevertheless, context is crucial, and the Questionnaire completed by the decedent constituted the beginning stages of addressing her estate plan and was not a final product demonstrating her intention to dispose of her property, and thus the questionnaire was not a valid holographic will. In re Estate of Pierce, 511 S.W.3d 520, 2016 Tenn. App. LEXIS 514 (Tenn. Ct. App. July 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 868 (Tenn. Nov. 16, 2016).

3. Testamentary Intent.

To determine whether holographic codicil contained all material provisions in testatrix's handwriting, the trial court properly considered testatrix's intent. In re Will of Tipler, 10 S.W.3d 244, 1998 Tenn. App. LEXIS 841 (Tenn. Ct. App. 1998).

4. —Necessity.

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. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

A holographic will was not valid when there was no evidence, intrinsic or extrinsic, that the decedent intended the paper to be her will but where she drew lines through part of it, left a date and attestation clause blank, though it was incomplete, discarded it in a junk room, and attempted to leave property in other instruments. Davidson v. Gilreath, 38 Tenn. App. 291, 273 S.W.2d 717, 1954 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1954).

Where the testimony with respect to the purported will is doubtful, all facts and circumstances may be looked to, and it is for the jury to determine from all the evidence, intrinsic or extrinsic, whether or not the testator intended the instrument to operate as a will. Scott v. Atkins, 44 Tenn. App. 353, 314 S.W.2d 52, 1957 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1957).

5. —Proof.

Where purported holographic will was found in bottom drawer of deceased's desk, under old books, written in pencil on scratch paper, containing erasures and memoranda, but signed and dated, these facts and circumstances, taken together, were sufficient to support conclusion that deceased had not finally resolved that the propounded script should be effective as his last will and testament, and hence the animus testandi was lacking. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

If the animus testandi be doubtful, all the facts or circumstances may be looked to, and it is for the jury to determine from all the evidence, intrinsic or extrinsic, whether or not the testator intended the instrument to operate as his will. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

It is a matter for the trial court to determine whether the proof offered by any particular witness qualifies him to give testimony which is necessary under this section respecting the handwriting and execution of a holographic will. Scott v. Atkins, 44 Tenn. App. 353, 314 S.W.2d 52, 1957 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1957).

Where two holographic wills were presented for probate significance must be attached to the fact that one will was lodged with the executrix for safekeeping in her lockbox along with an itemized list of the deceased's properties, while on the other hand the other will was found in a cubby-hole in a desk in a sewing room and never mentioned to the executrix nor the maid nor anyone else as being the will of the deceased. In re Will of Padgett, 51 Tenn. App. 134, 364 S.W.2d 947, 1962 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1962).

6. —Presumptions.

It is not conclusive in favor of the propounded instrument that it is in the form of a will, perfect in all its parts, written and signed in full compliance with the statutory requirements. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

The fact that a script is in the form of a will, perfect in all of its parts, written and signed in full compliance with statutory requirements, does not raise a conclusive presumption in favor of the propounded instrument. Scott v. Atkins, 44 Tenn. App. 353, 314 S.W.2d 52, 1957 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1957).

7. —Signature.

Where testator removed all the pages from her former will except the last page which contained her signature and thereby revoked the former will and wrote below such former signature “I have nothing much to leave” and continued with the statement disposing of her property in her own handwriting but did not again sign such writing such original signature at the top of such writing which was held genuine by the probate court was a sufficient signature to conform to the provisions of this section. In re Estate of Jones, 44 Tenn. App. 323, 314 S.W.2d 39, 1957 Tenn. App. LEXIS 159 (Tenn. Ct. App. 1957).

8. Question for Jury.

Where two holographic wills were presented to the court, one bearing two different dates and signed by no witnesses, and the other signed by two witnesses as required of other wills, and one was carefully cared for while the double dated will was never mentioned to anyone and the double dated will bore dates both before and after that of the other will, it was improper for the court to direct a verdict in favor of the double dated will, but the issue should have been submitted to the jury. In re Will of Padgett, 51 Tenn. App. 134, 364 S.W.2d 947, 1962 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1962).

9. Evidence.

Evidence in will contest proceeding was sufficient to support finding of trial court that will was entirely in handwriting of testatrix. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 1968 Tenn. LEXIS 440 (1968).

The presence or absence of formal attestation to a holographic will is not a matter which the trial judge should tell the jury that they “must” accord some significance. Boyd v. Boyd, 680 S.W.2d 462, 1984 Tenn. LEXIS 884 (Tenn. 1984).

Statutory requirements for a holographic will were met, as the handwritten document was the decedent's handwriting and the requirements of T.C.A. § 32-1-105 were met; the decedent took several concrete actions that demonstrated revocation of the first will where she wrote the second will and signed it and titled it a will, and there was no evidence that she stated she intended to make a will in the future or was just thinking about it, and the evidence clearly preponderated that the handwritten will embodied the decedent's final wishes. Estate of Meade v. Gilliam, 156 S.W.3d 841, 2004 Tenn. App. LEXIS 568 (Tenn. Ct. App. 2004), appeal denied, In re Estate of Meade, — S.W.3d —, 2005 Tenn. LEXIS 172 (Tenn. Feb. 28, 2005).

Material evidence supported the jury's determination that the father's handwritten document was not a valid holographic will under T.C.A. § 32-1-105, because the circumstances surrounding the father's execution of the document did not indicate testamentary intent, as none of the witnesses present when he wrote and signed it testified that the father explicitly told them that he intended it to be his will; the barely legible solitary statement that the will proponent could do whatever he wanted with everything after the father passed did not exhibit testamentary intent. Blackburn v. Blackburn, 253 S.W.3d 603, 2007 Tenn. App. LEXIS 692 (Tenn. Ct. App. Nov. 14, 2007), appeal denied, In re Estate of Blackburn, — S.W.3d —, 2008 Tenn. LEXIS 240 (Tenn. Apr. 7, 2008).

10. Lost Will.

Where it was sought to establish an alleged lost holographic will, it was incumbent on proponents to show testator made and executed a valid holographic will, that the will had not been revoked and was lost, destroyed or could not be found after proper search, and the substance of the will. Sanders v. McClanahan, 59 Tenn. App. 590, 442 S.W.2d 664, 1969 Tenn. App. LEXIS 348 (Tenn. Ct. App. 1969).

11. Reference to Other Documents.

Under the doctrine of independent significance, which Tennessee recognizes, a court may refer to extrinsic evidence to identify the persons who are to take under the will. In re Will of Tipler, 10 S.W.3d 244, 1998 Tenn. App. LEXIS 841 (Tenn. Ct. App. 1998).

The doctrine of facts of independent significance was applicable to permit testatrix's holographic codicil to refer to husband's will, despite the fact that the will was not in existence when the codicil was executed, provided the document was a valid holographic codicil. In re Will of Tipler, 10 S.W.3d 244, 1998 Tenn. App. LEXIS 841 (Tenn. Ct. App. 1998).

12. Will Contests.

Where decedent's heirs did not file a will contest action, the appellate court would not disturb the decision of the probate court finding that the holographic documents submitted by the estate executor constituted the last will and testament of the decedent. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

Collateral References.

Changes by one other than testator after execution of holographic will as affecting its character as such. 124 A.L.R. 633.

Incorporation of extrinsic writings in holographic will by reference. 173 A.L.R. 568.

Letter as will or codicil. 40 A.L.R.2d 698.

Necessity and sufficiency of dating of holographic will. 147 A.L.R. 898.

Notation on note or securities as will or codicil. 62 A.L.R. 292.

Requirement that holographic will, or its material provisions, be entirely in testator's handwriting as affected by appearance of some printed or written matter not in testator's handwriting. 37 A.L.R.4th 528.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will. 49 A.L.R.3d 1223.

Signature of testator in body of instrument as sufficient signature where statute does not require will to be signed at end. 29 A.L.R. 893.

Sufficiency, as to form, of signature to holographic will. 75 A.L.R.2d 895.

32-1-106. Nuncupative will.

  1. A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:
    1. Declared to be the testator's will by the testator before two (2) disinterested witnesses;
    2. Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and
    3. Submitted for probate within six (6) months after the death of the testator.
  2. The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000).
  3. A nuncupative will neither revokes nor changes an existing written will.

Acts 1941, ch. 125, § 6; C. Supp. 1950, § 8098.6; T.C.A. (orig. ed.), § 32-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 4, 5, 9, 231, 232, 234, 236, 237, 241, 244, 245, 316.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 20.

Law Reviews.

The Form of Wills (Ernst Rabel), 6 Vand. L. Rev. 533 (1953).

Wills — Implied Revocation by Divorce and Property Settlement, 23 Tenn. L. Rev. 1081 (1955).

NOTES TO DECISIONS

1. Constitutionality.

The distinction made in this section between persons “in active military, air or naval service in time of war” and other persons is based on a reasonable classification and is not unconstitutional as making an arbitrary discrimination between such classes of persons. In re Holliday's Estate, 180 Tenn. 646, 177 S.W.2d 826, 1944 Tenn. LEXIS 332 (1944).

Since the purpose of the Acts of 1941 as indicated in the title was to make our statute of wills uniform with the uniform statute adopted elsewhere and that such uniform statute contains the limitations on the power to dispose of property by nuncupative will contained in this section, this section is not unconstitutional on the ground that it undertakes to regulate the disposal or distribution of property by will while the caption of the act only authorizes provisions with regard to the execution of wills. In re Holliday's Estate, 180 Tenn. 646, 177 S.W.2d 826, 1944 Tenn. LEXIS 332 (1944).

Collateral References.

Effectiveness of nuncupative will where essential witness thereto is beneficiary. 28 A.L.R.2d 796.

“Last sickness,” meaning of phrase in statute as to nuncupative wills. 9 A.L.R. 464.

What amounts to “last sickness” or the like within requirement that nuncupative will be made during last sickness. 8 A.L.R.3d 952.

32-1-107. Foreign execution.

A will executed outside this state in a manner prescribed by §§ 32-1-10132-1-108, inclusive, or a written will executed outside this state in a manner prescribed by the law of the place of its execution or by the law of the testator's domicile at the time of its execution, shall have the same force and effect in this state as if executed in this state in compliance with those sections.

Acts 1941, ch. 125, § 7; C. Supp. 1950, § 8098.7; T.C.A. (orig. ed.), § 32-107.

Cross-References. Probate of foreign wills, title 32, ch. 5.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 4, 53, 54, 56.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 11, 57.

Law Reviews.

Choice-of-Law Statutes (Robert A. Leflar), 44 Tenn. L. Rev. 951 (1977).

Conflict of Laws — 1955 Tennessee Survey (John W. Wade), 8 Vand. L. Rev. 964 (1955).

Conflict of Laws — 1959 Tennessee Survey (John W. Wade), 12 Vand. L. Rev. 1090 (1959).

The Form of Wills (Ernst Rabel), 6 Vand. L. Rev. 533 (1953).

Wills, Trusts and Estates (Herein of Future Interests) — 1955 Tennessee Survey (W. J. Bowe), 8 Vand. L. Rev. 1158 (1955).

NOTES TO DECISIONS

1. Res Judicata.

Decree denying probate of will as one executed in the state is not res judicata where same will is presented as one executed in foreign state. Ragsdale v. Hill, 37 Tenn. App. 671, 269 S.W.2d 911, 1954 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1954).

32-1-108. Application of §§ 32-1-101 — 32-1-108.

Sections 32-1-101 — 32-1-108, inclusive, shall not apply to wills executed in this state on or before February 15, 1941, or to wills offered for ancillary probate in this state that have been admitted to probate in the state or country of the testator's domicile.

Acts 1941, ch. 125, § 8; mod. C. Supp. 1950, § 8098.8; T.C.A. (orig. ed.), § 32-108.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 4-6.

32-1-109. Requisites of will executed on or before February 15, 1941.

No last will or testament executed on or before February 15, 1941, shall be good or sufficient to convey or give an estate in lands, unless written in the testator's lifetime, and signed by the testator, or by some other person in the testator's presence and by the testator's direction, and subscribed in the testator's presence by two (2) witnesses at least, neither of whom is interested in the devise of the lands.

Code 1858, § 2162 (deriv. Acts 1784 (Apr.), ch. 22, § 11); Shan., § 3895; Code 1932, § 8089; modified; T.C.A. (orig. ed.), § 32-109.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 5, 7, 152, 191, 194, 196, 202, 209, 222, 237.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 9, 11, 12, 49, 59.

Law Reviews.

Some Suggested Legislation in the Field of Wills (W. Raymond Blackard), 14 Tenn. L. Rev. 381 (1937).

The Effects of the Enactment of the 1941 Wills Act, 17 Tenn. L. Rev. 447 (1943).

NOTES TO DECISIONS

1. Purpose and Policy.

2. —History of Section.

The statute of 29th Charles II, ch. 3, is not in force in this state, but its provisions in relation to wills were substantially reenacted by the statute contained in this section. Therefore, the decisions of the English courts, in relation to the execution and proof of wills, are entitled to great weight in investigations of like character. Weatherhead v. Sewell, 28 Tenn. 272, 1848 Tenn. LEXIS 82 (1848); Long v. Mickler, 133 Tenn. 51, 179 S.W. 477, 1915 Tenn. LEXIS 72 (1915), superseded by statute as stated in, In re Estate of Archer, — S.W.2d —, 1989 Tenn. App. LEXIS 454 (Tenn. Ct. App. June 21, 1989).

This section is a codification of a North Carolina statute enacted in 1784. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

3. —Wills of Personalty.

The power to dispose of personalty by will is of immemorial existence at common law. McCutchen v. Ochmig, 60 Tenn. 390, 1872 Tenn. LEXIS 519 (1873).

Probate of wills of personal property is determined by rules of ecclesiastical courts of England. Deitz v. Gallaher, 169 Tenn. 435, 88 S.W.2d 993, 1935 Tenn. LEXIS 67 (1935).

4. —Wills of Realty.

There must be strict compliance with requirements of statute in order to effectuate valid devise of realty. Fransioli v. Podesta, 21 Tenn. App. 577, 113 S.W.2d 769, 1937 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1937).

5. Construction and Interpretation.

6. —Strict Construction.

Any construction tending to weaken the force of the statutory provisions for the due and solemn execution of last wills is inadmissible. Allen v. Huff, 9 Tenn. 404, 1830 Tenn. LEXIS 36 (1830); McCutchen v. Ochmig, 60 Tenn. 390, 1872 Tenn. LEXIS 519 (1873).

7. —Statutory Compliance Necessary.

In order that a will may be good and sufficient to give and convey lands in Tennessee, it must conform to the requirements of this part. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

8. Will or Deed — Determination.

9. —Intent of Maker.

Whether a paper was intended to operate as a deed or will is a question of intention to be gathered from the language used. Armstrong v. Armstrong, 63 Tenn. 357, 1874 Tenn. LEXIS 262 (1874); Ellis v. Pearson, 104 Tenn. 591, 58 S.W. 318, 1900 Tenn. LEXIS 33 (1900).

10. —Surrounding Facts.

In determining whether an instrument is a deed or a will, the court may look to the surrounding facts, with a view of aiding in the ascertainment of the intent at the time of its execution. Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 1906 Tenn. LEXIS 67 (1906).

11. —Deed Form — Effect.

It is not error, on the trial of an issue of devisavit vel non, for the trial judge to exclude from the jury the instrument propounded for probate as a will, where it is in the form of an absolute deed, wholly excluding the idea of a will, and intended to be a deed, but is unsigned and unexecuted, and there is no evidence tending to show that it was intended to be a will, but, on the contrary, the evidence shows it was intended to be a deed. Such paper cannot even be established as a testamentary disposition of personalty. Johnson v. Johnson, 103 Tenn. 32, 52 S.W. 814, 1899 Tenn. LEXIS 84 (1899).

12. — —Conveyance of Present Interest.

A paper in the form of a deed, duly acknowledged and legally delivered, giving certain designated land to a certain person at the death of the giver, is an irrevocable deed, and not a testamentary paper. It conveys a present or vested remainder estate to be enjoyed after the death of the grantor. Johnson v. Mitchell, 20 Tenn. 168, 1839 Tenn. LEXIS 36 (1839); Walls' Adm'r v. Ward, 32 Tenn. 648, 1853 Tenn. LEXIS 101 (1853); Swails v. Bushart, 39 Tenn. 561, 1859 Tenn. LEXIS 277 (Tenn. Apr. 1959); Swiney v. Swiney, 82 Tenn. 316, 1884 Tenn. LEXIS 129 (1884); Jones v. Hicks, 2 Shan. 635 (1878); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893); Ellis v. Pearson, 104 Tenn. 591, 58 S.W. 318, 1900 Tenn. LEXIS 33 (1900); Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 1906 Tenn. LEXIS 67 (1906).

An instrument in the form of a deed, reciting that, in consideration of love and affection, the grantor conveys to certain parties all his title to a certain tract of land, but providing that he is to hold the same in his own name, and have all the rents of the tract of land until his death, then to be divided between the donees, is a deed conveying a present interest, and not a testamentary paper. Jones v. Hicks, 2 Shan. 635 (1878).

The grantor in a deed of conveyance of land may reserve unto himself a power of revocation without thereby rendering the deed invalid or inoperative, or without converting the same into a will, for such reservation does not convert an instrument into a will where it would otherwise be a deed. Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 1906 Tenn. LEXIS 67 (1906).

A paper in the form of a deed, duly acknowledged and legally delivered, giving certain designated land to a certain person at the death of the giver, is an irrevocable deed, rather than a testamentary paper; and it conveys a present or vested remainder estate to be enjoyed after the death of the grantor. Couch v. Hoover, 18 Tenn. App. 523, 79 S.W.2d 807, 1934 Tenn. App. LEXIS 55 (Tenn. Ct. App. 1934).

13. —Will Form — Effect.

It is not necessary that an instrument be in testamentary form in order to operate as a will, and the form of a paper does not affect right to probate it, provided it is the intention of the deceased that it should operate after his death. For instance, deeds poll, indentures, deeds of gift, bonds, marriage settlements, letters, drafts on bankers, stocks and bills indorsed “for A B,” an indorsement on a note “I give this note to C D,” promissory notes, and notes payable by executors to evade legacy duties have been held to be testamentary. McLean v. McLean, 25 Tenn. 452, 1846 Tenn. LEXIS 21 (1846).

If a paper contains a disposition of the maker's property to be made after death, though it was not intended to be a will or other testamentary instrument, but an instrument of a different character, it may, nevertheless, operate as a will, if it cannot operate in the character which was intended. McLean v. McLean, 25 Tenn. 452, 1846 Tenn. LEXIS 21 (1846); Johnson v. Johnson, 103 Tenn. 32, 52 S.W. 814, 1899 Tenn. LEXIS 84 (1899); Howell v. Brown, 7 Tenn. App. 380, 1928 Tenn. App. LEXIS 56 (1928).

It should manifestly appear that it is intended as a disposition of the testator's lands, to take effect at his death; and this intention will best appear, if the paper has the usual formality of a will. Crutcher v. Crutcher, 30 Tenn. 377, 1850 Tenn. LEXIS 135 (1850).

No particular form for a will is required. Armstrong v. Armstrong, 63 Tenn. 357, 1874 Tenn. LEXIS 262 (1874); Howell v. Brown, 7 Tenn. App. 380, 1928 Tenn. App. LEXIS 56 (1928).

Absence of attestation clause is immaterial. 6 Tenn. Civ. App. (6 Higgins) 340 (1915).

14. — —Necessary Formalities.

Papers in the form of deeds, to be effective as wills, must be executed and probated as wills; and to pass land, must be attested by two subscribing witnesses, or must be wholly in the handwriting of the signer. Watkins v. Dean, 18 Tenn. 321, 1837 Tenn. LEXIS 28 (1837); Taylor v. Taylor, 21 Tenn. 597, 1841 Tenn. LEXIS 76 (1841).

It is not necessary that the testamentary disposition of the testator's property after death should be in direct and imperative terms; wishes and requests are sufficient. McLean v. McLean, 25 Tenn. 452, 1846 Tenn. LEXIS 21 (1846).

15. — —Grant at Death.

An instrument in the form of a deed, duly acknowledged by the maker and registered, conveying no specific property, but only such property as the maker may die the owner of, is a will, and not a deed. Watkins v. Dean, 18 Tenn. 321, 1837 Tenn. LEXIS 28 (1837); Walls' Adm'r v. Ward, 32 Tenn. 648, 1853 Tenn. LEXIS 101 (1853); Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 1906 Tenn. LEXIS 67 (1906).

Papers drawn in the form of deeds, but which cannot take effect as deeds for want of delivery, may take effect as testamentary papers, when probated and established as such. Taylor v. Taylor, 21 Tenn. 597, 1841 Tenn. LEXIS 76 (1841); Fry v. Taylor, 38 Tenn. 594, 1858 Tenn. LEXIS 233 (Tenn. Dec. 1858); Swails v. Bushart, 39 Tenn. 561, 1859 Tenn. LEXIS 277 (Tenn. Apr. 1959); Armstrong v. Armstrong, 63 Tenn. 357, 1874 Tenn. LEXIS 262 (1874); Ellis v. Pearson, 104 Tenn. 591, 58 S.W. 318, 1900 Tenn. LEXIS 33 (1900); Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 1906 Tenn. LEXIS 67 (1906).

Though an instrument is in the form of a deed, and is called a deed by the maker, and is supported by a consideration, yet if it purports to convey a title which does not arise until the death of the maker, it is a will. Ellis v. Pearson, 104 Tenn. 591, 58 S.W. 318, 1900 Tenn. LEXIS 33 (1900); Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 1906 Tenn. LEXIS 67 (1906).

16. Wills of Personalty.

17. —Form of Will.

A will, ineffectual to pass realty because not executed with the solemnities required for such purpose, will be good to pass personalty, if executed with the solemnities required for that purpose, though the maker intended it to operate as to both realty and personalty. Greer v. Mc'Crackin, 7 Tenn. 300, 7 Tenn. 301, 1824 Tenn. LEXIS 4 (1824); Guthrie v. Owen, 21 Tenn. 202, 1840 Tenn. LEXIS 66 (1840); Davis v. Davis, 74 Tenn. 543, 1880 Tenn. LEXIS 289 (1880).

There is nothing that requires so little solemnity as the making of a will of personalty. Greer v. Mc'Crackin, 7 Tenn. 300, 7 Tenn. 301, 1824 Tenn. LEXIS 4 (1824); McLean v. McLean, 25 Tenn. 452, 1846 Tenn. LEXIS 21 (1846).

Our statutes prescribe no form of solemnity for the execution of a testament of goods, different from what was required by the common law, save as to nuncupative wills. Allen v. Huff, 9 Tenn. 404, 1830 Tenn. LEXIS 36 (1830).

A very informal instrument, and in some instances an imperfect paper, neither written nor signed by the deceased, may be set up as a will of personalty; and, although the presumption of the law is against every paper not actually executed by the testator, the presumption may be rebutted by showing that the deceased regarded it as a will, and meant it to operate in its existing state, as where its imperfection has been produced and its formal execution by signature and attestation has been prevented, not by abandonment of the testamentary scheme, or change of purpose on the part of the testator, but by the act of God, if the paper, as far as it goes, expresses the will of the deceased continuing to the time of his death. Guthrie v. Owen, 21 Tenn. 202, 1840 Tenn. LEXIS 66 (1840); McLean v. McLean, 25 Tenn. 452, 1846 Tenn. LEXIS 21 (1846); Davis v. Davis, 74 Tenn. 543, 1880 Tenn. LEXIS 289 (1880); Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883); Orgain v. Irvine, 100 Tenn. 193, 43 S.W. 768, 1897 Tenn. LEXIS 102 (1897), questioned, Ball v. Miller, 31 Tenn. App. 271, 214 S.W.2d 446, 1948 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1948).

The provisions of the Act of 1784 prescribed no form of solemnity for the execution of a will of personalty different from the requirements of the common law except as to nuncupative wills. Fransioli v. Podesta, 175 Tenn. 340, 134 S.W.2d 162, 1939 Tenn. LEXIS 47 (1939).

18. —Attestation Unnecessary.

In the case of wills of personalty the common law rule prevails and the formal execution of such wills does not require the attestation of subscribing witnesses. Suggett v. Kitchell, 14 Tenn. 424, 14 Tenn. 425, 1834 Tenn. LEXIS 104 (1834); Moore v. Steele, 29 Tenn. 562, 1850 Tenn. LEXIS 34 (1850); Johnson v. Fry, 41 Tenn. 101, 1860 Tenn. LEXIS 24 (1860), questioned, Ball v. Miller, 31 Tenn. App. 271, 214 S.W.2d 446, 1948 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1948); Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557, 1890 Tenn. LEXIS 100 (1891); State ex rel. Estes v. Goodman, 133 Tenn. 375, 181 S.W. 312, 1915 Tenn. LEXIS 100 (1915).

Wills governing disposal of personal property require signature of two witnesses but they need not be subscribing witnesses. Deitz v. Gallaher, 169 Tenn. 435, 88 S.W.2d 993, 1935 Tenn. LEXIS 67 (1935).

19. —Acknowledgment of Will.

A will of personal property is valid though not in handwriting of testator and unsigned providing two witnesses testify that paper purporting to be a will was written according to instructions of the testator and approved by testator as a will of personal property. Deitz v. Gallaher, 169 Tenn. 435, 88 S.W.2d 993, 1935 Tenn. LEXIS 67 (1935).

20. —Proof of Execution.

Wills of personalty must generally be proved in court by two witnesses. Suggett v. Kitchell, 14 Tenn. 424, 14 Tenn. 425, 1834 Tenn. LEXIS 104 (1834); Moore v. Steele, 29 Tenn. 562, 1850 Tenn. LEXIS 34 (1850); Davis v. Baugh, 33 Tenn. 477, 1853 Tenn. LEXIS 76 (1853); Johnson v. Fry, 41 Tenn. 101, 1860 Tenn. LEXIS 24 (1860), questioned, Ball v. Miller, 31 Tenn. App. 271, 214 S.W.2d 446, 1948 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1948); Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557, 1890 Tenn. LEXIS 100 (1891); State ex rel. Estes v. Goodman, 133 Tenn. 375, 181 S.W. 312, 1915 Tenn. LEXIS 100 (1915).

When one witness proves the execution of the will of personalty, facts and circumstances equivalent or tantamount to the testimony of another witness may be sufficient. Suggett v. Kitchell, 14 Tenn. 424, 14 Tenn. 425, 1834 Tenn. LEXIS 104 (1834); Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850); Johnson v. Fry, 41 Tenn. 101, 1860 Tenn. LEXIS 24 (1860), questioned, Ball v. Miller, 31 Tenn. App. 271, 214 S.W.2d 446, 1948 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1948); Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557, 1890 Tenn. LEXIS 100 (1891).

21. —Mortgage Bequest.

A bequest of mortgages on real estate is a bequest of personalty. The mortgage is but an incident of the debt secured, and the debt is personalty. Martin v. Stovall, 103 Tenn. 1, 52 S.W. 296, 1899 Tenn. LEXIS 82, 48 L.R.A. 130 (1899).

22. Signature of Testator.

23. —Necessity.

It is a circumstance against an unsigned entry in a diary that it is between entries of a testamentary character which are signed. Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883).

24. —Beneficiary Signing for Testator.

The testator's name may be signed to his will by a beneficiary thereunder, when so requested by the testator; but such fact creates a strong suspicion, and it should be made clearly to appear that the paper propounded to be testator's will was actually known to him and that its execution was his act and deed. Walker v. Verble, 5 Tenn. Civ. App. (5 Higgins) 651 (1914).

25. —Attorney Signing for Testator.

Proof by subscribing witness (the other being deceased) that attorney at the instruction of and in the presence of deceased wrote and signed will which was subscribed by two witnesses in the presence of and at the request of the deceased entitled will to probate. Morrow v. Person, 195 Tenn. 370, 259 S.W.2d 665, 1953 Tenn. LEXIS 350 (1953).

26. Witnessing.

27. —Necessity.

Under statute with which this section originated, no will is valid and effectual to pass title to real estate unless signed by testator and attested by at least two subscribing witnesses.

28. —Request of Witnesses.

Where the testator wrote out his will himself, signed it, and on his request procured the signature of one witness, without disclosing to him that it was his will, and that of another witness, after disclosing to him that it was his will, the will is valid. The contents of a will need not be made known to the subscribing witnesses. Fransioli v. Podesta, 21 Tenn. App. 577, 113 S.W.2d 769, 1937 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1937).

No particular form of words need be used in making the request of witnesses. Request by testator personally is not essential; the request may be implied from acts and circumstances. Long v. Mickler, 133 Tenn. 51, 179 S.W. 477, 1915 Tenn. LEXIS 72 (1915), superseded by statute as stated in, In re Estate of Archer, — S.W.2d —, 1989 Tenn. App. LEXIS 454 (Tenn. Ct. App. June 21, 1989).

Where deceased, who was feeble in mind and body, made his mark on instrument at dictation of his son but made no request to have instrument witnessed, the requirements to establish a valid will were not present. Condry v. Coffey, 12 Tenn. App. 1, — S.W.2d —, 1930 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1930).

29. —Testator in Presence of Witnesses.

It is not necessary that either witness should have seen testator sign the instrument. Long v. Mickler, 133 Tenn. 51, 179 S.W. 477, 1915 Tenn. LEXIS 72 (1915), superseded by statute as stated in, In re Estate of Archer, — S.W.2d —, 1989 Tenn. App. LEXIS 454 (Tenn. Ct. App. June 21, 1989).

30. —Witnesses in Presence of Each Other.

A will, to pass real estate, must be attested by at least two disinterested subscribing witnesses, in the presence of the testator and at his request, though it is not necessary that they should subscribe their respective names in the presence of each other, but they may do so separately and at different times. Logue v. Stanton, 37 Tenn. 97, 1857 Tenn. LEXIS 84 (1857); Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 1891 Tenn. LEXIS 92, 30 Am. St. Rep. 875 (1892).

The witnesses may attest separately and at different times, but each must do so in the presence and at request of testator. Logue v. Stanton, 37 Tenn. 97, 1857 Tenn. LEXIS 84 (1857); Long v. Mickler, 133 Tenn. 51, 179 S.W. 477, 1915 Tenn. LEXIS 72 (1915), superseded by statute as stated in, In re Estate of Archer, — S.W.2d —, 1989 Tenn. App. LEXIS 454 (Tenn. Ct. App. June 21, 1989).

31. —Competency of Witnesses.

Sons of testator who were devised no real estate under the will were competent to testify as subscribing witnesses, since they were not interested at the time of execution of the will. Allen v. Allen, 2 Tenn. 172, 1812 Tenn. LEXIS 1 (1812).

If the subscribing witness was competent at the time of his attestation, his subsequent legal incompetency will not affect the validity of the will. The interest in the devise of lands that renders the subscribing witnesses incompetent imports an interest derived or derivable from the will itself, and not from subsequent events or contingencies, such as inheritance or devise from the devisee under the attested will. Allen v. Allen, 2 Tenn. 172, 1812 Tenn. LEXIS 1 (1812); Walker v. Skeene, 40 Tenn. 1, 1859 Tenn. LEXIS 2 (1859); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

Those who would, in case of intestacy, be the testator's heirs at his death, and would take his lands by descent, are competent subscribing witnesses to his will, if there is no devise of land to them, and they may prove the execution thereof against their own interest. Allen v. Allen, 2 Tenn. 172, 1812 Tenn. LEXIS 1 (1812); Walker v. Skeene, 40 Tenn. 1, 1859 Tenn. LEXIS 2 (1859); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

The testator's daughter is a competent subscribing witness to his will devising no lands to her, but devising certain land to her brothers, with a provision that they support her so long as she remains single, for such provision creates in her no estate or interest, and her support is not even a charge upon such land or the estate. Walker v. Skeene, 40 Tenn. 1, 1859 Tenn. LEXIS 2 (1859).

The question is reserved whether a person who takes an interest in the devise of land, under a will which is neutralized or overbalanced by a contrary interest of equal or greater value in the estate, in case of an intestacy, or from other cause, is competent. Walker v. Skeene, 40 Tenn. 1, 1859 Tenn. LEXIS 2 (1859).

A legatee is a competent subscribing witness to a will bequeathing personalty and devising realty. Walker v. Skeene, 40 Tenn. 1, 1859 Tenn. LEXIS 2 (1859); Beadles v. Alexander, 68 Tenn. 604, 1877 Tenn. LEXIS 60 (1877).

A devisee cannot by a transfer of his interest become a competent witness on issue of devisavit vel non. Barbee v. Mason, 45 Tenn. 108, 1867 Tenn. LEXIS 102 (1867).

A subscribing witness to a will is not “interested in the devise” of the lands of the testator, in the sense of the statute, so as to disqualify him as such and render the will void, unless he is a beneficiary under the devise. Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

32. —Place of Signing on Instrument.

The fact that one witness subscribed at bottom of the will on the right side under the name of the testator, and that there is no attestation clause is immaterial. 6 Tenn. Civ. App. (6 Higgins) 340 (1915).

33. —Signature of Witness by Another.

The name of the subscribing witness to a will devising land may, by his direction, be written by another person; but he must make his mark to his name, or touch the pen, or let his hand be guided by the other person in writing his name, in order to make it his signature. Ford v. Ford, 26 Tenn. 92, 1846 Tenn. LEXIS 68 (1846); Rose v. Allen, 41 Tenn. 23, 1860 Tenn. LEXIS 5 (1860); Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 1891 Tenn. LEXIS 92, 30 Am. St. Rep. 875 (1892); McFarland v. Bush, 94 Tenn. 538, 29 S.W. 899, 1894 Tenn. LEXIS 66, 45 Am. St. Rep. 760, 27 L.R.A. 662 (1894).

Where the name of the subscribing witness to a will devising land is written by a person who is a devisee under the will, and without the witness making his mark or participating in writing his name, though done at the request and by the direction of the witness, the attestation and subscription is ineffectual. Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 1891 Tenn. LEXIS 92, 30 Am. St. Rep. 875 (1892).

The practice of attesting a will by the mark of the subscribing witness, made beside his name written by another, should not be encouraged or extended. McFarland v. Bush, 94 Tenn. 538, 29 S.W. 899, 1894 Tenn. LEXIS 66, 45 Am. St. Rep. 760, 27 L.R.A. 662 (1894).

34. —Separate Papers Constituting Will.

Where the will is written on separate pieces of paper, and the last piece only is signed by the subscribing witnesses, it is necessary that all the pieces be produced at the time of the attestation; but this fact may be proved by circumstances. Gass' Heirs v. Gass' Ex'rs, 22 Tenn. 278, 1842 Tenn. LEXIS 88 (1842).

35. —Alteration Unattested.

The testator's unattested alteration of his attested will, both as to realty and personalty, is effective as to the personalty, but not as to the realty. Greer v. Mc'Crackin, 7 Tenn. 300, 7 Tenn. 301, 1824 Tenn. LEXIS 4 (1824).

36. —Defect in Attesting Cured by Codicil.

Although a will devising lands, with only one subscribing witness, is not good, yet, if there be a subsequent codicil properly attested, the defect is cured, and the original will is as operative as if it had been attested by two subscribing witnesses. The codicil amounts to a republication of the will. Stover v. Kendall, 41 Tenn. 557, 1860 Tenn. LEXIS 107 (1860).

37. Proof.

38. —Attestation.

Statute requiring will to be subscribed by at least two witnesses applies to the execution of the will, and not to the manner of proving that it was duly executed on an issue of devisavit vel non. Wheeler v. Parr, 3 Tenn. Civ. App. (3 Higgins) 374 (1912).

39. —Presumption Against Unexecuted Will.

In a will contest the proponents were not harmed by the failure of the court in its charge to the jury to differentiate between wills of personalty and wills of realty since the proponents had never overcome the presumption of law against wills of personalty and in fact had never tendered that issue to the court and jury and had never offered proof to support such a contention. Burrow v. Lewis, 24 Tenn. App. 253, 142 S.W.2d 758, 1940 Tenn. App. LEXIS 29 (Tenn. Ct. App. 1940).

40. —Handwriting When Witnesses Dead.

When the subscribing witnesses are dead or cannot be produced, it is competent to prove their signatures, and the signature of testatrix by witnesses who are familiar with their handwriting. Parker v. West, 29 Tenn. App. 642, 199 S.W.2d 928, 1946 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1946).

41. —Subscribing Witness as to Sanity.

A subscribing witness may state his opinion as to sanity of testator, but cannot give reasons. Kirkpatrick v. Kirkpatrick, 1 Shan. 258 (1872).

42. Chancery Jurisdiction.

A chancery suit declaring the invalidity of papers as deeds may be held open for future decrees until the question can be tested whether such papers declared ineffective as deeds for want of delivery were testamentary papers. Taylor v. Taylor, 21 Tenn. 597, 1841 Tenn. LEXIS 76 (1841).

32-1-110. Requisites of holographic will executed on or before February 15, 1941.

A paper writing, written on or before February 15, 1941, appearing to be the will of a deceased person, written by the deceased person, having the deceased person's name subscribed to it, or inserted in some part of it, and found, after the deceased person's death, among the deceased person's valuable papers, or lodged in the hands of another for safekeeping, shall be good and sufficient to give and convey lands, if the handwriting is generally known by the deceased person's acquaintances, and it is proved by at least three (3) credible witnesses that they verily believe the writing, and every part of it, to be in the deceased person's hand.

Code 1858, § 2163 (deriv. Acts 1784 (Oct.), ch. 10, § 5); Shan., § 3896; Code 1932, § 8090; modified; T.C.A. (orig. ed.), § 32-110.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 8, 210, 217, 222, 319.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 15, 17.

Law Reviews.

Effects of the Enactment of the 1941 Wills Act, 17 Tenn. L. Rev. 447 (1943).

Holographic Wills, 17 Tenn. L. Rev. 440 (1943).

Holographic Wills — “Valuable Papers” as Place of Deposit, 16 Tenn. L. Rev. 754 (1940).

Some Suggested Legislation in the Field of Wills (W. Raymond Blackard), 14 Tenn. L. Rev. 381 (1937).

Wills — Proving a Holographic Will, 19 Tenn. L. Rev. 856 (1947).

Wills — Requirements for Holographic Wills, 15 Tenn. L. Rev. 256 (1939).

NOTES TO DECISIONS

1. Purpose and Policy.

2. —History of Statute.

This section is a codification of a North Carolina statute enacted in 1784, and its preamble indicates that it was intended as in the nature of an exception to the preceding section, enacted six months previous. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

3. Construction and Interpretation.

4. —Difficulties in Construction.

Much difficulty has been experienced by the courts of this state and those of North Carolina in the construction of this statute. Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859).

5. —Provisions Exceptions to General Rules.

The general intention of the legislature on the subject of wills is expressed in § 32-1-109, and this section is to be regarded as an exception, and the exception is to be confined to the case expressly stated. Crutcher v. Crutcher, 30 Tenn. 377, 1850 Tenn. LEXIS 135 (1850); Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859).

The authority to devise real property by a holographic testament is purely statutory and an exception to the general rule prescribing the manner in which real property must be devised and to be effective such will must comply with the terms of the statute. Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329, 1937 Tenn. LEXIS 62 (1937).

6. —Status of Holographic Wills.

A holographic will, when the things prescribed by statute are done, is of the same dignity as a will attested by subscribing witnesses. Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

7. —Testamentary Character Necessary.

A will to operate as such must, as a rule, make or attempt a total or partial disposition of property, to take effect at the testator's death, or at least must name an executor; and it is not enough that the instrument purports to be a will and is executed with all the testamentary formalities, when it accomplishes nothing of a testamentary character. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

It is intention of this statute that the writing shall appear to be a will whose existence and place of deposit are known to the testator and that he has it in his care and protection, preserving it as his will. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

Will in handwriting of deceased and signed by deceased and wife and which stated “Here is our will-at our death-all in our name goes to W.M. Owens and Elvis Owens at our death” could not be probated as the will of the deceased, since it did not take effect upon death of deceased but took effect after death of deceased and wife. McDaniel v. Owens, 39 Tenn. App. 73, 281 S.W.2d 259, 1954 Tenn. App. LEXIS 158 (Tenn. Ct. App. 1954).

8. Essentials of Holographic Will.

9. —Formalities.

A testamentary writing found amongst the valuable papers of the deceased, complying with all the requisites of the statute, and proved in the manner required by the statute, is equivalent to an express publication before witnesses, because it is to be inferred from such circumstances that the party intended to give effect to the paper as his will; but it should, in addition, manifestly appear that such writing was intended as a disposition of the testator's lands, to take effect as his death, and this intention will best appear, if the paper has the usual formality of a will. Crutcher v. Crutcher, 30 Tenn. 377, 1850 Tenn. LEXIS 135 (1850); Marr v. Marr, 37 Tenn. 385, 1858 Tenn. LEXIS 22 (1858); Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

All the requisites of the statute must be complied with in order to establish a holographic will sufficient to pass title to land. Fransioli v. Podesta, 175 Tenn. 340, 134 S.W.2d 162, 1939 Tenn. LEXIS 47 (1939).

All that is required under statute to constitute “a paper writing appearing to be the will of a deceased person” is that writing shall purport to be disposition of writer's property after his death; and any writing, however informal, undertaking to so dispose of property, or to control its disposition, falls within statute on this point whether language used be sufficient for purpose intended or not, that being a matter of construction by proper court after testamentary character of instrument has been determined. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

This section only requires that to be a will the paper offered for probate shall purport to be a disposition of the writer's property after his death, however informal the expressions used, and without regard to whether the language employed by the writer is sufficient for the purpose intended, that being a matter of construction by the proper court after the testamentary character of the instrument has been established. Carver v. Anthony, 35 Tenn. App. 306, 245 S.W.2d 422, 1951 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1951).

10. —Statutory Requirements.

In order to constitute the unattested writing a valid testamentary paper, all the statutory requisites of holographic wills must concur, and are indispensable. Crutcher v. Crutcher, 30 Tenn. 377, 1850 Tenn. LEXIS 135 (1850); Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867); Brogan v. Barnard, 115 Tenn. 260, 90 S.W. 858, 1905 Tenn. LEXIS 58, 112 Am. St. Rep. 822 (1905).

All requirements are equally important. Brogan v. Barnard, 115 Tenn. 260, 90 S.W. 858, 1905 Tenn. LEXIS 58, 112 Am. St. Rep. 822 (1905); Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

In order that a will may be good and sufficient to give and convey lands in Tennessee, it must conform to the requirements of this section or § 32-1-109. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

There is no distinction between a holographic will and one under the general statute on the question of incompleteness since a holographic will, when the requirements of statute are complied with, is of the same dignity as a will attested by subscribing witnesses. Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329, 1937 Tenn. LEXIS 62 (1937).

Requirements as to execution of will devising real estate are more strict than those relating to personalty. Fransioli v. Podesta, 21 Tenn. App. 577, 113 S.W.2d 769, 1937 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1937).

There must be strict compliance with requirements of statute in order to effectuate valid devise of realty. Fransioli v. Podesta, 21 Tenn. App. 577, 113 S.W.2d 769, 1937 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1937).

Holographic will must conform to requirements of this statute in order that it may be good and sufficient to convey lands in Tennessee. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

11. —Testamentary Intent.

In addition to the statutory requisites for the making of a holographic will, there must be a testamentary intent accompanying the performance of each of the requirements. Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867); R. B. Douglass & Co. v. Harkrender, 62 Tenn. 114, 1873 Tenn. LEXIS 151 (1873).

Where a person was insane at the time of placing his holographic will among his valuable papers, it will have no effect, because to so place the will requires an intelligent act; and it will require an equally intelligent act to retain the will in such repository, in a lucid interval, to give it effect as a valid disposition of his property. Porter v. Campbell, 61 Tenn. 81, 1872 Tenn. LEXIS 343 (1872).

Where holograph is found among “valuable papers” of testator, it is implied that it must have been placed there by the writer or with his knowledge and assent, and with intent and purpose at the time that it should be his will. Fransioli v. Podesta, 21 Tenn. App. 577, 113 S.W.2d 769, 1937 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1937).

Where instrument which was alleged to be the holographic will of the deceased bore an attestation clause but bore no signatures by attesting witnesses and where such will was not signed, the mere fact that the instrument was found among the valuable papers of the deceased would not overcome the presumption that deceased did not intend the instrument in its imperfect state to be his will. Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329, 1937 Tenn. LEXIS 62 (1937).

Alleged holographic will providing that “this is for Elizabeth Joe Charles and Erline after my expenses are all paid I want what I have left to go to you all” was a will falling within statute insofar as its language clearly showed intention of maker concerning disposition of her property after her death. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

Under this statute it is sufficient if the words of the writing propounded for probate “unequivocally show that the writer intended it as a posthumous disposition of his estate, both real and personal.” Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

The form of a paper does not affect the right to have it probated if it was the intention of the deceased that it should operate after his death even though not aware at the time that he had performed a testamentary act. Carver v. Anthony, 35 Tenn. App. 306, 245 S.W.2d 422, 1951 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1951).

12. —Separate Papers — Effect.

A holographic will may consist of several papers. One of same may be testamentary in character only as nomination of executor. But extrinsic documents not in the handwriting of deceased may not be incorporated in such a will. The documents must be in existence at time will was executed and described. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

13. —Diary and Account Book Entries.

Entries in a continuous diary, purporting to make a disposition of the writer's land after death, written and signed by him, may be probated as a holographic will, especially where the diary was deposited and found with the account books of the deceased. Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883).

Where a holographic will is written in an account book, it is not error to refuse to allow testimony tending to show that several leaves of the book having no connection with the will, are missing. Chaney v. Bryan, 84 Tenn. 63, 1885 Tenn. LEXIS 114 (1885).

14. —Place of Deposit.

The intention of the statute is that the paper shall appear to be a will, existence and place of deposit of which were known to the testator, and that he had it in his care and protection, and that he had its preservation in view as his will. Tate v. Tate, 30 Tenn. 465, 1850 Tenn. LEXIS 156 (1850); Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867); Porter v. Campbell, 61 Tenn. 81, 1872 Tenn. LEXIS 343 (1872); Hicks v. Burdette, 10 Tenn. App. 492, — S.W.2d —, 1929 Tenn. App. LEXIS 56 (Tenn. Ct. App. 1929).

The sufficiency of the place of deposit will depend upon the condition and arrangements of the testator. Tate v. Tate, 30 Tenn. 465, 1850 Tenn. LEXIS 156 (1850).

15. —Deposit Among Valuable Papers.

Whether the papers, among which was found the paper propounded as a decedent's holographic will, were his “valuable papers,” is a question that must be left, under a proper charge, to the jury. Marr v. Marr, 37 Tenn. 385, 1858 Tenn. LEXIS 22 (1858); Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

A testator's holographic will “found among his valuable papers” implies that it must have been placed there by the writer, or with his knowledge and assent, and not surreptitiously by some other person, and so deposited with the purpose, at the time, that it should be his will. Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867).

The holographic will must have been deposited and found among the testator's valuable papers; and valuable papers are such as the deceased deemed valuable and worthy of preservation. They are not confined to papers having a money value, such as deeds for land, obligations for the payment of money, and certificates of stock. Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867); R. B. Douglass & Co. v. Harkrender, 62 Tenn. 114, 1873 Tenn. LEXIS 151 (1873); Brogan v. Barnard, 115 Tenn. 260, 90 S.W. 858, 1905 Tenn. LEXIS 58, 112 Am. St. Rep. 822 (1905).

The requirement that the holographic will be deposited and found among the writer's valuable papers is only intended as an indication on the part of the writer that it is his intention to preserve and perpetuate the paper in question as his will disposing of his property, and that he regards it as valuable. Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867); R. B. Douglass & Co. v. Harkrender, 62 Tenn. 114, 1873 Tenn. LEXIS 151 (1873); Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883); Brogan v. Barnard, 115 Tenn. 260, 90 S.W. 858, 1905 Tenn. LEXIS 58, 112 Am. St. Rep. 822 (1905); Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

Whatever number of wills the deceased may have executed after the date of a holographic will, the keeping of the holographic will deposited among his “valuable papers” amounts to a republication at his death, in the absence of any other will, or in the case of the spoliation of a subsequent will, so as to allow the holographic will to stand. Allen v. Jeter, 74 Tenn. 672, 1881 Tenn. LEXIS 196 (1881).

The valuable papers need not be papers of monetary value. Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883); Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

Where the paper was found after death in a box in which deceased kept postage stamps for sale and stationery (blank receipts) for use as postmaster, such was not found among his “valuable papers.” Brogan v. Barnard, 115 Tenn. 260, 90 S.W. 858, 1905 Tenn. LEXIS 58, 112 Am. St. Rep. 822 (1905).

Instrument, which was found in pocket of coat hung by deceased in closet, did not qualify for probate as holographic will found among testator's “valuable papers,” although valuable papers were kept by deceased in boxes on closet shelf. Fransioli v. Podesta, 21 Tenn. App. 577, 113 S.W.2d 769, 1937 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1937).

Original statute under which holographic will could qualify for probate if found among testator's “valuable papers or effects” was later changed so that such will could qualify only if found among testator's “valuable papers.” Fransioli v. Podesta, 21 Tenn. App. 577, 113 S.W.2d 769, 1937 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1937).

Under this section it is necessary for an instrument to be found among the testator's valuable papers and to be complete in order to be given effect as a holographic will. Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329, 1937 Tenn. LEXIS 62 (1937).

Within meaning of this statute, “valuable papers” are such as are kept and considered worthy of being taken care of by the particular person, having regard to his condition, business and habits of preserving papers, but are not necessarily the most valuable papers of the decedent, and are not confined to those having a money value, or to deeds for land, obligations for the payment of money or certificates of stock. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

16. —Lodging Paper with Another.

Where not found among the decedent's valuable papers, it must appear that the paper was, by the testator, lodged or deposited with a certain person with a view to its preservation as his will. Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867); McCutchen v. Ochmig, 60 Tenn. 390, 1872 Tenn. LEXIS 519 (1873); Hicks v. Burdette, 10 Tenn. App. 492, — S.W.2d —, 1929 Tenn. App. LEXIS 56 (Tenn. Ct. App. 1929).

The mere writing of a letter to another containing testamentary provisions, without affirmative and direct proof that the writer intended to lodge it with his correspondent as his holographic will, and for safekeeping, does not answer the requirements of the statute. The connection between the letter and envelope produced upon the trial must be shown by affirmative evidence. McCutchen v. Ochmig, 60 Tenn. 390, 1872 Tenn. LEXIS 519 (1873).

17. Witnesses.

18. —Competency.

An interested witness is competent. Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557, 1890 Tenn. LEXIS 100 (1891).

19. Proof.

20. —Jury Questions.

It is for jury to determine, under proper instructions as to competency and admissibility of the evidence, whether they believe from all the circumstances that the writing was deposited by the deceased among his valuable papers, or lodged in the hands of another for safekeeping, with the intention that it should be his will. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

21. —Law Questions.

Whether a writing is or is not prima facie testamentary in its nature is a question of law for the court. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

Whether a writing propounded and contested is or not prima facie testamentary in its nature and character is a matter for the court to determine. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

The probate court has power to construe the paper offered for probate to the extent of determining whether or not it is testamentary in character. Carver v. Anthony, 35 Tenn. App. 306, 245 S.W.2d 422, 1951 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1951).

22. —Measure of Proof.

Under provisions relating to probate of holographic will, no particular measure of proof is required; but the act leaves the fact of finding the will, or of its being lodged in the hands of another, and the intention of the deceased in writing and depositing the script, to be established by the same sort and degree of evidence ordinarily used in other cases. Pulley v. Cartwright, 23 Tenn. App. 690, 137 S.W.2d 336, 1939 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1939).

23. —Handwriting.

The handwriting must be so well known, as that, if a false will be propounded for probate, it will be in the power of the persons interested in the estate to expose and defeat it by proof of other witnesses. The fact that the handwriting is known may appear from other facts and circumstances, as well as by direct proof; as, where the deceased had been in business of such character as to bring his handwriting frequently before his acquaintances. Tate v. Tate, 30 Tenn. 465, 1850 Tenn. LEXIS 156 (1850); Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867).

Members of family cannot establish the fact that instrument is handwriting of testator by stating that they are familiar with his handwriting. But they may testify that his handwriting is familiar to his acquaintances. Hackworth v. Hackworth, 6 Tenn. App. 452, — S.W. —, 1927 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1927).

“Acquaintances” as used in the statute providing for the proof of a holographic will does not limit the class to people with whom testator associates or does business. Hackworth v. Hackworth, 6 Tenn. App. 452, — S.W. —, 1927 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1927).

24. —Signature of Testator.

The mere absence of the writer's subscribed signature shall not vitiate the same, if his name appropriately and significantly appears in some part of it. Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867).

To establish a holographic will, it must appear with reasonable certainty that others beside the witnesses and the family of the testator would testify to the genuineness of the signature, and to this end, a sufficient number of persons, with whom he was usually associated, or transacted business, should be introduced to make it reasonably certain that the others would testify to the same effect. Cliburne v. Mynatt, 2 Shan. 50 (1876).

25. —Burden of Proof.

On trial of issue of devisavit vel non the burden of showing deposit among valuable papers is on the plaintiff under facts stated. Allen v. Jeter, 74 Tenn. 672, 1881 Tenn. LEXIS 196 (1881).

In an action to establish a holographic will the burden is upon the proponent to show (1) that the paper writing and each part of it is in the handwriting of the testator; (2) that the handwriting of the testator was generally known by his acquaintances; (3) that the paper writing was found among the valuable papers of the deceased or lodged in the hands of another for safekeeping; (4) that the writer intended the paper writing to control the disposition of his property after his death. Hicks v. Burdette, 10 Tenn. App. 492, — S.W.2d —, 1929 Tenn. App. LEXIS 56 (Tenn. Ct. App. 1929).

26. —Declarations by Testator.

Testimony by witness that deceased stated that he had made his will could not be admitted to show that deceased intended incomplete instrument found after his death as a holographic will. Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329, 1937 Tenn. LEXIS 62 (1937).

27. —“Attest” — Use of Word.

The use of the word “attest,” at the end of the paper propounded as a holographic will, does not affect its character as such, if all the requisites of the statute are present. Allen v. Jeter, 74 Tenn. 672, 1881 Tenn. LEXIS 196 (1881).

28. —One Subscribing Witness — Inferences.

Where the writer and signer of a paper as his holographic will procured one witness to the same, with no intent to procure another, but to deposit it among the writer's valuable papers as his will, the fact that there was one witness to it cannot operate as a matter of law to add strength to the presumption that it is his will, nor to raise the presumption that it was an incomplete or unfinished will. But if the writer intended to procure another witness, and thereby to complete the execution of the paper as a witnessed will, until such second witness was procured, it was incomplete and unfinished as a written will. R. B. Douglass & Co. v. Harkrender, 62 Tenn. 114, 1873 Tenn. LEXIS 151 (1873).

29. —Unfinished Will — Presumption.

If the instrument propounded as a holographic will is unfinished and incomplete, or not subscribed by the testator, though his name is inserted in some part of it, or with an attestation clause and no attesting witnesses, the presumption is that the writer did not intend the paper in that imperfect state to be his will, but the presumptions may be rebutted by satisfactory proof that it was intended, in the form in which it appears, and as far as it goes, to be the last will and testament of the deceased. Crutcher v. Crutcher, 30 Tenn. 377, 1850 Tenn. LEXIS 135 (1850); Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859); R. B. Douglass & Co. v. Harkrender, 62 Tenn. 114, 1873 Tenn. LEXIS 151 (1873); Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329, 1937 Tenn. LEXIS 62 (1937).

30. —Will as Evidence.

Where court determines upon evidence offered by proponent, and assumed to be true, that statutory requisites of holographic will have been met, it then becomes prima facie a valid will, and no suspicious or other circumstances appearing, tending to impeach its validity, it may be read in evidence to be looked to by the jury for any inherent proof of regular or irregular execution or attestation; or of its being the voluntary act of testator or otherwise; or of existence or want of mental capacity on part of testator; or as otherwise shedding light upon the issue. Keys v. Keys, 23 Tenn. App. 188, 129 S.W.2d 1103, 1939 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1939).

31. —Signature of Wife — Inferences.

Where instrument signed by both decedent and his wife which purported to dispose of “what we've got” to a named beneficiary was wholly in the handwriting of decedent except for the signature of the wife and was otherwise sufficient to meet the requirements of a holographic will, the signature of the wife did not invalidate the will with reference to the decedent and the instrument could be probated as the holographic will of decedent. Jones v. Myers, 178 Tenn. 24, 154 S.W.2d 245, 1941 Tenn. LEXIS 24 (1941).

32. Probate Record.

33. —Required Showing.

The probate record of a holographic will must show, among other things, that the handwriting of the testator was generally known by his acquaintances and that three credible witnesses proved that the writing and every part of it was in his handwriting, to be valid as to the land devised. Therefore, proof of two witnesses that they were acquainted with the testator's handwriting, and that the signature to the will is in his handwriting, is fatally defective and insufficient to sustain a holographic will of land; but such probate would be good for a will of personalty. Grier v. Canada, 119 Tenn. 17, 107 S.W. 970, 1907 Tenn. LEXIS 2 (1907).

34. —Conclusions of Law.

It is sufficient that the proper conclusions of law are shown in the right language. Especially is this so in a collateral attack 30 years afterwards, for it will then be presumed that everything was properly done as the law required. A form of certificate of probate was held to be good. Mosely v. Wingo, 75 Tenn. 145, 1881 Tenn. LEXIS 89 (1881).

35. Revocation.

Something more than verbal declarations is required to revoke; some act clearly indicating the intention to revoke, such as cancelation, destruction, removal from place of deposit, or reclamation from lodgee. Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859).

All wills are of equal grade or solemnity, to the extent of their valid provisions, after proper and legal probate; and, therefore, a later informal will, neither signed nor witnessed, if established as a will of personalty, will to that extent revoke a prior holographic will. Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883). See Marr v. Marr, 39 Tenn. 303, 1859 Tenn. LEXIS 215 (1859).

Ordinarily it is incompetent to offer as evidence, in proof of revocation, oral declarations of testator, but in an action to establish a holographic will, such statements might be admissible, not to show or work a revocation, but to illustrate the original intent and to show whether the papers were intended to be testamentary in character. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

36. Codicil.

The same rules apply to the codicil to a will as to the will itself. Hooper v. McQuary, 45 Tenn. 129, 1867 Tenn. LEXIS 104 (1867).

Provision in this section requiring that holographic will be found among testator's valuable papers or lodged in the hands of another for safekeeping did not apply to codicil of will executed on March 22, 1943, since as to wills executed on that date this section had been repealed by § 32-1-105. Northcross v. Taylor, 29 Tenn. App. 438, 197 S.W.2d 9, 1946 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1946).

37. Conflict of Laws.

Where it was sought to establish such a will with reference to personal property of one who was domiciled and died in Ohio, the will could not be established because the laws of that state do not permit such a will. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

A holographic will duly executed and probated under the laws of Louisiana and sufficient in that state to pass the title to realty was entitled to reprobate in Tennessee and was sufficient to pass the title to realty in this state although it did not meet the requirements of this section. Epperson v. Buck Inv. Co., 176 Tenn. 358, 141 S.W.2d 887, 1940 Tenn. LEXIS 80 (1940).

38. Will of Personalty.

39. —Handwriting Proof.

A will written by the testator's own hand, although not signed by him, nor attested by witnesses, is good as to personalty, provided the handwriting be sufficiently proved to be his. Suggett v. Kitchell, 14 Tenn. 424, 14 Tenn. 425, 1834 Tenn. LEXIS 104 (1834); Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883).

An entry in a continuous diary, written by the party himself, purporting to make a disposition of his property after death, may be probated as a will of personalty, although not signed nor attested, if the handwriting be sufficiently proved. Reagan v. Stanley, 79 Tenn. 316, 1883 Tenn. LEXIS 67 (Tenn. Apr. 1883).

An unattested testamentary paper, though not found among testator's valuable papers or lodged with another for safekeeping, may be admitted to probate as a will of personalty, without other proof of its writing or publication than the testimony of two witnesses showing the body and signature of the instrument to be in the handwriting of the alleged testator. Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557, 1890 Tenn. LEXIS 100 (1891).

A will of personal property is valid though not in handwriting of testator and unsigned providing two witnesses testify that paper purporting to be a will was written according to instructions of the testator and approved by testator as a will of personal property. Deitz v. Gallaher, 169 Tenn. 435, 88 S.W.2d 993, 1935 Tenn. LEXIS 67 (1935).

40. —Acknowledgment by Deceased.

Paper purporting to be a will of personal property written partly in handwriting of testatrix and partly in handwriting of another and which was unsigned was not valid though two witnesses signed same where witnesses did not see body of will and could not testify that will was written according to instructions of testatrix or that it was approved by her as a will. Deitz v. Gallaher, 169 Tenn. 435, 88 S.W.2d 993, 1935 Tenn. LEXIS 67 (1935).

41. —Holographic Requirements Unnecessary.

Where a testator died in Italy, and his will was drafted presumably in his own handwriting, and testator's handwriting was not proved by three or more witnesses, the probate court of a county in Tennessee properly admitted the will to probate as decedent's holographic will, and limited it to the disposal of personal property. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

This section does not apply to dispositions of personalty, which are governed by the common law. Druen v. Hudson, 17 Tenn. App. 428, 68 S.W.2d 146, 1933 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1933).

Where the standards of proof set out in this section are not met, a holographic will is properly limited to the disposition of personal property. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

An instrument which was not sufficient as a holographic will to pass title to land because it was not found among the valuable papers of the decedent or lodged in the hands of another for safekeeping could nevertheless operate to pass personalty. Fransioli v. Podesta, 175 Tenn. 340, 134 S.W.2d 162, 1939 Tenn. LEXIS 47 (1939).

42. —Prior Adjudication as Not Holographic.

Where the original probate record of a holographic will was insufficient as to realty, but sufficient as to personalty, a reprobate thereof made 19 years thereafter, upon motion in an ex parte proceeding, without petition or notice as required for probate in solemn form, but with all the formalities required to probate a holographic will as to land, is sufficient to make out a prima facie case in favor of a beneficiary under the will, and the burden of proving the invalidity of the will for fraud, accident, or mistake, devolved upon those asserting it. The right to reprobate the will was not barred by the lapse of time. Grier v. Canada, 119 Tenn. 17, 107 S.W. 970, 1907 Tenn. LEXIS 2 (1907); Scott v. Wagstaff, 120 Tenn. 252, 107 S.W. 976, 1907 Tenn. LEXIS 46 (1908); Alsobrook v. Orr, 130 Tenn. 120, 169 S.W. 1165, 1914 Tenn. LEXIS 8 (1914).

Where on a former appeal it was held that an instrument was not sufficient to pass realty as a holographic will because it was not found among the valuable papers of the decedent but its effectiveness as a will of personalty was not decided, the question of the validity of the instrument as a will of personalty was not res judicata even though the court could have determined such question on the first appeal. Fransioli v. Podesta, 175 Tenn. 340, 134 S.W.2d 162, 1939 Tenn. LEXIS 47 (1939).

32-1-111. Married women's power to dispose of property by will.

  1. Married women, after February 15, 1941, may dispose of their property by will according to §§ 32-1-101 — 32-1-108.
  2. Wills executed on or before February 15, 1941, by married women twenty-one (21) years of age or over, are valid to dispose of their realty or personalty, legal or equitable, in as complete manner as if executed by femes sole.

Code 1858, § 2168 (deriv. Acts 1851-1852, ch. 180, § 4); Acts 1869-1870, ch. 99, §§ 1, 6; Shan., § 3901; mod. Code 1932, § 8098; modified; Acts 1976, ch. 529, § 19; T.C.A. (orig. ed.), § 32-111.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 81, 82, 90, 812.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 5.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (Herman L. Trautman), 14 Vand. L. Rev. 1253 (1961).

Some Suggested Legislation in the Field of Wills (W. Raymond Blackard), 14 Tenn. L. Rev. 381 (1937).

Wills — Implied Revocation by Divorce and Property Settlement, 23 Tenn. L. Rev. 1081 (1955).

NOTES TO DECISIONS

1. Will Executed During Incapacity.

A will invalid when made because of lack of capacity is not validated without reexecution and republication, though the married woman retains it in her possession and speaks of it as her will after the passage of the statute. Mitchell v. Kimbrough, 98 Tenn. 535, 41 S.W. 993, 1896 Tenn. LEXIS 245 (1897).

Collateral References.

Extension of time within which spouse may elect to accept or renounce will. 59 A.L.R.3d 767.

32-1-112. Deposit of will with probate court.

  1. With respect to a testator who is living, any will in writing, being enclosed in a sealed wrapper, and having endorsed thereon the name of the testator, the testator's place of residence and the testator's social security number or driver license number, if any, and the day when, and the person by whom, it is delivered, may be deposited by the person making the will, or by any person for the person making the will, with the court exercising probate jurisdiction in the county where the testator lives. With respect to a deceased testator, any will in writing may be deposited by any person with the court exercising probate jurisdiction in the county where the testator lived at the time of the testator's death. The preceding provisions shall apply only if the clerk of the probate court has a secure vault or safe for the safe keeping of the will. The probate court shall receive and safely and securely keep any such will, and give a certificate of the deposit thereof, and for this service shall charge a fee of five dollars ($5.00).
  2. The will shall, during the lifetime of the testator, be delivered only to the testator, or to some person authorized by the testator by an order in writing, duly proved by the oath of a subscribing witness. Any will that is deposited after the death of the testator shall be delivered only to a person named in the will as executor, to a next of kin of the testator, or to any other person so authorized by law or court order.
  3. After the death of the testator and upon submission of a death certificate or other satisfactory evidence of death as determined by the judge exercising probate jurisdiction, the will shall be opened by the court in open session and shall be made public.
  4. After the death of the testator, should jurisdiction of the will for probate belong to any other court, upon request of the executor named in the will or any other person interested in its provisions, the will shall be forwarded by certified or registered mail to the other court or delivered to the executor, or to some other trusted person interested in the provisions of the will, to be presented for probate in the other court.
    1. The deposit of a written will as provided by this section shall not constitute a probate of the will nor, if deposited prior to a testator's death, preclude the testator from revoking it, amending it, withdrawing it, or depositing a substitute will, it being the intent and purpose of this section to provide only a place of depository for written wills, a procedure for depositing written wills, and a delivery of written wills for probate upon the death of the testator.
    2. If, after the death of the testator, a later will is discovered that supersedes a will deposited as provided in this section and the later will is duly admitted to probate, or if a will deposited as provided in this section is for any other reason invalidated, following the administration of the estate of the testator by or on whose behalf the will is deposited, and the settlement of the estate, upon order by the judge of the probate court wherein the will was deposited, the will shall be destroyed.

Acts 1976, ch. 676, §§ 1-4; T.C.A., §§ 32-701 — 37-704; Acts 1989, ch. 364, § 2; 1999, ch. 507, § 1.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 5, 316.

Law Reviews.

The Tennessee Recording System (Toxey H. Sewell), 50 Tenn. L. Rev. 1 (1982).

32-1-113. Mailing or delivery of will to personal representative or clerk of court.

  1. Any person or corporation who has possession of or discovers a written instrument purporting to be the last will and testament of a decedent shall mail or deliver that instrument to the personal representative named in the instrument as soon as the person or corporation has knowledge of the death, and a photographic copy of the instrument shall be mailed or delivered to the clerk of the court having probate jurisdiction in the county of the decedent's residence.
    1. If the personal representative, or the personal representative's address, is not known, is deceased or is not eligible to serve;
    2. If the instrument does not name a personal representative;
    3. If the personal representative declines to serve; or
    4. If it appears that there is no estate that will require administration;

      then the person having possession of the original instrument shall mail or deliver it to the clerk.

  2. The receipt by the personal representative or the clerk shall relieve the person of further responsibility as to possession of the instrument.
  3. The clerk of the court shall have no responsibility to perform any acts regarding the probate of the will and shall not accept any claims for filing against the estate unless and until the personal representative or other interested party files proper pleadings to initiate such an action.

Acts 1985, ch. 139, § 3; 1989, ch. 364, § 3.

Part 2
Revocation

32-1-201. Actions effecting a revocation of 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.

Acts 1985, ch. 139, § 1; 1992, ch. 951, § 8.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 373 (1986).

The Revocation-Upon-Divorce Doctrine: Tennessee's Need to Adopt the Broader Uniform Probate Code Approach (Hailey H. David), 39 U. Mem. L. Rev. 383 (2009).

NOTES TO DECISIONS

1. Alterations.

Will alterations made by testator were sufficient to revoke provision bequeathing stocks, bonds, and cash where the testator enclosed the provision in parenthesis, underlined the provision, wrote “void” above the provision, and signed his initials. In re Estate of Warren, 3 S.W.3d 493, 1999 Tenn. App. LEXIS 224 (Tenn. Ct. App. 1999).

There was insufficient evidence to support that the 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, because the 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; and no evidence was presented of any individual witnessing the decedent make any markings on the will, of any person identifying the markings on the will as those of the decedent, or concerning whether the decedent made comments prior to his death regarding revision of his will. In re Estate of Lewis, — S.W.3d —, 2020 Tenn. App. LEXIS 477 (Tenn. Ct. App. Oct. 28, 2020).

2. Cancellation.

Where a third codicil of a will was destroyed at the testator's direction under T.C.A. § 32-1-201(3) but not in his presence, the attempted revocation of the third codicil was ineffective as a matter of law. In re Estate of Boote, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 663 (Tenn. Ct. App. 2005), rehearing denied, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 804 (Tenn. Ct. App. 2005), appeal denied, In re Estate of Boote v. Shivers, — S.W.3d —, 2006 Tenn. LEXIS 355 (Tenn. 2006).

3. Codicils.

Where a widow filed a declaratory judgment petition with a third codicil that was previously undiscovered attached, prior to the trial court entering an order admitting the will and the first two codicils to probate in solemn form, the trial court had an obligation to bring the proceedings to a halt and conduct an inquiry into whether the widow had standing to pursue a will contest under T.C.A. § 32-4-101 and not doing so was reversible error. The third codicil, if admitted to probate, would undoubtedly have operated as a partial revocation of the earlier will and codicils under T.C.A. § 32-1-201(1) and T.C.A. § 32-1-101(2). In re Estate of Boote, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 663 (Tenn. Ct. App. 2005), rehearing denied, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 804 (Tenn. Ct. App. 2005), appeal denied, In re Estate of Boote v. Shivers, — S.W.3d —, 2006 Tenn. LEXIS 355 (Tenn. 2006).

Trial court erred by interpreting the court's earlier opinion as conclusively deciding that the testator's third codicil had not been revoked, had been lost or destroyed, and that the contents were the same as the contents of the purported copy, and therefore the trial court erred by granting the widow summary judgment under the law of the case doctrine; rather, the court's prior opinion stated that nothing in its opinion prevented the testator's daughters from also contesting the will and all three codicils if that was their desire, and on remand the trial court was to require the daughters to state whether they were contesting the testator's will or any of the codicils, and if so, the basis for their contest. In re Estate of Boote, 265 S.W.3d 402, 2007 Tenn. App. LEXIS 818 (Tenn. Ct. App. Dec. 27, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 384 (Tenn. May 27, 2008).

32-1-202. Revocation by divorce or annulment.

  1. If after executing a will the testator is divorced or the testator's marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.
  2. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent but § 32-3-105 shall not apply. Other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent.
  3. If provisions are revoked solely by this section, they are revived by the testator's remarriage to the former spouse.
  4. For purposes of this section, divorce or annulment means any divorce or annulment that would exclude the spouse as a surviving spouse within the meaning of § 31-1-102(b). A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
  5. No change of circumstances other than as described in this and § 32-1-201 revokes a will.

Acts 1985, ch. 139, § 2.

Law Reviews.

The Revocation-Upon-Divorce Doctrine: Tennessee's Need to Adopt the Broader Uniform Probate Code Approach (Hailey H. David), 39 U. Mem. L. Rev. 383 (2009).

NOTES TO DECISIONS

1. Presumption Against Intestacy.

The presumption against intestacy is not sufficient to convert a life estate in a former spouse into a fee simple. In re Walker, 849 S.W.2d 766, 1993 Tenn. LEXIS 71 (Tenn. 1993).

2. Revocation Ordered.

Where testator's will devised a life estate to his wife, and where subsequent to the execution of the will testator and wife were divorced, this section revoked the life estate and the remainder interest granted to wife's children, and testator's estate passed to his heirs. In re Walker, 849 S.W.2d 766, 1993 Tenn. LEXIS 71 (Tenn. 1993).

Pursuant to this section, testatrix's bequest to her divorced husband was revoked and the estate distributed in accordance with other bequests. Billingsley v. Estate of Seeber, 939 S.W.2d 579, 1996 Tenn. App. LEXIS 689 (Tenn. Ct. App. 1996).

Chapter 2
Probate of Wills

32-2-101. Place of proving and recording will and granting letters testamentary.

Wills shall be proved and recorded and letters testamentary granted in the probate court of the county where the testator had the testator's usual residence at the time of the testator's death, or, in case the testator had fixed places of residence in more than one county, in either or any of those counties.

Code 1858, § 2169 (deriv. Acts 1789, ch. 23, § 1); Shan., § 3902; mod. Code 1932, § 8099; T.C.A. (orig. ed.), § 32-201.

Cross-References. Destruction or concealment of will, § 39-14-131.

Fees of clerks of courts administering probate matters, §§ 8-21-401, 8-21-701, 8-21-702.

Foreign probated wills, allowing and recording, § 32-5-101.

Jurisdiction of chancery courts of probate and related matters, title 16, ch. 16, part 2.

Letters testamentary, granting, § 30-1-102.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 32, 313, 315, 528, 538.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-801, 4-803.

Tennessee Jurisprudence, 6 Tenn. Juris., Conflict of Laws, Domicile and Residence, § 27; 25 Tenn. Juris., Wills, § 45.

Law Reviews.

Notice to Interested Parties in Probate Proceedings, 18 Vand. L. Rev. 1647 (1965).

NOTES TO DECISIONS

1. In General.

The statutes make it clear that the county court is the probate court. The 1978 constitutional amendments superseded this court. Viewed realistically the probate court is just as much a part of our judicial system as the juvenile court. Probate judges are county officers. Marion County Bd. of Comm'rs v. Marion County Election Com., 594 S.W.2d 681, 1980 Tenn. LEXIS 407 (Tenn. 1980).

2. Ecclesiastical Court Influence.

Except and unless where changed by our statutes, when probating wills, our courts follow the rules of the ecclesiastical courts of England which followed the civil law. Moore v. Steele, 29 Tenn. 562, 1850 Tenn. LEXIS 34 (1850); Davis v. Baugh, 33 Tenn. 477, 1853 Tenn. LEXIS 76 (1853); Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926).

3. Necessity of Probate.

In a case arising from the distribution of settlement proceeds in which the children of the deceased argued that the settlement proceeds should be distributed in accordance with a document that they propounded was the deceased's will, since that will had not been probated, it had not legal effect. Additionally, since there was no estate opened and no will admitted to probate, the proceeds of the personal injury action passed in accordance with the laws on intestate succession. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

4. —Will Bequeathing Personalty.

A will bequeathing personalty does not take effect until probated. Basket v. Hassell, 108 U.S. 267, 2 S. Ct. 634, 27 L. Ed. 719, 1883 U.S. LEXIS 1033 (1883).

5. —Will as Muniment of Title.

Unprobated will may be probated as a muniment of title. Weaver v. Hughes, 26 Tenn. App. 436, 173 S.W.2d 159, 1943 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1943).

6. Jurisdiction of County Court.

The county court formerly had general and exclusive original jurisdiction as to the probate of wills, and its judgments were conclusively presumed to import absolute verity when called in question in a collateral proceeding. Hodges v. Bauchman, 16 Tenn. 186, 1835 Tenn. LEXIS 73 (1835); Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867); Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

7. Jurisdiction of Chancery Court.

8. —Probate or Devisavit Vel Non.

The chancery court formerly had no jurisdiction to probate wills or to try the issue of devisavit vel non. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); Patton v. Allison, 26 Tenn. 320, 1846 Tenn. LEXIS 133 (1846); John v. Tate, 26 Tenn. 388, 1846 Tenn. LEXIS 142 (1846); Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867); Harrison v. Guion, 72 Tenn. 531, 1880 Tenn. LEXIS 58 (1880); Simmons v. Leonard, 89 Tenn. 622, 15 S.W. 444, 1890 Tenn. LEXIS 86 (1891).

9. —Devisavit Vel Non Judgment When Fraud Involved.

Chancery court will set aside verdict and judgment of circuit court upon issue of devisavit vel non when obtained by fraud. John v. Tate, 26 Tenn. 388, 1846 Tenn. LEXIS 142 (1846); Smith v. Harrison, 49 Tenn. 230, 1871 Tenn. LEXIS 2 (1871); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

10. —Title to Land — Suspension of Suit.

Where the property rights of the parties depend upon the validity of a will, the chancery court may suspend the proceedings in a suit pending before it, or may suspend the execution of its decree, until the parties can, within a fixed time, institute proceedings in the probate court to set aside its probate in common form and to procure its certification, and until such contest can be expeditiously prosecuted to a final judgment. Pinkerton v. Walker, 4 Tenn. 220, 4 Tenn. 221, 1817 Tenn. LEXIS 14 (1817); Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867); Townsend v. Bonner, 1 Shan. 197 (1869); State v. Allen, 2 Cooper's Tenn. Ch. 42 (1874).

11. Jurisdiction of Circuit Court.

The probate in common form is conclusive until set aside upon contest in the circuit court. Ex parte Williams, 69 Tenn. 529, 1878 Tenn. LEXIS 133 (1878); Brown v. Brown, 82 Tenn. 253, 1884 Tenn. LEXIS 125, 52 Am. Rep. 169 (1884).

12. Place of Probate.

The probate of a will admitted to record in a county other than that in which the testator resided at the time of his death is voidable. Pinkerton v. Walker, 4 Tenn. 220, 4 Tenn. 221, 1817 Tenn. LEXIS 14 (1817).

The object of this section is to fix the local jurisdiction for the probate of wills of resident testators in the county where the testator had his usual residence at the time of his death or in case of more than one fixed residence in either of the counties where the testator resided. Woodfin v. Union Planters Nat'l Bank & Trust Co., 174 Tenn. 367, 125 S.W.2d 487, 1938 Tenn. LEXIS 100 (1939).

Where an elderly person left the county of her general residence and went to live with relatives in a second county where she died, probate could have been accomplished in either county. Probate of her will in the second county was proper, and there was no need for ancillary administration in the first county. Inman v. Patton, 525 S.W.2d 149, 1975 Tenn. LEXIS 656 (Tenn. 1975).

If the testator is domiciled in Tennessee at the time of death, the will should be probated in this state pursuant to T.C.A. § 32-2-101, rather than under separate statutes governing the probate of foreign wills, and this is true even though a will was executed outside the state. Hussey v. Jackson, 766 S.W.2d 184, 1989 Tenn. LEXIS 31 (Tenn. 1989).

Probate court had subject matter jurisdiction over the decedent's estate because the decedent was domiciled in Tennessee as weeks before the decedent's death, the decedent moved from Pennsylvania into an assisted living facility in Tennessee to be near one of the decedent's children. Despite the efforts of one of the decedent's children in Pennsylvania to prevent the decedent from changing the domicile to Tennessee, the decedent was able to express through the decedent's words and actions the requisite intent to reside permanently in Tennessee. In re Estate of Dell'Aquila, — S.W.3d —, 2019 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 25, 2019).

13. Probate in Wrong County.

The probate made in the wrong county must stand until revoked or vacated by the county court granting the probate, or until reversed by the proper appellate tribunal. Johnson v. Gains, 41 Tenn. 288, 1860 Tenn. LEXIS 65 (1860); Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867).

14. Probate by Interested Party.

Where the probate of a 10 year old unprobated will would cure a defect in defendant's title to land the defendant, although she had no direct interest in the probation of the will could offer such will for probate as a muniment of title. Weaver v. Hughes, 26 Tenn. App. 436, 173 S.W.2d 159, 1943 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1943).

15. Nonresident Testator.

If testator's domicile was not in Tennessee at the time of his death, it is questionable whether the courts of Tennessee have jurisdiction to probate the will. McCutchen v. Ochmig, 60 Tenn. 390, 1872 Tenn. LEXIS 519 (1873).

This section does not apply to a nonresident's will. Woodfin v. Union Planters Nat'l Bank & Trust Co., 174 Tenn. 367, 125 S.W.2d 487, 1938 Tenn. LEXIS 100 (1939); Hussey v. Jackson, 766 S.W.2d 184, 1989 Tenn. LEXIS 31 (Tenn. 1989).

Testator must have been domiciled in Tennessee at time of death before court would have jurisdiction for original probate of such person's will. Svoboda v. Svoboda, 61 Tenn. App. 444, 454 S.W.2d 722, 1969 Tenn. App. LEXIS 295 (Tenn. Ct. App. 1969).

16. Will Executed Out of State.

Where testator was domiciled in Tennessee at the time of his death will must be offered for probate under this chapter rather than chapter 5 of this title even though will was executed outside the state. Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 1964 Tenn. LEXIS 557 (1964).

Collateral References.

Attorney's compensation for probate of will, amount of. 143 A.L.R. 728, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Custodian accepting will for safekeeping as under duty to produce will for probate upon testator's death. 141 A.L.R. 1277.

Effect of testator's attempted physical alteration of will after execution. 24 A.L.R.2d 514.

Enforceability of contract to make will in return for services, by one who continues performance after death of person originally undertaking to serve, 84 A.L.R.3d 930.

Establishment of will lost before testator's death. 34 A.L.R. 1304.

Failure of instrument to make any disposition of property or fact that there is no beneficiary entitled to take thereunder as affecting its admissibility to probate as will. 147 A.L.R. 636.

Forged instrument, power and duty of probate court to set aside admission of, to probate as a will. 115 A.L.R. 473.

Later will, necessity of revocation of probate of prior will before probate of, or effect of probate after prior probate. 107 A.L.R. 254, 157 A.L.R. 1351.

Liability for administration expenses of spouse electing against will. 89 A.L.R.3d 315.

Loss of right to be appointed executor by delay in presenting will for probate or in seeking letters testamentary. 45 A.L.R.2d 916.

Probate fees or taxes as a property tax or an excise tax. 103 A.L.R. 91.

Probate of joint, mutual, and reciprocal wills. 169 A.L.R. 81.

Probate of will or proceedings subsequent thereto as affecting right to probate later codicil or will, and rights and remedies of parties thereunder. 107 A.L.R. 249, 157 A.L.R. 1351.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered. 17 A.L.R.3d 603.

Relation back of probate of will in support of title or rights of persons claiming under or through devisee. 48 A.L.R. 1035.

Relative rights to real property as between purchasers from or through decedent's heirs and devisees under will subsequently sought to be established. 22 A.L.R.2d 1107.

Revival under doctrine of dependent relative revocation of charitable bequest in will expressly revoked in a later will containing same charitable bequest. 75 A.L.R.3d 877.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

Statute limiting time for probate of will as applicable to will probated in another jurisdiction. 87 A.L.R.2d 721.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings. 53 A.L.R.4th 561.

Sufficiency of publication of will. 60 A.L.R.2d 124.

Suppression of will, or agreement for its suppression, as contrary to public policy or to statute in that regard. 117 A.L.R. 1249.

Testimony of attesting witnesses as to time of interlineations and changes appearing on face of will. 34 A.L.R.2d 619.

32-2-102. Original will — Where kept — Transfer of will — Record of transfer.

  1. Except when a will is before the court awaiting the determination of any controversy, an original will must remain in the clerk's office of the county where the will is proved or exhibited, or other suitable facility as provided in subsection (b), and any person may have access to it, as to other records.
    1. The clerk may transfer, as provided in subdivision (b)(2), all original wills in the clerk's possession for which at least three (3) years have elapsed since final settlement of the estate or final disposition of all actions involving the will.
    2. A will transferred pursuant to subdivision (b)(1) must be transferred to a county archive facility or any other suitable facility that:
      1. Stores local government records;
      2. Is secure from theft and natural disasters; and
      3. Has been approved by the judge of the respective court and the county public records commission.
  2. For the purposes of subsection (b), “final disposition” means that judgment has been entered and the appeal times have lapsed for all parties.
  3. The clerk of the court shall keep a record of each will that is transferred pursuant to subsection (b). The record must indicate the name of the testator, the date of transfer, and the location to which the will was transferred.

Code 1858, § 2170 (deriv. Acts 1794, ch. 1, § 49); Shan., § 3903; Code 1932, § 8100; T.C.A. (orig. ed.), § 32-202; Acts 2019, ch. 79, § 3.

Amendments. The 2019 amendment rewrote the section, which read: “Every original will shall remain in the clerk's office of the county where it is proved or exhibited, among the records of that office, except when it is before another court awaiting the determination of any controversy, and any person may have access to it, as to other records.”

Effective Dates. Acts 2019, ch. 79, § 4. April 3, 2019.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 321.

32-2-103. Withdrawal of will for proof out of state.

Whenever any will has been proved and recorded for six (6) months in any county of this state, as required by §§ 32-2-10132-2-104, and the will is required to be proved out of this state, the judge of probate may, on the application of the executor, so stating, duly sworn to and filed, allow the executor to withdraw the will, upon leaving a photostatic and certified copy and complying with such other terms as may be prescribed.

Code 1932, § 8101; T.C.A. (orig. ed.), § 32-203.

32-2-104. Proof of will generally.

  1. Written wills with witnesses, when not contested, shall be proved by at least one of the subscribing witnesses, if living. Every last will and testament, written or nuncupative, when contested, shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support it.
  2. Upon petition of any interested party, the court, in its discretion, may permit the proof of any subscribing witness who is outside of the state or county or who is unable to testify in person, to be taken by interrogatories or deposition in the same manner as provided in chancery cases. For the purpose of taking interrogatories or depositions a photostatic copy of the original will may be furnished to the witness, or in the discretion of the court, the original will may be withdrawn and used in the manner prescribed by § 32-2-103.

Code 1858, §§ 2171, 2172 (deriv. Acts 1789, ch. 23, § 1); Shan., § 3904; Code 1932, § 8102; C. Supp. 1950, § 8102; Acts 1953, ch. 69, § 1; T.C.A. (orig. ed.), § 32-204.

Cross-References. Affidavit of witnesses to prove will, § 32-2-110.

Proof of written will, evidence, § 32-4-105.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 319, 320, 332, 334, 372, 1044.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-802.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 12, 49, 74.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (II) (Herman L. Trautman), 15 Vand. L. Rev. 882 (1962).

Impeachment of Witnesses In Tennessee (Donald F. Paine), 36 Tenn. L. Rev. 728 (1969).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Wills, Trusts and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Probate at Common Law.

At common law, a testament may be proved in two ways, either in common form or solemn form. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846).

2. Probate — Common Form.

3. —Usual Form.

Written wills may be admitted to probate in common form upon the evidence of one witness, and such probate is almost a matter of course. Townsend v. Bonner, 1 Shan. 197 (1869); Fielder v. Pemberton, 136 Tenn. 440, 189 S.W. 873, 1916 Tenn. LEXIS 148 (1916).

Wills are usually probated in common form. Lassiter v. Travis, 98 Tenn. 330, 39 S.W. 226, 1896 Tenn. LEXIS 227 (1897).

4. —Definition.

A will is proved in common form when the executor presents it before the court, and, without the citation and presence of the parties interested, produces a witness or witnesses to prove the same, who testify by their oaths that the testament exhibited is the true, whole, and last will and testament of the deceased, and the judge thereupon, and sometimes with less proof, annexes his probate and seal thereto. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846).

5. —Presumptions.

Where a will of personalty was probated in common form, there is a presumption, in the absence of evidence to the contrary, that there was sufficient evidence to warrant its probate, and that presumption is not removed by a showing that some of the witnesses in favor of the will did not see the testator sign it. State ex rel. Estes v. Goodman, 133 Tenn. 375, 181 S.W. 312, 1915 Tenn. LEXIS 100 (1915).

6. —Conclusiveness.

The probate of a will in common form, unappealed from, and not revoked or vacated, is conclusive until it is finally set aside by the final decision in favor of the contestants in a contest successfully prosecuted by them upon the issue of devisavit vel non. Until so set aside, such probate is conclusive of the testamentary capacity of the testator and of the testamentary character and due execution of the instrument, and is even conclusive as against all questions of fraud, impositions, and undue influence in procuring its execution. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); Roberts v. Stewart, 32 Tenn. 162, 1852 Tenn. LEXIS 40 (1852); Edmondson v. Carroll, 34 Tenn. 678, 1855 Tenn. LEXIS 118 (1855); Byrn v. Fleming, 40 Tenn. 658, 1859 Tenn. LEXIS 194 (1859), overruled, Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 1905 Tenn. LEXIS 21, 6 L.R.A. (n.s.) 703 (1906); Johnson v. Gains, 41 Tenn. 288, 1860 Tenn. LEXIS 65 (1860); Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867); Ex parte Williams, 69 Tenn. 529, 1878 Tenn. LEXIS 133 (1878); Reaves v. Hager, 101 Tenn. 712, 50 S.W. 760, 1898 Tenn. LEXIS 128 (1899); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

Probate in common form is conclusive, though the testator, on account of his minority, had no capacity to make the will. Ex parte Williams, 69 Tenn. 529, 1878 Tenn. LEXIS 133 (1878); Reaves v. Hager, 101 Tenn. 712, 50 S.W. 760, 1898 Tenn. LEXIS 128 (1899).

7. —Probate in Wrong County.

Probate in common form, though made in the wrong county, is conclusive until revoked or vacated by that court, or reversed by the proper appellate tribunal, upon appeal or writ of error. Johnson v. Gains, 41 Tenn. 288, 1860 Tenn. LEXIS 65 (1860).

8. —Right of Contest.

The probate in common form, being ex parte in its nature, without notice to persons interested in the estate, it must follow that they are not concluded by it, but may contest the will. Roberts v. Stewart, 32 Tenn. 162, 1852 Tenn. LEXIS 40 (1852).

9. Probate in Solemn Form.

Trial court had authority to reopen case where will proponent erroneously sought to probate will in solemn form in the absence of any formal notice of administratrix's opposition to admission of will. In re Estate of King, 760 S.W.2d 208, 1988 Tenn. LEXIS 193 (Tenn. 1988).

10. —Definition.

Where a will is offered to be proved in solemn form, it is requisite that all interested parties (the distributees of the decedent, had he died intestate) should be cited to be present at the probation and approbation of the testament, in whose presence the will is to be exhibited to the judge and proved; and, if the proof be sufficient, the judge by his sentence or decree pronounces for the validity of the testament. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846).

11. —Binding Effect.

The probate of a will in solemn form, upon notice to the interested parties or by final judgment upon the issue of devisavit vel non rendered by a court of competent jurisdiction in a contested will case, in which the executor or some of the parties interested in maintaining the will and some of the parties interested in setting the will aside are adverse parties to the record, is conclusive upon all parties in interest, whether parties to the record or not, unless it can be impeached upon the ground that it was procured by fraud or collusion, as other judgments and decrees. This rule is based upon the principle that the probate of wills is in the nature of a proceeding in rem, and binding on all persons in interest. Hodges v. Bauchman, 16 Tenn. 186, 1835 Tenn. LEXIS 73 (1835); Roberts v. Stewart, 32 Tenn. 162, 1852 Tenn. LEXIS 40 (1852); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

12. —Persons Entitled to Probate.

A devisee, though a stranger in blood to the testator, is entitled, upon petition to the court, to have the will probated in solemn form. Roberts v. McMillan, 77 Tenn. 571, 1882 Tenn. LEXIS 104 (1882).

13. —Right to Compel.

The difference between the probate of a will in the common form and in the solemn form is that the executor of a will proved in common form may be compelled, by an interested person, to prove it in solemn form. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846).

14. —Nuncupative Will.

The probate of a nuncupative will must be made in solemn form, and such probate will not be set aside, nor the will and such proceedings certified to the circuit court for an issue and contest in the usual form, because of the absence of the notice or process from the record, where want of notice is not alleged, and the probate recites that notice was given, though it is not found in the record. Brown v. Harris, 68 Tenn. 386, 1876 Tenn. LEXIS 26 (1876).

15. Jurisdiction.

16. —Suspension of Common Form Probate.

The county court (now probate court) cannot, at a subsequent term, set aside, absolutely and unconditionally, the probate of a will in common form. The order of the county court (now probate court) setting aside the probate of a will in common form, in order that the same may be contested in the circuit court, has the legal effect only to suspend the probate in common form and to suspend the rights under the will during the pendency of the trial of the issue of devisavit vel non, and is only revoked, absolutely, by a final decision in favor of the contestants. A withdrawal of the contest in the circuit court revives the probate in common form. The administration of the estate may proceed pending the contest in the circuit court, except that the interests of the parties under the will and in the estate must be preserved. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); Roberts v. Stewart, 32 Tenn. 162, 1852 Tenn. LEXIS 40 (1852); Edmondson v. Carroll, 34 Tenn. 678, 1855 Tenn. LEXIS 118 (1855); Byrn v. Fleming, 40 Tenn. 658, 1859 Tenn. LEXIS 194 (1859), overruled, Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 1905 Tenn. LEXIS 21, 6 L.R.A. (n.s.) 703 (1906); Ex parte Williams, 69 Tenn. 529, 1878 Tenn. LEXIS 133 (1878).

17. —Setting Common Form Probate Aside.

It seems that the county court (now probate court) has power, at a subsequent term, to set aside the probate of a will in common form, where such is void upon its face or is voidable under the clearly established facts. Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867).

18. —Jurisdiction to Probate in Solemn Form.

The county court (now probate court) has jurisdiction to probate a will in solemn form when the parties who would be interested in case of the intestacy of the alleged testator are cited to be present, and fail to appear or refuse to contest the will; but, if they appear and contest, the fact must be certified to the circuit court, where the will may be probated in solemn form upon the issue of devisavit vel non. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Roberts v. Stewart, 32 Tenn. 162, 1852 Tenn. LEXIS 40 (1852); Keith v. Raglan, 41 Tenn. 474, 1860 Tenn. LEXIS 93 (1860); Roberts v. McMillan, 77 Tenn. 571, 1882 Tenn. LEXIS 104 (1882).

19. Jurisdiction of Circuit Court.

20. —Devisavit Vel Non.

If the will has been probated in common form, the court may, upon the petition of any party that would have been substantially interested in the estate in case of intestacy of the decedent and alleged testator, and after the citation of the executor to appear and defend, transfer the will to the circuit court, to be proved in solemn form, on the issue of devisavit vel non; but inasmuch as it is not a matter of course to set aside the probate in common form, the court may refuse to do so and may refuse such transfer. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); Wynne v. Spiers, 26 Tenn. 394, 1846 Tenn. LEXIS 143 (1846); Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Keith v. Raglan, 41 Tenn. 474, 1860 Tenn. LEXIS 93 (1860); Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871); Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872).

Under this section no particular form of pleading is required in making up an issue of devisavit vel non. Propoundment of the instrument and averment that it is the will of testator by the executors, and a denial that the affirmation is true by the contestants, suffice. Harrison v. Morton, 32 Tenn. 461, 1852 Tenn. LEXIS 97 (1852).

Where notice of contest is entered by one “interested” and the proceeding is certified to circuit court the death of one of the contestants does not deprive circuit court of jurisdiction, since proceeding in circuit court is a proceeding in rem involving the distribution of the res the estate, hence the proceeding must continue until the instrument propounded is either admitted to probate or rejected. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

A proceeding for probate in the circuit court is but an action in rem involving due distribution of the estate as the res. Durell v. Martin, 172 Tenn. 97, 110 S.W.2d 316, 1937 Tenn. LEXIS 56 (1937).

21. Jurisdiction of Chancery Court.

22. —Fraudulent Probate.

The chancery court has jurisdiction to set aside the probate of a will in common form, where such probate was procured through fraud. State ex rel. Estes v. Goodman, 133 Tenn. 375, 181 S.W. 312, 1915 Tenn. LEXIS 100 (1915).

23. Proof of Will.

There is no issue to be determined by the jury in will contests until the law with respect to the production of witnesses to the will has been complied with. Swindoll v. Jones, 41 Tenn. App. 89, 292 S.W.2d 531, 1954 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1954).

24. —Burden of Proof.

Ordinarily, upon proof of the due execution of the will, it will be presumed that the testator knew and approved its contents; but where the circumstances are such as to excite suspicion, the burden of showing affirmatively that the testator fully understood and freely assented to its provisions is cast upon the proponents. Goodall v. Crawford, 611 S.W.2d 602, 1980 Tenn. App. LEXIS 409 (Tenn. Ct. App. 1980).

25. —Subscribing Witnesses.

Though the statute requires a will of land to be attested by at least two subscribing witnesses, proof by both is not indispensable, and proof by one shall be sufficient to give such a will validity, if it is not contested. Townsend v. Bonner, 1 Shan. 197 (1869); Wheeler v. Parr, 3 Tenn. Civ. App. (3 Higgins) 374 (1912).

A will should not be admitted and read to the jury in will contests as part of the evidence until such witnesses to the will who are found and are available have been produced in open court or their testimony taken by deposition. Swindoll v. Jones, 41 Tenn. App. 89, 292 S.W.2d 531, 1954 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1954).

Under provisions of this section that a contested will is to be proved by all living witnesses “if to be found,” it is the function of the trial judge to determine whether a witness is available or can be found and where the explanation satisfies not only the trial judge but the contestants as well the requirements have been substantially met. Lyman v. American Nat'l Bank & Trust Co., 48 Tenn. App. 328, 346 S.W.2d 289, 1960 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1960).

T.C.A. § 32-1-104 was not complied with and decedent's will was not properly executed when names of attesting witnesses were simply typed onto a will and the witnesses did not sign the will; this was so regardless of whether the witnesses initialed other pages of the will and supplied affidavits pursuant to T.C.A. § 32-2-110. In re Estate of Stringfield, 283 S.W.3d 832, 2008 Tenn. App. LEXIS 457 (Tenn. Ct. App. Aug. 4, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 223 (Tenn. Feb. 17, 2009).

26. —Legatee as Witness.

A legatee under a will of personalty is not rendered incompetent by his interest to testify as a witness to prove the execution of the will, for his interest only goes to his credibility, and not to his competency as a witness. State ex rel. Estes v. Goodman, 133 Tenn. 375, 181 S.W. 312, 1915 Tenn. LEXIS 100 (1915).

27. —Witness Not Found.

The officer's return on the subpoena that the witness “is not to be found” is sufficient evidence of the fact, and will excuse the nonproduction of the witness when the witness is not shown to be or reside in any other county within the state. A search of other states and foreign countries is not required. M'Donald v. M'Donald, 13 Tenn. 306, 13 Tenn. 307, 1833 Tenn. LEXIS 178 (1833); Crockett v. Crockett, 19 Tenn. 95, 1838 Tenn. LEXIS 23 (1838).

The question of whether or not the witnesses to a will are available in will contest is to be determined by the trial court in the exercise of its discretion and not by the jury. Swindoll v. Jones, 41 Tenn. App. 89, 292 S.W.2d 531, 1954 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1954).

Court of Appeals will sustain the action of the trial court in will contest in the exercise of his discretion in determining whether or not witnesses to the will are available unless there has been an abuse of such discretion. Swindoll v. Jones, 41 Tenn. App. 89, 292 S.W.2d 531, 1954 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1954).

Witness unavailability is for the trial court to decide, and its determination will not be set aside when the contestants have acquiesced in the proof concerning the manner in which the will was executed. Owen v. Stanley, 739 S.W.2d 782, 1987 Tenn. App. LEXIS 3211 (Tenn. Ct. App. 1987), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

28. —Witness Not Called.

It is mandatory for all attesting witnesses if they are found and available for testimony to be produced by the proponents of the will in all cases contesting the validity of will. Swindoll v. Jones, 41 Tenn. App. 89, 292 S.W.2d 531, 1954 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1954).

Where it was clear from the record that witness to will was within county and available, trial court abused its discretion in holding that such witness was not available and in not ordering his appearance at will contest proceedings. Swindoll v. Jones, 41 Tenn. App. 89, 292 S.W.2d 531, 1954 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1954).

29. —Witness a Nonresident.

The nonresidence of the subscribing witness may be proved by any competent evidence; and if, upon the trial, it be established by proof that the witness is a resident of another state, or in a foreign country, and so without the jurisdiction of the court, the issuance of a subpoena and the return of an officer that the witness is “not to be found” is not necessary. Crockett v. Crockett, 19 Tenn. 95, 1838 Tenn. LEXIS 23 (1838).

30. —Signature of Deceased Witness.

Proof of a signature of a deceased witness may be made by persons familiar with his handwriting. Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

31. —Impeachment of Witness.

The fact that plaintiff introduces the testimony of a subscribing witness will not preclude his impeaching it and proving his signature in opposition to his own swearing. Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850).

32. —Signature of Deceased.

Proof by subscribing witness (the other being deceased) that attorney at the instruction of and in the presence of deceased wrote and signed will which was subscribed by two witnesses in the presence of and at the request of the deceased entitled will to probate. Morrow v. Person, 195 Tenn. 370, 259 S.W.2d 665, 1953 Tenn. LEXIS 350 (1953).

33. —Handwriting of Testator.

Where two sons who subscribed to will were excused from testifying in contested proceeding the will could be proved by remaining subscribing witness and secondary proof of handwriting of testator. Allen v. Allen, 2 Tenn. 172, 1812 Tenn. LEXIS 1 (1812).

34. —Handwriting of Subscribing Witness.

The requirement of the statute that contested wills shall be proved by all the subscribing witnesses, if living and if to be found, is not to be construed literally, and the incompetency of the attesting witness, or his absence from the state, so that his attendance cannot be compelled, will authorize the admission of proof of his handwriting. The living witnesses must be produced, if to be found within the state. Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850).

35. —Foreign Will.

A certificate of probate in a foreign court which states that the will was proved by the executors does not show proper probate. Currell v. Villars, 72 F. 330, 1896 U.S. App. LEXIS 2565 (C.C.D. Tenn. 1896).

Certified copy of foreign will, proved by one witness, was admissible. Fielder v. Pemberton, 136 Tenn. 440, 189 S.W. 873, 1916 Tenn. LEXIS 148 (1916).

36. —Question for Jury.

It is for a jury to determine from all the evidence, both intrinsic and extrinsic whether or not the decedent intended the instrument to operate as a will. In re Will of Padgett, 51 Tenn. App. 134, 364 S.W.2d 947, 1962 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1962).

37. —Depositions.

T.C.A. § 32-2-104(a) is satisfied if the testimony of the arresting witnesses is preserved by deposition after the contestants have been given the opportunity to cross-examine. Owen v. Stanley, 739 S.W.2d 782, 1987 Tenn. App. LEXIS 3211 (Tenn. Ct. App. 1987), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

38. Setting Aside Common Form Probate.

39. —Title to Property — Effect.

The title acquired under a will probated in common form, by purchase, statute of limitations, or otherwise, is not affected by setting aside the probate, and declaring the will invalid upon the trial of the issue of devisavit vel non, for defense may be made against the claimants under the will, when they sue to recover the property. Gibson v. Lane, 17 Tenn. 475, 1836 Tenn. LEXIS 89 (1836); Reaves v. Hager, 101 Tenn. 712, 50 S.W. 760, 1898 Tenn. LEXIS 128 (1899); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

40. Two Wills.

When circuit court takes jurisdiction for the contest of a will, it is proper to permit the propounding of other wills so that the jury may determine which is the will of the decedent. McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481, 1890 Tenn. LEXIS 31 (1890); Murrell v. Rich, 131 Tenn. 378, 175 S.W. 420, 1914 Tenn. LEXIS 115 (1914); Walker v. Verble, 5 Tenn. Civ. App. (5 Higgins) 651 (1914); Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926).

Where deceased made two wills, the legatee or devisee is bound to present both, leaving the court to determine whether either or both had been duly executed. Durell v. Martin, 172 Tenn. 97, 110 S.W.2d 316, 1937 Tenn. LEXIS 56 (1937).

A defect in notice of the provisions of a prior will was harmless since the merits of that will were of no effect and a remand to provide further notice would be a futile waste of time. In re Estate of Dye, 565 S.W.2d 219, 1977 Tenn. App. LEXIS 275 (Tenn. Ct. App. 1977).

41. Limitations and Laches.

42. —30-Year Rule.

Where administration is granted, the estate wound up, and the division and distribution thereof, in accordance with law, is acquiesced in by the heirs and distributees, who have knowledge of a will which was not fraudulently concealed or suppressed and which is probated in common form 33 years after the testator's death, the probate will be set aside upon petition to the court, the time for probating wills being limited to 30 years by the analogy of the common law applicable in this country. Townsend v. Bonner, 1 Shan. 197 (1869).

43. —10-Year Statute.

A proceeding to revoke the judgment of probate of a will in common form, so far as the same devised real estate, upon the ground that the will was admitted to probate upon the incompetent testimony of subscribing witnesses who were disqualified and incompetent, is barred after 10 years from such probate, under the general statute of limitations, where the judgment or order of probate is in proper form and is valid upon its face, and there is no fraud or concealment. Scott v. Wagstaff, 120 Tenn. 252, 107 S.W. 976, 1907 Tenn. LEXIS 46 (1908); Blackwell v. Memphis S. R. Co., 124 Tenn. 516, 137 S.W. 486, 1911 Tenn. LEXIS 60 (1911).

Collateral References.

Effect of failure of attesting witness to observe testator's capacity. 69 A.L.R.2d 662.

32-2-105. Proof of will of person serving in armed forces.

  1. Any last will of any person in the military or naval service of the United States, made outside this state, or at sea while in military or naval service, may be admitted to probate by the probate court of the county where the testator was domiciled, upon the certificate of the colonel, lieutenant colonel, major, or commanding officer of the regiment, or captain or commandant of the vessel, setting forth that the testator acknowledged, or that the subscribing witnesses proved, the will before that officer; but the heirs or next of kin of the testator may, in like manner and time prescribed for other contests, contest the validity of the will, in which case the authentication shall be prima facie evidence.
    1. The will of any person serving in the armed forces of the United States or any auxiliary thereto and executed while serving therein, may be admitted to probate upon proof satisfactory to the tribunal having jurisdiction over the probate of the genuineness of the signature of the maker of the will, where it first be shown that proof of due execution of the will may not be had of the subscribing witnesses to the will, if any, due to the inability to locate them, their death or the unavailability of their testimony for any reason adjudged sufficient by the tribunal having jurisdiction over the probate.
    2. However, no such will shall be admitted to probate where the will is offered for probate more than ten (10) years from the date of a declaration by the president of the United States or a resolution of congress declaring the end of hostilities during which the will was executed and in which the testator was a member of the armed forces, and nothing provided in this subsection (b) with reference to such wills shall void modes of probating wills made by members of the armed forces, but this subsection (b) shall, as to the wills of members of the armed forces made as provided in this section, afford an additional method of probate.

Code 1858, §§ 2191, 2192 (deriv. Acts 1847-1848, ch. 82, § 2); Shan., §§ 3923, 3924; mod. Code 1932, §§ 8129, 8130; Acts 1945, ch. 24, §§ 1-4; mod. C. Supp. 1950, § 8102; modified; T.C.A. (orig. ed.), §§ 32-205, 32-206.

Cross-References. Will contest, title 32, ch. 4.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 32, 59.

Collateral References.

What circumstances excuse failure to submit will for probate within time limit set by statute. 17 A.L.R.3d 1361.

32-2-106. Proof of nuncupative will.

  1. No nuncupative will shall be proved until fourteen (14) days after the death of the testator, nor until process has issued to call in the surviving spouse or next of kin, or both, if conveniently to be found, to contest it.
  2. If the surviving spouse and next of kin, or any of them, are not so found or are out of the state, notice shall be given by publication, once a week for four (4) successive weeks, in some newspaper published in the county, or, if none is published in the county, in the one (1) published nearest the courthouse of the county, and this notice shall be a prerequisite to the establishment of the will; also, if residence be known, by mailing a copy of the notice to them at that address by registered mail.

Code 1858, § 2166 (deriv. Acts 1784 (Apr.), ch. 22, § 16); Shan., § 3899; mod. Code 1932, §§ 8095, 8096; modified; T.C.A. (orig. ed.), § 32-207.

Cross-References. Certified mail instead of registered mail, § 1-3-111.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 9, 231, 241, 316, 329.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 81.

NOTES TO DECISIONS

1. Probate in Solemn Form.

2. —Necessity.

The probate of a nuncupative will is required to be in solemn form; and, when so probated, the probate is as binding as the probate of other wills, made in solemn form. Brown v. Harris, 68 Tenn. 386, 1876 Tenn. LEXIS 26 (1876).

3. —Notice to Interested Persons.

Probate in solemn form ought not to be set aside upon petition merely because of the absence of the process or notice from the record, when the want of notice is not averred in the petition. The recital of the record that the next of kin of the maker of the nuncupative will were notified to appear is sufficient to show the fact of notice, though the notice is absent from the record, in the absence of allegation and proof of want of notice. Brown v. Harris, 68 Tenn. 386, 1876 Tenn. LEXIS 26 (1876).

4. Jurisdiction.

County court (now probate court) can probate nuncupative will if no contest is filed. Jenkins v. Jenkins, 168 Tenn. 292, 77 S.W.2d 805, 1934 Tenn. LEXIS 56 (1935).

5. Jurisdiction of Circuit Court.

6. —Probate After Demurrer.

Where nuncupative will was offered for probate and demurrer filed thereto within six month period and county court (now probate court) certified same to circuit court, will could be proved in circuit court proceeding though hearing on demurrer was not held in circuit court until after expiration of six month period. Jenkins v. Jenkins, 168 Tenn. 292, 77 S.W.2d 805, 1934 Tenn. LEXIS 56 (1935).

7. Contest.

8. —Demurrer to Probate.

Filing of demurrer to probate of nuncupative will constituted a will contest. Jenkins v. Jenkins, 168 Tenn. 292, 77 S.W.2d 805, 1934 Tenn. LEXIS 56 (1935).

Collateral References.

What circumstances excuse failure to submit will for probate within time limit set by statute. 17 A.L.R.3d 1361.

32-2-107. Effect of probate.

The probate of wills in the probate courts shall be sufficient evidence of the devise of real estates.

Code 1858, § 2197 (deriv. Acts 1784 (Oct.), ch. 10, § 6); Shan., § 3929; Code 1932, § 8139; T.C.A. (orig. ed.), § 32-208.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 32, 332.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 44, 50.

NOTES TO DECISIONS

1. Effect of Probate in Common Form.

2. —Purchaser in Good Faith.

A purchaser who, in good faith, takes from a devisee an absolute deed of conveyance of the legal title to land and pays the full price therefor, in ignorance of any infirmity in the will or of other defect of title, obtains a title superior to any right or claim of an infant heir who, subsequently and before attaining his majority contests the will and obtains an adjudication setting aside its probate in common form and annulling the will. Reaves v. Hager, 101 Tenn. 712, 50 S.W. 760, 1898 Tenn. LEXIS 128 (1899); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

Title acquired in good faith under a will probated in common form cannot be disturbed, even if subsequently the probate be annulled and the will be set aside. State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

3. —Evidence of Devise.

Proof of probate of will devising lands to daughter for life and to her children in fee made a prima facie case for grandchildren in their suit for partition of lands against defendant, purchaser at foreclosure sale of mortgage executed by life tenant. Morrow v. Person, 195 Tenn. 370, 259 S.W.2d 665, 1953 Tenn. LEXIS 350 (1953).

4. Probate of Will as Muniment of Title.

Where the probate of a 10 year old unprobated will would cure a defect in defendant's title to land the defendant, although she had no direct interest in the probation of the will could offer such will for probate as a muniment of title. Weaver v. Hughes, 26 Tenn. App. 436, 173 S.W.2d 159, 1943 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1943).

5. Domestic Wills Covered.

This section applies only to domestic wills. Kiernan v. Casey, 116 Tenn. 245, 93 S.W. 576, 1905 Tenn. LEXIS 20 (1906).

Collateral References.

Wills: admissibility of extrinsic evidence to determine whether fee or absolute interest, or only estate for life or years, was given. 21 A.L.R.3d 778.

32-2-108. Copies of wills as evidence.

Attested or certified copies of wills, or the records thereof, by the proper officer, may be given in evidence in the same manner as the originals.

Code 1858, § 2198 (deriv. Acts 1784 (Oct.), ch. 10, § 6); Shan., § 3930; mod. Code 1932, § 8140; T.C.A. (orig. ed.), § 32-209.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 16, 371.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 49, 50, 54, 56.

NOTES TO DECISIONS

1. Copy — Weight as Evidence.

The devisee, seeking to establish his title to the devised land, by suit for its recovery, may proceed upon a certified copy of the probated will, which, when duly attested, is prima facie evidence of the validity of the will, but is not conclusive, for it may be shown that a fraud was committed in drawing or obtaining it, or that it was not formally executed, and attested, though it is not permissible in such suit to try the issue of devisavit vel non. Grier v. Canada, 119 Tenn. 17, 107 S.W. 970, 1907 Tenn. LEXIS 2 (1907).

2. Copy — Improper Objection.

It was not error to permit the introduction of a copy of a will where only objection was that “it was not a will” and no objection was made that the copy was not supported by an order of probate or certificate of the clerk. Cothron v. Cothron, 21 Tenn. App. 388, 110 S.W.2d 1054, 1937 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1937).

Collateral References.

Probate of copy of lost will as precluding later contest of will under doctrine of res judicata. 55 A.L.R.3d 755.

32-2-109. Original — When to be produced.

  1. When any fraud is suggested to have been committed in the drawing or obtaining of any last will, or any irregularity in the executing or attestation of the will, the party making the suggestion may insist upon the original will being produced to the court, if the original is to be found.
  2. The court, wherever any suit is pending, and in which such a domestic will may be introduced as testimony, may compel all and every person or persons, whether in office or otherwise, to produce the will.

Code 1858, §§ 2199, 2200 (deriv. Acts 1784 (Oct.), ch. 10, § 6); Shan., §§ 3931, 3932; mod. Code 1932, §§ 8141, 8142; T.C.A. (orig. ed.), § 32-210.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 322.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 9, 44, 49.

NOTES TO DECISIONS

1. Purpose and Policy.

2. —Aid to Contestants.

Widow was entitled to production of original will where it was alleged in bill that deceased thought will was destroyed and that in canceling codicil he intended to cancel the entire will, since when any fraud is suggested or any irregularity of the will asserted the original will should be produced, and any court in which will is pending may compel its production. Howell v. Whitchurch, 5 Tenn. 49, 1817 Tenn. LEXIS 42 (1817).

This statute was intended for the protection of those contesting the will, in order to give them the benefit of any internal evidence, upon the face of the will, tending to show that a fraud had been committed in drawing or obtaining it, or that there was any irregularity in the execution or attestation thereof. Weatherhead v. Sewell, 28 Tenn. 272, 1848 Tenn. LEXIS 82 (1848); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

3. Domestic Wills Covered.

The statute, by its terms, applies alone to domestic wills. Kiernan v. Casey, 116 Tenn. 245, 93 S.W. 576, 1905 Tenn. LEXIS 20 (1906).

4. Challenge of Will.

5. —Collateral Attack.

In a suit involving specific property, real or personal, held under a will probated in common form, the will may be attacked by the opposing party, for fraud in its procurement. Weatherhead v. Sewell, 28 Tenn. 272, 1848 Tenn. LEXIS 82 (1848); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

6. —Chancery Suit for Escheat.

In a chancery suit by the state for the escheat of property, real and personal, alleged to have been disposed of by will probated in common form, the court has jurisdiction of the question whether the will was procured by fraud or by undue influence from a person of unsound mind, and if the will is found to have been thus procured, it may be declared ineffective as to the property in controversy, and all the rights pertaining to the property and persons involved may be adjudicated upon the merits in such suit, without directing a contest to be made in the regular course, by petition in the county court (now probate court) and by its certification to the circuit court, to be conducted and determined in the regular way. However, the chancery suit may itself be stayed until the contest is instituted and prosecuted in the regular way, if that course be sought in the bill. State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

Collateral References.

Probate where two or more testamentary documents, bearing the same dates or undated, are proffered. 17 A.L.R.3d 603.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

32-2-110. Affidavit of witnesses to prove will.

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.

Acts 1972, ch. 568, § 1; T.C.A., § 32-211.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 318, 319, 332, 1035, 1036.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-509, 4-510, 4-802, 4-803.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 11, 12, 49.

Law Reviews.

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

NOTES TO DECISIONS

1. Validity.

T.C.A. § 32-1-104 was not complied with and decedent's will was not properly executed when names of attesting witnesses were simply typed onto a will and the witnesses did not sign the will; this was so regardless of whether the witnesses initialed other pages of the will and supplied affidavits pursuant to T.C.A. § 32-2-110. In re Estate of Stringfield, 283 S.W.3d 832, 2008 Tenn. App. LEXIS 457 (Tenn. Ct. App. Aug. 4, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 223 (Tenn. Feb. 17, 2009).

2. Signature of Testator.

Purported will was invalid because the requirements for execution of an attested will prescribed by T.C.A. § 32-1-104(1) were not satisfied when the decedent failed to sign the will but signed the separate affidavit of attesting witnesses; that he may have intended to sign the will and believed he did so was immaterial, since a court could not excuse compliance with § 32-1-104. In re Estate of Chastain, 401 S.W.3d 612, 2012 Tenn. LEXIS 816 (Tenn. Nov. 16, 2012).

32-2-111. Admission to probate for establishing a muniment of title to real estate and personal property.

Regardless of the date of the person's death and any limitation on the time for admitting a will for probate, any will when duly proven, whether of a resident or nonresident decedent, may be admitted to probate for the limited purpose of establishing a muniment of title to real estate and personal property, without the necessity of granting letters testamentary or otherwise proceeding with administration.

Acts 1997, ch. 426, § 19; 2002, ch. 735, § 7; 2007, ch. 8, § 3.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that this section shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Chapter 3
Construction, Operation and Effect

32-3-101. Operation of will.

A will shall be construed, in reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, and shall convey all the real estate belonging to the testator, or in which the testator had any interest at the testator's decease, unless a contrary intention appear by its words in context.

Code 1858, § 2195 (deriv. Acts 1851-1852, ch. 180, § 2); Shan., § 3927; Code 1932, § 8133; T.C.A. (orig. ed.), § 32-301.

Cross-References. Fraudulent devises, title 66, ch. 3, part 2.

Jurisdiction of chancery courts of probate and related matters, title 16, ch. 16, part 2.

Living wills, title 32, ch. 11.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 14, 28, 30, 151, 169, 198, 303, 403, 427.

Tennessee Jurisprudence, 11 Tenn. Juris., Evidence, § 45; 25 Tenn. Juris., Wills, §§ 88, 109, 119, 126, 131, 147.

Law Reviews.

Bringing Tennessee into the Twentieth Century Re Possibilities of Reverter, Powers of Termination and Executory Interests When Used as Land Control Devices (Nicholas L. White), 15 Mem. St. U.L. Rev. 555 (1985).

Property Law — Wills — Effect of Lapsed Residuary Gifts in the State of Tennessee, 73 Tenn L. Rev. 711 (2006).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

Wills — Construction of “Issue” and the Adopted Child, 40 Tenn. L. Rev. 134 (1973).

NOTES TO DECISIONS

1. Constitutionality.

This statute, as applied to wills made before its passage where the testator died afterwards, though retrospective, was not unconstitutional, because it did not impair the obligation of contracts and did not divest, impair, or disturb vested rights, in violation of the constitutional prohibition (Tenn. Const., art. I, § 20) against the enactment of retrospective or other laws impairing the obligation of contracts. Wynne's Lessee v. Wynne, 32 Tenn. 405, 1852 Tenn. LEXIS 92 (1852); Gardenhire v. McCombs, 33 Tenn. 83, 1853 Tenn. LEXIS 10 (1853), overruled on other grounds, Steffner v. Burton, 87 Tenn. 135, 10 S.W. 358, 1888 Tenn. LEXIS 45 (1888); Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Shields v. Clifton Hill Land Co., 94 Tenn. 123, 28 S.W. 668, 1894 Tenn. LEXIS 31, 45 Am. St. Rep. 700, 26 L.R.A. 509 (1894).

2. Construction and Interpretation.

While the construction of a will requires a consideration of the facts and circumstances at the time of its execution and every word is presumed to have some meaning, the will must take effect as if it had been executed immediately before the death of the testator. Bell v. Shannon, 212 Tenn. 28, 367 S.W.2d 761, 1963 Tenn. LEXIS 396 (1963).

Phrase “all my personal property” in will included cash on hand and in checking and savings accounts, even though will also contained direction to sell personal property and convert it to cash, since “all” is inclusive and embraces all such property unless excepted by descriptive words. Cobb v. Stewart, 225 Tenn. 85, 463 S.W.2d 693, 1971 Tenn. LEXIS 280, 1971 Tenn. LEXIS 281 (1971).

In most jurisdictions, if a will's language creates a certain estate when the will is executed, but the law later changes so that the same language would pass a different estate, the law in force when the will was made governs unless the language of the will makes it clear that the testator intended differently; however, it appears Tennessee does not follow this rule. Fell v. Rambo, 36 S.W.3d 837, 2000 Tenn. App. LEXIS 276 (Tenn. Ct. App. 2000), rehearing denied, — S.W.3d —, 2000 Tenn. App. LEXIS 410 (Tenn. Ct. App. June 22, 2000).

3. —Strict Construction.

This section is in derogation of the common law and is construed strictly. Davis v. Price, 189 Tenn. 555, 226 S.W.2d 290, 1949 Tenn. LEXIS 458 (1949).

4. —Construction with Other Acts.

Because the law in effect when the testator dies controls all substantive rights in the estate, whether vested or inchoate, the pre-1981 version of § 66-1-106 applied in determining whether wife's sale of the property terminated the remaindermen's interest. Fell v. Rambo, 36 S.W.3d 837, 2000 Tenn. App. LEXIS 276 (Tenn. Ct. App. 2000), rehearing denied, — S.W.3d —, 2000 Tenn. App. LEXIS 410 (Tenn. Ct. App. June 22, 2000).

5. — —Use of Word “Heir” in Conveyance.

Statutes making it unnecessary to use the word “heir” in conveying a fee, and making wills effective as if made immediately before testator's death, did not change the rule that a devise of a remainder to the children of a life tenant inures to the benefit of the survivors of the life tenant, and excludes children of life tenant's deceased children. Neal v. Hodges, 48 S.W. 263, 1898 Tenn. Ch. App. LEXIS 59 (1898).

6. —After-acquired Property.

This section was enacted to alter the unyielding common law rule that a will of real estate spoke as of the time of its execution, and real property acquired by the testator after the execution of the will could not pass thereby. Nichols v. Todd, 20 Tenn. App. 564, 101 S.W.2d 486, 1936 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1936); Nashville Trust Co. v. Grimes, 179 Tenn. 567, 167 S.W.2d 994, 1942 Tenn. LEXIS 55 (1943).

Provision in will disposing of shares of stock in “Independent Theatres, Inc.” “owned by me at the time of my death” was held to mean the stock in a corporation so named which was formed after the execution of the will, notwithstanding that there was a corporation in existence named “Independent Theatres, Incorporated” in which the testator owned shares at the time of the execution of the will, therefore the shares of stock in “Independent Theatres, Inc.” would be disposed of according to such provision and not according to the residuary clause. Sadow v. Solomon, 204 Tenn. 190, 319 S.W.2d 83, 1958 Tenn. LEXIS 259 (1958).

There is no reason why a testator cannot dispose of property he did not own at the date of the execution of the will which he did own at the time of his death unless there appears an intention to the contrary. Sadow v. Solomon, 204 Tenn. 190, 319 S.W.2d 83, 1958 Tenn. LEXIS 259 (1958).

7. —Bequest of “Net” Income of Residuary Fund.

Where the testator bequeathed certain sums of money in trust, the income of which was to be paid to certain legatees during life, and then devised and bequeathed all the rest and residue of his estate in trust, “the net rents, interest, or income” of which were to be paid to his three nieces named, the word “net,” used to qualify the “rents, interest, or income,” if not inadvertent, did not show any intention to impose upon the income thus given to them the burden of bearing all the expenses of the trust, including the compensation of the executors and trustees. German v. German, 47 Tenn. 180, 1869 Tenn. LEXIS 31 (1869); Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

8. Effect as of Testator's Death.

Where will created life estate with contingent remainder, possibility of reverter arose at death of testator rather than at time of death of life tenant when contingent remainder failed for lack of a class so that reversionary interest passed under residuary clause of testator's will. Fehringer v. Fehringer, 222 Tenn. 585, 439 S.W.2d 258, 1969 Tenn. LEXIS 465 (1969).

9. —Unless Language Indicates Contrary.

A will speaks and takes effect as from the death of the testator, and not from its date, unless its language, by fair construction, indicates a contrary intention. Wynne's Lessee v. Wynne, 32 Tenn. 405, 1852 Tenn. LEXIS 92 (1852); Perry v. High, 40 Tenn. 349, 1859 Tenn. LEXIS 95 (1859); Cochrehan v. Kirkpatrick, 48 Tenn. 327, 1870 Tenn. LEXIS 61 (1870); Brown v. Severson, 59 Tenn. 381, 1873 Tenn. LEXIS 79 (1873); Reeves v. Reeves, 73 Tenn. 644, 1880 Tenn. LEXIS 195 (1880); Nichols v. Allen, 87 Tenn. 131, 9 S.W. 430, 1888 Tenn. LEXIS 44 (1888); Nichols v. Allen, 87 Tenn. 131, 9 S.W. 430, 1888 Tenn. LEXIS 44 (1888); Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890); Jones v. Hunt, 96 Tenn. 369, 34 S.W. 693, 1895 Tenn. LEXIS 39 (1896); McCrae v. McCrae, 103 Tenn. 719, 54 S.W. 979, 1899 Tenn. LEXIS 150 (1899); Maples v. Rawlins, 105 Tenn. 457, 58 S.W. 644, 1900 Tenn. LEXIS 92, 80 Am. St. Rep. 903 (1900); Ford v. Cottrell, 141 Tenn. 169, 207 S.W. 734, 1918 Tenn. LEXIS 78 (1918); State v. Felts, 151 Tenn. 390, 270 S.W. 77, 1924 Tenn. LEXIS 71 (1924); Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930); Lane v. Lane, 22 Tenn. App. 239, 120 S.W.2d 993, 1938 Tenn. App. LEXIS 21 (Tenn. Ct. App. 1938).

The provisions of a will should be construed as relating to conditions and persons existing at the death of the testator, unless a different purpose be declared or clearly indicated by the will itself. Jones v. Hunt, 96 Tenn. 369, 34 S.W. 693, 1895 Tenn. LEXIS 39 (1896).

Where the testator's will devised to a brother “the restaurant he is now operating at 801 West Fifth Avenue for a period of 10 years if he pays the taxes and keeps the property in repair” it was construed to devise the property to brother for 10 years from the testator's death even though the testator had requested and the brother had moved from 801 West Fifth Avenue some years before testator's death. Lane v. Lane, 22 Tenn. App. 239, 120 S.W.2d 993, 1938 Tenn. App. LEXIS 21 (Tenn. Ct. App. 1938).

This section cannot be construed to mean that a will passes title to property devised or bequeathed thereby prior to the death of the testator, but means that as to property comprised in the will, it is to take effect as if executed immediately before death, unless a contrary intention appears. Lockett v. Thomas, 179 Tenn. 240, 165 S.W.2d 375, 1942 Tenn. LEXIS 17 (1942).

Under the statute a will speaks and takes effect from the death of the testator unless its language by fair construction indicates a contrary intention, but if in construing the will as a whole a different purpose be disclosed and it appears that the testator intended the objects of his bounty to be reckoned from the execution of the will, that purpose and intention will be controlling in determining who those objects are. Nashville Trust Co. v. Grimes, 179 Tenn. 567, 167 S.W.2d 994, 1942 Tenn. LEXIS 55 (1943); Daugherty v. Daugherty, 784 S.W.2d 650, 1990 Tenn. LEXIS 51 (Tenn. 1990).

10. —Acts of Testator Subsequent to Execution.

The fact that a testator after executing his will conveyed his property to the principal beneficiaries which property they later reconveyed back to the testator would not operate to revoke the will since a will takes effect as of the death of the testator. Duncan v. Mahaffa, 26 Tenn. App. 696, 177 S.W.2d 28, 1943 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1943).

There is no presumption of implied revocation of a devise where the testator conveys property to the devisee and reacquires possession of the same property or part of it prior to his death. Newman v. Proffitt, 59 Tenn. App. 397, 440 S.W.2d 827, 1968 Tenn. App. LEXIS 353 (Tenn. Ct. App. 1968).

Where testator devised a portion of his real property to his son and at a later date conveyed the same property to such son by deed with a provision for reversion if his son should predecease him and son predeceased testator, will spoke as of the time of testator's death and such property passed under the will to heirs of son under § 32-3-105. Newman v. Proffitt, 59 Tenn. App. 397, 440 S.W.2d 827, 1968 Tenn. App. LEXIS 353 (Tenn. Ct. App. 1968).

As a general rule the subsequent marriage and birth of children to a testator are sufficient change in his circumstances to revoke his prior will, and a subsequent divorce and property settlement may also revoke a prior will insofar as the latter provides for the former spouse, but both rules are subject to exceptions or changed circumstances which make their operation unjust or improper. In re Estate of Perigen, 653 S.W.2d 717, 1983 Tenn. LEXIS 682 (Tenn. 1983), superseded by statute as stated in, Beuter v. Hedden, — S.W.2d —, 1994 Tenn. App. LEXIS 629 (Tenn. Ct. App. Oct. 28, 1994).

11. —Language Relating to Date of Will.

Where the testator refers to an actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event. Jones v. Hunt, 96 Tenn. 369, 34 S.W. 693, 1895 Tenn. LEXIS 39 (1896).

A devise and bequest to the children of certain deceased brothers and sisters, reciting that “said children now reside in Louisiana,” relates to the date of the will for the purpose of determining the devisees and legatees, who are thus determined as definitely as if they had each been named in the will. Jones v. Hunt, 96 Tenn. 369, 34 S.W. 693, 1895 Tenn. LEXIS 39 (1896).

12. —Facts and Circumstances at Date of Will.

Under this section, unless contrary appears from words and context, intention of testator is ascertained from facts and circumstances existing at time of execution of will. Nashville Trust Co. v. Johnson, 34 Tenn. App. 197, 236 S.W.2d 100, 1950 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1950).

13. Void Bequests and Devises.

14. —Subsequent Validation of Ineffectual Devise.

A will which was legally executed by one having testamentary capacity, which attempted to pass property not then effectually devised, and hence invalid as to such devise, will be validated, and pass such property included by force of a subsequent statute operating to authorize it. Mitchell v. Kimbrough, 98 Tenn. 535, 41 S.W. 993, 1896 Tenn. LEXIS 245 (1897).

15. —Law as of Testator's Death Controlling.

The will takes effect upon the death of the testator, and the law then in force determines its validity, even though the enjoyment of the devise or bequest may be postponed until the law happens to be changed. A devise or legacy, void under the law at the death of the testator, cannot be made effective by a subsequent law made before its enjoyment is to occur. Cochrehan v. Kirkpatrick, 48 Tenn. 327, 1870 Tenn. LEXIS 61 (1870).

Statutes making it unnecessary to use word “heir” in conveying a fee, and making wills effective as if made immediately before testator's death, did not change rule that a devise of a remainder to the children of a life tenant inures to the benefit of the survivors of such life tenant, and excludes the children of life tenant's deceased children. Neal v. Hodges, 48 S.W. 263, 1898 Tenn. Ch. App. LEXIS 59 (1898).

16. —Property Acquired After Making of Will.

A will in which the testator, after providing for the payment of his debts, says: “I give to my much beloved wife, Micha Wynne, all the balance of my property, both real and personal, to have and to hold to her own benefit, to the exclusion of all others,” shows a clear intention of the testator to give his wife all his land held by him at his death, whether acquired before or after the date of his will, and lands acquired thereafter and so held at his death passed to her. Wynne's Lessee v. Wynne, 32 Tenn. 405, 1852 Tenn. LEXIS 92 (1852).

Where the testator devised his home place, and afterwards acquired additional adjoining land which became a part of his home place, after which he executed a codicil, making no allusion to the devise of the home place, nor to the after-acquired land, the after-acquired land passes to the devisee as a part of the home place, for, otherwise, the testator would have died intestate as to such after-acquired land, and the presumption of law is against partial intestacy. Smith v. Puryear, 50 Tenn. 706, 1871 Tenn. LEXIS 127 (1871).

Where the testator recites that “I have some real and personal property, and I do hereby make the following disposition of it,” and after disposing of a certain specific tract of land then claimed to be owned by him, he then recites that “I have an undivided interest in the real and personal estate of my father and mother, aside from some other personal property in my own right, all and singular of which I do hereby give and bequeath the same to” certain named persons, but not describing any specific personalty, the will passes to such legatees all personalty acquired after the execution of the will and owned by testator at his death, because a contrary intention does not appear. Nichols v. Allen, 87 Tenn. 131, 9 S.W. 430, 1888 Tenn. LEXIS 44 (1888) (by a majority opinion, overruling the case of Sharpe v. Allen, 73 Tenn. 81, 1880 Tenn. LEXIS 88 (1880), on this point).

Where testator devised “certain real estate” including “My property on the Dickenson Road near Nashville, Tennessee” and the will as a whole and the surrounding circumstances indicated that testator only intended to devise property which he owned at the time of the execution of the will, such devise only operated to pass to the named beneficiary property falling within such description which testator owned at the time of the execution of such will and did not pass after-acquired property to such beneficiary. Nashville Trust Co. v. Grimes, 179 Tenn. 567, 167 S.W.2d 994, 1942 Tenn. LEXIS 55 (1943).

Legacy devising 500 shares of stock in corporation to granddaughter did not pass title to an additional 500 shares of stock in corporation by virtue of dividend in stock declared by corporation after making of will but prior to death of testator. Davis v. Price, 189 Tenn. 555, 226 S.W.2d 290, 1949 Tenn. LEXIS 458 (1949).

17. —Timber Cut After Making of Will.

Timber cut from land after will was executed and before testator's death, and thus converted into personalty would not pass under will, where there were no contrary contextual words. Bynum v. McDowell, 3 Tenn. App. 340, — S.W. —, 1926 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1926).

18. —Disposition of Property.

A devise, which never became effective because the devisee renounced it, stands in the category of a lapsed or void devise; and, in such case, the land covered passes under the residuary clause, if there be one; and, in the absence of such clause, such land goes to the heirs of the testator. Strong v. Ready, 28 Tenn. 168, 1848 Tenn. LEXIS 64 (1848); Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910).

19. —Pass Under Residuary Clause.

Since this statute altering the former law, a special exception of certain land from a residuary devise for the purpose of giving it to another devisee, will not prevent the excepted land from going to the residuary devisee, if the excepting and specific devise fails by an event analogous to a lapse, or in consequence of indefiniteness, or because void, when the whole will shows that the land was excepted out of the residuum for the purpose of giving it to the specific devisee, and not in order to take it away from the residuary devisee. Reeves v. Reeves, 73 Tenn. 644, 1880 Tenn. LEXIS 195 (1880).

Under this statute, lapsed devises and void devises pass under the general residuary clause to the residuary devisee. This statute removed the distinction between real and personal estate in this particular, and harmonized the testamentary disposition of both. Reeves v. Reeves, 73 Tenn. 644, 1880 Tenn. LEXIS 195 (1880); Fite v. Beasley, 80 Tenn. 328, 1883 Tenn. LEXIS 176 (1883); Johnson v. Johnson, 92 Tenn. 559, 23 S.W. 114, 1893 Tenn. LEXIS 13, 22 L.R.A. 179 (1893); Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910).

A general residuary bequest carries to the residuary legatee not only such of the testator's property as he did not attempt to dispose of by will but also such as was not effectively disposed of thereby. Fehringer v. Fehringer, 222 Tenn. 585, 439 S.W.2d 258, 1969 Tenn. LEXIS 465 (1969).

20. —Restraint on Alienation.

Where testatrix conveyed her home to the devisee “to live in and not to be sold,” testatrix's will passed a fee simple absolute in the home to the devisee, and the attempted restraint on alienation was void as inconsistent with the incidents and nature of the estate devised and contrary to public policy. White v. Brown, 559 S.W.2d 938, 1977 Tenn. LEXIS 656 (Tenn. 1977).

21. Rule Against Partial Intestacy.

The common law presumption against partial intestacy, codified in this section, is applicable when the words used, by any fair interpretation, will embrace the property not otherwise devised, unless a contrary intention appears from the context. McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 1917 Tenn. LEXIS 153 (1918).

The presumption against any partial intestacy when a decedent dies testate applies only in the absence of a contrary intent and when the words used will fairly embrace the property not otherwise devised. In re Estate of Dye, 565 S.W.2d 219, 1977 Tenn. App. LEXIS 275 (Tenn. Ct. App. 1977).

The rule against partial intestacy operates to prevent testamentary gifts from lapsing or failing through the incomplete drafting of a will. In re Will of Tipler, 10 S.W.3d 244, 1998 Tenn. App. LEXIS 841 (Tenn. Ct. App. 1998).

22. Construction of Will.

Presumption against intestacy will not pass property not named in a will, which contains only devises and bequests of specified property, where there are no contextual words to contrary. Bynum v. McDowell, 3 Tenn. App. 340, — S.W. —, 1926 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1926).

The cardinal rule in construction of all wills is that the court shall seek to discover the intention of the testator and give effect to it, unless it contravenes some rule of law or public policy. That intention is to be ascertained from the particular words used, from the context, and from the general scope and purpose of the will, read in the light of the surrounding and attending circumstances. Mongle v. Summers, 592 S.W.2d 594, 1979 Tenn. App. LEXIS 372 (Tenn. Ct. App. 1979).

The presumption against intestacy is not sufficient to convert a life estate in a former spouse into a fee simple. In re Walker, 849 S.W.2d 766, 1993 Tenn. LEXIS 71 (Tenn. 1993).

Where decedent created a holographic will, containing a clause that provided: If I do not have sufficient funds to give each person the amounts I listed, the amounts as corrected can be adjusted up or down by considering each part a percentage of the entire total estate available after expenses of settling, the probate court erred by construing the language as a residuary clause; on review, the appellate court held that decedent died intestate as to the excess personal property not specifically devised in her will; accordingly, her sister's children inherited a residence not provided for in the will by intestate succession. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

23. —Chancery Jurisdiction.

Construction of a will is not a proper issue in probate proceedings. Jones v. Jones, 163 Tenn. 237, 43 S.W.2d 205, 1931 Tenn. LEXIS 105 (1931); Condry v. Coffey, 163 Tenn. 508, 43 S.W.2d 928, 1931 Tenn. LEXIS 141 (1931); Richberg v. Robbins, 33 Tenn. App. 66, 228 S.W.2d 1019, 1950 Tenn. App. LEXIS 85 (Tenn. Ct. App. 1949).

Where will was not clear as to whether property was bequeathed to dog or whether private trust was established for care of animal, the matter of construction of the will was not a proper matter for probate proceedings. Richberg v. Robbins, 33 Tenn. App. 66, 228 S.W.2d 1019, 1950 Tenn. App. LEXIS 85 (Tenn. Ct. App. 1949).

24. —Heir Favored.

Any ambiguity in words referring to the property should be resolved against disinheriting the heir. McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 1917 Tenn. LEXIS 153 (1918).

25. —Adopted Child as Issue.

In the absence of an intent to the contrary, the word “issue” does not include a child adopted after the death of the testator. Banovic v. Davis, 642 S.W.2d 153, 1982 Tenn. App. LEXIS 426 (Tenn. Ct. App. 1982), superseded by statute as stated in, Calhoun v. Campbell, 763 S.W.2d 744, 1988 Tenn. LEXIS 270 (Tenn. 1988).

26. Joint Will.

The validity of a joint will was not destroyed by the fact that the testators devised their property to a third person subject only to a life estate in the survivor. Beach v. Cobble, 36 Tenn. App. 693, 260 S.W.2d 212, 1952 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1952).

27. Intent of Testator.

It is the intention of the testator which should prevail. In re Will of Padgett, 51 Tenn. App. 134, 364 S.W.2d 947, 1962 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1962).

Where the intent of the testators is determined, the use of inept words or errors in grammar and punctuation will not vary, change or alter that intent. Mongle v. Summers, 592 S.W.2d 594, 1979 Tenn. App. LEXIS 372 (Tenn. Ct. App. 1979).

28. Ademption.

A change of beneficiary, which right is reserved in life insurance policy, operates as an ademption or revocation pro tanto of a previously executed will which purported to dispose of the proceeds of such life insurance policy. Minnesota Life Ins. Co. v. Allen, 55 Tenn. App. 405, 401 S.W.2d 589, 1965 Tenn. App. LEXIS 259 (Tenn. Ct. App. 1965).

Where a legacy provided for 50 shares of a specific bank stock to a church, the sale of that stock by the testatrix prior to death resulted in a revocation of that legacy. Price v. Johnson, 563 S.W.2d 188, 1977 Tenn. App. LEXIS 267 (Tenn. Ct. App. 1977).

29. Holographic Codicil.

The doctrine of facts of independent significance was applicable to permit testatrix's holographic codicil to refer to husband's will, despite the fact that the will was not in existence when the codicil was executed, provided the document was a valid holographic codicil. In re Will of Tipler, 10 S.W.3d 244, 1998 Tenn. App. LEXIS 841 (Tenn. Ct. App. 1998).

To determine whether holographic codicil contained all material provisions in testatrix's handwriting, the trial court properly considered testatrix's intent. In re Will of Tipler, 10 S.W.3d 244, 1998 Tenn. App. LEXIS 841 (Tenn. Ct. App. 1998).

30. Partial Intestacy.

Where the beneficiaries predeceased the testatrix and died without issue, the Tennessee anti-lapse statute was not applicable. The probate court correctly applied the Ford rule and concluded that the lapsed gifts created a partial intestacy; the lapsed gifts passed to the heirs at law. In re Estate of McFarland, 167 S.W.3d 299, 2005 Tenn. LEXIS 624 (Tenn. 2005).

Collateral References.

Ademption or revocation of specific devise or bequest by guardian, committee, or conservator of mentally or physically incompetent testator. 51 A.L.R.2d 770, 84 A.L.R.4th 462.

Arbiter to determine questions as to construction, testamentary appointment of. 104 A.L.R. 362.

Base for determining amount of bequest of a specific percent or proportion of estate or property. 87 A.L.R.3d 605.

Bequest of stated amount to several legatees as entitling each to full amount or proportionate share thereof. 1 A.L.R.3d 479.

Changing, deleting, or adding punctuation in construing will. 70 A.L.R.2d 215.

Character of remainder limited generally to the life tenant's children. 57 A.L.R.2d 103.

Character of remainder limited to surviving children of life tenant. 57 A.L.R.2d 197.

Condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith. 89 A.L.R.3d 984.

Construction and effect of joint, mutual, and reciprocal wills. 169 A.L.R. 81.

Construction and effect of provisions of will relied upon as affecting the burden of taxation. 37 A.L.R.2d 7, 70 A.L.R.3d 630.

Construction and effect of proviso of will that “in case of the death” of a devisee or legatee, or “if he die” (or equivalent expression), the property shall go to another. 51 A.L.R.2d 205.

Construction and effect of statute providing that agreement made by a testator for sale or transfer of property disposed of by will previously made does not revoke or adeem such disposition. 62 A.L.R.2d 958.

Construction and effect of will provision releasing or forgiving debt due testator. 76 A.L.R.2d 1020.

Construction and effect of will provisions not expressly mentioning payment of death taxes but relied on as affecting the burden of estate or inheritance taxes. 37 A.L.R.2d 7, 70 A.L.R.3d 630.

Construction and effect of will provisions relied on as affecting payment of real or personal property taxes or income taxes. 70 A.L.R.3d 726.

Construction of reference in will to statute where pertinent provisions of statute are subsequently changed by amendment or repeal. 63 A.L.R.3d 603.

Construction of will with respect to right of retainer or setoff, against debtor's distributive share of estate, of debt barred by statute of limitations. 39 A.L.R.2d 65.

Declaratory judgment as to. 12 A.L.R. 52, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8.

Determination as to whether testator intended to dispose of property belonging to devisee or legatee so as to put latter to election. 60 A.L.R.2d 736.

Determination whether will is absolute or conditional. 1 A.L.R.3d 1048.

Devise or bequest pursuant to testator's contractual obligation as subject to estate, succession, or inheritance tax. 59 A.L.R.3d 969.

Devolution of gift over upon spouse predeceasing testator where gift to spouse fails because of divorce. 74 A.L.R.3d 1108.

Devolution of legacy or devise renounced during life of testator. 47 A.L.R.3d 1277.

Disinheritance provisions of will as affecting construction of will as regards children or descendants of person disinherited. 112 A.L.R. 284.

Disposition of insurance proceeds of personal property specifically bequeathed or devised. 82 A.L.R.3d 1261.

Divorce or annulment as affecting will previously executed by husband or wife. 71 A.L.R.3d 1297.

Doctrine of election where will purports to give devisee or legatee property he already owns. 60 A.L.R.2d 789.

Effect of doubtful construction of will devising property upon marketability of title. 65 A.L.R.3d 450.

Effect of gift to be disposed of “as already agreed” upon or the like. 85 A.L.R.3d 1181.

Effect of invalidity of provision conditioning testamentary gift upon divorce of beneficiary, on alternative provision conditioning gift upon spouse's death. 74 A.L.R.3d 1095.

Effect of provision in will conditioning gift on beneficiary's assumption or retention of family name. 38 A.L.R.2d 1343.

Effect of residuary clause to pass property acquired by testator's estate after his death. 39 A.L.R.3d 1390.

Effect of will provision cutting off heir or next of kin, or restricting him to provision made, to exclude him from distribution of intestate property. 100 A.L.R.2d 325.

Effect of word “nearest” or “immediate” in testamentary gift to “nearest heir” or “immediate heir” or the like. 100 A.L.R.2d 1069.

Exercise by will of trustor's reserved power to revoke or modify inter vivos trust. 81 A.L.R.3d 959.

Language of will or other trust instruments as implying right to invade principal on behalf of life beneficiary. 31 A.L.R.3d 309.

Law in effect at time of execution of will or at time of death of testator as controlling. 129 A.L.R. 862.

Limiting effect of provision in contract, will, or trust instrument fixing trustee's or executor's fees. 19 A.L.R.3d 520.

Option to purchase real estate as subject to creation by will. 44 A.L.R.2d 1207, 13 A.L.R.4th 947.

Parol or extrinsic evidence to show intention of testator as to disinheritance of children. 94 A.L.R. 209.

Practical construction by parties interested. 67 A.L.R. 1272.

Practical construction of will as affecting legatee's liability to income tax on income distributable or distributed to him. 141 A.L.R. 1060.

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen shall take the share to which he would have been entitled, as affecting the character of the remainder as vested or contingent. 47 A.L.R.2d 900.

Quantum or character of estate or interest created by language providing premises as a home, or giving or granting same for such use. 45 A.L.R.2d 699.

Res judicata as applied to judicial construction of will. 136 A.L.R. 1180.

Revocation of will by nontestamentary writing. 22 A.L.R.3d 1346.

Right of party to joint or mutual will, made pursuant to agreement as to disposition of property at death, to dispose of such property during life. 85 A.L.R.3d 8.

Rights of surviving spouse taking under or against will as affected by provision in will directing conversion. 33 A.L.R.3d 1280.

Rules against perpetuities where estate is limited on alternative contingencies, one within and one beyond the period allowed by the rule. 98 A.L.R.2d 807.

Separate gifts to same person in same or substantially same amounts, made in separate wills or codicils, as cumulative or substitutionary. 65 A.L.R.3d 1325.

Spouse's right to take under other spouse's will as affected by antenuptial or postnuptial agreement or property settlement. 53 A.L.R.2d 475.

Stipulation of parties to cause as to construction of will. 92 A.L.R. 672.

Term “money” or “moneys” in will as including real property. 76 A.L.R.3d 1254.

Testamentary direction for payment of debts or expenses of administration as affecting life insurance proceeds payable to estate. 56 A.L.R.2d 865.

Testamentary gift to children as including stepchild. 28 A.L.R.3d 1307.

Testamentary gift to executor as one in his fiduciary capacity or in his own right. 3 A.L.R.3d 1376.

Testamentary gift to one named as executor or trustee as conditioned upon his qualifying or serving as such. 61 A.L.R.2d 1380.

Testator's intention as defeating operation of anti-lapse statute. 63 A.L.R.2d 1172.

Use of figures wholly or in part to express date of holographic will as affecting its sufficiency. 22 A.L.R.3d 866.

Validity and construction of testamentary gift conditioned upon beneficiary's remaining married. 28 A.L.R.3d 1325.

Validity and construction of testamentary gift to political party. 41 A.L.R.3d 833.

Validity, construction, and application of statutory requirement that will beneficiary survive testator for specified time. 88 A.L.R.3d 1339.

Validity, construction, and effect of bequest or property owned by corporation in which testator has majority interest. 78 A.L.R.3d 963.

Validity of provisions of will or deed prohibiting, penalizing, or requiring marriage to one of a particular religious faith. 50 A.L.R.2d 740.

Validity of statutes or rules providing that marriage or remarriage of woman operates as revocation of will previously executed by her. 99 A.L.R.3d 1020.

Validity of testamentary provision making gift to person or persons meeting specified qualification and authorizing another to determine who qualifies. 74 A.L.R.3d 1073.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary. 49 A.L.R.2d 198, 3 A.L.R.5th 590.

What constitutes or establishes beneficiary's acceptance or renunciation of devise or bequest. 93 A.L.R.2d 8.

What is included in term “funds” in will. 67 A.L.R.2d 1444.

What law governs in determining who are “heirs,” “heirs at law,” “issue,” “next of kin,” or the like, who will take legacy or bequest under terms of will. 52 A.L.R.2d 490.

What passes under, and is included in, devise of “building,” “house,” or “dwelling house.” 29 A.L.R.3d 574.

What passes under, and is included in, devise of “home” or “home place.” 38 A.L.R.2d 840.

What passes under legacy or bequest of things found or contained in particular place or container. 5 A.L.R.3d 466.

What passes under provision of will that spouse shall take share of estate allowed or provided by law, or provision of similar import. 36 A.L.R.2d 147.

What passes under term “business” or “business enterprise” in will. 28 A.L.R.3d 1169.

What passes under term “personal estate” in will. 53 A.L.R.2d 1059.

What passes under term “personal property” in will. 31 A.L.R.5th 499.

What passes under term “securities” in will. 27 A.L.R.3d 1386.

What passes under terms “personal belongings,” “belongings,” “personal effects” or “effects” in will. 30 A.L.R.3d 797.

What passes under term “things” in will. 41 A.L.R.2d 946.

What testamentary language passes United States bonds. 100 A.L.R.2d 1004.

When is a gift by will or deed of trust one to a class. 61 A.L.R.2d 212, 13 A.L.R.4th 978.

Wills: bequest or devise referring to services to be rendered by donee to testator during latter's lifetime as absolute or conditional gift. 22 A.L.R.3d 771.

Wills: validity of condition of gift depending on separation or divorce. 14 A.L.R.3d 1219.

32-3-102. Devise of land.

Every devise shall convey the entire estate of the testator in the lands, unless the contrary intent plainly appear from the words and context of the will.

Code 1858, § 2164 (deriv. Acts 1784 (Apr.), ch. 22, § 12); Shan., § 3897; Code 1932, § 8091; T.C.A. (orig. ed.), § 32-302.

Cross-References. Unlimited power of disposition given to owner of estate for life or years, effect, § 66-1-106.

Words passing estate of grantor or devisor in land, § 66-5-101.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 303, 427.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 119, 131.

Law Reviews.

Bringing Tennessee into the Twentieth Century Re Possibilities of Reverter, Powers of Termination and Executory Interests When Used as Land Control Devices (Nicholas L. White), 15 Mem. St. U.L. Rev. 555 (1985).

Wills — Precatory Words Insufficient to Create a Trust, 15 Tenn. L. Rev. 729 (1939).

NOTES TO DECISIONS

1. Construction and Interpretation.

2. —“Estate.”

The word “estate” is used in this section in its technical sense as having reference to the nature of the testator's interest in the property, that is, as to whether it is a fee simple or a lesser estate, and not with reference to the extent of the testator's ownership of the corpus, that is, as to whether he owned the whole property or merely an undivided interest therein. Nichols v. Todd, 20 Tenn. App. 564, 101 S.W.2d 486, 1936 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1936).

3. Devise of Lands.

4. —Heir Not Disinherited Except by Express Words.

The rule that an heir is not to be disinherited except by express words or necessary implication will be invoked to defeat the presumption that a testator intends to dispose of his entire estate, and not to die intestate. Nichols v. Todd, 20 Tenn. App. 564, 101 S.W.2d 486, 1936 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1936).

5. —Devise Without Words of Inheritance or Limitation.

A devise to one, without the addition of the words “his heirs and assigns forever,” must be deemed to be a devise in fee simple, unless by some part of the will it appears that the testator intended to convey an estate of less dignity. Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); King v. Miller, 79 Tenn. 633, 1883 Tenn. LEXIS 117 (1883); Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

6. —Devise to Trustee — Estate of Beneficiaries.

In a devise to trustees of a legal estate in fee for the benefit of an individual or a class, the testator will be presumed to intend that the beneficiaries shall take an equitable interest in the property of precisely the same extent as the legal interest expressly vested in the trustees. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

7. —All or Residue of Lands Conveyed Without Description.

A devise of all the testator's lands, or the residue of his lands, is good without naming or describing them, and conveys the testator's entire interest or estate in them, unless the contrary intent plainly appears. Williams v. Williams, 18 Tenn. 20, 1836 Tenn. LEXIS 97 (1836); Seifreid v. Peoples Bank, 2 Cooper's Tenn. Ch. 17 (1874); King v. Miller, 79 Tenn. 633, 1883 Tenn. LEXIS 117 (1883); Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911).

8. —General Devise Conveys Possessory Estate.

A general devise conveys testator's possessory estate in land before his title is completed or perfected. Heirs of Marr v. Gilliam, 41 Tenn. 488, 1860 Tenn. LEXIS 96 (1860).

9. —Specific Lands Described in Devise.

Where the testator devises, by plain and unambiguous language, certain described lands, his other lands will not pass under the devise, though he dies intestate as to them. Oldham v. York, 99 Tenn. 68, 41 S.W. 333, 1897 Tenn. LEXIS 10 (1897).

10. —Life Estate.

Where testatrix bequeathed and devised her property to her husband “as long as he lives,” the husband had a life estate only and the remainder at his death would pass under the laws of descent and distribution to testatrix's heirs at law and distributees respectively. Nichols v. Todd, 20 Tenn. App. 564, 101 S.W.2d 486, 1936 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1936).

Where will granted wife a life estate and provided upon the death of the life tenant that estate was to be divided share and share alike among the children and that the portion of the estate of a child who died without issue was to be divided equally among the survivors, and where codicil provided that the children should divide and settle the estate among themselves, the children took an unconditional fee simple absolute interest in the estate. Martin v. Taylor, 521 S.W.2d 581, 1975 Tenn. LEXIS 692 (Tenn. 1975).

11. Real Estate by Intestacy.

12. —Real Estate Not Mentioned.

Where a will, providing for the payment of debts and for a number of general pecuniary legacies, contained no residuary clause and made no mention of the real estate in question, the testator died intestate as to such realty, and it descended to his heir at law. Ford v. Cottrell, 141 Tenn. 169, 207 S.W. 734, 1918 Tenn. LEXIS 78 (1918).

13. —Presumptions.

Presumption is that a testator did not intend to die partially intestate. McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 1917 Tenn. LEXIS 153 (1918); Maynor v. Vaughn, 159 Tenn. 281, 17 S.W.2d 910, 1928 Tenn. LEXIS 83 (1929).

There is a presumption that a testator intends to dispose of his entire estate, and not to die intestate, either as to the whole or any part thereof, or interest therein; however this presumption yields when it conflicts with the rule that an heir is not to be disinherited except by express words or necessary implication. Nichols v. Todd, 20 Tenn. App. 564, 101 S.W.2d 486, 1936 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1936).

Will by uneducated man in his own handwriting which “I want my wife … to then take in her perseson the remainder of all of my property boath real and personal and use as her own for her surpoard in any way that her needs require until her death” vested the fee in the widow. Cannon v. Cannon, 182 Tenn. 1, 184 S.W.2d 35, 1944 Tenn. LEXIS 294 (1944).

The common law presumption against partial intestacy, codified in this section, is applicable where the words used, by any fair interpretation, will embrace the property not otherwise devised unless a contrary intention appears from the context. Smith v. Weitzel, 47 Tenn. App. 375, 338 S.W.2d 628, 1960 Tenn. App. LEXIS 85 (Tenn. Ct. App. 1960).

14. —Unambiguous Devise of Fee — Effect.

Where there is primarily a clear and certain devise of a fee about which the testamentary intention is obvious and without ambiguity the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning. Smith v. Reynolds, 173 Tenn. 579, 121 S.W.2d 572, 1938 Tenn. LEXIS 45 (1938).

15. Power of Appointment.

Words giving to widow an estate with discretionary power of appointment did not vest in her an absolute estate. The exercise of the power was a condition precedent and no beneficial interest could be enjoyed until the power was exercised. Word v. Morgan, 45 Tenn. 407, 1868 Tenn. LEXIS 22 (1868).

16. Joint Will.

The validity of a joint will was not destroyed by the fact that the testators devised their property to a third person subject only to a life estate in the survivor. Beach v. Cobble, 36 Tenn. App. 693, 260 S.W.2d 212, 1952 Tenn. App. LEXIS 141 (Tenn. Ct. App. 1952).

Collateral References.

Construction of devise to persons as joint tenants and expressly to the survivor of them, or to them “with the right of survivorship.” 69 A.L.R.2d 1058.

Effect of cotenant's attempt to devise or bequeath specific portion of property held in common. 97 A.L.R.2d 739.

Effect of doubtful construction of will devising property upon marketability of title. 65 A.L.R.3d 450.

Power and authority, in the absence of determining clause in will, or executor or administrator to lease out, or to rent, decedent's real estate. 95 A.L.R.2d 258.

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage. 38 A.L.R.4th 117.

To whom does title to burial lot pass on testator's death, in absence of specific provision in his will. 26 A.L.R.3d 1425.

32-3-103. Pretermitted child.

  1. A child born after the making of a will, either before or after the death of the testator, inclusive of a mother-testator, not provided for nor disinherited, but only pretermitted, in the will, and not provided for by settlement made by the testator in the testator's lifetime, shall succeed to the same portion of the testator's estate as if the testator had died intestate.
  2. Toward raising the portion of such child, the devisees and legatees and other heirs shall contribute out of the parts devised, or bequeathed to, or settled upon them by the testator, in the proportion borne by their respective devises, legacies, or settlements to the whole estate of the testator.

Code 1858, §§ 2193, 2194 (deriv. Acts 1823, ch. 28, § 1); Shan., §§ 3925, 3926; Code 1932, §§ 8131, 8132; T.C.A. (orig. ed.), §§ 32-303, 32-304.

Cross-References. After-born heirs, § 31-2-108.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 293, 296, 297, 299-302, 829, 986, 1003.

Tennessee Jurisprudence, 5 Tenn. Juris., Bastardy and Children Out of Wedlock, §§ 4, 14; 22 Tenn. Juris., Res Judicata, §§ 16, 33; 25 Tenn. Juris., Wills, §§ 114, 180.

Law Reviews.

Decedent's Estates: The Rights of Adopted Persons Under Tennessee's Descent and Distribution and Adoption Statutes to Take by Intestate Succession or by Will or Trust, 22 Mem. St. U.L. Rev. 339 (1992).

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (II) (Herman L. Trautman), 15 Vand. L. Rev. 882 (1962).

Domestic Relations (William J. Harbison), 6 Vand. L. Rev. 974 (1953).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Some Suggested Legislation in the Field of Wills (W. Raymond Blackard), 14 Tenn. L. Rev. 381 (1937).

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

TennCare: Expanded Estate Recovery - Recover at ALL Cost, 45 U. Mem. L. Rev. 711 (2015).

Wills, Estates and Trusts (William J. Bowe), 6 Vand. L. Rev. 1126 (1953).

Wills — Implied Revocation — Effect of Adoption of Child Subsequent to Execution, 5 Vand. L. Rev. 128 (1952).

Wills — Pretermitted Children, 17 Tenn. L. Rev. 405 (1943).

NOTES TO DECISIONS

1. Purpose and Policy.

2. —Unintentional Exclusion.

This statute was not designed to diminish or annul the exercise of a testator's testamentary power, but to supply an omitted intention in behalf of after-born children unintentionally excluded from participation in the estate. Fleming v. Phoenix Trust Co., 162 Tenn. 511, 39 S.W.2d 277, 1930 Tenn. LEXIS 116 (1931).

Trial court did not err by denying the alleged heir's petition seeking to inherit from the decedent by being legitimized after the decedent's death and then sharing in the decedent's estate as a pretermitted child under T.C.A. § 32-3-103 because the purpose of the statute was to protect after born children from inadvertent disinheritance. Lanier v. Rains, — S.W.3d —, 2006 Tenn. App. LEXIS 61 (Tenn. Ct. App. Jan. 11, 2006), aff'd in part, rev'd in part, 229 S.W.3d 656, 2007 Tenn. LEXIS 583 (Tenn. June 28, 2007).

3. —Benefit of After-born Children.

This section was intended for the benefit of after-born children, and not for that of the parent. King v. King, 166 Tenn. 115, 59 S.W.2d 510, 1932 Tenn. LEXIS 121 (1933).

4. Construction and Interpretation.

5. —Legally Adopted Children Included.

A legally adopted child acquires the same legal status as one born in lawful wedlock, and stands on the same footing as a natural child when adopted after the making of a will. Marshall v. Marshall, 25 Tenn. App. 309, 156 S.W.2d 449, 1941 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1941).

Only a legally adopted child is entitled to the benefit of this section and a legal adoption can be accomplished only by a proceeding in substantial compliance with the adoption statutes. Couch v. Couch, 35 Tenn. App. 464, 248 S.W.2d 327, 1951 Tenn. App. LEXIS 86 (Tenn. Ct. App. 1951).

6. —Words, “Inclusive of a Mother-Testator.”

The insertion of the words “inclusive of a mother-testator” in the Code of 1932 was explanatory of the law as it already was and was not a change of the law. King v. King, 166 Tenn. 115, 59 S.W.2d 510, 1932 Tenn. LEXIS 121 (1933).

7. —Child Believed Dead Not Covered.

The section is not applicable in behalf of a son of testator believed by latter to be dead. Bowerman v. Burris, 138 Tenn. 220, 197 S.W. 490, 1917 Tenn. LEXIS 23 (1917).

8. Intent to Exclude.

9. —Omission Alone.

The mere pretermission or omission of an after-born child in a will does not, without more, warrant inference of disinheritance, for to say that it did would be to say that the words “nor disinherited” in the provision are superfluous. King v. King, 166 Tenn. 115, 59 S.W.2d 510, 1932 Tenn. LEXIS 121 (1933).

Fact that testatrix did not change her will after birth of only child was an element of consideration but standing alone would not indicate an intention to exclude or disinherit. Young v. Young, 48 Tenn. App. 645, 349 S.W.2d 545, 1961 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1961).

10. —How Shown.

Disinheritance may result from explication. King v. King, 166 Tenn. 115, 59 S.W.2d 510, 1932 Tenn. LEXIS 121 (1933).

11. —Shown by Will.

If the will expressly or impliedly discloses an intention to exclude children from a share in the estate, the statute is not to be given effect. Express declaration of intent to disinherit is not required. Fleming v. Phoenix Trust Co., 162 Tenn. 511, 39 S.W.2d 277, 1930 Tenn. LEXIS 116 (1931).

12. —Declarations by Testator.

The testator's oral declarations as to his intent to exclude an after-born child are not admissible. Burns v. Allen, 93 Tenn. 149, 23 S.W. 111, 1893 Tenn. LEXIS 39 (1893); Bowerman v. Burris, 138 Tenn. 220, 197 S.W. 490, 1917 Tenn. LEXIS 23 (1917); Marshall v. Marshall, 25 Tenn. App. 309, 156 S.W.2d 449, 1941 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1941).

13. —Surrounding Circumstances Considered.

Where will was made eight months before the birth of the child and eight years before testator's death, the intent to exclude was apparent. Fleming v. Phoenix Trust Co., 162 Tenn. 511, 39 S.W.2d 277, 1930 Tenn. LEXIS 116 (1931).

Birth of a child about four months after testatrix made her will in which there was no mention of the prospective child or her pregnancy, failure to make provision therefor thereafter, keeping will among testatrix's papers, until her death about 12 years thereafter, and fact that the child was only child of testatrix and her wealthy husband showed intention to disinherit child born after the will was made. King v. King, 166 Tenn. 115, 59 S.W.2d 510, 1932 Tenn. LEXIS 121 (1933).

The will of a father which included no mention of an after-adopted child was sufficient when considered with the facts that the will was drawn two days before the child's adoption, that the father's estate was heavily encumbered and that the father did not change the will in the three years before he died, for the court to conclude that the father intended to disinherit the adopted child. Marshall v. Marshall, 25 Tenn. App. 309, 156 S.W.2d 449, 1941 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1941).

Where will of widower executed two years prior to second marriage named all of the then living children but failed to mention unborn children or indicate any contemplated marriage at time of execution, the will remaining in hands of draftsman until death of testator, children of second marriage were entitled to share in estate as pretermitted children. Stephens v. Stephens, 28 Tenn. App. 58, 185 S.W.2d 915, 1944 Tenn. App. LEXIS 62 (Tenn. Ct. App. 1944).

Child born of second marriage entered into subsequent to execution of will and entitled to share in estate as pretermitted child will not be excluded because of fact that other parent has property. Stephens v. Stephens, 28 Tenn. App. 58, 185 S.W.2d 915, 1944 Tenn. App. LEXIS 62 (Tenn. Ct. App. 1944).

14. —Inferences and Presumptions.

A married woman's will, giving her entire estate to her husband, provided he survived her, otherwise, to her bodily heirs, where she then had one or more children, operates to disinherit her child born after its execution. The disinheritance of the after-born child need not be express, but may result from an unavoidable inference. Reaves v. Hager, 101 Tenn. 712, 50 S.W. 760, 1898 Tenn. LEXIS 128 (1899).

The presumption that there was no intention to exclude arises only where intention is not expressed or is not necessarily implied. Bowerman v. Burris, 138 Tenn. 220, 197 S.W. 490, 1917 Tenn. LEXIS 23 (1917); Fleming v. Phoenix Trust Co., 162 Tenn. 511, 39 S.W.2d 277, 1930 Tenn. LEXIS 116 (1931).

This section raises a presumption against any intention on the part of the testator to disinherit after-born children. Young v. Young, 48 Tenn. App. 645, 349 S.W.2d 545, 1961 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1961).

Alleged heir was not born subsequent to the execution of the will, and the legislature expressed no intent to attach a liberal construction to the word “born”; the heir was disinherited by implication where the decedent, if fully aware of his relationship to the heir, made no effort to adopt or formally to legitimate her after the execution of his will, as disinheritance by implication was established. Lanier v. Rains, 229 S.W.3d 656, 2007 Tenn. LEXIS 583 (Tenn. June 28, 2007).

15. —Settlement on Child — Effect.

A deed to a divorced wife, reciting that it was given to her “in settlement of all demands for support of child,” is not such settlement on a posthumous child as will prevent it from inheriting under this section, especially where the decree of divorce had previously settled the same property on the wife, with a provision that it should not be construed, accepted, or taken in any way “to militate against the rights of the yet unborn child” of such wife. Burns v. Allen, 93 Tenn. 149, 23 S.W. 111, 1893 Tenn. LEXIS 39 (1893).

16. —Posthumous Child.

A posthumous child, born as anticipated by the testator, and not being disinherited by the will, nor any definite, certain, and enforceable provision made for it, but one dependent on the will and bounty of the widow, is pretermitted; and succeeds to the same portion of the testator's estate as if he died intestate. Ensley v. Ensley, 105 Tenn. 107, 58 S.W. 288, 1900 Tenn. LEXIS 58 (1900).

17. When No Benefit to Pretermitted Child.

Where testator, a widower with two children remarried after the date of execution of will and a child was born of such marriage but where in view of this section a revocation of the will would be of no advantage to the child of the second marriage or to the widow there could be no revocation where the only effect would be to displace the executor appointed by the will with a court appointed administrator. Frank v. Frank, 170 Tenn. 112, 92 S.W.2d 409, 1935 Tenn. LEXIS 114 (1936).

18. Construction with Other Acts.

19. —Statutes of Adoption.

The statutes of adoption and of descent and distribution must be read together and when done so it is clear that an adopted child acquires the same legal status as if she had been born in lawful wedlock and under this section an adopted child stands on the same footing as an after-born pretermitted child. Marshall v. Marshall, 25 Tenn. App. 309, 156 S.W.2d 449, 1941 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1941).

Only a legally adopted child is entitled to the benefits of this section. Couch v. Couch, 35 Tenn. App. 464, 248 S.W.2d 327, 1951 Tenn. App. LEXIS 86 (Tenn. Ct. App. 1951).

Collateral References.

Conflict of laws as to pretermission of heirs. 99 A.L.R.3d 724.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Statutory revocation of will by subsequent birth or adoption of child. 97 A.L.R.2d 1044.

32-3-104. Death of class member before time of enjoyment.

Where a bequest, devise, conveyance, transfer or gift is made to a class of persons subject to fluctuation by increase or diminution of its number in consequence of future births or deaths, and the time of payment, distribution, vestiture or enjoyment is fixed at a subsequent period or on the happening of a future event, and any member of the class dies before the arrival of that period or the happening of that event, and has issue surviving when the period arrives or the event happens, that issue shall take the share of the property that the member so dying would take if living, unless a clear intention to the contrary is manifested by the will, deed or other instrument.

Acts 1927, ch. 13, § 1; mod. Code 1932, §§ 7598, 8092; T.C.A. (orig. ed.), § 32-305.

Cross-References. Representation to be per stirpes, § 31-2-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 174, 448.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 117.

Law Reviews.

Class Gifts of Future Interests: When is Survival Required? (Herman L. Trautman), 20 Vand. L. Rev. 1 (1967).

Decedents' Estates, Trusts and Future Interests — 1959 Tennessee Survey (Herman L. Trautman), 12 Vand. L. Rev. 1157 (1959).

Decedents' Estates, Trusts and Future Interests — 1960 Tennessee Survey (Herman L. Trautman), 13 Vand. L. Rev. 1101 (1960).

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (Herman L. Trautman), 14 Vand. L. Rev. 1253 (1961).

Has Tennessee Abolished Its Ancient Class Gift Doctrine Or Only Modified It?, 7 Mem. St. U.L. Rev. 129 (1977).

History of the Class Doctrine in Tennessee, 12 Tenn. L. Rev. 115 (1934).

Real Property — Future Interests — Tennessee Class Doctrine Reburied, 34 Tenn. L. Rev. 326 (1967).

Real Property — 1955 Tennessee Survey (Wade H. Sides, Jr.), 8 Vand. L. Rev. 1110 (1955).

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

Testamentary Gifts of Future Interests: Is There an “Immediate” Problem with the Tennessee Antilapse Statute?, 17 Mem. St. U.L. Rev. 263 (1987).

The Rule Against Perpetuities, 21 Tenn. L. Rev. 641 (1950).

The Tennessee Class Doctrine: A Spectre At The Bar, 22 Tenn. L. Rev. 943 (1951).

Wills, Trusts and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Construction and Interpretation.

This section, without abolishing the class doctrine rule, merely adds to membership in the class entitled to take, at the falling in of the life estate or happening of other future event specified, the then surviving issue of anyone who would have been a member of the class if he or she had survived until that time. Wilson v. Smith, 47 Tenn. App. 194, 337 S.W.2d 456, 1960 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1960).

2. —Prospective Operation.

The statute is not retroactive, but prospective, applying to devises or gifts made subsequent to its passage. Jennings v. Jennings, 165 Tenn. 295, 54 S.W.2d 961, 1932 Tenn. LEXIS 50 (1932).

This section is prospective in operation and does not deal with any case where a bequest, devise or conveyance had already been made at the time of its enactment. Moulton v. Dawson, 215 Tenn. 184, 384 S.W.2d 233, 1964 Tenn. LEXIS 550 (1964); Walker v. Applebury, 218 Tenn. 91, 400 S.W.2d 865, 1965 Tenn. LEXIS 510, 1966 Tenn. LEXIS 551 (1965), overruled in part, Rutherford County v. Wilson, 121 S.W.3d 591, 2003 Tenn. LEXIS 1023 (Tenn. 2003).

3. —Legislative Intent.

The caption of the 1927 Act along with the body of the act could be examined to assist the court in interpretation of this section. Walker v. Applebury, 218 Tenn. 91, 400 S.W.2d 865, 1965 Tenn. LEXIS 510, 1966 Tenn. LEXIS 551 (1965), overruled in part, Rutherford County v. Wilson, 121 S.W.3d 591, 2003 Tenn. LEXIS 1023 (Tenn. 2003).

4. Fixing Period of Distribution.

The subsequent period for distribution may be indicated as at or after the death of some prior taker of the estate, or after a certain time or event. Frierson v. Van Buren, 15 Tenn. 605, 15 Tenn. 606, 1835 Tenn. LEXIS 46 (1835); Satterfield v. Mayes, 30 Tenn. 58, 1850 Tenn. LEXIS 52 (1849); Morton v. Morton, 32 Tenn. 318, 1852 Tenn. LEXIS 73 (1852); Fulkerson v. Bullard, 35 Tenn. 260, 1855 Tenn. LEXIS 50 (1855); Beasley v. Jenkins, 39 Tenn. 191, 1858 Tenn. LEXIS 277 (Tenn. Dec. 1858); Parrish v. Groomes, 1 Cooper's Tenn. Ch. 581 (1874); Connell v. McKenna, 2 Shan. 190 (1876); Sanders v. Byrom, 112 Tenn. 472, 79 S.W. 1028, 1903 Tenn. LEXIS 116 (1903).

The subsequent period for distribution may be fixed and established by the use of such expressions as “then living,” referring to some event, as the death of a life tenant, or to those living at the death of the life tenant or other first taker. Deadrick v. Armour, 29 Tenn. 588, 1850 Tenn. LEXIS 39 (1850); Kansas City Land Co. v. Hill, 87 Tenn. 589, 11 S.W. 797, 1889 Tenn. LEXIS 12, 5 L.R.A. 45 (1889); Blass v. Helms, 93 Tenn. 166, 23 S.W. 138, 1893 Tenn. LEXIS 42 (1893); Nichols v. Guthrie, 109 Tenn. 535, 73 S.W. 107, 1902 Tenn. LEXIS 91 (1903); Tate v. Tate, 126 Tenn. 169, 148 S.W. 1042, 1912 Tenn. LEXIS 52 (1912).

5. Class Gift.

Where nothing in trust instrument indicated that remainder was not to vest, gift to trust, created for benefit of daughter of settlor with remainder to children of body of daughter or by legal adoption, was taxable on basis of Class B remainderman under gift tax statute where the daughter only had an adopted child at time of gift, despite the legal presumption that the daughter was capable of having children of her own who would have been Class A remaindermen under provisions of §§ 67-8-101, 67-8-102, 67-8-104, 67-8-105. Karsch v. Atkins, 203 Tenn. 350, 313 S.W.2d 253, 1958 Tenn. LEXIS 310 (1958).

6. —Vesting of Interest.

Where a daughter took an estate for life, with remainder to children, and, in default of such surviving, to brothers and sisters, a partition deed by the latter was valid to convey all rights as contingent remaindermen in grantee's estate. Frank v. Frank, 153 Tenn. 215, 280 S.W. 1012, 1925 Tenn. LEXIS 21 (1926).

By virtue of this statute, where applicable, the rule now is that notwithstanding that the time of payment or distribution of the estate is fixed at a subsequent period, or upon the happening of a future event, the individual members of the class will take vested transmissible interest unless the will, considered as a whole in the light of all the circumstances, manifest a clear intention to the contrary. Harris v. France, 33 Tenn. App. 333, 232 S.W.2d 64, 1950 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1950).

In suit for construction of will which provided that if both remaindermen predeceased life tenant then property should go to heirs per stirpes, court held that heirs alive at time of death of second remainderman, which occurred before death of life tenant, took vested interest at such time. Nicholson v. Nicholson, 496 S.W.2d 477, 1973 Tenn. LEXIS 478 (Tenn. 1973).

Tennessee Class Gift Statute, T.C.A. § 32-3-104, applies to the conveyance at issue; because one of the grantees predeceased the life tenant, his share would pass to his issue, and, because his wife was not his issue, she did not take an interest under T.C.A. § 32-3-104. Rutherford County v. Wilson, 121 S.W.3d 591, 2003 Tenn. LEXIS 368 (Tenn. 2003), cert. denied, Baskin v. Rutherford County, 160 L. Ed. 2d 20, 125 S. Ct. 51, 543 U.S. 815, 2004 U.S. LEXIS 5597 (2004).

7. —Class Member Leaving No Children.

Where will devised real estate to widow for life and at her death real estate went to brothers and sisters of deceased “or their children if any of them should be dead and leave children, share and share alike” a class gift was devised so that grantees of brother who predeceased widow and left no children were not entitled to share real estate with children of brothers and sisters who predeceased widow. Denison v. Jowers, 192 Tenn. 356, 241 S.W.2d 427, 1951 Tenn. LEXIS 412 (1951), overruled in part, Moulton v. Dawson, 215 Tenn. 184, 384 S.W.2d 233, 1964 Tenn. LEXIS 551 (1964).

8. —Doctrine Prior to Enactment of Section.

The class doctrine as it existed prior to the enactment of this section in 1927 and as applicable to bequests made prior to that time to the effect that where a bequest is made to a class of persons subject to fluctuation or diminution of its number in consequence of future births or deaths and the time of payment or distribution of the fund is fixed at a subsequent period or on the happening of a future event, the entire interest vests in such persons only as at that time fall within the description of persons constituting such class. Moulton v. Dawson, 215 Tenn. 184, 384 S.W.2d 233, 1964 Tenn. LEXIS 550 (1964); Walker v. Applebury, 218 Tenn. 91, 400 S.W.2d 865, 1965 Tenn. LEXIS 510, 1966 Tenn. LEXIS 551 (1965), overruled in part, Rutherford County v. Wilson, 121 S.W.3d 591, 2003 Tenn. LEXIS 1023 (Tenn. 2003).

9. Death of Devisee.

Where member of a class took a vested interest in land upon death of testator but died during lifetime of life tenant, adopted son of such member took father's share from father even though not himself a member of the class. Walker v. Applebury, 218 Tenn. 91, 400 S.W.2d 865, 1965 Tenn. LEXIS 510, 1966 Tenn. LEXIS 551 (1965), overruled in part, Rutherford County v. Wilson, 121 S.W.3d 591, 2003 Tenn. LEXIS 1023 (Tenn. 2003).

10. —Unless Language Indicates Contrary.

Under this section class takes a vested transmissible interest in remainder upon death of testator unless (1) the will taken as a whole in light of the circumstances requires the remainder to remain contingent and not vest during the life of the life tenant in order to carry out clear intent of testator or (2) there is language in the will expressly providing the remainder not vest during the life of the life tenant. Walker v. Applebury, 218 Tenn. 91, 400 S.W.2d 865, 1965 Tenn. LEXIS 510, 1966 Tenn. LEXIS 551 (1965), overruled in part, Rutherford County v. Wilson, 121 S.W.3d 591, 2003 Tenn. LEXIS 1023 (Tenn. 2003).

Where will devised certain realty to testatrix' husband for life and then to members of certain family with provision for sale of land with proceeds to go to such family if husband neglected land and certain other land was devised to husband for life and then to family heirs and nothing in will indicated an intention by testatrix that remainder remain contingent, members of family took vested transmissible interest in land on death of testator. Walker v. Applebury, 218 Tenn. 91, 400 S.W.2d 865, 1965 Tenn. LEXIS 510, 1966 Tenn. LEXIS 551 (1965), overruled in part, Rutherford County v. Wilson, 121 S.W.3d 591, 2003 Tenn. LEXIS 1023 (Tenn. 2003).

11. Avoiding Effect of Section.

Residuary clause in will which devised and bequeathed to “my closest living relatives” was intended to avoid the effect of this section, and, therefore, to limit the class of beneficiaries to those “closest relatives” who were actually living at the time of the testator's death. Estate of Robison v. Carter, 701 S.W.2d 218, 1985 Tenn. App. LEXIS 3147 (Tenn. Ct. App. 1985).

Collateral References.

Adopted child as within class named in deed or inter vivos trust instrument. 37 A.L.R.5th 237.

Adopted child as within class named in testamentary gift. 36 A.L.R.5th 395.

Adoption as precluding testamentary gift under natural relative's will. 71 A.L.R.4th 374.

Applicability of anti-lapse statutes to class gifts. 56 A.L.R.2d 948.

Conflict of laws, determination of members of class designated by will devising real property. 79 A.L.R. 100.

Devolution of gift over upon spouse predeceasing testator where gift to spouse fails because of divorce. 74 A.L.R.3d 1108.

Error in mentioning number who are to take under devise or legacy to persons described as class, effect of. 173 A.L.R. 1012.

Extrinsic evidence to identify beneficiaries included in class gift. 94 A.L.R. 77.

Illegitimates as within class of “children.” 34 A.L.R.2d 4.

Gift to persons individually named but also described in terms of relationship to testator or another as class gift. 13 A.L.R.4th 978.

Living members of class as excluding their children from the class. 83 A.L.R. 164.

Meaning of term “relatives” or “relations” employed in will. 5 A.L.R.3d 715.

Testamentary gift to class or group of specified relationship as including those of half-blood. 49 A.L.R.2d 1362.

Time as of which members of class described as remainderman's or life tenant's “heirs,” “next of kin,” “descendants,” “issue,” “family,” or the like, substituted by will to take in place of deceased remainderman, are to be ascertained. 33 A.L.R.2d 242.

Validity and construction of bequest with limitation over to another in event that original beneficiary dies before distribution, payment, or receipt thereof. 59 A.L.R.3d 1043.

Validity, construction, and effect of bequest or devise to a person's estate, or to the person or his estate. 10 A.L.R.3d 483.

What constitutes a class. 13 A.L.R.4th 978.

When may gift be considered as one to a class. 13 A.L.R.4th 978.

32-3-105. Death of devisee or legatee before death of testator.

  1. Whenever the devisee or legatee or any member of a class to which an immediate devise or bequest is made, dies before the testator, or is dead at the making of the will, leaving issue that survives the testator, the issue shall take the estate or interest devised or bequeathed that the devisee or legatee or the member of the class, as the case may be, would have taken, had that person survived the testator, unless a different disposition thereof is made or required by the will.
  2. Subsection (a) shall apply also to a revocable (living) trust that became irrevocable upon the death of its settlor or grantor. The surviving issue of a beneficiary who predeceased a settlor or grantor shall take the trust interest the beneficiary would have received had the beneficiary survived the settlor or grantor, unless the trust agreement provides otherwise.

Code 1858, § 2196 (deriv. Acts 1851-1852, ch. 180, § 3); Shan., § 3928; Code 1932, § 8134; Acts 1941, ch. 61, § 1; C. Supp. 1950, § 8134; T.C.A. (orig. ed.), § 32-306; Acts 1989, ch. 364, § 4; 1997, ch. 426, § 20.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendments to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Cross-References. Inapplicability of provisions, revocation of will by divorce or annulment, § 32-1-202.

Representation to be per stirpes, § 31-2-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 448, 455, 915, 989.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 137, 172.

Law Reviews.

Class Gifts of Future Interests: When is Survival Required? (Herman L. Trautman), 20 Vand. L. Rev. 1 (1967).

Joint and Mutual Wills in Tennessee — Validity, Contractual Limitations, and Effect on the Estate Tax Marital Deduction (Robert L. McMurray), 42 Tenn. L. Rev. 305 (1975).

Mutual and Strictly Reciprocal Wills in Tennessee (Edward Michael Ellis), 41 Tenn. L. Rev. 877 (1974).

Property Law — Wills — Effect of Lapsed Residuary Gifts in the State of Tennessee, 73 Tenn L. Rev. 711 (2006).

Testamentary Gifts of Future Interests: Is There an “Immediate” Problem with the Tennessee Antilapse Statute?, 17 Mem. St. U.L. Rev. 263 (1987).

The Tennessee Class Doctrine: A Spectre At The Bar, 22 Tenn. L. Rev. 943 (1951).

Wills — Anti-Lapse Statutes — Beneficiaries of Class Gift Dead at Will's Execution, 9 Vand. L. Rev. 577 (1956).

Wills — Construction — Gift Over on Death Without Issue When Specified Time for Taking Possession is Mentioned by Testator, 3 Vand. L. Rev. 345 (1950).

To Lapse or Not to Lapse: Does the Tennessee Antilapse Statute Further the Testator's Intent?, 50 U. Mem. L. Rev. 169 (Fall 2019).

NOTES TO DECISIONS

1. Construction and Interpretation.

This section is in furtherance of what is presumed to have been the intention of the testator and, in order to effect that object, should be liberally construed. Weiss v. Broadway Nat'l Bank, 204 Tenn. 563, 322 S.W.2d 427, 1959 Tenn. LEXIS 311 (1959).

This statute is not for the benefit of the dead devisee or legatee but is intended to safeguard the interests of those who take under him. Weiss v. Broadway Nat'l Bank, 204 Tenn. 563, 322 S.W.2d 427, 1959 Tenn. LEXIS 311 (1959).

Anti-lapse statute, T.C.A. § 32-3-105, did not apply to the gifts the decedent made to sisters in decedent's will where the sisters all predeceased the decedent and decedent failed to specify how to distribute the gifts in the event that all sisters predeceased decedent; since the residuary estate had lapsed, it would pass by intestate succession. In re Estate of Snapp, 233 S.W.3d 288, 2007 Tenn. App. LEXIS 113 (Tenn. Ct. App. Feb. 28, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 752 (Tenn. Aug. 20, 2007).

2. —Word, “Issue.”

Word “issue” as used in this section is to be construed in connection with statute of adoption; and adopted child took as a natural child. Craft v. Blass, 8 Tenn. App. 498, — S.W.2d —, 1928 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1928).

The word “issue” as used herein was used by the legislature in order to express its purpose of saving the gift if there were any direct descendants of the donee and not with the intention of declaring a different rule of inheritance in the cases of gifts so saved. White v. Kane, 178 Tenn. 469, 159 S.W.2d 92, 1941 Tenn. LEXIS 77 (1942).

The word “issue” as used in this section means that such issue take per stirpes and not per capita. White v. Kane, 178 Tenn. 469, 159 S.W.2d 92, 1941 Tenn. LEXIS 77 (1942).

The legislative intent as of January, 1978, was that “issue” as used in the anti-lapse statute did not include illegitimate children. Decker v. Meriwether, 708 S.W.2d 390, 1985 Tenn. App. LEXIS 3162 (Tenn. Ct. App. 1985).

3. —Insurance Beneficiary — Not Legatee.

A wife named as the beneficiary in a benefit certificate, taken out by her husband as a member in an order, bylaws of which permit the member to change the beneficiary at his pleasure, is not a legatee in the sense of this statute, and, upon her death before that of her husband, her issue surviving him will not take the proceeds of the certificate. Handwerker v. Diermeyer, 96 Tenn. 619, 36 S.W. 869, 1896 Tenn. LEXIS 16 (1896).

4. —Beneficiary Without Issue Predeceasing Testator.

Where the devisee or legatee dies before the death of the testator, and leaves no issue surviving the testator, this statute is inapplicable; and the devise or legacy lapses, as it did before this statute. Strong v. Ready, 28 Tenn. 168, 1848 Tenn. LEXIS 64 (1848); Morton v. Morton, 32 Tenn. 318, 1852 Tenn. LEXIS 73 (1852); Dixon v. Cooper, 88 Tenn. 177, 12 S.W. 445, 1889 Tenn. LEXIS 40 (1889), superseded by statute as stated in, Jacobsen v. Flathe, — S.W.2d —, 1997 Tenn. App. LEXIS 635 (Tenn. Ct. App. Sept. 17, 1997); Jones v. Hunt, 96 Tenn. 369, 34 S.W. 693, 1895 Tenn. LEXIS 39 (1896).

Where the devisee or legatee predeceases the testator, and leaves no issue that survives the testator, the devise or legacy is not saved from lapsing because the devisee or legatee had, by will, disposed of his such expectant estate, and the original testator, knowing of this disposition by such probated will, did not recall the devise or legacy, for this statute has no application in such case. Dixon v. Cooper, 88 Tenn. 177, 12 S.W. 445, 1889 Tenn. LEXIS 40 (1889), superseded by statute as stated in, Jacobsen v. Flathe, — S.W.2d —, 1997 Tenn. App. LEXIS 635 (Tenn. Ct. App. Sept. 17, 1997).

Where devise was to sister of testatrix, “and, if she be dead, to her children,” and the sister and a child of the sister died thereafter and before testatrix died, the children of the deceased child of the sister were not entitled to take under the will. Grant v. Mosely, 52 S.W. 508, 1899 Tenn. Ch. App. LEXIS 17 (1899).

Where an adopted son died without issue, prior to the death of his mother by adoption, his legacy under her will lapsed and the legacy descended to her natural heirs as in case of intestacy, to the exclusion of the son's heirs, since this section applies only to persons who die leaving issue who survive testator. Garner v. Home Bank & Trust Co., 171 Tenn. 652, 107 S.W.2d 223, 1937 Tenn. LEXIS 147 (1937).

Where there is an immediate gift to a devisee or legatee, and a gift over in case of the death without issue of the devisee or legatee, the gift overtakes effect only if the devisee or legatee predeceases testator, in the absence of a contrary intention clearly indicated in the will and codicil. Martin v. Taylor, 521 S.W.2d 581, 1975 Tenn. LEXIS 692 (Tenn. 1975).

Where the disposition of devised property is preceded by a prior estate for life or years, a gift over in case of the death of the devisee without issue takes effect only if the death occurs during the period of the intervening estate, in the absence of a contrary intention expressed in the will. Martin v. Taylor, 521 S.W.2d 581, 1975 Tenn. LEXIS 692 (Tenn. 1975).

Where the beneficiaries predeceased the testatrix and died without issue, the Tennessee anti-lapse statute was not applicable. The probate court correctly concluded that the lapsed gifts created a partial intestacy, and the lapsed gifts passed to the heirs at law. In re Estate of McFarland, 167 S.W.3d 299, 2005 Tenn. LEXIS 624 (Tenn. 2005).

5. —Cases Which Must Be Determined Under Prior Law.

Cases not within the scope of this statute, or cases to which it is inapplicable, must be determined upon the law as it existed before the enactment. The law before this statute was that all devises and legacies lapsed, if the devisee or legatee died in the lifetime of the testator. Dixon v. Cooper, 88 Tenn. 177, 12 S.W. 445, 1889 Tenn. LEXIS 40 (1889), superseded by statute as stated in, Jacobsen v. Flathe, — S.W.2d —, 1997 Tenn. App. LEXIS 635 (Tenn. Ct. App. Sept. 17, 1997), citing Morton v. Morton, 32 Tenn. 318, 1852 Tenn. LEXIS 73 (1852).

6. Construction with Other Acts.

7. —Adoption Statute.

Word “issue” as used refers to adopted child the same as a natural child. Craft v. Blass, 8 Tenn. App. 498, — S.W.2d —, 1928 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1928).

The statutes of adoption and of descent and distribution must be read together and when done so it is clear that an adopted child acquires the same legal status as if she had been born in lawful wedlock and under § 32-3-103 an adopted child stands on the same footing as an after-born pretermitted child. Marshall v. Marshall, 25 Tenn. App. 309, 156 S.W.2d 449, 1941 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1941).

8. —Inheritance Tax Statutes.

Where husband predeceased wife by 49 days, and will of wife left property to husband, and daughter of husband by a previous marriage took the property by virtue of the lapsed legacy recipient was liable for inheritance tax imposed on class B recipient, since she took as stepdaughter, and not as daughter, since husband never had the property. First Nat'l Bank v. McCanless, 184 Tenn. 114, 195 S.W.2d 756, 1946 Tenn. LEXIS 266, 168 A.L.R. 266 (1946).

9. —Simultaneous Death.

This section is applicable in simultaneous death cases where one decedent is the beneficiary of another and should be construed in conjunction with the Uniform Simultaneous Death Act, title 31, ch. 3. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

Where husband and wife died simultaneously and the wife's will left the residue of her estate to the husband, the mandate of § 31-3-102 that the property of each person who died simultaneously shall be disposed of as if he had survived requires the court in construing the wife's will to assume that the husband died first, thus activating this section and making it applicable. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

10. Issue Taking.

Under this section the issue that survives a deceased devisee or legatee takes as the substituted devisee or legatee of the deceased ancestor just as if their names had been inserted in the will by the testator. Weiss v. Broadway Nat'l Bank, 204 Tenn. 563, 322 S.W.2d 427, 1959 Tenn. LEXIS 311 (1959).

11. —Testator's Intent.

The desire or intention of testator must find expression in the will. Dixon v. Cooper, 88 Tenn. 177, 12 S.W. 445, 1889 Tenn. LEXIS 40 (1889), superseded by statute as stated in, Jacobsen v. Flathe, — S.W.2d —, 1997 Tenn. App. LEXIS 635 (Tenn. Ct. App. Sept. 17, 1997); Jones v. Hunt, 96 Tenn. 369, 34 S.W. 693, 1895 Tenn. LEXIS 39 (1896).

Where beneficiary of will predeceased testatrix by nearly two years, testatrix was presumed to know of death of beneficiary and her failure to make a change in the will indicated that she intended an absolute gift to beneficiary as against contention that she only intended to create power of appointment under holographic will which provided “Should anything happen to me want Mr. Gus Weiss to open box and dispose of contents as he sees fit to.” Weiss v. Broadway Nat'l Bank, 204 Tenn. 563, 322 S.W.2d 427, 1959 Tenn. LEXIS 311 (1959).

12. —Beneficiary Known by Testator to Be Dead.

Where the testator named in his will, as devisees or legatees, two children whom he knew to be dead, their devises or bequests descend to their respective descendants. Darden v. Harrill, 78 Tenn. 421, 1882 Tenn. LEXIS 199 (1882).

13. —Beneficiary Predeceasing Testator.

The estate devised or bequeathed to one who dies before the death of the testator, leaving issue alive at the latter date, passes to such surviving issue. Jones v. Hunt, 96 Tenn. 369, 34 S.W. 693, 1895 Tenn. LEXIS 39 (1896); Handwerker v. Diermeyer, 96 Tenn. 619, 36 S.W. 869, 1896 Tenn. LEXIS 16 (1896).

Where testator devised a portion of his real property to his son and at a later date conveyed the same property to the same son by deed with a provision if the son should predecease him and son predeceased testator, will spoke as of time of testator's death and such property passed to the heirs of the son under this section. Newman v. Proffitt, 59 Tenn. App. 397, 440 S.W.2d 827, 1968 Tenn. App. LEXIS 353 (Tenn. Ct. App. 1968).

This section preserves lapsed legacies only where the deceased legatee dies with issue. Skovron v. Third Nat'l Bank, 509 S.W.2d 497, 1973 Tenn. App. LEXIS 318, 83 A.L.R.3d 111 (Tenn. Ct. App. 1973).

Where a will provided for equal distribution of the estate to the two children of the testatrix, “if they survive me,” without provision for disposition of the residuary in the event only one child should survive testatrix, which is what occurred, the right of the deceased child to take did not terminate upon her death and, under T.C.A. § 32-3-105, her daughter took her share as a surviving issue. Bybee v. Westrick (In re Will of Bybee), 896 S.W.2d 792, 1994 Tenn. App. LEXIS 725 (Tenn. Ct. App. 1994), appeal denied, 1995 Tenn. LEXIS 158 (Tenn. Apr. 3, 1995).

14. Mutual and Reciprocal Wills.

Where identical wills were executed by husband and wife on same date with same attesting witnesses and with each leaving all property to the other, such wills are mutual and reciprocal and will of wife who died first was only will of the parties and will of husband who died subsequently was ineffective so that estates of both husband and wife passed to heirs of husband under laws of descent and distribution with anti-lapse statute being inapplicable and not having effect of causing property to pass to heirs of wife under will of husband. In re Estate of Bright, 482 S.W.2d 555, 1972 Tenn. LEXIS 357 (Tenn. 1972), cert. denied, Womack v. Fair, 409 U.S. 915, 93 S. Ct. 237, 34 L. Ed. 2d 177, 1972 U.S. LEXIS 1091 (1972).

15. —Evidence.

Evidence that wills written at different times contained reciprocal language, were bound together in one will jacket and found in joint lock box was insufficient to establish that husband and wife intended to create joint wills contractually binding on the last to die and, pursuant to this section, grandchildren of wife, who was the first to die, took the estate. In re Estate of Hurdle, 868 S.W.2d 627, 1993 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1993).

Collateral References.

Validity and construction of bequest with limitation over to another in event that original beneficiary dies before distribution, payment, or receipt thereof. 59 A.L.R.3d 1043.

32-3-106. Testamentary additions to trusts.

    1. A devise or bequest, the validity of which is determinable by the law of this state, may be made by a will to the trustee or trustees of a trust established or to be established by the testator or by the testator and some other person or persons or by some other person or persons (including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts) if the trust is identified in the testator's will and its terms are set forth in a written instrument (other than a will) executed before or concurrently with the execution of the testator's will or in the valid last will of a person who has predeceased the testator (regardless of the existence, size or character of the corpus of the trust).
    2. The devise or bequest shall not be invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the will or after the death of the testator.
    3. Unless the testator's will provides otherwise, the property so devised or bequeathed:
      1. Shall not be deemed to be held under a testamentary trust of the testator but shall become a part of the trust to which it is given; and
      2. Shall be administered and disposed of in accordance with the instrument or will setting forth the terms of the trust, including any amendments thereto made before the death of the testator (regardless of whether made before or after the execution of the testator's will) and, if the testator's will so provides, including any amendments to the trust made after the death of the testator.
    4. A revocation or termination of the trust before the death of the testator shall cause the devise or bequest to lapse.
  1. This section shall have no effect upon any devise or bequest made by a will executed prior to March 17, 1961.
  2. This section shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
  3. This section shall be known and may be cited as the “Uniform Testamentary Additions to Trusts Act.”

Acts 1961, ch. 303, §§ 1-4; T.C.A., § 32-307.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 25, 1011.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-609.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (Herman L. Trautman), 14 Vand. L. Rev. 1253 (1961).

Family Trust in Estate Planning in Tennessee (Herman E. Taylor), 16 No. 2 Tenn. B.J. 32 (1980).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Collateral References.

“Pour-over” provisions from will to inter vivos trust. 12 A.L.R.3d 56.

Revocation of tentative [“Totten”] trusts of savings bank account by inter vivos declaration or will. 46 A.L.R.3d 487.

32-3-107. Contracts to make or revoke wills.

  1. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate can be established only by:
    1. Provisions of a will stating material provisions of the contract;
    2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
    3. A writing signed by the decedent evidencing the contract.
  2. The execution of a joint will or mutual wills does not create a presumption of a contract to make a will, or to refrain from revoking a will.

Acts 1977, ch. 88, §§ 1, 2; 1978, ch. 745, § 1; T.C.A., § 32-308.

Compiler's Notes. Acts 1978, ch. 745, § 1, provided that this section shall be known and may be cited as the “Trautman Act of 1978.”

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 23, 26, 986.

Law Reviews.

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

The Howland Will Case: Mutual Wills and the Dead Woman's Statute (Donald F. Paine and Dan W. Holbrook), 39 No. 5 Tenn. B.J. 22 (2003).

“The Law of Joint Wills, A Recent Development” (William L. Harbison), 24 No. 3, Tenn. B.J. 24 (1988).

The Tennessee Recording System (Toxey H. Sewell), 50 Tenn. L. Rev. 1 (1982).

NOTES TO DECISIONS

1. Construction.

The 1978 amendment to T.C.A. § 32-3-107 should not be construed as applying retroactively. Junot v. Estate of Gilliam, 759 S.W.2d 654, 1988 Tenn. LEXIS 184 (Tenn. 1988).

T.C.A. § 32-3-107 does not apply retroactively. In re Estate of Hurdle, 868 S.W.2d 627, 1993 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1993).

2. Mutual Wills.

The situation and circumstances of the parties may be examined to aid in arriving at the meaning of what they had written and parol evidence is admissible to show that the wills were made in consideration of each other. Petty v. Estate of Nichols, 569 S.W.2d 840, 1977 Tenn. App. LEXIS 332 (Tenn. Ct. App. 1977).

3. —Contract.

In attempting to prove a contract to make mutual wills, a will, once in existence and afterwards destroyed, is a sufficient memorandum to satisfy the statute of frauds, and the execution of a will by the wife furnished sufficient consideration to support the agreement of the husband in respect to his will. Petty v. Estate of Nichols, 569 S.W.2d 840, 1977 Tenn. App. LEXIS 332 (Tenn. Ct. App. 1977).

Collateral References.

Enforceability of contract to make will in return for services, by one who continues performance after death of person originally undertaking to serve. 84 A.L.R.3d 930.

Right of party to joint or mutual will, made pursuant to agreement as to disposition of property at death, to dispose of such property during life. 85 A.L.R.3d 8.

32-3-108. Marital deduction.

    1. IF,
      1. A decedent dies after December 31, 1981;
      2. Leaving a will executed, or a trust created, before September 12, 1981, that contains a formula expressly providing that the spouse is to receive the maximum amount of property qualifying for the marital deduction allowable by federal law;
      3. The formula referred to in subdivision (a)(1)(B) was not amended to refer specifically to an unlimited marital deduction under federal law at any time after September 12, 1981, and before the death of the decedent;
      4. The will or trust also contains a bequest to, or in trust for the benefit of, the decedent's spouse that qualifies as qualified terminable interest property pursuant to § 2056(b)(7) of the Internal Revenue Code (26 U.S.C. §  2056(b)(7));(2)  THEN, the formula referred to in subdivision (a)(1)(B) shall be construed to refer to the unlimited marital deduction allowable by federal law as amended by subsection (a) of § 403 of the Economic Recovery Tax Act of 1981; provided, that the formula shall not be effective as to, or be deemed to, convey and transfer to the decedent's spouse, a sum in excess of the greater of:
      5. Two hundred fifty thousand dollars ($250,000); or
      6. Fifty percent (50%) of the value of the adjusted gross estate of the decedent as defined in § 2056(c)(2) of the Internal Revenue Code (26 U.S.C. §  2056(c)(2)) prior to its amendment by the Economic Recovery Tax Act of 1981;so that such qualified terminable interest property, as well as the property passing to the spouse pursuant to the formula clause, will qualify for the unlimited marital deduction under § 2056 of the Internal Revenue Code (26 U.S.C. §  2056(b)(7)), but the amount of property passing to the spouse under the formula clause shall not be increased or decreased from what would have passed thereunder prior to the enactment of the Economic Recovery Tax Act of 1981;

        Notwithstanding subdivision (a)(1)(D), the formula referred to in subdivision (a)(1)(B) will be effective as to or deemed to convey and transfer to the decedent's spouse an unlimited sum, if the court having jurisdiction over decedent's probate estate determines in a proceeding in which all beneficiaries of the estate are represented, that based on all the facts and circumstances the decedent intended or would have intended that the formula should be applied so as to take advantage of the unlimited marital deduction allowed by federal law as amended by subsection (a) of § 403 of the Economic Recovery Tax Act of 1981. This subdivision (a)(3) shall apply only for decedents whose deaths occur after September 12, 1981, and prior to October 1, 1983, and, therefore, shall in no way affect the computation of the amount deductible for Tennessee inheritance tax purposes pursuant to § 67-8-315(a)(6).

  1. For a decedent dying before January 1, 2016, this section shall in no way affect the computation of the amount deductible for Tennessee inheritance tax purposes pursuant to § 67-8-315(a)(6) prior to October 1, 1983.

Acts 1983, ch. 26, § 1; T.C.A., § 32-309; Acts 1987, ch. 322, § 22; 2017, ch. 290, § 10.

Code Commission Notes.

Acts 2017, ch. 290, § 16 provided that section 10 of the act, which amended this section, should take effect January 1, 2017. However, since a public chapter cannot become effective on a date prior to becoming law, the code commission deems the amendment by that act to take effect on July 23, 2017, in accordance with Tenn. Const. art. II, § 20.  See Opinion of the Attorney General, June 25, 1982 (OAG 82-191).

Compiler's Notes. Section 403 (a)(1)(A) of the Economic Recovery Act of 1981, P.L. 97-34, deleted 26 U.S.C. § 2056(c) and redesignated its (d) as (c).

Section 403(a) of the Economic Recovery Tax Act of 1981, referred to in this section, is codified generally in 1 U.S.C. § 101 et seq., and in titles 10, 13 and 46.

Amendments. The 2017 amendment substituted “For a decedent dying before January 1, 2016,” for “This” at the beginning of (b).

Effective Dates. Acts 2017, ch. 290, § 16. July 23, 2017. See the Code Commission Notes.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

NOTES TO DECISIONS

1. Construction with Federal Statutes.

The provision of T.C.A. § 32-3-108(a)(5), that the formula is “deemed to convey and transfer to the decedent's spouse an unlimited sum” contingent upon a finding by the probate court that such would have been the decedent's intent, qualifies as one that “construes” wills as required by section 403(e)(3)(D) of the Economic Recovery Tax Act of 1981. Hall v. United States, 39 F.3d 102, 1994 FED App. 370P, 1994 U.S. App. LEXIS 30535 (6th Cir. Tenn. 1994).

32-3-109. Trials for construction or interpretation of wills — Jurisdiction of courts.

Any court of record having probate jurisdiction has concurrent jurisdiction with chancery courts for the construction or interpretation of wills, or parts thereof, and for establishing lost, spoliated or suppressed wills.

Acts 1991, ch. 152, § 3.

Cross-References. Trials upon validity of wills, concurrent jurisdiction of courts, § 32-4-109.

32-3-110. Power of appointment.

This section applies only to powers of appointment exercisable by will.

  1. Capacity of holder of power.  A power of appointment by will that is not subject to an express condition that it may be exercised only by a holder of a greater age may be exercised by a holder who has attained the age of eighteen (18) years.
  2. Manner of exercise of power.  Unless a contrary intent is evidenced by the terms of the instrument creating or limiting a power of appointment, a donee of a power of appointment exercisable by will may:
    1. Make appointments of present or future interests or both;
    2. Make appointments with conditions and limitations;
    3. Make appointments with restraints on alienation upon the appointed interests;
    4. Make appointments of interests to a trustee for the benefit of one (1) or more objects of the power;
    5. Make appointments that create in the object of the power additional powers of appointment to permissible objects of the power of appointment pursuant to which the powers are created; and
    6. If the donee could appoint outright to the object of a power, make appointments that create in the object of the power additional powers of appointment that may be exercisable in favor of such persons or entities as the person creating the power may direct, even though the objects of the additional powers of appointment may not have been permissible objects of the original power of appointment pursuant to which the additional powers are created; provided, however, that the donee may not create a power that would violate any applicable rule against perpetuities.
  3. Disposition of trust property subject to power.  In disposing of trust property subject to a power of appointment exercisable by will, a trustee acting in good faith shall have no liability to any appointee or take in default of appointment for relying upon a will believed to be the will of the donee of the power of appointment, for assuming that there is no will in the absence of actual knowledge thereof within three (3) months after the death of the donee, or for requiring that any will purporting to exercise a power of appointment be admitted to probate. The trustee's action in accordance with the preceding sentence shall not affect the rights of any appointee or taker in default of appointment to recover the distributed property from any person to whom the trustee has made distribution.
  4. Applicability.  This section shall be construed as being declarative of existing law and shall apply to all instruments granting general and special powers of appointment and all wills exercising those powers, whether existing or exercised before, on, or after May 8, 2002, except that no trustee shall be liable to any person in whose favor a power of appointment may have been exercised for any distribution of property made to persons entitled to take in default of the effective exercise of the power of appointment to the extent that the distribution has been completed prior to May 8, 2002.

Acts 2002, ch. 735, § 8.

Cross-References. Tennessee Uniform Statutory Rule Against Perpetuities, title. 66, ch. 1, part 2

Law Reviews.

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Perpetuities and the Genius of a Free State, 67 Vand. L. Rev. 1823 (2014).

32-3-111. Specifically devised or bequeathed property.

  1. A specific legatee or devisee has a right to the specifically gifted or devised property in the testator's estate at death or if the property has been disposed of and a contrary intention is not manifest during the testator's lifetime:
    1. Any balance of the purchase price, together with any security interest, owing from a purchaser to the testator at death by reason of sale of the property;
    2. Any amount of a condemnation award for the taking of the property unpaid at death;
    3. Any proceeds unpaid at death on fire or casualty insurance on, or other recovery for injury to, the property; and
    4. Property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation.
  2. If specifically devised or bequeathed property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property are paid to a conservator or to an agent acting with the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
  3. The right of a specific legatee or devisee under subsection (b) is reduced by any right the legatee or devisee has under subsection (a).
  4. For the purposes of the references in subsection (b) to a conservator, subsection (b) does not apply if after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator's incapacity ceased and the testator survived the adjudication by one (1) year.
  5. For the purposes of the references in subsection (b) to an agent acting within the authority of a durable power of attorney for an incapacitated principal:
    1. “Incapacitated principal” means a principal who is an incapacitated person;
    2. No adjudication of the principal's incapacity need occur before death; and
    3. The acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal, the presumption rebuttable by clear and convincing evidence of capacity.

Acts 2004, ch. 866, § 3.

Law Reviews.

Property-Administration of Wills-Common Law Ademption by Extinction and the Applicability of Tennessee Code Annotated Section 32-3-111 (Joshua A. Mullen), 75 Tenn. L. Rev. 577 (2008).

NOTES TO DECISIONS

1. Retroactive Application.

Lower court erred in retroactively applying T.C.A. § 32-3-111 to a stepson's attempt to recover the proceeds from the sale of property that had taken place before the decedent's death, as nothing in the statute indicated that the legislature intended it to apply retroactively. Stewart v. Sewell, 215 S.W.3d 815, 2007 Tenn. LEXIS 137 (Tenn. 2007).

32-3-112. Disposition of residue.

If the residue of the decedent's testamentary estate or the residue of a revocable trust created by the decedent that becomes irrevocable at the settlor's death is devised to two (2) or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to the other residuary devisees, in proportion to the interest of each in the remaining part of the residue, unless the decedent's will or trust agreement or § 32-3-105 provides for a different disposition.

Acts 2007, ch. 8, § 2; 2012, ch. 886, § 8.

32-3-113. Application of federal estate tax or generation-skipping transfer tax law for certain decedents.

    1. A will or trust of a decedent, who dies after December 31, 2009, but before January 1, 2011, that contains a formula referring to the “unified credit,” “estate tax exemption,” “applicable exemption amount,” “applicable credit amount,” “applicable exclusion amount,” “generation-skipping transfer tax exemption,” “GST exemption,” “marital deduction,” “maximum marital deduction,” or “unlimited marital deduction,” or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate and generation-skipping transfer tax laws as they applied with respect to estates of decedents dying on December 31, 2009.
    2. Subdivision (a)(1) shall not apply with respect to:
      1. A will or trust that is executed or amended after December 31, 2009, or manifests an intent that a contrary rule shall apply if the decedent dies on a date on which there is no then-applicable federal estate or generation-skipping transfer tax;
      2. A will, if the personal representative files with the clerk of the court in which the will is being administered, within nine (9) months of the decedent's death, a written election to opt out of the application of the general rule of construction set forth in this subsection (a), together with the written consent to such election of each beneficiary who would have received a different amount of property under the will absent this election; or
      3. A trust, if the personal representative, within nine (9) months of the decedent's death, elects to opt out of the application of the general rule of construction set forth in this subsection (a) by delivery of written notice to the qualified beneficiaries of the trust; provided, that the personal representative first obtains written consent to such election from each qualified beneficiary of the trust who would have received a different amount of property under the trust absent such election.
    3. If a beneficiary from whom the personal representative of a will is required to obtain approval pursuant to subdivision (a)(2)(B) or (a)(2)(C) is a trust, then the approval shall be obtained from each qualified beneficiary of such trust.
    4. For the purpose of this subsection (a), the term “qualified beneficiary” shall have the same meaning as defined in § 35-15-103.
    5. For the purpose of obtaining a beneficiary's or qualified beneficiary's consent, §§ 35-15-301 — 35-15-305 shall apply.
    6. If there is no personal representative, then the trustee of the trust may make the election for the trust in the manner permitted for a personal representative under this subsection (a).
    7. An election by the personal representative or trustee under this subsection (a) shall relate back to the date of the decedent's death for all purposes, including the application of title 67, chapter 8.
    8. The reference to January 1, 2011, in this subsection (a) shall, if the federal estate and generation-skipping transfer tax becomes effective before that date, refer instead to the first date on which such tax shall become legally effective.
  1. The personal representative, or any affected beneficiary under the will or other instrument, may bring a proceeding to determine whether the decedent intended that the references under subsection (a) be construed with respect to the law as it existed after December 31, 2009. Such a proceeding must be commenced within twelve (12) months following the death of the testator or grantor, and not thereafter.

Acts 2010, ch. 638, § 1.

Code Commission Notes.

Acts 2010, ch. 657, § 1 purported to enact a new section § 32-3-113. Section 32-3-113 was previously enacted by Acts 2010, ch. 638, § 1; therefore, the enactment by Acts 2010, ch. 657, § 1 was designated as § 32-3-114 by the code commission.

32-3-114. Modification of will to achieve testator's objectives.

To achieve the testator's tax objectives, the court may modify the terms of a will in a manner that is not contrary to the testator's probable intention. The court may provide that the modification has retroactive effect.

Acts 2010, ch. 657, § 1.

Code Commission Notes.

Acts 2010, ch. 657, § 1 purported to enact a new section § 32-3-113. Section 32-3-113 was previously enacted by Acts 2010, ch. 638, § 1; therefore, the enactment by Acts 2010, ch. 657, § 1 was designated as § 32-3-114 by the code commission.

32-3-115. Written statement or list to dispose of items of tangible personal property.

    1. Notwithstanding the requirements of a holographic will, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities, and property used in a trade or business.
    2. To be admissible under this section as evidence of the intended disposition, the writing:
      1. Must:
        1. Be either in the handwriting of the testator or signed by the testator;
        2. Be dated; and
        3. Describe the items and the devisees with reasonable certainty;
      2. May be prepared before or after the execution of the will;
      3. May be altered by the testator after its preparation, provided that the testator signs and dates the alteration; and
      4. May be a writing that has no significance apart from its effect upon the dispositions made by the will.
    3. If more than one (1) otherwise effective writings exist or a single writing contains properly signed and dated alterations, the provisions of the most recent writing or alteration revoke any inconsistent provisions of all prior writing.
  1. A personal representative is not liable for any distribution of tangible personal property to the apparent devisee under the testator's will without actual knowledge of the written statement or list, as described in subsection (a), and the personal representative has no duty to recover property distributed without knowledge of the written statement or list.
  2. If the writing is admitted to the probate proceeding as permitted in subsection (a), the recipient or recipients of items distributed in accordance with the written list or statement shall file a receipt for the item or items received in accordance with § 30-2-707.

Acts 2017, ch. 290, § 11.

Effective Dates. Acts 2017, ch. 290, § 16. July 1, 2017.

Chapter 4
Contest

32-4-101. Certificate that will is contested — Contestant's bond.

  1. If the validity of any last will or testament, written or nuncupative, is contested, then the court having probate jurisdiction over that last will or testament must enter an order sustaining or denying the contestant's right to contest the will. If the right to contest the will is sustained, then the court must:
    1. Require the contestant to enter into bond, with surety, in the penal sum of five hundred dollars ($500), payable to the executor mentioned in the will, conditioned for the faithful prosecution of the suit, and in case of failure in the suit, to pay all costs that may accrue on the suit; and
    2. Cause a certificate of the contest and the original will to be filed with the appropriate court for trial.
  2. As used in this section, the term “the appropriate court for trial” means the court elected by the contestant, in the notice of contest, to conduct a trial upon the validity of the will.

Code 1858, § 2173 (deriv. Acts 1835-1836, ch. 5, § 9; 1835-1836, ch. 18, § 2); Shan., § 3905; Code 1932, § 8103; Acts 1980, ch. 765, § 1; T.C.A. (orig. ed.), § 32-401; Acts 2002, ch. 631, § 1.

Cross-References. Circuit court jurisdiction, § 16-10-103.

Fees of clerks of courts administering probate matters, §§ 8-21-401, 8-21-701, 8-21-702.

Jurisdiction of chancery courts of probate and related matters, title 16, ch. 16, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 346, 350.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1405, 4-1502, 4-1503.

Tennessee Jurisprudence, 18 Tenn. Juris., Mandamus, § 9; 25 Tenn. Juris., Wills, §§ 51, 59, 62, 67, 68, 82.

Law Reviews.

Civil Procedure — Flowers v. Dyer County: The Death of the Motion to Dismiss for Lack of Subject Matter Jurisdiction, 23 Mem. St. U.L. Rev. 409 (1993).

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (Herman L. Trautman), 14 Vand. L. Rev. 1253 (1961).

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965).

Estate, Gift and Trust Law-Joint and Mutual Wills-Proper Jurisdictional Vehicles for Contract-Based Mutual Wills Claims, 80 Tenn. L. Rev. 883 (2013).

“The Law of Joint Wills, A Recent Development” (William L. Harbison), 24 No. 3, Tenn. B.J. 24 (1988).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Nature of Proceedings.

The proceedings are not according to those in equity or at law, but to those in the English ecclesiastical courts, as far as same are applicable under modern conditions. Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926).

A contest of a will is an attempt by legal proceeding to show that the testator was incapable of making a will or that the instrument is the will of another by reason of undue influence, to the end that the will may be declared void and the estate be administered according to the laws of descent and distribution. Clark v. Hefley, 34 Tenn. App. 389, 238 S.W.2d 513, 1950 Tenn. App. LEXIS 154 (Tenn. Ct. App. 1950).

Proceeding in circuit court on issue of devisavit vel non is in substance an original proceeding to probate a will. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959); Arnold v. Marcom, 49 Tenn. App. 161, 352 S.W.2d 936, 1961 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1961); Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 1964 Tenn. LEXIS 557 (1964).

Although it is commonly referred to as a will contest, the trial of an issue of devisavit vel non in the circuit court is an original proceeding to probate a will and the form of action is sui generis and strictly in rem being derived not from the common law but from the Ecclesiastical Courts of England. Arnold v. Marcom, 49 Tenn. App. 161, 352 S.W.2d 936, 1961 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1961).

A statutory proceeding to contest a will is analogous to the probate of a will in solemn form. Arnold v. Marcom, 49 Tenn. App. 161, 352 S.W.2d 936, 1961 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1961); Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 1964 Tenn. LEXIS 557 (1964).

2. Construction with Other Acts.

3. —Suit in Forma Pauperis.

Contest of will may be prosecuted in forma pauperis, in lieu of bond. Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, 1937 Tenn. LEXIS 138 (1937).

4. Setting Aside Probate in Common Form.

The mode and practice in setting aside a common form probate, which has been adopted by the courts, is to require a petition to be filed by the proposed contestant stating the grounds of the contest and the petitioner's interest in the matter. Gibson v. Lane, 17 Tenn. 475, 1836 Tenn. LEXIS 89 (1836); Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Keith v. Raglan, 41 Tenn. 474, 1860 Tenn. LEXIS 93 (1860); Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

It is not a matter of course to set aside the probate of a will made in common form, and to transfer the will to the circuit court to be reprobated in solemn form on the issue of devisavit vel non. Wynne v. Spiers, 26 Tenn. 394, 1846 Tenn. LEXIS 143 (1846); Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Ligon v. Hawkes, 110 Tenn. 514, 75 S.W. 1072, 1903 Tenn. LEXIS 76 (1903).

Where a will has been probated in common form and recorded, the statute prescribes no mode whatever for setting aside such probate by requiring it to be repropounded for probate in solemn form and its validity investigated in an issue of devisavit vel non. Wynne v. Spiers, 26 Tenn. 394, 1846 Tenn. LEXIS 143 (1846); Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

When a will has been probated in solemn form no question as to its validity can thereafter be raised except to set aside the judgment due to fraud in its procurement. Stacks v. Saunders, 812 S.W.2d 587, 1990 Tenn. App. LEXIS 904 (Tenn. Ct. App. 1990).

5. —Petition to Set Aside Common Form Probate.

The petition to set aside the common form probate of a will must state the interest of the petitioner, and must state the facts upon which the contest is to be made. The executor should be cited or summoned, and should answer or demur to the petition. Special pleas complicating and confusing the issues should not be allowed in the probate court. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

It is required that the petition be verified by affidavit; but it is too late to make objection, for the first time, by motion in the circuit court, to dismiss it for the want of an affidavit. Keith v. Raglan, 41 Tenn. 474, 1860 Tenn. LEXIS 93 (1860).

6. —Preliminary Controversy.

The right of a proposed contestant to impeach or contest a will, or to set aside the common form probate if the right be disputed, presents a distinct controversy separate from and preliminary to the contest itself, constituting the corpus of a legal contestation, proper to be settled finally, upon the issue and evidence, before the issue of devisavit vel non is tried, and such preliminary question does not incorporate itself with the subsequent contest proceeding, if one should take place, and must be distinctly disposed of, and an appeal lies from a decision thereof, before the contest is heard. Wynne v. Spiers, 26 Tenn. 394, 1846 Tenn. LEXIS 143 (1846); Keith v. Raglan, 41 Tenn. 474, 1860 Tenn. LEXIS 93 (1860); Townsend v. Bonner, 1 Shan. 197 (1869); Crocker v. Balch, 104 Tenn. 6, 55 S.W. 307, 1899 Tenn. LEXIS 2 (1900); Cowan v. Walker, 117 Tenn. 135, 96 S.W. 967, 1906 Tenn. LEXIS 37 (1906); Shaller v. Garrett, 127 Tenn. 665, 156 S.W. 1084, 1913 Tenn. LEXIS 8 (1913); Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

Where the proponent of a will, upon petition of one to contest as heir of the decedent, alleges the illegitimacy of such contestant, the determination of such contestant's right to contest as such heir is the initial inquiry, separate from and preliminary to the contest itself. Napier v. Church, 132 Tenn. 111, 177 S.W. 56, 1915 Tenn. LEXIS 5 (1915).

Although executor fails to defend the preliminary proceedings in probate court, such defense may be made in circuit court. Kirkland v. Calhoun, 147 Tenn. 388, 248 S.W. 302, 1922 Tenn. LEXIS 52 (1923).

7. — —Parties.

In the preliminary controversy as to the right to contest the validity of a will probate in common form by obtaining the probate court's certification, the contestants petitioning for such certification and contest are plaintiffs and the executor maintaining the validity of the will is defendant. Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Keith v. Raglan, 41 Tenn. 474, 1860 Tenn. LEXIS 93 (1860); Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

8. — —Appeal.

The only contest in the preliminary controversy is that for setting aside the probate in common form and repropounding the will, and thereupon certifying it to the circuit court. The decision upon such preliminary contest is final, and may be appealed from by either party. Wynne v. Spiers, 26 Tenn. 394, 1846 Tenn. LEXIS 143 (1846); Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850).

An appeal or writ of error lies to the circuit court from the probate court's refusal to grant an application to have the probate of a will, made in common form, vacated and annulled. Johnson v. Gains, 41 Tenn. 288, 1860 Tenn. LEXIS 65 (1860); Townsend v. Bonner, 1 Shan. 197 (1869).

The right of a contestant to resist the probate of a will is a preliminary matter, presenting a separate and distinct issue from that of devisavit vel non from which an appeal in the nature of a writ of error may be taken. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

9. —Nuncupative Will.

Probate court can probate nuncupative will if no contest is filed. Jenkins v. Jenkins, 168 Tenn. 292, 77 S.W.2d 805, 1934 Tenn. LEXIS 56 (1935).

Filing of demurrer to probate of nuncupative will constituted a will contest. Jenkins v. Jenkins, 168 Tenn. 292, 77 S.W.2d 805, 1934 Tenn. LEXIS 56 (1935).

10. Chancery Court Jurisdiction.

The chancery court has jurisdiction to set aside the probate of a will in common form for fraud, or upon other equitable grounds, and may direct a suit to test the validity of the will upon a trial of the issue of devisavit vel non, to be instituted by petition in the probate court and to be certified to the circuit court for trial in the regular way, but cannot send the case directly to the circuit court for trial. It may also set aside a probate in solemn form, for fraud in its procurement. Burrow v. Ragland, 25 Tenn. 481, 1846 Tenn. LEXIS 24 (1846); John v. Tate, 26 Tenn. 388, 1846 Tenn. LEXIS 142 (1846); Ford v. Ford, 42 Tenn. 74, 1865 Tenn. LEXIS 19 (1865); Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867); Smith v. Harrison, 49 Tenn. 230, 1871 Tenn. LEXIS 2 (1871); Simmons v. Leonard, 89 Tenn. 622, 15 S.W. 444, 1890 Tenn. LEXIS 86 (1891); State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

The legal effect of the chancery decree setting aside judgment against validity of a will, procured upon trial of the issue of devisavit vel non, is to restore the original probate in common form in all its vigor. John v. Tate, 26 Tenn. 388, 1846 Tenn. LEXIS 142 (1846); Smith v. Harrison, 49 Tenn. 230, 1871 Tenn. LEXIS 2 (1871).

The chancery court, upon setting aside judgment in contested will case for fraud, will take cognizance of the factum of the will itself, in adjusting the equities of the parties to determine whether their equities demand a retrial at law or a reinstatement of the former probate in common form, but not to determine the validity of the will itself. Smith v. Harrison, 49 Tenn. 230, 1871 Tenn. LEXIS 2 (1871).

Since the chancery court, part 1, had jurisdiction to remand the case to the probate court for a determination of the standing issue, it logically followed that the probate court had jurisdiction, on remand, to address the issue of the children's standing; the placing of the designation of “part 1” on a probate court and memorandum opinion was nothing more than an oversight, and the chancellor who presided over the probate court signed both the order and memorandum opinion. Jolley v. Henderson, 154 S.W.3d 538, 2004 Tenn. App. LEXIS 408 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1136 (Tenn. Dec. 20, 2004).

11. Circuit Court Jurisdiction.

12. —Certification from Probate Court.

The circuit court can acquire jurisdiction only in one way, that is, by a certificate from the probate court that the validity of the will is contested, such probate court being the custodian of the will and having had original jurisdiction of its probate. Simmons v. Leonard, 89 Tenn. 622, 15 S.W. 444, 1890 Tenn. LEXIS 86 (1891).

Circuit court had jurisdiction of contest notwithstanding the fact that upon appeal from probate court to circuit court the case was not certified for trial on issue of devisavit vel non in the circuit court, the jurisdiction of the circuit court attaching ipso facto where a contest existed. Delaney v. First Peoples Bank, 214 Tenn. 355, 380 S.W.2d 65, 1964 Tenn. LEXIS 484 (1964).

If proceedings in probate court amount to a will contest, probate court is required to certify the contest to circuit court. In re Estate of King, 760 S.W.2d 208, 1988 Tenn. LEXIS 193 (Tenn. 1988).

When a person desiring to contest a will or testament has made his interest known, and his right to contest has been established, under the provisions of T.C.A. § 32-4-101 the court having probate jurisdiction must certify the fact of the contest to the circuit court. In re Estate of Powers, 767 S.W.2d 659, 1988 Tenn. App. LEXIS 756 (Tenn. Ct. App. 1988).

Although the proponents of a purported last will by the decedent contended that the probate court erred in certifying all the testamentary instruments to the circuit court when only the purported last will had been admitted to probate, the trial court did not err in certifying all of the testamentary documents at issue to the circuit court for adjudication in the will contest because the court was then able to decide how the decedent's estate was to be distributed. In re Estate of Dattel, — S.W.3d —, 2020 Tenn. App. LEXIS 277 (Tenn. Ct. App. June 12, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 555 (Tenn. Oct. 9, 2020).

13. —Original and Not Appellate.

Jurisdiction of the circuit court is original rather than appellate. Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926); Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

14. —Exclusive.

The jurisdiction of the circuit court is exclusive in the matter of the contest of wills, and chancery courts will not entertain and try an issue of devisavit vel non although it is presented in connection with matters of equitable cognizance. Clark v. Hefley, 34 Tenn. App. 389, 238 S.W.2d 513, 1950 Tenn. App. LEXIS 154 (Tenn. Ct. App. 1950).

15. —Determined by Statute.

Notwithstanding that general law providing for certification of will contests requires the papers to be sent from the probate court to the circuit court which has exclusive jurisdiction in such cases, law court at Johnson City had statutory jurisdiction over all causes of a civil nature arising within the ninth civil district, including a will contest in which the testator had died while residing in that district. Keys v. Keys, 23 Tenn. App. 188, 129 S.W.2d 1103, 1939 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1939).

16. —Appeal from Probate Court Denying Probate.

Circuit court jurisdiction is not defeated by probate court's failure to comply with this statute, in its failure to cause the fact of contest and the record to be certified and sent up to the circuit court and in its failure to require the execution of the prescribed bonds, nor is such jurisdiction defeated by want of formal proceedings for contest, nor by the probate court's act of erroneously rendering a judgment denying the probate, from which an appeal was taken to the circuit court instead of the prescribed certification. Murrell v. Rich, 131 Tenn. 378, 175 S.W. 420, 1914 Tenn. LEXIS 115 (1914).

17. —Compelling Probate Court to Comply.

The probate court is bound to obey the directions of this section; and if it neglects or refuses to do so, the circuit court may compel it by certiorari or mandamus to perform its duty; and may, by certiorari, compel the court or its clerk to send up the original will. Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872); Jenkins v. Jenkins, 168 Tenn. 292, 77 S.W.2d 805, 1934 Tenn. LEXIS 56 (1935).

Exclusive jurisdiction of circuit court to determine will contest is not affected by fact that probate court fails to certify the record, since circuit court can compel certification by means of certiorari. Ball v. Cooter, 185 Tenn. 631, 207 S.W.2d 340, 1948 Tenn. LEXIS 503 (1948).

18. —Cessation of Probate Court's Jurisdiction.

Where probate court refused to permit a will to be probated because another will had been probated and no appeal perfected, and granted petition to transfer cause to circuit court, the limit of probate court's jurisdiction was reached and jurisdiction of circuit court ipso facto attached. Allred v. Allred, 5 Tenn. App. 200, — S.W. —, 1927 Tenn. App. LEXIS 49 (Tenn. Ct. App. 1927).

19. —Probate of Earlier Will Involved.

The circuit court did not lack jurisdiction of contested proceeding to probate a will, upon the ground that such proceeding was a collateral attack on the judgment of probate of an earlier will, because the proceeding to probate the later will was a direct proceeding and in no way collaterally assailed the proceedings to probate or the judgment probating the earlier will. Murrell v. Rich, 131 Tenn. 378, 175 S.W. 420, 1914 Tenn. LEXIS 115 (1914).

20. —Nuncupative Will.

Where nuncupative will was offered for probate and demurrer filed thereto within six month period and probate court certified same to circuit court, will could be proved in circuit court proceeding though hearing on demurrer was not held in circuit court until after expiration of six month period. Jenkins v. Jenkins, 168 Tenn. 292, 77 S.W.2d 805, 1934 Tenn. LEXIS 56 (1935).

21. Procedure in Circuit Court.

Action of court in refusing to grant contestants' motion for continuance, in permitting beneficiaries of will to be made parties proponents with executors and trustees and in assessing costs against original contestant was properly within court's discretion. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

22. —Parties.

The executor is the proper party to represent those interested in the provisions of the will, upon contestant's petition to set aside the probate in common form, and to have the will certified to the circuit court. The executor who has so proved the will is the formal and necessary party against whom such contest suit should be instituted, but the persons interested in maintaining the will may, upon their application, be permitted by the court to make defense. Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Lassiter v. Travis, 98 Tenn. 330, 39 S.W. 226, 1896 Tenn. LEXIS 227 (1897); Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

This section seems to place the “executor mentioned in the will” in the attitude of a plaintiff in the circuit court, charged with the duty of maintaining the validity of the will, while the contestants are defendants denying its validity. Bowden v. Higgs, 77 Tenn. 343, 1882 Tenn. LEXIS 60 (1882).

All persons, interested either for or against contested will, have the right to be made parties, the proceeding being in rem. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

The issue of devisavit vel non being a proceeding in rem, all persons having any claim as heirs, next of kin or beneficiaries under other claimed wills may intervene. Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926).

The circuit court controls the advent and withdrawal of parties litigant. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

23. —Abandonment by One Contestant.

Abandonment of the contest by one contestant does not necessarily end the lawsuit, so long as there are others having an interest who may intervene, if they so desire. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

24. —Dismissal by Contestant.

After a will has been certified to the circuit court for contest, and the issues have been made up, the contestant cannot dismiss the suit or withdraw from the case, over the objection of the proponent, and prevent the proponent from having the issue determined by verdict and judgment. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923); Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

25. —Nonsuit by Contestant.

In proceeding to contest will, contestant who was permitted to take nonsuit was nevertheless bound, the proceeding being in rem, and decree as to validity of will was res judicata as to such person. Arnold v. Marcom, 49 Tenn. App. 161, 352 S.W.2d 936, 1961 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1961).

26. —Contest with Legatee.

Contest may be made with any legatee, especially where the appointment of a personal representative is contested as between the several applicants. Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

27. —Issues.

Issues are made in the circuit court for the contest of a will, although no particular pleadings are required except that the validity of the will shall be affirmed and denied. Bowman v. Helton, 7 Tenn. App. 325, — S.W.2d —, 1928 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1928).

28. —Abandonment by Death of Party.

The statutes designed to avoid abatement of actions on account of death of a party are applicable. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

29. Right to Contest.

A will contest does not involve a decedent's right to devise and bequeath property. Therefore, the trial court does not have jurisdiction to entertain a claim based upon an alleged contract to dispose of an estate in a particular manner or not to alter or revoke a will. Rogers v. Russell, 733 S.W.2d 79, 1986 Tenn. App. LEXIS 3315 (Tenn. Ct. App. 1986).

There is no formal announcement required to establish oneself as a contestant to the validity of any last will or testament; a person desiring to contest a will need do no more than make that fact known. In re Estate of King, 760 S.W.2d 208, 1988 Tenn. LEXIS 193 (Tenn. 1988).

Where decedent's heirs did not file a will contest action, the appellate court would not disturb the decision of the probate court finding that the holographic documents submitted by the estate executor constituted the last will and testament of the decedent. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

Where a widow filed a declaratory judgment petition with a third codicil that was previously undiscovered attached, prior to the trial court entering an order admitting the will and the first two codicils to probate in solemn form, the trial court had an obligation to bring the proceedings to a halt and conduct an inquiry into whether the widow had standing to pursue a will contest under T.C.A. § 32-4-101 and not doing so was reversible error. In re Estate of Boote, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 663 (Tenn. Ct. App. 2005), rehearing denied, 198 S.W.3d 699, 2005 Tenn. App. LEXIS 804 (Tenn. Ct. App. 2005), appeal denied, In re Estate of Boote v. Shivers, — S.W.3d —, 2006 Tenn. LEXIS 355 (Tenn. 2006).

Contestants - five of the decedent's seven children that were disinherited - had standing to bring a will contest because the decedent's wills had not been judicially determined to be valid; the contestants did not admit or concede the validity of any of the decedent's wills; all but one of the contestants would share in the decedent's estate under at least one of the wills predating 2012; and all of the contestants would receive a share of the decedent's estate under the laws of intestacy; thus, the contestants showed that they would be entitled to share in the decedent's estate if no will existed and the 2013 Will were set aside, and nothing more was required to establish standing. In re Estate of Brock, 536 S.W.3d 409, 2017 Tenn. LEXIS 726 (Tenn. Nov. 22, 2017).

30. —Persons Having Intestate Rights.

The probate of a will, made in common form, will only be set aside at the instance of the party interested as heir or distributee or otherwise, in the decedent's estate in case of intestacy, who was not cited to be present at the first probate. Neither strangers or kinsmen who are not heirs or next of kin, or distributees, will be permitted to disturb the existing probate in common form. Wynne v. Spiers, 26 Tenn. 394, 1846 Tenn. LEXIS 143 (1846); Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850); Bank of Tennessee v. Nelson, 40 Tenn. 634, 1859 Tenn. LEXIS 188 (1859); Ligon v. Hawkes, 110 Tenn. 514, 75 S.W. 1072, 1903 Tenn. LEXIS 76 (1903).

The father and only heir of the testator's motherless granddaughter, being a stranger in blood and estate, and being wholly incapable of inheriting from the testator, even if his daughter, the testator's granddaughter had died before the testator, has no interest, by reason of the death of his such daughter after the death of the testator, as would entitle him to have the probate in common form set aside, or to question the testamentary capacity of the testator. The right to contest a will is not a property right, and it will not pass by inheritance or descent to strangers in blood and estate to the testator. Ligon v. Hawkes, 110 Tenn. 514, 75 S.W. 1072, 1903 Tenn. LEXIS 76 (1903).

One who was not an heir or distributee of the testator at the time of his death, and would not have been such, if those under whom he claims had died before the testator, cannot contest the will. Ligon v. Hawkes, 110 Tenn. 514, 75 S.W. 1072, 1903 Tenn. LEXIS 76 (1903); Bowers v. McGavock, 114 Tenn. 438, 85 S.W. 893, 1904 Tenn. LEXIS 98 (1904).

The validity of a will can be contested by none except such as would be entitled to an interest or share in the testator's property in case of the invalidity of the will. Bowers v. McGavock, 114 Tenn. 438, 85 S.W. 893, 1904 Tenn. LEXIS 98 (1904).

Where the testator's widow fails to dissent from his will, but affirmatively elects to take thereunder, and seeks its execution, her heirs and distributees, who are not heirs and distributees of the testator, have no such interest as entitles them to contest the validity of the will; for her such election is personal, and does not pass to her heirs and representatives. Bowers v. McGavock, 114 Tenn. 438, 85 S.W. 893, 1904 Tenn. LEXIS 98 (1904).

Any one who would take if there were no will may contest the original probate of a will. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

31. —Relatives of Interested Persons.

A probate in common form may not be set aside at instance of a grandchild of the testator, it not appearing but that his own connecting father was alive. Cornwell v. Cornwell, 30 Tenn. 485, 1850 Tenn. LEXIS 159 (1850). But see Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929), holding that the court in the Cornwell case did not indicate that the father of contestant must have died before the testator in order to enable the grandchild to contest.

The question whether a grandson or other lineal descendant could contest the will of his grandfather or other lineal ancestor, where the child of the testator through whom the claim is made survived the testator, but died before the contest could be or was commenced, was reserved by the court, with an expression of opinion that such contest could be prosecuted. Ligon v. Hawkes, 110 Tenn. 514, 75 S.W. 1072, 1903 Tenn. LEXIS 76 (1903).

32. —Privity between Contestants.

It is not essential that there be privity between parties, proponent or contestant, who are permitted to become parties after issue is made, and the original parties whom they may succeed. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

33. —Person Having Greater Rights by Intestacy.

The widow may act as next friend of her infant child in contesting the validity of her husband's will, and such contest will not be refused upon the alleged ground that the interest of the infant is larger under the will than in the case of intestacy, when the court is satisfied that the child's legal share in its father's estate, in the event the will is set aside, is of greater value than the provisions of the will. Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

34. —State Claiming Escheat.

The state claiming an escheat may contest the will upon the ground of fraud, as where its execution was procured from one of unsound mind, or by undue influence. State v. Lancaster, 119 Tenn. 638, 105 S.W. 858, 1907 Tenn. LEXIS 27 (1907).

35. —Creditor of Beneficiary.

The creditor of an heir and distributee of the testator is not entitled to contest the will, or to have it set aside upon the ground that it was inoperative to pass the real estate on account of the incompetency of the witnesses. Bank of Tennessee v. Nelson, 40 Tenn. 634, 1859 Tenn. LEXIS 188 (1859).

Creditor of an heir and distributee of the testator cannot have an issue made to try the validity of the will or in any other way, directly or collaterally, attack the probate. Gore v. Howard, 94 Tenn. 577, 30 S.W. 730, 1894 Tenn. LEXIS 71 (1895).

36. —Heir Disinherited by Earlier Will.

The heir and next of kin of a testator, to whom nothing was left by an earlier valid will, is not entitled to contest the probate of a subsequent will, or to contest such will upon an issue of devisavit vel non after its probate in common form, because he is without substantial interest; and the proponents of a probated will are not estopped to rely upon such prior valid will, though it be unprobated, as a bar to the right of the heir and next of kin left nothing therein to contest the probated will. Cowan v. Walker, 117 Tenn. 135, 96 S.W. 967, 1906 Tenn. LEXIS 37 (1906).

37. —Beneficiary Under Former Will.

Where there has been no probate in common form, the widow of an heir, claiming under that heir's will, may contest both in her own right and as executrix of that will. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

The husband and stepson of one claimed to have executed a will are not estopped to contest, where they were beneficiaries under a former will, and maker left no other relatives by blood or marriage. Melody v. Hamblin, 21 Tenn. App. 687, 115 S.W.2d 237, 1937 Tenn. App. LEXIS 69 (Tenn. Ct. App. 1937).

A person who would not take any part of the estate of a decedent in case of intestacy, will not be permitted to contest a will upon the allegation that he was a beneficiary in a prior will which has been lost or destroyed. The lost will must first be established in chancery before a legatee under that will has standing to contest a later probate will. In re Estate of West, 729 S.W.2d 676, 1987 Tenn. App. LEXIS 2560 (Tenn. Ct. App. 1987).

38. Summary Judgment.

A will contest proceeding can be disposed of by a summary judgment. Owen v. Stanley, 739 S.W.2d 782, 1987 Tenn. App. LEXIS 3211 (Tenn. Ct. App. 1987), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

39. Contestant's Bond.

Will proponents'  argument regarding the contestants'  failure to post a prosecution bond was premature when the appellate record did not indicate that the probate court clerk issued a certificate of contest or transmitted the trust documents to the circuit court before the proponents filed their notice appealing the probate court's order denying their motion to dismiss the contestants'  verified petition. In re Estate of Dattel, — S.W.3d —, 2020 Tenn. App. LEXIS 277 (Tenn. Ct. App. June 12, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 555 (Tenn. Oct. 9, 2020).

40. —Penalty.

This statute, in prescribing the penalty of the bond to be given by contestants, is merely directory, and the courts may exercise a proper discretion, in view of the magnitude of the suit and probable cost, in regulating the amount, and a bond for a larger sum may be required. The fact that the former sureties, who were released, were only bound in the sum of $500 does not affect the undertaking of the new surety for the larger sum. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859).

41. —Undertaking for Costs.

An undertaking for costs by recognizance entered of record, by which the surety acknowledges himself as such for contestants in a fixed sum, is as binding as by bond; and such recognizance naming the parties to the suit or giving the style of the case is good, though not made payable to the opposite party. Parks v. Allen, 39 Tenn. 523, 1859 Tenn. LEXIS 267 (1859); Kincaid v. Sharp, 40 Tenn. 151, 1859 Tenn. LEXIS 39 (1859).

42. —In Forma Pauperis.

Contest of will may be prosecuted in forma pauperis in lieu of bond. Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, 1937 Tenn. LEXIS 138 (1937).

43. Duty of Executor to Maintain Will.

The duty of the executor, under this section, to maintain the validity of the will, can be avoided only by renunciation of his appointment. Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740, 1928 Tenn. LEXIS 178 (1929).

44. Refusal of Executor to Propound Will.

45. —Rights of Legatee or Devisee.

Where the nominated executor renounces the trust and refuses to qualify, or, qualifying, he, for any reason, refuses to propound the will for probate, any legatee or devisee may do so. Where the legatee or devisee is laboring under any legal disability, the will may be propounded by one acting as next friend for him. State v. Randles, 26 Tenn. 9, 1846 Tenn. LEXIS 33 (1846); Patton v. Allison, 26 Tenn. 320, 1846 Tenn. LEXIS 133 (1846); Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

46. —Administrator Pending Contest — Duties.

Where the executor named in the will renounces and refuses to qualify, and the court appoints an administrator, pending the contest of the will, to take care of the estate during the litigation, such administrator has no connection with the litigation in relation to it. Ford v. Ford, 26 Tenn. 92, 1846 Tenn. LEXIS 68 (1846).

47. Provision for Forfeiture of Bequest if Contest.

A provision of a will for the forfeiture of a bequest to a legatee who contests the will is not void as against public policy, but valid. Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 1922 Tenn. LEXIS 27, 26 A.L.R. 755 (1922).

The bequest to a legatee will not be forfeited under a provision for the forfeiture, where the contest was prosecuted in good faith and upon probable cause. Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 1922 Tenn. LEXIS 27, 26 A.L.R. 755 (1922).

48. Two Wills in Existence — Effect of Failure to Produce First.

While it is proper practice for an executor named in two purported wills to produce both in a contest, the executor's failure to produce a January will during contest over a subsequent August will will not bar his right from offering the August will for probate after judgment setting aside the earlier one. Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926); Bridges v. Agee, 167 Tenn. 324, 69 S.W.2d 891, 1933 Tenn. LEXIS 43 (1934).

In will contest where grounds of contest were weakness of mind and undue influence, contestants should have been permitted to take discovery deposition of executrix to enable them to see prior will of testratrix. Kelley v. Brading, 47 Tenn. App. 223, 337 S.W.2d 471, 1960 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1960).

49. Two Wills Offered for Probate.

Where two wills are offered for probate and applications are consolidated, certification of both to the circuit court for determination whether one or the other is the true will is the correct procedure. Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 1964 Tenn. LEXIS 557 (1964).

50. —Joint Wills.

A joint will should be denied probate even though its revocation was a breach of contract, and the substituted will should be admitted to probate if it is otherwise proper. Then the persons claiming that the decedent's execution of a subsequent will breached a contract may seek relief by filing a claim against the decedent's estate. Rogers v. Russell, 733 S.W.2d 79, 1986 Tenn. App. LEXIS 3315 (Tenn. Ct. App. 1986).

51. Persons not Parties of Record.

52. —Effect of Judgment.

Judgment in circuit court in will contest is binding on all persons whether parties to the record or not. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

53. —Right to Appeal.

Parties interested in the result of the litigation, such as heirs and distributees, though not parties to the record, may appeal or prosecute a writ of error. Linch v. Linch, 69 Tenn. 526, 1878 Tenn. LEXIS 132 (1878); Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

54. Attorney Fees and Costs.

Counsel fees and expenses, incurred in good faith and upon reasonable grounds, are a proper charge against the estate, whether the contest was successful or unsuccessful, or whether the will was set aside or established, and though the executor was the only person interested in sustaining the will. Bennet v. Bradford, 41 Tenn. 471, 1860 Tenn. LEXIS 92 (1860); Bowden v. Higgs, 77 Tenn. 343, 1882 Tenn. LEXIS 60 (1882); Douglass v. Baber, 83 Tenn. 651, 1885 Tenn. LEXIS 90 (1885); Lassiter v. Travis, 98 Tenn. 330, 39 S.W. 226, 1896 Tenn. LEXIS 227 (1897).

Where a will was procured by fraud and undue influence, and the executrix who propounded it for probate was the chief beneficiary, and was responsible for the fraud, she is not entitled to costs. Smith v. Haire, 133 Tenn. 343, 181 S.W. 161, 1915 Tenn. LEXIS 97 (1915).

The executor who in good faith propounds a will for probate is entitled to his costs and attorney's fees, whether the will is set aside or not. Smith v. Haire, 133 Tenn. 343, 181 S.W. 161, 1915 Tenn. LEXIS 97 (1915).

Attorney fees incurred by an executor in propounding a will may be paid out of the estate as expenses of administration, unless the executor in propounding the will was not acting in good faith. Smith v. Haire, 138 Tenn. 255, 197 S.W. 678, 1917 Tenn. LEXIS 28 (1917).

An executor who in good faith propounds will for probate is entitled to costs and attorney fees, whether the will is set aside on contest or not. But where the will was procured by fraud and undue influence of the executor who was the chief beneficiary, he is not entitled to costs. Smith v. Haire, 133 Tenn. 343, 181 S.W. 161, 1915 Tenn. LEXIS 97 (1915); Powell v. Barnard, 20 Tenn. App. 31, 95 S.W.2d 57, 1936 Tenn. App. LEXIS 1 (Tenn. Ct. App. 1936).

Counsel for an infant contestant can be paid for his services out of the proceeds of the real estate only where the personal estate has been consumed by other charges agreed to and made part of the judgment. Roberts v. Vaughn, 142 Tenn. 361, 219 S.W. 1034, 1919 Tenn. LEXIS 65, 9 A.L.R. 1528 (1920).

55. Estoppel to Contest Will.

Where in litigation between husband and wife concerning her property (including land), a compromise was effected whereby he conveyed a certain portion of the property to trustees of the wife, with the absolute right vested in her to dispose of her estate by will, or otherwise, the husband was thereby estopped to dispute the validity of the wife's will. Wynne v. Spiers, 26 Tenn. 394, 1846 Tenn. LEXIS 143 (1846); Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871).

Neither the fact that the widow may dissent from her deceased husband's will and thereby share in his estate as in case of his intestacy, nor the fact that she has actually so dissented, and has had a year's support assigned to her, nor the fact that she asked the appointment of one person, rather than another, as administrator with the will annexed, estops her to contest the validity of such will. Miller v. Miller, 52 Tenn. 723, 1871 Tenn. LEXIS 303 (1871); Moore v. Johnson, 75 Tenn. 580, 1881 Tenn. LEXIS 154 (1881).

The election of the widow to take under her husband's will does not estop her from afterwards contesting the will, because there can be no valid election if there was no valid will. Moore v. Johnson, 75 Tenn. 580, 1881 Tenn. LEXIS 154 (1881).

The heir is estopped to contest the will where he had, for a valuable consideration, relinquished to the ancestor and testator his entire expectancy in the latter's estate. Gore v. Howard, 94 Tenn. 577, 30 S.W. 730, 1894 Tenn. LEXIS 71 (1895); Cowan v. Walker, 117 Tenn. 135, 96 S.W. 967, 1906 Tenn. LEXIS 37 (1906); Taylor v. Swafford, 122 Tenn. 303, 123 S.W. 350, 1909 Tenn. LEXIS 24, 25 L.R.A. (n.s.) 442 (1909).

Parties who prosecuted to final judgment a suit to construe the will and decree rights thereunder, admit its validity and are estopped to contest for fraud and undue influence. But as to an infant, a next friend had no right so to elect to take under a will rather than to contest it as invalid, or to waive or admit away any substantial right. Hodges v. Hale, 20 Tenn. App. 233, 97 S.W.2d 454, 1936 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1936).

Proponent in will contest was not estopped from challenging jurisdiction of circuit court where she applied to that court, while the case was pending in the probate court and before it was certified to the circuit court, for a writ of certiorari and supersedeas to have stayed an order of the probate court requiring the production of certain privileged matter, the petition in that case having nothing to do with the issue of devisavit vel non and being in the nature of an independent proceeding. Keys v. Keys, 23 Tenn. App. 188, 129 S.W.2d 1103, 1939 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1939).

56. Promissory Fraud.

Promissory fraud can be established by proving a lack of a present intent with regard to a promise of future action. Stacks v. Saunders, 812 S.W.2d 587, 1990 Tenn. App. LEXIS 904 (Tenn. Ct. App. 1990).

57. Appeal.

An appeal lies from a decision upon the question whether the proposed contestant of a will is entitled to make the contest when the will is originally presented for probate, or upon petition to set aside a probate in common form and to have the will certified, and either unsuccessful party is entitled to an appeal or writ of error, from the probate court's final decision in the matter, to the circuit court, and from that court to the court of appeals, and by certiorari from the latter court to the Supreme Court. Howell v. Whitchurch, 5 Tenn. 49, 1817 Tenn. LEXIS 42 (1817); Johnson v. Gains, 41 Tenn. 288, 1860 Tenn. LEXIS 65 (1860); Keith v. Raglan, 41 Tenn. 474, 1860 Tenn. LEXIS 93 (1860); Cowan v. Walker, 117 Tenn. 135, 96 S.W. 967, 1906 Tenn. LEXIS 37 (1906).

Where the petitioner is not entitled to have the probate of a will, made in common form, set aside and to have the will certified, and the decision of the circuit court is reversed, the Supreme Court will, without remandment, render proper judgment dismissing the petition, where the circuit judge should have rendered such judgment. Cowan v. Walker, 117 Tenn. 135, 96 S.W. 967, 1906 Tenn. LEXIS 37 (1906).

All parties who would be concluded are entitled to prosecute a writ of error, although not parties of record, and similarly are entitled to file assignments of error in the appellate court. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

Where the appeal was granted to all contestants and but one perfected an appeal, the court to which appeal lay had jurisdiction to review the case. Druen v. Hudson, 17 Tenn. App. 428, 68 S.W.2d 146, 1933 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1933).

Collateral References.

Action for tortious interference with bequest as precluded by will contest remedy. 18 A.L.R.5th 211.

Administrator, preference to successful contestant of will in selection of, from among members of class equally entitled. 1 A.L.R. 1250.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation. 28 A.L.R.3d 994.

Adoption intended but not effected as giving standing to contest will. 112 A.L.R. 1422.

Application to probate later will as subject to restrictions on contest of earlier will. 107 A.L.R. 252, 157 A.L.R. 1351.

Assignee of expectancy, right of, to contest will. 12 A.L.R. 52, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8; 11 A.L.R.4th 907.

Attorney's compensation in will contest, amount of. 143 A.L.R. 729, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Challenge in collateral proceeding to decree admitting will to probate, on ground of fraud inducing complainant not to resist probate. 84 A.L.R.3d 1119.

Construction of reference in will to statute where pertinent provisions of statute are subsequently changed by amendment or repeal. 63 A.L.R.3d 603.

Consul, on behalf of nonresident national. 157 A.L.R. 114.

Contingent interest as sufficient to entitle one to oppose or contest will or codicil. 162 A.L.R. 843.

Contract to refrain from contesting will. 55 A.L.R. 811.

Creditor of heir, right of, to contest will. 46 A.L.R. 1490, 128 A.L.R. 963.

Decedent's spouse as a proper party to contest will. 78 A.L.R.2d 1060.

Election by contestant to claim as beneficiary under an earlier will or as heir or next of kin, necessity of, as condition of contesting will. 82 A.L.R. 885.

Estoppel by conduct during testator's life to dissent from or attack validity of will. 74 A.L.R. 659.

Executor's or administrator's right to contest the will of his decedent. 31 A.L.R.2d 756.

Heir or next of kin as one having right of contest.

Heir or next of kin, right of, to contest will as affected by gift or conveyance or prior will by which he is disinherited in whole or part. 112 A.L.R. 1405.

Inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

Interest on legacy, right to, as affected by contest of will. 75 A.L.R. 179.

Jurisdiction in proceeding for probate of will to adjudicate as to other wills not offered for probate. 119 A.L.R. 1099.

Liability for malicious prosecution based on contest or caveat to will. 35 A.L.R.3d 651.

Place of personal representative's appointment as venue of action against him in his official capacity. 93 A.L.R.2d 1199.

Public administrator's or state's right to file caveat to, or contest will. 18 A.L.R. 79, 56 A.L.R.2d 1183.

Right of debtor of or person claimed to be liable to estate to contest will or challenge its admission to probate. 15 A.L.R.2d 864.

Right of executor or administrator to contest will or codicil of his decedent. 8 A.L.R.3d 235.

Right of heir's assignee to contest will. 39 A.L.R.3d 696.

Right of heirs, next of kin, or others who would have benefited by denial of probate of will, to share in the consideration for an agreement, to which they were not parties, to withdraw objection to probate. 120 A.L.R. 1495.

Right of trustee named in earlier will to contest, or seek to revoke probate of, later will. 94 A.L.R.2d 1409.

Right to contest will or attack its validity. 28 A.L.R.2d 116, 78 A.L.R.4th 90.

Right to settle or compromise will contest, and validity of agreement to induce others to do so. 42 A.L.R.2d 1319.

Status as husband or wife, prospective heir, or next of kin of living person who is entitled but does not exercise or consent to exercise right to contest will, as enabling one to do so where not otherwise qualified. 149 A.L.R. 1270.

Summary judgment procedure in will probate or contest proceedings. 52 A.L.R.2d 1207, 53 A.L.R.4th 561.

Testamentary capacity, necessity of affirmative evidence of, to make prima facie case in will contest. 110 A.L.R. 675.

Who entitled to appeal from decree admitting will to probate or denying probate. 88 A.L.R. 1158.

32-4-102. Bond of legatee or devisee.

  1. If the legatees or devisees, or any of them, are adults, and have notice that the probate of the will is contested, the court shall require them to enter into bond, with surety, in the penal sum of five hundred dollars ($500), conditioned for the faithful prosecution of the suit, and, in case of failure in the suit, to pay all costs that may accrue on the suit, but an adult legatee or devisee who makes known in writing, to be entered of record, to the court that the adult legatee or devisee claims nothing under the will, and is willing that it be set aside, shall not be required to enter into bond.
  2. If all the legatees or devisees are adults, and refuse or fail to enter into a bond, the will shall not be admitted to probate, but shall be held for naught, and the property of the supposed testator shall be distributed as the property of an intestate.

Code 1858, §§ 2174, 2175 (deriv. Acts 1851-1852, ch. 77, § 1); Shan., §§ 3906, 3907; Code 1932, §§ 8104, 8105; T.C.A. (orig. ed.), §§ 32-402, 32-403.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 347, 348.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1502.

NOTES TO DECISIONS

1. Bond Requirements.

This statute requires the adult legatees or devisees, who have notice of the contest, to give bond with surety to prosecute the suit, where they claim under the will; but legatees and devisees who are minors are not required to give bond or to prosecute the suit. Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872); Bowden v. Higgs, 77 Tenn. 343, 1882 Tenn. LEXIS 60 (1882).

2. Failure to Give Bond.

Appeal involving probate of will could not be dismissed on the ground that some of the proponents of the will being legatees and devisees had not given bond where two of the appellants were executors of the will and not required to give bond. Gregory v. Susong, 185 Tenn. 232, 205 S.W.2d 6, 1947 Tenn. LEXIS 325 (1947).

32-4-103. Contest in forma pauperis.

Persons may be permitted to have an issue made upon any will, either as plaintiffs or defendants, in the form prescribed for paupers.

Code 1858, § 2176 (deriv. Acts 1851-1852, ch. 77, § 3); Shan., § 3908; Code 1932, § 8106; T.C.A. (orig. ed.), § 32-404.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 346, 347.

NOTES TO DECISIONS

1. Construction.

Provisions of this section providing that any person may have an issue in the contest of a will upon the form prescribed by paupers must be construed in conjunction with § 20-12-127 providing that with certain exceptions any resident of the state may commence an action under pauper oath and “may” in such sections must be construed as “shall” so that it becomes mandatory that a will contest be permitted to be prosecuted in forma pauperis if the allegation of poverty is in fact true. Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553, 1937 Tenn. LEXIS 138 (1937).

32-4-104. Issues — When and how made up — When triable.

After the filing of the certificate of the contest and the original will, in the office of the clerk of the appropriate court for trial, pursuant to § 32-4-101(2), an issue or issues shall be made up, under the direction of the court, to try the validity of the will.

Code 1858, § 2177 (deriv. Acts 1835-1836, ch. 5, § 9); Shan., § 3909; Acts 1925, ch. 8, § 1; Code 1932, § 8107; T.C.A. (orig. ed.), § 32-405; Acts 2002, ch. 631, § 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 366, 368.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 68.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965).

NOTES TO DECISIONS

1. Pleading.

2. —Form.

No particular form of pleading is required in making up the issue of devisavit vel non, for all that is required is that the party propounding the paper shall affirm it to be the testator's will, and the contesting party shall deny it. Ford v. Ford, 26 Tenn. 92, 1846 Tenn. LEXIS 68 (1846); Harrison v. Morton, 32 Tenn. 461, 1852 Tenn. LEXIS 97 (1852).

The issues are made up in the office of the circuit court clerk under the court's direction. Bowman v. Helton, 7 Tenn. App. 325, — S.W.2d —, 1928 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1928).

Original statement of issues to jury and the subsequent filing of a declaration and written pleas was a sufficient compliance with this section which simply delineates the practice fixing no hard and fast rule that must be strictly conformed to at the risk of fatal error. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 1968 Tenn. LEXIS 440 (1968).

Trial court erred by interpreting the court's earlier opinion as conclusively deciding that the testator's third codicil had not been revoked, had been lost or destroyed, and that the contents were the same as the contents of the purported copy, and therefore the trial court erred by granting the widow summary judgment under the law of the case doctrine; rather, the court's prior opinion stated that nothing in its opinion prevented the testator's daughters from also contesting the will and all three codicils if that was their desire, and on remand the trial court was to require the daughters to state whether they were contesting the testator's will or any of the codicils, and if so, the basis for their contest. In re Estate of Boote, 265 S.W.3d 402, 2007 Tenn. App. LEXIS 818 (Tenn. Ct. App. Dec. 27, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 384 (Tenn. May 27, 2008).

3. —Necessity in Circuit Court.

Contest in circuit court should not be upon the issues made by the petition and answer thereto filed in the probate court. Bowman v. Helton, 7 Tenn. App. 325, — S.W.2d —, 1928 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1928).

In case involving presence of animus testandi in holographic will, the issues to be tried in the circuit court are not made by the petition and the answer thereto filed in the probate court, but are made up under the direction of the court after the case has reached the former tribunal. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949).

4. —Defenses and Judgment Under General Issue.

Such general issue lets in all matters of defense, and under it the will may be sustained in part and set aside in part. Harrison v. Morton, 32 Tenn. 461, 1852 Tenn. LEXIS 97 (1852).

5. —Special Pleas.

Where the contestant attacks the will only in part, he may do so by a special plea or pleas, if he wishes, with a view of saving costs, or for any other reason; but if he pleads the general issue, special pleas become unnecessary, and it is not error to strike them out. Harrison v. Morton, 32 Tenn. 461, 1852 Tenn. LEXIS 97 (1852).

6. Consolidation of Several Contests.

Where several alleged wills and codicils of the same testator are offered and contested in the circuit court, it is not improper or erroneous for the trial judge to direct a consolidation of all the contests and to require proper issues to be formulated, so that it may be determined which was the last will and testament of the testator, or whether any of them was his will; and to this end, the trial judge may direct the removal of controversies in the probate court, by certiorari, to the circuit court. Walker v. Verble, 5 Tenn. Civ. App. (5 Higgins) 651 (1914).

More than one will may be offered for probate in a will contest. Proceedings for probate of will are under English system in ecclesiastical courts. Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926).

Where two unprobated wills were certified to circuit court for contest and circuit judge within his discretion made primary issue depend on the validity or invalidity of the later instrument, permitting proponent of latter will to open and close was not improper. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964).

Where two wills were offered for probate at substantially the same time and both were certified to the circuit court for contest, it was within the sound discretion of the circuit court as to how the issues were to be framed and matters of procedure in the presentation of the case were also largely in the discretion of the court. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964).

7. Trial.

8. —Proof Under General Issue.

Under a plea of the general issue contestant could adduce any evidence tending to show that the paper was not a will of the decedent. Haley v. Ogilvie, 2 Tenn. App. 607, — S.W. —, 1926 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1926).

9. —Directed Verdict.

The authority of the trial judge or the appellate court to direct a verdict is the same as it is in those cases within the purview of the constitutional provision. Cude v. Culberson, 30 Tenn. App. 628, 209 S.W.2d 506, 1947 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1947).

10. —Waiver.

This section was not intended to supplant the general rule that by proceeding to trial voluntarily without objecting to the pleading by motion for judgment thereon or by default of for confessed judgment for lack of pleas a party is deemed to have waived failure to raise, form or join issue properly or at all. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 1968 Tenn. LEXIS 440 (1968).

Where the parties have voluntarily and without objection tried the case as if certain matters were in issue, one party will not be permitted afterward to object that such matters were not properly put in issue by the pleadings, the doctrine of waiver or estoppel being applied. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 1968 Tenn. LEXIS 440 (1968).

Where decedent's heirs did not file a will contest action, the appellate court would not disturb the decision of the probate court finding that the holographic documents submitted by the estate executor constituted the last will and testament of the decedent; the parties also did not dispute that the heirs would be entitled to a share in the real and personal property in the decedent's estate under the law of intestate succession. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

32-4-105. Proof of will.

Upon the trial of the issue in case of a written will with witnesses, it shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support it.

Code 1858, § 2178 (deriv. Acts 1789, ch. 23, § 1); Shan., § 3910; Code 1932, § 8108; T.C.A. (orig. ed.), § 32-406.

Cross-References. Proof of will, § 32-2-104.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 903 of the Tennessee Rules of Evidence.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 372.

Tennessee Jurisprudence, 11 Tenn. Juris., Evidence, § 80.2; 25 Tenn. Juris., Wills, § 74.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 903; § 903.1.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (II) (Herman L. Trautman), 15 Vand. L. Rev. 882 (1962).

Wills, Trusts and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Necessary Evidence.

In all cases of contested wills, where there are subscribing witnesses, they must be produced, if to be found, within the meaning of this statute; and, if not, evidence of their handwriting must next be resorted to; and where, from the efflux of time or other circumstances, it is shown, upon diligent inquiry, that the handwriting of one or more subscribing witnesses cannot be proved, then proof of the signature of one witness and that of the testator, and lastly, upon failure of proof of the signatures of all of the witnesses, proof of the handwriting of the testator by two witnesses will authorize the paper to be submitted to the jury, upon which they may find the fact of execution. In all cases depending on secondary evidence, the signature of the testator, though not absolutely essential, ought to be superadded to that of the subscribing witnesses. Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850).

This section requires only that all the subscribing witnesses be put on the stand by the proponent of the will, and does not require that each witness shall show affirmatively all the facts necessary to constitute due execution. Wheeler v. Parr, 3 Tenn. Civ. App. (3 Higgins) 374 (1912).

2. Proof of Execution by Subscribing Witnesses.

Under the provisions of this section and § 32-2-104 that a contested will is to be proved by all living witnesses “if to be found,” it is the function of the trial judge to determine whether a witness is available or can be found and where the explanation satisfies not only the trial judge but the contestants as well the requirements have been substantially met. Lyman v. American Nat'l Bank & Trust Co., 48 Tenn. App. 328, 346 S.W.2d 289, 1960 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1960).

3. —Impeachment.

While the proponent of the will introduced the attesting witnesses, the fact of such introduction does not preclude him from impeaching their testimony, and establishing the will in opposition to their swearing. Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850); Rose v. Allen, 41 Tenn. 23, 1860 Tenn. LEXIS 5 (1860); Alexander v. Beadle, 47 Tenn. 126, 1869 Tenn. LEXIS 17 (1869); Wheeler v. Parr, 3 Tenn. Civ. App. (3 Higgins) 374 (1912).

While the proponent of the will may impeach and contradict the testimony of the attesting witnesses, the question is reserved whether the rule extends so far as to allow the proponent to impeach their general character. Alexander v. Beadle, 47 Tenn. 126, 1869 Tenn. LEXIS 17 (1869).

4. —Weight of Testimony.

The attesting and subscribing witness to a will, in legal effect, asserts the mental capacity of the testator and the due execution of the will, and certifies to his knowledge of the same, and his swearing against his own act and declarations “shakes his own credibility” and discredits his testimony. Rose v. Allen, 41 Tenn. 23, 1860 Tenn. LEXIS 5 (1860).

The fact that the witness proves that he became a subscribing witness to a will, in the absence of the testator, does not, as a matter of law, impeach his credit and show him unworthy of belief. While the jury may take into consideration the improbability that a witness would attest the will in the absence of the testator, yet the credit due the witness should be left to the jury to determine, as in all other cases. Beadles v. Alexander, 68 Tenn. 604, 1877 Tenn. LEXIS 60 (1877).

5. —Declarations of Deceased Subscribing Witness.

The declarations of a deceased subscribing witness as to what took place at the making of the will and as to the instructions of the testator to the draftsman are not admissible for any purpose. Weatherhead v. Sewell, 28 Tenn. 272, 1848 Tenn. LEXIS 82 (1848); Sellars v. Sellars, 49 Tenn. 430, 1871 Tenn. LEXIS 29 (1871); Wheeler v. Parr, 3 Tenn. Civ. App. (3 Higgins) 374 (1912).

6. —Deposition of Nonresident Witness.

While the proponent of the will is not required to take the deposition of subscribing witnesses who reside in another state, because such nonresidence authorizes the admission of proof of their handwriting; yet if the deposition of such a witness has been taken, and is in court, it ought to be read, though the failure to read it will be cured by the defendant's reading it himself. Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850).

7. —Identity of Document Attested.

It is not essential that the subscribing witnesses should be informed of the provisions of the will, but such information may serve as one means of future identification. There must be some means of enabling the attesting witness to swear to the identity of the paper, for otherwise there would be no valid subscription. Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 1891 Tenn. LEXIS 92, 30 Am. St. Rep. 875 (1892).

8. Proof of Execution by Other Witnesses.

9. —When Admissible.

Judgment founded on actual observation of the capacity, disposition, temper, character, peculiarities of habit, form, features, or handwriting of others, is more than mere opinion. Such judgment approaches to knowledge, and is knowledge, so far as the imperfection of human nature will permit knowledge of these things to be acquired, and the result thus acquired should be communicated to the jury, because they have not had the opportunities of personal observation, and because in no other way can they effectually have the benefit of the knowledge gained by the observations of others. Norton v. Moore, 40 Tenn. 480, 1859 Tenn. LEXIS 136 (1859); Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872).

Where the subscribing witnesses failed to prove the testamentary capacity, the executor may prove it by other testimony. Frear v. Williams, 66 Tenn. 550, 1874 Tenn. LEXIS 181 (1874); Key v. Holloway, 66 Tenn. 575, 1874 Tenn. LEXIS 183 (1874).

The proof of witnesses other than the subscribing witnesses will not suffice, unless it, in truth, shows that all formalities requisite to a valid subscription were observed. Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 1891 Tenn. LEXIS 92, 30 Am. St. Rep. 875 (1892).

The fact of due subscription may be established by persons other than the subscribing witness, though his recollection fail him, or he becomes openly hostile to the will. Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 1891 Tenn. LEXIS 92, 30 Am. St. Rep. 875 (1892).

10. —Nonresidence of Subscribing Witnesses.

While the return of the officer having the subpoena for the attesting witnesses that they cannot be found is sufficient evidence of that fact, yet their nonresidence may be proved by any competent evidence at the trial. M'Donald v. M'Donald, 13 Tenn. 306, 13 Tenn. 307, 1833 Tenn. LEXIS 178 (1833); Crockett v. Crockett, 19 Tenn. 95, 1838 Tenn. LEXIS 23 (1838).

11. —Handwriting of Subscribing Witnesses.

When the subscribing witnesses are dead, or cannot be produced, it is competent to prove their signatures, and the signature of the testatrix, by witnesses who are familiar with their handwriting. Parker v. West, 29 Tenn. App. 642, 199 S.W.2d 928, 1946 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1946).

12. —Declarations of Testator.

The declarations of the testator, whether made before or after the execution of the will, or as part of the res gestae at the time of its execution or publication, or in the presence of the party adversely affected thereby, are competent and admissible in evidence to show a valid execution of the will, the testator's mental capacity, his knowledge of the contents of the will, his comprehension and approval of it as written, and his incapacity and susceptibility to extraneous influences, but not to prove the fact of undue influence. Demonbreun v. Walker, 63 Tenn. 199, 1874 Tenn. LEXIS 227 (1874); Beadles v. Alexander, 68 Tenn. 604, 1877 Tenn. LEXIS 60 (1877); Linch v. Linch, 69 Tenn. 526, 1878 Tenn. LEXIS 132 (1878); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891); Earp v. Edgington, 107 Tenn. 23, 64 S.W. 40, 1901 Tenn. LEXIS 55 (1901); Peery v. Peery, 94 Tenn. 328, 29 S.W. 1, 1894 Tenn. LEXIS 47 (1895); Kirkpatrick v. Jenkins' Ex'rs, 96 Tenn. 85, 33 S.W. 819, 1895 Tenn. LEXIS 13 (1896); Hobson v. Moorman, 115 Tenn. 73, 90 S.W. 152, 1905 Tenn. LEXIS 46, 3 L.R.A. (n.s.) 749 (1905).

The testator's declarations that he signed the will in the presence of the subscribing witnesses, or any of his statements going to the validity of the will, are admissible in evidence. Beadles v. Alexander, 68 Tenn. 604, 1877 Tenn. LEXIS 60 (1877).

Though the devisees and legatees under the will are incompetent as subscribing witnesses, they are competent witnesses to prove the testator's declarations and statements tending to establish the validity of the will. Beadles v. Alexander, 68 Tenn. 604, 1877 Tenn. LEXIS 60 (1877); Davis v. Davis, 74 Tenn. 543, 1880 Tenn. LEXIS 289 (1880); Patterson v. Mitchell, 9 Tenn. App. 662, 1929 Tenn. App. LEXIS 127 (1929).

Where a will is sought to be impeached, or the probate thereof is resisted, upon the grounds of undue influence and testamentary incapacity, the declarations of the testator, made either before or after the execution of the will, are admissible to show his mental incapacity, but are inadmissible as substantive evidence to prove the fact of undue influence. Peery v. Peery, 94 Tenn. 328, 29 S.W. 1, 1894 Tenn. LEXIS 47 (1895); Kirkpatrick v. Jenkins' Ex'rs, 96 Tenn. 85, 33 S.W. 819, 1895 Tenn. LEXIS 13 (1896); Earp v. Edgington, 107 Tenn. 23, 64 S.W. 40, 1901 Tenn. LEXIS 55 (1901); Hobson v. Moorman, 115 Tenn. 73, 90 S.W. 152, 1905 Tenn. LEXIS 46, 3 L.R.A. (n.s.) 749 (1905); Haire v. Smith, 5 Tenn. Civ. App. (5 Higgins) 304 (1914).

The declarations of the testator, made either before or after the execution of the will, may be considered upon the issue of mental incapacity, but not upon the issue of undue influence, unless there is independent testimony indicating undue influence, and then only to show a condition of mind susceptible to such influence and the effect thereof upon the testamentary act. Kirkpatrick v. Jenkins' Ex'rs, 96 Tenn. 85, 33 S.W. 819, 1895 Tenn. LEXIS 13 (1896); Hobson v. Moorman, 115 Tenn. 73, 90 S.W. 152, 1905 Tenn. LEXIS 46, 3 L.R.A. (n.s.) 749 (1905).

Declarations of testator subsequent to the execution of his will, as to whether a child born to his wife was his child, and as to the circumstance of her birth, are not admissible to rebut the contention, based on the failure to provide for such child, that the will was not the testator's voluntary act. Kirkpatrick v. Jenkins' Ex'rs, 96 Tenn. 85, 33 S.W. 819, 1895 Tenn. LEXIS 13 (1896).

Testator's declarations are not competent to prove that the will was made under undue influence, fraud or force, excited by or on behalf of a few beneficiaries thereunder. Earp v. Edgington, 107 Tenn. 23, 64 S.W. 40, 1901 Tenn. LEXIS 55 (1901).

In view of the opportunity and temptation for falsification, and as it would open the door to fraud, testimony of conversation with the testator, occurring either before or after the making of the will, as to his purpose or reasons for making a disposition or failing to make a disposition, is not admissible to attack the will. Bowerman v. Burris, 138 Tenn. 220, 197 S.W. 490, 1917 Tenn. LEXIS 23 (1917).

Declarations of testator to third persons, either before or after execution of alleged will, not constituting part of res gestae, are inadmissible on the issue of whether or not the will was forged. Ricketts v. Ricketts, 151 Tenn. 525, 267 S.W. 597, 1924 Tenn. LEXIS 84 (1925).

13. —Declarations Against Interest by Beneficiaries.

Upon the trial of an issue of devisavit vel non the admissions of a devisee, who is not an heir and who would take nothing if the will were broken, that undue influence and fraud was exercised to induce the making of the will, are competent evidence, though he was not a party to the record. Brown v. Moore, 14 Tenn. 272, 1834 Tenn. LEXIS 74 (1834).

The admissions of a legatee who is not a party upon the record will not be received to prove that fraud and undue influence were employed to induce the making of the will, if the interest of the legatee be against the will. Mullins v. Lyles, 31 Tenn. 337, 1851 Tenn. LEXIS 81 (1851).

14. —Proof of Signature of Subscribing Witness.

Where the attesting and subscribing witness to a will is dead or beyond the jurisdiction of the court, or has subsequently become incompetent, or cannot be found, proof of his signature by persons familiar with his handwriting is allowed in lieu of his testimony. Allen v. Allen, 2 Tenn. 172, 1812 Tenn. LEXIS 1 (1812); M'Donald v. M'Donald, 13 Tenn. 306, 13 Tenn. 307, 1833 Tenn. LEXIS 178 (1833); Crockett v. Crockett, 19 Tenn. 95, 1838 Tenn. LEXIS 23 (1838); Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891); Walker v. Verble, 5 Tenn. Civ. App. (5 Higgins) 651 (1914); Warren v. Warren, 11 Tenn. App. 338, 1930 Tenn. App. LEXIS 16 (1930).

The statutory requirement that contested wills “shall be proved by all the living witnesses, if to be found” is not to be construed literally; and the subsequent incompetency of the attesting witness, or his absence from the state, so that his testimony or attendance cannot be compelled, will authorize the admission of proof of his handwriting. Jones v. Arterburn, 30 Tenn. 97, 1850 Tenn. LEXIS 66 (1850).

If the attesting witness denies his attestation, or will not swear that he saw the testator execute and publish his will, or alleges the incapacity of the testator, his handwriting may be proved and his testimony controverted. Even if the subscribing witnesses all swear that the will was not duly executed, the devisee may, notwithstanding, go into other evidence to prove its due execution. Rose v. Allen, 41 Tenn. 23, 1860 Tenn. LEXIS 5 (1860).

15. —Presumption from Proof of Signatures.

When the signatures of the subscribing witnesses are proved to be genuine, nothing else appearing, the presumption is conclusive that the attestation was made in the presence of the testator; but if there be positive testimony on the subject by the subscribing witnesses, or otherwise, it then becomes a question for the jury to settle upon the evidence. Beadles v. Alexander, 68 Tenn. 604, 1877 Tenn. LEXIS 60 (1877).

Proof of the signature of the testatrix and of the signatures of the attesting witnesses, nothing else appearing, raises a presumption that the witnesses signed according to the provisions of the attestation clause preceding the signatures. Parker v. West, 29 Tenn. App. 642, 199 S.W.2d 928, 1946 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1946).

16. —Agreement that Earlier Will Valid.

In a contested proceeding to probate a will, an agreement that an earlier will was the last valid will, executed by the attorneys for a number of the parties including the person named as executor in both wills, was properly excluded, because it was mere matter of opinion and incompetent as evidence. Murrell v. Rich, 131 Tenn. 378, 175 S.W. 420, 1914 Tenn. LEXIS 115 (1914).

17. Executor as Witness.

In a contested will case, the executor is a competent witness to testify for himself and the establishment of the will, except as to transactions with or statements made by his testator. Key v. Holloway, 66 Tenn. 575, 1874 Tenn. LEXIS 183 (1874).

18. Testator's Knowledge of Will — Proof.

Testimony by witnesses including a subscribing witness as to conversations with testatrix concerning her reasons for making will were admissible for purpose of rebutting inference that testatrix's state of mind at time of execution of will was such that she did not know that she had executed will. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964).

19. —Necessity.

As a general rule, the proponent of a will need not prove that the testator had knowledge of the contents; but where the testator was blind, illiterate, or decrepit, or other suspicious circumstances surrounded the case, the proponent must, in addition, prove the testator's knowledge of and assent to the contents of the will. Patton v. Allison, 26 Tenn. 320, 1846 Tenn. LEXIS 133 (1846); Rutland v. Gleaves & Thompson, 31 Tenn. 198, 1851 Tenn. LEXIS 47 (1851); Cox v. Cox, 36 Tenn. 81, 1856 Tenn. LEXIS 59 (1856); Watterson v. Watterson, 38 Tenn. 1, 1858 Tenn. LEXIS 101 (1858); Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872); Key v. Holloway, 66 Tenn. 575, 1874 Tenn. LEXIS 183 (1874); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

Where the draftsman of the will takes an interest under it, that circumstance should awaken the vigilance of the jury to see whether a knowledge of its contents was brought home to the testator, and, under such suspicious circumstances, the jury ought not to be satisfied with the mere proof of the execution of the will, and that the testator was of a testamentary capacity, but there ought to be affirmative and plenary evidence that he had knowledge of the contents and fully and freely sanctioned the same. The mere previous declarations of the testator, in conformity with the contents, may be sufficient evidence thereof, if satisfactory to the jury. Patton v. Allison, 26 Tenn. 320, 1846 Tenn. LEXIS 133 (1846); Watterson v. Watterson, 38 Tenn. 1, 1858 Tenn. LEXIS 101 (1858); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

20. —Presumption.

The presumption of the testator's knowledge of the contents of the will is not conclusive, but may be rebutted. Rutland v. Gleaves & Thompson, 31 Tenn. 198, 1851 Tenn. LEXIS 47 (1851).

21. —Evidence — Sufficiency.

The testimony of one witness, of undoubted credit, to the fact of the testator's knowledge of the contents of the will, is sufficient to warrant the jury in finding in favor of the will. Cox v. Cox, 36 Tenn. 81, 1856 Tenn. LEXIS 59 (1856).

Testator's knowledge of and assent to provisions of will may be established by circumstances of a nature to convince the mind of its truth. Cox v. Cox, 36 Tenn. 81, 1856 Tenn. LEXIS 59 (1856); Watterson v. Watterson, 38 Tenn. 1, 1858 Tenn. LEXIS 101 (1858); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

In case the testator was blind, illiterate, or decrepit, or other suspicious circumstances surrounded the case, the best evidence of his knowledge and assent is proof that the will was correctly read to him, though the knowledge and assent may be otherwise proved. It is not essential that the reading of the will to the testator be done by a disinterested person. Watterson v. Watterson, 38 Tenn. 1, 1858 Tenn. LEXIS 101 (1858); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

The fact that the testator signed the will by making his mark is prima facie evidence of his inability to write, or to read writing, and this manner of signing must be explained, or there ought to be proof of knowledge of the contents of the will, and assent thereto, to make the formal execution complete, and to entitle the plaintiffs to a verdict, if no counter proof is offered. Bartee v. Thompson, 67 Tenn. 508, 1875 Tenn. LEXIS 76 (1875); Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253, 1890 Tenn. LEXIS 83 (1891).

22. Testator's Sanity.

The right of contestants to have the issue of the mental capacity of the testator submitted to the jury in will contest must rest upon substantial or material evidence at the time the will was made and not upon “scintilla” or “glimmer” of evidence. Jones v. Sands, 41 Tenn. App. 1, 292 S.W.2d 492, 1953 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1953).

It was not necessary to have any direct testimony that at the moment the will was made the state of mind of the testator was such that he was incompetent if from the proven surrounding facts and circumstances the jury could have determined the state of the testator's mind at the moment he signed the will. Jones v. Sands, 41 Tenn. App. 1, 292 S.W.2d 492, 1953 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1953).

In will contest in which proponents of will made a motion for a directed verdict and in which there was conflicting medical evidence as to the sanity of the testator, only the medical testimony offered by the contestants could be considered in determining the motion. Jones v. Sands, 41 Tenn. App. 1, 292 S.W.2d 492, 1953 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1953).

In will contest where grounds of contest were weakness of mind and undue influence, contestants should have been permitted to take discovery deposition of executrix to enable them to see prior will of testatrix. Kelley v. Brading, 47 Tenn. App. 223, 337 S.W.2d 471, 1960 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1960).

Unless the deceased has already been adjudicated insane at the time of the execution of a will, the burden is always upon the one who alleges an unsound mind to prove it. Parham v. Walker, 568 S.W.2d 622, 1978 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1978).

The existence of a guardianship or conservatorship is not per se an adjudication of an unsound mind, that is, an adjudication of mental incapacity to execute a will. Parham v. Walker, 568 S.W.2d 622, 1978 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1978).

23. —Undue Influence.

Once the existence of a confidential relationship is proven, undue influence is presumed and the recipient must prove an exception to the presumption by carrying the burden of showing the fairness of the transaction and the nonexistence of the presumed undue influence, and if the recipient fails in that burden, the transaction is presumed void. Parham v. Walker, 568 S.W.2d 622, 1978 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1978).

Proof of a court-ordered relationship of conservator-ward is not proof of lack of testamentary capacity, but it is proof of a confidential relationship, and where testatrix left her entire estate to her conservator, the burden was upon the will beneficiary to show the fairness and honesty of the transaction and to negate the presumption of undue influence. Parham v. Walker, 568 S.W.2d 622, 1978 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1978).

Upon finding the existence of a confidential relationship in combination with one or more of the other necessary elements, the jury is required to find undue influence as well, unless the proponent has come forward with other evidence to the contrary. Taliaferro v. Green, 622 S.W.2d 829, 1981 Tenn. App. LEXIS 482 (Tenn. Ct. App. 1981), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

No undue influence was found. Crain v. Brown, 823 S.W.2d 187, 1991 Tenn. App. LEXIS 329 (Tenn. Ct. App. 1991), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

24. —Opinion Evidence.

Attesting and subscribing witnesses, and they only, are trusted to give their mere opinions as to the testator's sanity, without assigning cause or reason therefor. Physicians may state their opinions as to the soundness or unsoundness of the testator's mind, but they must state the circumstances or symptoms from which they draw their conclusions. As to all other witnesses, their opinion, considered merely as opinions, are not evidence. Such witnesses, testifying as to their means of observing the testator, must state his appearance, conduct, conversation, manner, peculiarities, or deportment, or other particular fact from which his state of mind may be inferred, whereupon they may state their inferences, conclusions, or opinions as to the soundness or unsoundness of the testator's mind, as the result of those facts. Gibson v. Gibson, 17 Tenn. 329, 1836 Tenn. LEXIS 56 (1836); Van Huss v. Rainbolt, 42 Tenn. 139, 1865 Tenn. LEXIS 32 (1865); Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872); Kirkpatrick v. Kirkpatrick, 1 Shan. 258 (1872).

While witnesses, other than attesting witnesses or physicians, may testify whether the testator was “in his senses,” or of sound mind, yet they cannot testify whether he was capable of making a will, for the latter proposition involves a question of law and fact, and is the very question to be determined by the jury, and it would be entirely illegal to permit witnesses to give to the jury their opinions as to the testator's testamentary capacity. Whether the particular phase of mental unsoundness deprives a person of testamentary capacity is a matter for the exclusive determination of the court and jury. The witness may testify that the testator was not of “sound mind,” but he will not be permitted to testify that the testator was not of a “disposing memory.” Gibson v. Gibson, 17 Tenn. 329, 1836 Tenn. LEXIS 56 (1836); Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872); Kirkpatrick v. Kirkpatrick, 1 Shan. 258 (1872).

On an issue of mental incapacity, the opinion of each witness must stand upon the facts detailed by that witness, and where several witnesses are used to detail different actions of a testator as a basis for expressing an opinion of the incapacity of such testator, such circumstances cannot be lumped together in order to test the validity of separate opinions so expressed. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

25. —Presumptions.

In the absence of suspicious circumstances, the presumption is in favor of the testator's mental capacity. Frear v. Williams, 66 Tenn. 550, 1874 Tenn. LEXIS 181 (1874); Key v. Holloway, 66 Tenn. 575, 1874 Tenn. LEXIS 183 (1874); Bartee v. Thompson, 67 Tenn. 508, 1875 Tenn. LEXIS 76 (1875).

26. Identity of Beneficiaries — Proof.

If there is a latent ambiguity as to the identity of a legatee or devisee, or a mere inaccuracy in the designation or description contained in the will, extrinsic evidence is admissible to explain the ambiguity or inaccuracy in order to identify the true legatee or devisee. Tarwater v. Baptist Orphans' Home, 173 Tenn. 409, 119 S.W.2d 919, 1938 Tenn. LEXIS 21 (1938).

27. Trial.

Fact that jury may have deliberated less than five minutes in will contest proceeding involving two purported wills before reaching verdict did not render verdict invalid. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964).

Where two wills were offered for probate at substantially the same time and both were certified to the circuit court for contest, it was in sound discretion of the court as to how the issues were to be framed and matters of procedure in the presentation of the case were also largely in the discretion of the court. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964).

28. —Burden of Proof.

The question of sanity is peculiarly a question of fact for the jury, and a party seeking to impeach the validity of a will for a supposed want of sanity on the part of the testator must establish the fact of insanity by the clearest and most satisfactory proof. Gass' Heirs v. Gass' Ex'rs, 22 Tenn. 278, 1842 Tenn. LEXIS 88 (1842); Porter v. Campbell, 61 Tenn. 81, 1872 Tenn. LEXIS 343 (1872).

The burden of proof rests upon the proponents of the will to establish its due and formal execution; but, in the absence of suspicious circumstances, the proponents need not prove testamentary capacity, because the law prima facie presumes the testator's sanity; and where the will is contested upon the ground of fraud, undue influence, unsoundness of mind, or want of testamentary capacity, the burden of proof rests upon the contestants to establish the same. Ford v. Ford, 26 Tenn. 92, 1846 Tenn. LEXIS 68 (1846); Cox v. Cox, 36 Tenn. 81, 1856 Tenn. LEXIS 59 (1856); Porter v. Campbell, 61 Tenn. 81, 1872 Tenn. LEXIS 343 (1872); Smith v. Smith, 63 Tenn. 293, 1874 Tenn. LEXIS 245 (1874); Frear v. Williams, 66 Tenn. 550, 1874 Tenn. LEXIS 181 (1874).

Where insanity is shown to have existed before the making of the will, the burden of proving testamentary capacity at the time of the making of the will is shifted to the proponents. Smith v. Smith, 63 Tenn. 293, 1874 Tenn. LEXIS 245 (1874).

Where the proponent of the contested will alleges that forgery of a revoking will, the fact of forgery need not be proved by any greater preponderance of evidence than ordinarily obtains in civil cases; a slight preponderance is sufficient in such case. McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481, 1890 Tenn. LEXIS 31 (1890).

The burden of proof upon trial of issue devisavit vel non is upon the proponent to establish that propounded is the voluntary act of a capable testator and that the formalities required by law are complied with. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

If proponent of will was in a confidential relationship with deceased and is a beneficiary under the purported will, and caused the will to be drafted and executed, the law presumes proponent exercised undue influence on deceased and casts the burden upon proponent to show by the greater weight and preponderance of evidence that he did not exercise undue influence upon deceased. Kelley v. Brading, 47 Tenn. App. 223, 337 S.W.2d 471, 1960 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1960).

In a will contest the initial burden is upon the proponent of the will to show its prima facie validity and this is a question for the determination of the court. Taliaferro v. Green, 622 S.W.2d 829, 1981 Tenn. App. LEXIS 482 (Tenn. Ct. App. 1981), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

Upon the proponent's satisfactorily showing prima facie validity, the burden shifts to the contestant and, generally, the burden is upon the contestant to show facts relied upon to void the will. Taliaferro v. Green, 622 S.W.2d 829, 1981 Tenn. App. LEXIS 482 (Tenn. Ct. App. 1981), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

29. —Right to Open and Close.

The proponent is entitled to open and close the case, both in proof and argument. Porter v. Campbell, 61 Tenn. 81, 1872 Tenn. LEXIS 343 (1872); McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481, 1890 Tenn. LEXIS 31 (1890).

What would be the proper practice as to who should open and close on the trial of the issue of devisavit vel non, where the contestants presented a plea or issue in an affirmative form, asserting the incapacity of the testator as the sole ground of attack, is reserved. Porter v. Campbell, 61 Tenn. 81, 1872 Tenn. LEXIS 343 (1872); McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481, 1890 Tenn. LEXIS 31 (1890).

Where two unprobated wills were certified to circuit court for contest and circuit judge in his discretion made primary issue depend on the validity of the later instrument, permitting proponent of later will to open and close was not improper. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964).

30. —Reopening Case for Admission of Testimony.

The circuit court acts correctly, in refusing to reopen a will contest case for the further examination of an adverse witness, with the view of proving that in conversation with a certain party he made a statement of his mere opinion, though in the form stated as a fact, and to contradict him, if he denied making such statement, when no sufficient legal excuse was shown for not having offered such testimony at the proper time. Murrell v. Rich, 131 Tenn. 378, 175 S.W. 420, 1914 Tenn. LEXIS 115 (1914).

Trial court may, in exercise of its discretion, permit the introduction of evidence after a motion for directed verdict has been made even after the motion has been overruled and argument has begun. Kelley v. Brading, 47 Tenn. App. 223, 337 S.W.2d 471, 1960 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1960).

31. —Order of Proof.

The order of introducing the testimony is for the proponents of the will first to introduce the subscribing witnesses and prove its due execution. Frear v. Williams, 66 Tenn. 550, 1874 Tenn. LEXIS 181 (1874); Key v. Holloway, 66 Tenn. 575, 1874 Tenn. LEXIS 183 (1874); Bartee v. Thompson, 67 Tenn. 508, 1875 Tenn. LEXIS 76 (1875).

While it is only necessary for the executor to prove the formal execution of the will in the first place, still, if he examines the subscribing witnesses as to the testamentary capacity of the testator, he is not thereby precluded from adducing other evidence on that question by way of rebutting the testimony of the contestants. Key v. Holloway, 66 Tenn. 575, 1874 Tenn. LEXIS 183 (1874).

Although the evidence of the mental incapacity of the testatrix was immaterial, the complainants who had introduced evidence of such incapacity could not deprive defendants of the right to introduce counter evidence. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

32. —Executor's Defense Raised on Second Trial.

The defense asserted by an executor, in a proceeding to contest the validity of a will, not raised in the probate court and not asserted until the second trial in the circuit court, was still available to him. Kirkland v. Calhoun, 147 Tenn. 388, 248 S.W. 302, 1922 Tenn. LEXIS 52 (1923).

33. —Jury Questions.

Although will is in proper form, where the testimony of any witness appears to be incredible under proved circumstances in the light of the experience of reasonable men, a jury question is presented to determine the credibility of such witnesses. Ballew v. Ballew, 43 Tenn. App. 340, 309 S.W.2d 125, 1957 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1957).

Collateral References.

Admissibility of declarations of testator on issue of mistake of fact. 5 A.L.R.3d 360.

Admissibility of extrinsic evidence to show testator's intention as to omission of provision for child. 88 A.L.R.2d 616.

Admissibility of testator's declarations upon issue of genuineness or due execution of purported will. 62 A.L.R.2d 855.

Admissibility, on issue of testamentary capacity, of previously executed wills. 89 A.L.R.2d 177.

Execution of will or testamentary capacity, admissibility of other than testimony of subscribing witnesses to prove. 63 A.L.R. 1195.

Presumption or inference of undue influence from testamentary gift to relative, friend, or associate of person preparing will or procuring its execution. 13 A.L.R.3d 381.

Proof, or possibility of proof, of will without testimony of attesting witness as affecting application of statute relating to invalidation of will, or of devise or legacy, where attesting witness is beneficiary under will. 133 A.L.R. 1286.

Solicitation of testator to make will or specified bequest as under influence. 48 A.L.R.3d 961.

Subscribing witness, admissibility and credibility of testimony of, tending to impeach execution of will or testamentary capacity of testator. 79 A.L.R. 394.

Testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity. 37 A.L.R.3d 889.

Wills: Undue Influence in Gift to Testator's Attorney. 19 A.L.R.3d 575.

32-4-106. Original will lost.

If the original will is lost or mislaid so that it cannot be produced on the trial of the issue, but the paper has been copied into the pleadings, or spread upon the minutes of the court, the court may proceed with the trial of the issue in the same manner as if the original were in existence and before it.

Code 1858, § 2179 (deriv. Acts 1851-1852, ch. 77, § 2); Shan., § 3911; Code 1932, § 8109; T.C.A. (orig. ed.), § 32-407.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 371.

NOTES TO DECISIONS

1. Lost Will.

2. —Burden of Proof.

Destroyer of a will has burden of showing destruction at maker's request. Crocker v. Crocker, 11 Tenn. App. 354, — S.W.2d —, 1930 Tenn. App. LEXIS 18 (Tenn. Ct. App. 1930).

3. —Presumption of Revocation.

Where a will, proved to have been formally executed, is not found, the presumption is that it was revoked by decedent. The burden of proof is on those claiming under such alleged will to establish that it had not been revoked. Deakins v. Webb, 19 Tenn. App. 182, 84 S.W.2d 367, 1935 Tenn. App. LEXIS 30 (Tenn. Ct. App. 1935).

4. Copy Probated.

5. —Contest on Copy.

The contest of a will by trial upon the issue of devisavit vel non may be made upon an agreed copy, or upon a copy correctness of which is not disputed, but acknowledged. Allen v. Allen, 2 Tenn. 172, 1812 Tenn. LEXIS 1 (1812); Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872).

6. —Estoppel to Object to Contest on Copy.

Where the issue of devisavit vel non is made up and tried on a certified and sworn copy of the will, without questioning its correctness, the parties on both sides of the contest are estopped to make objection upon the ground that the court had no jurisdiction to hear the contest upon such copy. Wisener & Brown v. Maupin, 61 Tenn. 342, 1872 Tenn. LEXIS 383 (1872).

7. Proof of Contents.

8. —Competent Evidence.

The court can admit any competent evidence to establish existence of a will and its contents. McNeely v. Pearson, 42 S.W. 165, 1896 Tenn. Ch. App. LEXIS 119 (1897).

9. —Knowledge of Whereabouts of Will Unessential.

Legatees may assert their rights under the will, though they have no knowledge of its whereabouts. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 257 S.W. 94, 1923 Tenn. LEXIS 87 (1923).

10. —Probate Presumed.

Where probate court established that decedent's will was probated, but copy of will transcribed by clerk failed to include last portion of the will including the signature of the testator and the attestation of the subscribing witnesses, and after a long lapse of time during which time the will was lost the plaintiff filed a proceeding for partition claiming that deceased died intestate the court would presume that a valid will was probated. McNeely v. Pearson, 42 S.W. 165, 1896 Tenn. Ch. App. LEXIS 119 (1897).

Collateral References.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will. 86 A.L.R.3d 980.

Testator's failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will. 61 A.L.R.3d 958.

32-4-107. Trial by jury — Certification to probate court.

  1. The issue may be tried by a jury, and their verdict, and the judgment of the court upon the validity of the will shall be certified to the court having probate jurisdiction over the will to be recorded together with the original will, if established.
  2. If the issue was tried upon a copy of the original will, the copy shall be sent to the court to be recorded, and the certificate, copy, verdict, and judgment shall have the same effect as if the original paper writing were in existence and so certified to the court having probate jurisdiction over the will.

Code 1858, §§ 2180, 2181 (deriv. Acts 1789, ch. 23, § 1; 1835-1836, ch. 5, § 9; 1851-1852, ch. 77, § 2); Shan., §§ 3912, 3913; Code 1932, §§ 8110, 8111; Acts 1980, ch. 765, §§ 2, 3; T.C.A. (orig. ed.), §§ 32-408, 32-409; Acts 1992, ch. 951, § 9.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 367, 380, 382.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, §§ 66, 70.

Law Reviews.

Does Tennessee Need Another Tort? The Disappointed Heir (Jared S. Renfroe), 77 Tenn. L. Rev. 129 (2010).

NOTES TO DECISIONS

1. Certification of Verdict and Judgment.

The verdict and judgment on the contest is to be certified to the probate court; and the original will, if established, is to be sent back to the county court to be recorded. After the issue is found in favor of the validity of a will, there need be no probate in the probate court, and letters testamentary may be granted thereon. Roberts v. Stewart, 32 Tenn. 162, 1852 Tenn. LEXIS 40 (1852).

2. Right to Jury Trial.

There was no common law jury trial of will contests and the right to a jury in such cases is purely statutory. Jones v. Sands, 41 Tenn. App. 1, 292 S.W.2d 492, 1953 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1953).

The right of contestants to have the issue of the mental capacity of the testator submitted to the jury in will contest must rest upon substantial or material evidence at the time the will was made and not upon “scintilla” or “glimmer” of evidence. Jones v. Sands, 41 Tenn. App. 1, 292 S.W.2d 492, 1953 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1953).

Where there is no genuine issue as to any material fact, summary judgment is appropriate in a will contest proceeding and does not amount to an improper denial of a right to jury trial. Union Planters Nat'l Bank v. Inman, 588 S.W.2d 757, 1979 Tenn. App. LEXIS 351 (Tenn. Ct. App. 1979).

3. Demand for Jury Trial.

It was error for a judge to require a jury on the demand of a party made several days before the first day of the term, however, since it was not shown that this error affected the result of the trial, the judgment was affirmed. Shelton v. Hickman, 26 Tenn. App. 344, 172 S.W.2d 9, 1943 Tenn. App. LEXIS 101 (Tenn. Ct. App. 1943).

4. Waiver of Jury Trial.

The issue of devisavit vel non is a civil suit triable by jury, and a jury trial of this issue is waived by failure to demand jury. Ferris v. Bloom, 132 Tenn. 466, 178 S.W. 1112, 1915 Tenn. LEXIS 35 (1915).

5. General Verdict and Judgment for Will — Effect.

A general verdict and judgment in favor of the will establishes it for all purposes, namely, as to the disposition of the realty as well as that of the personalty. Wright v. Smithson, 75 Tenn. 12, 1881 Tenn. LEXIS 67 (1881).

A general verdict and judgment in favor of the will will not be disturbed because the paper as set out in the declaration is without attesting witnesses, where it might well be set up as a holographic will, according to the plaintiff's declaration. Wright v. Smithson, 75 Tenn. 12, 1881 Tenn. LEXIS 67 (1881).

In will contest, as in other cases tried to a jury, if there is any competent, material and substantial evidence to support the verdict of the jury, the appellate courts will not interfere with that verdict and judgment thereon, in the absence of any error on the part of the trial court, which the appellate court, from the record, cannot determine affirmatively affected the results reached by the jury. Scott v. Atkins, 44 Tenn. App. 353, 314 S.W.2d 52, 1957 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1957).

6. Motion for Directed Verdict.

The rule that in passing upon a motion for a directed verdict, a trial court must look to all the evidence, construe it most favorably on behalf of the party against whom the motion is made, taking as true that which supports his rights, and allow all reasonable inferences from the evidence in his favor, discarding all countervailing evidence applies in will contests the same as in other cases where facts are triable by a jury. Scott v. Atkins, 44 Tenn. App. 353, 314 S.W.2d 52, 1957 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1957).

Authority to direct a verdict in a will contest is the same as in other cases within the purview of constitutional guaranty of trial by jury. Curry v. Bridges, 45 Tenn. App. 395, 325 S.W.2d 87, 1959 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1959).

7. Submission of Will to Jury Unnecessary.

Where testimony of one of the subscribing witnesses was positive as to the execution of the will the fact that the other subscribing witness testified that she did not remember witnessing the will, although she identified her signature and that of the other witness as being genuine was not sufficient to require the submission of the validity of the execution of the will to the jury. Bradford v. Bradford, 51 Tenn. App. 101, 364 S.W.2d 509, 1962 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1962).

32-4-108. Statute of limitations.

All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.

Acts 1927, ch. 3, § 1; Code 1932, § 8112; impl. am. Acts 1971, ch. 162, § 2; T.C.A. (orig. ed.), § 32-410; Acts 1985, ch. 228, §§ 1, 2; 1987, ch. 322, § 15; 2011, ch. 47, § 24.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 325, 352.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 60.

Law Reviews.

Estate, Gift and Trust Law-Joint and Mutual Wills-Proper Jurisdictional Vehicles for Contract-Based Mutual Wills Claims, 80 Tenn. L. Rev. 883 (2013).

NOTES TO DECISIONS

1. Application of section.

The proceedings contemplated by this statute are proceedings that take place in the probate court, and a proceeding in the circuit court on the issue of devisavit vel non after the case is certified from the probate court to the circuit court is in substance an original proceeding to probate the will, separate and distinct from any proceedings held in probate court. Cooper v. Austin, 837 S.W.2d 606, 1992 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1992).

The right of a contestant to resist the probate of a will is a preliminary matter and presents a separate and distinct issue from the issue of devisavit vel non, and the order of the probate court sustaining or denying the right to contest the will is an appealable order. T.C.A. § 32-4-108 clearly applies only to this separate action, and the statute of limitations set out in T.C.A. § 32-4-108 applies only to the proceeding filed in the probate court seeking to set aside the probate of a will or a certification for a will contest. Cooper v. Austin, 837 S.W.2d 606, 1992 Tenn. App. LEXIS 173 (Tenn. Ct. App. 1992).

In an action in which a husband's children from a prior marriage contended that a wife's last will was invalid because it breached a contract in which the wife and the husband agreed to make mutual wills, although the husband's children did not file a claim against the wife's estate within the twelve-month period prescribed by T.C.A. § 30-2-307(a), the children's complaint was timely under T.C.A. § 32-4-108 because the children decided to file a will contest to challenge the wife's last will and the contest was filed within two years after the entry of the order admitting the challenged will to probate. In re Estate of Brown, 402 S.W.3d 193, 2013 Tenn. LEXIS 308 (Tenn. Mar. 22, 2013).

2. Fraudulent Concealment.

The fraudulent concealment exception, whereby a plaintiff is unaware of his cause of action due to fraudulent concealment but not fraud in and of itself, may be applicable to the special statute of limitations of this section. Phillips v. Phillips, 526 S.W.2d 439, 1975 Tenn. LEXIS 594 (Tenn. 1975).

Where no facts were alleged supporting a finding of fraudulent concealment, where the evidence showed no concealment of the will or of the signature of testatrix, and the will was of public record nine years before institution of suit to set aside probate of the will, the action was barred and the fraudulent concealment exception was not applicable. Phillips v. Phillips, 526 S.W.2d 439, 1975 Tenn. LEXIS 594 (Tenn. 1975).

Statute of limitations under T.C.A. § 32-4-108 for grandchildren's will contest was not tolled under T.C.A. § 28-1-106 because the grandchildren failed to allege sufficient facts to show that a sole beneficiary concealed, with by an affirmative act or by silence, facts that were material to putting the grandchildren on notice of a claim of undue influence. In re Estate of Morris v. Morris, 329 S.W.3d 779, 2009 Tenn. App. LEXIS 818 (Tenn. Ct. App. Dec. 9, 2009), appeal denied, In re Estate of Morris, — S.W.3d —, 2010 Tenn. LEXIS 603 (Tenn. June 17, 2010).

Because T.C.A. § 32-4-108 qualified as a statute of limitations subject to tolling by fraudulent concealment, and because the administrator had not contested on appeal whether there was a genuine issue of material fact as to the fraudulent concealment of the 1996 will, denial of the motion for summary judgment was proper. In re Estate of Davis, 308 S.W.3d 832, 2010 Tenn. LEXIS 407 (Tenn. Apr. 23, 2010).

Collateral References.

Statute of limitations applicable in action to enforce, or recover damages for breach of, contract to make a will. 94 A.L.R.2d 810.

32-4-109. Trials upon validity of wills — Jurisdiction of courts.

Any court of record that has probate jurisdiction, whether a chancery court or other court of record established by private or public act, has concurrent jurisdiction with the circuit court to conduct a trial upon the validity of a will, in the manner and to the extent prescribed in this chapter. Notwithstanding law to the contrary, prior to certification of the fact of the contest pursuant to § 32-4-101(a)(2), the contestant shall elect, in the notice of contest, either the circuit court or the chancery court, or other court of record having such concurrent jurisdiction, to conduct a trial upon the validity of the will.

Acts 1991, ch. 152, § 2; 2002, ch. 631, § 3.

Cross-References. Construction or interpretation of wills, concurrent jurisdiction of courts, § 32-3-109.

NOTES TO DECISIONS

1. Probate Jurisdiction.

No certificate of contest or certificate of verdict and judgment was required for chancery court to take jurisdiction over will contest in the absence of any referral to another court; therefore, requiring the chancery court to certify the will contest to itself was not required by T.C.A. § 32-4-109 and did not defeat the chancery court's jurisdiction to hear the contest. In re Estate of Barnhill, 62 S.W.3d 139, 2001 Tenn. LEXIS 859 (Tenn. 2001).

In an action in which a husband's children from a prior marriage contended that a wife's last will was invalid because it breached a contract in which the wife and the husband agreed to make mutual wills, the trial court had subject matter jurisdiction because T.C.A. § 16-16-201(a) provided the court with subject matter jurisdiction to probate wills, T.C.A. § 32-4-109 provided the court with jurisdiction to hear will contests, T.C.A. § 29-14-102 provided the court with jurisdiction to hear declaratory judgment actions, and T.C.A. §§ 16-11-101 and 16-11-102(a) provided the court with jurisdiction to hear actions for breach of oral or written contracts. In re Estate of Brown, 402 S.W.3d 193, 2013 Tenn. LEXIS 308 (Tenn. Mar. 22, 2013).

Chapter 5
Administration Upon Foreign Wills

32-5-101. Recording will.

A will, duly proved, allowed and admitted to probate outside of this state, may be allowed and recorded in the proper court of any county in this state, in which the testator has left any estate.

Acts 1919, ch. 77, § 1; Shan. Supp., § 3924a11; Code 1932, § 8113; T.C.A. (orig. ed.), § 32-501.

Cross-References. Contest of wills, title 32, ch. 4.

Eligible for registration, § 66-24-101.

Fees of clerks of courts administering probate matters, §§ 8-21-401, 8-21-701, 8-21-702.

Jurisdiction of chancery courts of probate and related matters, title 16, ch. 16, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 53, 54, 1037.

Tennessee Jurisprudence, 6 Tenn. Juris., Conflict of Laws, Domicile and Residence, §§ 26, 27; 25 Tenn. Juris., Wills, § 57.

Law Reviews.

Conflict of Laws — 1955 Tennessee Survey (John W. Wade), 8 Vand. L. Rev. 964 (1955).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Application of Section.

A will duly probated in another state is entitled to probate here. Terry v. Webb, 159 Tenn. 642, 21 S.W.2d 622, 1929 Tenn. LEXIS 23 (1929).

The Tennessee ancillary probate of foreign wills statute does not apply where the testator was domiciled in Tennessee at the time of his death even though the will was executed outside the state. Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 1964 Tenn. LEXIS 557 (1964).

2. Purpose of Statute.

The object of the statutes regulating the admission of records of probate from the courts of another state was to avoid the difficulty that often occurred by reason of the original will being lodged as a permanent record in the court at testator's domicile and preventing its removal to other states for probate where the testator left property that passed under the will. The existence of such statutes however and their application for the purposes designed would not in any degree impair the jurisdiction of the county court over the probate of an original bill. Woodfin v. Union Planters Nat'l Bank & Trust Co., 174 Tenn. 367, 125 S.W.2d 487, 1938 Tenn. LEXIS 100 (1939); Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 1964 Tenn. LEXIS 557 (1964).

3. Foreign Probate.

4. —Property of Testator in Tennessee.

A will duly probated in a foreign country may be probated in this state, the state of the testator's domicile, in which the deceased left property. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

5. —Necessary Proof.

A certified copy of a will setting it forth verbatim, with affidavit of subscribing witness, oath and qualification of executor and certificate of surrogate that the above constituted the will and its probate, sufficiently shows its probate. Fielder v. Pemberton, 136 Tenn. 440, 189 S.W. 873, 1916 Tenn. LEXIS 148 (1916).

6. —Supplementary Evidence Admissible.

In a proceeding to probate a foreign will, extraneous evidence may be heard in connection with the transcript of the proceeding in the foreign court, supplementing such transcript. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

7. —Method of Probate.

Where a will was probated outside of the state by secondary evidence and so admitted here under this section, a stranger to the record cannot complain of the method by which it was probated. Terry v. Webb, 159 Tenn. 642, 21 S.W.2d 622, 1929 Tenn. LEXIS 23 (1929).

8. —Sufficiency of Will Under Foreign Law.

Will probated in foreign country “may be allowed and recorded” in Tennessee when such will has been duly proved and that it complies with the requirements of the laws of this state. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

Where a will executed in Louisiana was admitted to probate in that state as a holographic will and was sufficient under the laws of that state to pass title to land, such will was entitled to be admitted to probate in Tennessee and would pass title to land here even though it did not appear that the will met the requirements of a holographic will under the Tennessee statutes. Epperson v. Buck Inv. Co., 176 Tenn. 358, 141 S.W.2d 887, 1940 Tenn. LEXIS 80 (1940).

Holographic will executed in Florida and disposing of real property in Tennessee could be admitted to probate in county where land was located even though earlier typed foreign will had been admitted to probate pursuant to §§ 32-5-10132-5-103 after having been probated in Florida where holographic wills were not recognized, and such holographic will would revoke and supersede inconsistent provisions of foreign will as to disposition of such real property. First Christian Church v. Moneypenny, 59 Tenn. App. 229, 439 S.W.2d 620, 1968 Tenn. App. LEXIS 342 (Tenn. Ct. App. 1968).

9. —Recording in Tennessee — Effect.

A will probated in another state may be recorded in any county in Tennessee wherein the testator owned property and, when so recorded, is given the force and effect of the original, and probate proceedings of the foreign state are proceedings in rem and conclusive to all persons having an interest under the foreign will. Robertson v. Robertson, 197 Tenn. 218, 270 S.W.2d 641, 1954 Tenn. LEXIS 471 (1954).

10. —Discretion of Probate Judge.

This section makes it discretionary with the probate judge whether the will shall be admitted to probate in Tennessee and distinguishes the Uniform Wills Act, Foreign Probated, from Uniform Wills Act, Foreign Executed. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

Collateral References.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

Probate, in state where assets are found, of will of nonresident which has not been admitted to probate in state of domicil. 20 A.L.R.3d 1033.

32-5-102. Executors of other states qualifying — Bond.

When there are goods and chattels in this state to be administered under a will of another state, district or territory, the executors, or some one of them, may qualify as executors, and they shall give bond, with surety, as required in cases where the will was made within the limits of this state, and they shall be subject to be proceeded against as in other cases.

Code 1858, § 2189 (deriv. Acts 1823, ch. 31, § 3); Shan., § 3921; Code 1932, § 8122; T.C.A. (orig. ed.), § 32-510.

Cross-References. Address given clerk for service of process, service of process upon clerk after qualification, § 30-1-104.

Administration upon estates of nonresident decedents, § 30-1-103.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 58, 60, 62.

Law Reviews.

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

32-5-103. Petition for probate — Hearing — Notice.

When a copy of a will of another state, district, or territory and the probate of the will, duly authenticated, is presented by the executor or by any other person interested in the will, with a petition for probate of the will, the will must be filed and probate may be had either in common or in solemn form, and if the latter, then a time must be appointed for a hearing and notice must be given as is required by law on a petition for the original probate of a domestic will in solemn form; provided, however, that a contest of a will of another state, district, or territory upon the issue devisavit vel non shall be allowed as to a devise of realty lying in this state, but as to devises of personalty, the foreign probate of such will shall be conclusive.

Acts 1919, ch. 77, § 2; Shan. Supp., § 3924a12; Code 1932, § 8114; Acts 1941, ch. 63, § 1; C. Supp. 1950, § 8114; Acts 1959, ch. 112, § 1; T.C.A. (orig. ed.), § 32-502.

Cross-References. Contest of wills, title 32, ch. 4.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 54, 56.

Law Reviews.

Conflict of Laws — 1959 Tennessee Survey (John W. Wade), 12 Vand. L. Rev. 1090 (1959).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Supplementary Evidence — Admissibility.

Extraneous evidence may be received in connection with a transcript of the foreign proceedings. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

2. Pending Will Contest in Sister State.

Tennessee judgment under statute providing for ancillary probate of wills was properly reversed where issue of will's validity was moot question due to litigation pending in sister state. Jones v. National Bank of Commerce, 193 Tenn. 126, 244 S.W.2d 430, 1951 Tenn. LEXIS 335 (1951).

Collateral References.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

32-5-104. Admitting will to probate.

If upon the hearing, it appears to the satisfaction of the court that the will has been duly proved, allowed and admitted to probate outside of the state, and that it was executed according to the law of the place in which the will was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, which probate shall have the same force and effect as the original probate of a domestic will.

Acts 1919, ch. 77, § 3; Shan. Supp., § 3924a13; Code 1932, § 8115; T.C.A. (orig. ed.), § 32-503.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 54.

Law Reviews.

Conflict of Laws — 1964 Tennessee Survey (Elliott E. Cheatham), 18 Vand. L. Rev. 1093 (1965).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Purpose of Section.

The design of this section was to make a will executed according to the law of the place in which the same was made, and duly probated there, entitled to probate in this state, and as effective here as in the state of its execution and probate. Epperson v. Buck Inv. Co., 176 Tenn. 358, 141 S.W.2d 887, 1940 Tenn. LEXIS 80 (1940).

2. Foreign Probate.

3. —Effect.

Where a will was duly admitted to probate in Louisiana, and was executed according to the law of Louisiana, where the testatrix was at the time domiciled, and having been executed according to the law of the place where it was made, the will was accordingly entitled to probate in this state. Under the laws of Louisiana, a holographic will, executed and proven as this was, is sufficient to pass title to realty in Louisiana, and, under this section, being entitled to reprobate here, is likewise sufficient to pass title to real property in this state. Epperson v. Buck Inv. Co., 176 Tenn. 358, 141 S.W.2d 887, 1940 Tenn. LEXIS 80 (1940).

4. —Supplementary Evidence.

Extraneous evidence may be received in connection with a transcript of the foreign proceedings. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

5. —Discretion.

While the language of § 32-5-101 leaves admission to probate discretionary with the probate judge, the language of this section requires admission to probate if the conditions of this section are met. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

6. Testator Domiciled in State.

This chapter is inapplicable where testator is domiciled in Tennessee at the time of his death and the proper procedure under such circumstances is for the will to be offered for original probate under title 32, ch. 2. Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 1964 Tenn. LEXIS 557 (1964).

32-5-105. Unprobated will from state or country not requiring probate.

  1. When a duly authenticated copy of a will from any state or country, where probate is not required by the laws of that state or country, with a duly authenticated certificate of the legal custodian of the original will that the copy is a true copy, and that the will has become operative by the laws of that state or country, and when a copy of a notarial will in possession of a notary in a foreign state or country entitled to the custody of the will, the laws of which state or country require that the will remain in the custody of the notary, duly authenticated by the notary, is presented by the executor or other persons interested to the proper court in this state, that court shall appoint a time and place of hearing and notice of the hearing shall be given as in case of an original will presented for probate.
  2. If it appears to the court that the instrument ought to be allowed in this state, as the last will and testament of the deceased, the copy shall be filed and recorded, and the will shall have the same effect as if originally proved and allowed in the court.

Acts 1919, ch. 77, § 4; Shan. Supp., §§ 3924a14, 3924a15; Code 1932, §§ 8116, 8117; T.C.A. (orig. ed.), §§ 32-504, 32-505.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 53, 54.

Law Reviews.

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Widow's Dissent from Will.

Widow of Oklahoma resident whose will was probated in Oklahoma and duly registered in Tennessee could not claim dower in Tennessee land where she failed to enter her dissent in Tennessee within one year after will was recorded in Tennessee although she duly entered her dissent in an appropriate proceeding in Oklahoma. McGinniss v. Chambers, 156 Tenn. 404, 1 S.W.2d 1015, 1927 Tenn. LEXIS 133, 82 A.L.R. 1492 (1928).

32-5-106. Contest.

Any person interested to contest the validity of a will of another country, state, district, or territory as to realty may do so in the same manner and time limit as though it had been originally presented for probate in that court.

Code 1858, § 2190 (deriv. Acts 1823, ch. 31, § 3); Shan., § 3922; mod. Code 1932, § 8118; T.C.A. (orig. ed.), § 32-506.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 54.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 80.

Law Reviews.

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Constitutionality.

The full faith and credit clause of the federal Constitution and the acts of congress, effective thereof, are inapplicable to make a judgment admitting a will to probate in one state conclusive in another state, as to real property in the latter devised by the will. Kirkland v. Calhoun, 147 Tenn. 388, 248 S.W. 302, 1922 Tenn. LEXIS 52 (1923).

2. Construction and Interpretation.

The conclusiveness of the probate of wills in courts of competent jurisdiction in other states is, by this section, limited to wills of personalty. The right to contest, in the courts of this state, wills probated in another state, is limited to wills of land. Williams v. Saunders, 45 Tenn. 60, 1867 Tenn. LEXIS 95 (1867); Smith v. Neilson, 81 Tenn. 461, 1884 Tenn. LEXIS 58 (1884); Carpenter v. Bell, 96 Tenn. 294, 34 S.W. 209, 1895 Tenn. LEXIS 32 (1895); Martin v. Stovall, 103 Tenn. 1, 52 S.W. 296, 1899 Tenn. LEXIS 82, 48 L.R.A. 130 (1899); Kirkland v. Calhoun, 147 Tenn. 388, 248 S.W. 302, 1922 Tenn. LEXIS 52 (1923).

Statute providing that foreign wills can be contested in the same manner and time limit as though originally presented for probate in that court has reference to unprobated wills, not to wills properly executed and probated according to laws of another state. Robertson v. Robertson, 197 Tenn. 218, 270 S.W.2d 641, 1954 Tenn. LEXIS 471 (1954).

This section refers to unprobated wills from other jurisdictions and not to wills properly executed and probated according to the laws of another state. First Christian Church v. Moneypenny, 59 Tenn. App. 229, 439 S.W.2d 620, 1968 Tenn. App. LEXIS 342 (Tenn. Ct. App. 1968).

3. Right to Contest.

4. —Questions Covered.

The right to contest validity of will of realty covers not only questions relating to due execution but also questions of testamentary capacity. Kirkland v. Calhoun, 147 Tenn. 388, 248 S.W. 302, 1922 Tenn. LEXIS 52 (1923).

5. —Determination in Tennessee.

The ultimate determination of testamentary capacity and formal requisites of will of realty is with the courts of the state where the property is situated. Kirkland v. Calhoun, 147 Tenn. 388, 248 S.W. 302, 1922 Tenn. LEXIS 52 (1923).

This section has reference to unprobated wills from other jurisdictions and not to wills properly executed and probated according to the laws of another state. Epperson v. Buck Inv. Co., 176 Tenn. 358, 141 S.W.2d 887, 1940 Tenn. LEXIS 80 (1940).

Collateral References.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

32-5-107. Authentication.

Any copy of a will from another state, District of Columbia or territory shall be authenticated in the manner prescribed by 28 U.S.C. §§ 1738 and 1739.

Code 1858, § 2186 (deriv. Acts 1843-1844, ch. 187, § 1); Shan., § 3918; mod. Code 1932, § 8119; modified; impl. am. Acts 1972, ch. 565, § 1; T.C.A. (orig. ed.), § 32-507.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 54, 1037.

Law Reviews.

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

32-5-108. Copy of will as evidence.

A copy of a will from another state, District of Columbia or territory, as recorded, certified by the clerk of the court in this state where copy is recorded, shall be evidence.

Code 1858, § 2188 (deriv. Acts 1823, ch. 31, § 2; 1843-1844, ch. 187, § 1); Shan., § 3920; mod. Code 1932, § 8120; T.C.A. (orig. ed.), § 32-508.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 54.

Law Reviews.

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Certified Copy — Sufficiency of Showing of Probate.

A certified copy of a will executed and probated in another state, setting forth the entire will verbatim, then the affidavit of the subscribing witness, next the oath and qualification of the executor, and lastly the certificate of the surrogate that the above constituted the will and probate thereof, upon which letters testamentary duly issued to the executor, sufficiently shows the probate. Fielder v. Pemberton, 136 Tenn. 440, 189 S.W. 873, 1916 Tenn. LEXIS 148 (1916).

2. Copy Proved by One Witness — Admissibility.

A certified copy of a will executed in another state, proved by only one witness, is admissible in evidence. Fielder v. Pemberton, 136 Tenn. 440, 189 S.W. 873, 1916 Tenn. LEXIS 148 (1916).

3. Certified Copy — Proof of Domicile.

In proceeding in Tennessee to probate a holographic will of deceased written while in Rome, Italy which probate was contested in circuit court, the court properly admitted copies of probate proceedings in Ohio wherein a latter will was probated for the purpose of showing domicile of deceased. Howell v. Moore, 14 Tenn. App. 594, — S.W.2d —, 1930 Tenn. App. LEXIS 120 (Tenn. Ct. App. 1930).

32-5-109. Registration of will as muniment of title.

A copy of a will, foreign or domestic, certified by the clerk, may be registered in the county where the land lies as a muniment of title, and a copy from the books of the register, duly certified by the register, shall be evidence.

Code 1858, § 2183 (deriv. Acts 1823, ch. 31, § 2); Shan., § 3915; mod. Code 1932, § 8121; T.C.A. (orig. ed.), § 32-509.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 54.

Law Reviews.

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

The Tennessee Recording System (Toxey H. Sewell), 50 Tenn. L. Rev. 1 (1982).

NOTES TO DECISIONS

1. Foreign State Denying Full Faith and Credit — Effect.

Full faith and credit will not be denied by the courts of this state to the probate of a will in another state, because the statutes of that state give no faith and credit to the probate of wills in other states. Martin v. Stovall, 103 Tenn. 1, 52 S.W. 296, 1899 Tenn. LEXIS 82, 48 L.R.A. 130 (1899).

32-5-110. Foreign unprobated wills.

  1. Where a foreign will has not been probated in another jurisdiction, any person interested may apply for its probate before the probate court of the county in this state in which the real estate or any part of the real estate is located.
  2. To that end the interested person shall present a petition to the probate court, setting forth the death of the foreign testator, the decedent's ownership of lands in the county, and the fact of the decedent's testacy, whereupon the court shall authorize the taking of such proof as may be necessary to prove the will in accordance with the laws of this state.
    1. Depositions may be taken either upon interrogatories filed in the court for ten (10) days, or by oral examination at a time and place designated by the court.
    2. No notice shall be required of the taking of the depositions, save any resulting from the making of the order for the depositions by the court.
    3. When the depositions are taken by oral examination, the time that elapses between the making of the order for the depositions and the taking of the depositions shall not be less than the time prescribed for notice for taking depositions under the general laws.
  3. Should it not be possible to exhibit to the depositions and produce before the probate court the original will, a copy of the will may be so used, the necessary witnesses proving that it is a true copy of the original.
  4. On being admitted to probate, the probate shall have the same force and effect as to real estate as the probate in this state of wills of residents of this state have as to lands devised by them, but nothing in this section is to prevent the proving of foreign wills as at common law and without probate.
  5. The will shall, as to real estate, be to the same extent and in the same manner as domestic wills subject to contest in the state, and certified copies of the record in the probate court shall be available as evidence as are copies of domestic wills and probate of domestic wills; provided, however, that nothing in this section shall apply to wills dated more than fifty-five (55) years prior to the enactment of this Code.

Acts 1909, ch. 87, §§ 3, 4; Shan., §§ 3924a5-3924a10; mod. Code 1932, §§ 8123 — 8128; T.C.A. (orig. ed.), §§ 32-511 — 32-516.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 53, 54.

Law Reviews.

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Unprobated Wills — Common Law Status.

Under the common law, wills devising land were, without probate, muniments of title; but it was necessary to establish such wills by proof in any suit in which title depended upon the validity of the will, if its validity was questioned. Smith v. Neilson, 81 Tenn. 461, 1884 Tenn. LEXIS 58 (1884); Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890); Kiernan v. Casey, 116 Tenn. 245, 93 S.W. 576, 1905 Tenn. LEXIS 20 (1906).

2. Inconsistent Wills.

Holographic will executed in Florida and disposing of real property in Tennessee could be admitted to probate in county where land was located even though earlier typed will had been admitted to probate pursuant to §§ 32-5-10132-5-103 after having been probated in Florida where holographic wills were not recognized, and such holographic will would revoke and supersede inconsistent provision of foreign will as to disposition of such real property. First Christian Church v. Moneypenny, 59 Tenn. App. 229, 439 S.W.2d 620, 1968 Tenn. App. LEXIS 342 (Tenn. Ct. App. 1968).

Collateral References.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

Probate in state where assets are found of a will of nonresident which has not been admitted to probate in state of domicile. 20 A.L.R.3d 1033.

Relative rights to real property as between purchasers from or through decedent's heirs and devisees under foreign will subsequently sought to be established. 22 A.L.R.2d 1107.

Chapters 6-10
[Reserved]

32-11-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Right to Natural Death Act.”

Acts 1985, ch. 355, § 1.

Cross-References. Assisted suicide, § 39-13-216.

Construction of adult protection provisions with right to Natural Death Law regarding medical care for terminally ill persons, § 71-6-102.

Power of attorney for health care, right to die naturally, title 34, ch. 6, part 2.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-402.

Law Reviews.

A Time to Be Born and a Time to Die: Pregnancy and End-Of-Life Care, 50 Tenn. B.J. 28 (2014).

Constitutional Law — Cruzan v. Director, Missouri Department of Health: The Supreme Court Reposes the Right-to-Die Issue with the Individual States, 20 Mem. St. U.L. Rev. 655 (1991).

Durable Power of Attorney for Health Care and Living Will (John K. Fockler), 31 No. 1 Tenn. B.J. 14 (1995).

Helping Your Clients with End-of-Life Directives: Who Will Decide? (Charles M. Key), 42 Tenn B.J. 13 (2006).

Living Wills, Organ Donation, and Durable Powers of Attorney (John K. Fockler), 23 No. 1 Tenn. B.J. 23 (1987).

Planning for Incompetency Made Difficult: Legislation Provides Traps for the Unwary (David E. Fowler), 28 Tenn. B.J. 14 (1992).

Termination of Life Support Systems for Minor Children: Evolving Legal Responses (John M. Scheb), 54 Tenn. L. Rev. 1 (1986).

The Constitutionality of Pregnancy Clauses in Living Will Statutes, 43 Vand. L. Rev. 1821 (1990).

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

Attorney General Opinions. Living wills executed prior to enactment of chapter, OAG 87-21, 1987 Tenn. AG LEXIS 178 (1/30/87).

32-11-102. Legislative intent.

  1. The general assembly declares it to be the law of the state that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person's own medical care, specifically including palliative care and the use of extraordinary procedures and treatment. The general assembly further declares that it is in the public interest to facilitate recovery of organs and/or tissues for transplantation and to provide mechanisms for individuals to express their desire to donate their organs and/or tissues.
  2. The general assembly does further empower the exercise of this right by written declaration, called a “living will,” as provided in this chapter.

Acts 1985, ch. 355, § 2; 1991, ch. 344, § 5.

32-11-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Competent person” means an individual who is able to understand and appreciate the nature and consequences of a decision to accept or refuse treatment;
  2. “Declarant” means an individual who declares a living will under this chapter;
  3. “Health care provider,” “health care facility” or “health facility” means a person, facility or institution licensed or authorized to provide health or medical care;
  4. “Living will” means a written declaration, pursuant to this chapter, stating declarant's desires for medical care or noncare, including palliative care, and other related matters such as organ donation and body disposal;
  5. “Medical care” includes any procedure or treatment rendered by a physician or health care provider designed to diagnose, assess or treat a disease, illness or injury. These include, but are not limited to: surgery; drugs; transfusions; mechanical ventilation; dialysis; cardiopulmonary resuscitation; artificial or forced feeding of nourishment, hydration or other basic nutrients, regardless of the method used; radiation therapy; or any other medical act designed for diagnosis, assessment or treatment or to sustain, restore or supplant vital body function. This part shall not be interpreted to allow the withholding or withdrawal of simple nourishment or fluids so as to condone death by starvation or dehydration unless the instrument that creates a living will or durable power of attorney for health care includes the following or substantially the following: “I authorize the withholding or withdrawal of artificially provided food, water or other nourishment or fluids”;
  6. “Organ donation” means a procedure to recover vascular organs following a declaration of death pursuant to § 68-3-501(b)(2), but prior to removal from artificial support systems;
  7. “Palliative care” includes any measure taken by a physician or health care provider designed primarily to maintain the patient's comfort. These also include, but are not limited to, sedatives and pain-killing drugs, nonartificial oral feeding, suction, hydration and hygienic care;
  8. “Physician” means any person licensed or permitted to practice medical care under title 63, chapters 6 and 9;
  9. “Terminal condition” means any disease, illness, injury or condition, including, but not limited to, a coma or persistent vegetative state, sustained by any human being, from which there is no reasonable medical expectation of recovery and that, as a medical probability, will result in the death of the human being, regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life, or the life processes; and
  10. “Tissue donation” means a procedure to recover tissue following a declaration of death pursuant to § 68-3-501(b)(1), and following removal from artificial support systems.

Acts 1985, ch. 355, § 3; 1991, ch. 167, § 1; 1991, ch. 344, §§ 1-4; 1992, ch. 951, § 10.

Cross-References. Assisted suicide, § 39-13-216.

Attorney General Opinions. Tube feeding, OAG 87-21, 1987 Tenn. AG LEXIS 178 (1/30/87).

NOTES TO DECISIONS

1. Treatment Refusal.

The fact that an individual had not executed a living will did not create any presumption that the individual would not necessarily exercise the right to refuse medical care. San Juan-Torregosa v. Garcia, 80 S.W.3d 539, 2002 Tenn. App. LEXIS 325 (Tenn. Ct. App. 2002).

32-11-104. Execution of declaration.

  1. Any competent adult person may execute a declaration directing the withholding or withdrawal of medical care to the person, to become effective on loss of competency. The declaration must be in writing and signed by the principal. The declaration is valid if the principal's signature is either attested by a notary public with no witnesses or witnessed by two (2) witnesses without attestation by a notary public. A witness is a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the declaration or by operation of law then existing. The declaration shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subsection (a). The declaration shall be substantially in the form established in § 32-11-105. It is the intent of the general assembly that this subsection (a) have retroactive application.
  2. It is the responsibility of the declarant or someone acting on the declarant's behalf to deliver a copy of the living will or declaration to the attending physician and/or other concerned health care provider. An attending physician who is so notified shall make the declaration, or a copy of it, part of the declarant's medical record.

Acts 1985, ch. 355, § 4; 2007, ch. 8, § 4.

Cross-References. Power of attorney for health care, right to die naturally, title 34, ch. 6, part 2.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-402.

Attorney General Opinions. Witnessing of living wills, OAG 87-21, 1987 Tenn. AG LEXIS 178 (1/30/87).

Notarization of signatures of witnesses to living wills, OAG 98-032, 1998 Tenn. AG LEXIS 32 (2/9/98).

32-11-105. Form of declaration.

The declaration may be substantially in the following form, but not to the exclusion of other written and clear expressions of intent to accept, refuse, or withdraw medical care:

LIVING WILL I,  , willfully and voluntarily make known my desire that my dying shall not be artificially prolonged under the circumstances set forth below, and do hereby declare: If at any time I should have a terminal condition and my attending physician has determined there is no reasonable medical expectation of recovery and which, as a medical probability, will result in my death, regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life, or the life process, I direct that medical care be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medications or the performance of any medical procedure deemed necessary to provide me with comfortable care or to alleviate pain. ARTIFICIALLY PROVIDED NOURISHMENT AND FLUIDS: By checking the appropriate line below, I specifically:    Authorize the withholding or withdrawal of artificially provided food, water or other nourishment or fluids.    DO NOT authorize the withholding or withdrawal of artificially provided food, water or other nourishment or fluids. ORGAN DONOR CERTIFICATION: Notwithstanding my previous declaration relative to the withholding or withdrawal of life-prolonging procedures, if as indicated below I have expressed my desire to donate my organs and/or tissues for transplantation, or any of them as specifically designated herein, I do direct my attending physician, if I have been determined dead according to  Tennessee Code Annotated, § 68-3-501(b) , to maintain me on artificial support systems only for the period of time required to maintain the viability of and to remove such organs and/or tissues. By checking the appropriate line below, I specifically:  Desire to donate my organs and/or tissues for transplantation.  Desire to donate my            (Insert specific organs and/or tissues for transplantation).   DO NOT  desire to donate my organs or tissues for transplantation. In the absence of my ability to give directions regarding my medical care, it is my intention that this declaration shall be honored by my family and physician as the final expression of my legal right to refuse medical care and accept the consequences of such refusal. The definitions of terms used herein shall be as set forth in the Tennessee Right to Natural Death Act,  Tennessee Code Annotated, § 32-11-103 . I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration. In acknowledgment whereof, I do hereinafter affix my signature on this the   day of  , 20 . Declarant We, the subscribing witnesses hereto, are personally acquainted with and subscribe our names hereto at the request of the declarant, an adult, whom we believe to be of sound mind, fully aware of the action taken herein and its possible consequence. We, the undersigned witnesses, further declare that we are not related to the declarant by blood or marriage; that we are not entitled to any portion of the estate of the declarant upon the declarant's decease under any will or codicil thereto presently existing or by operation of law then existing; that we are not the attending physician, an employee of the attending physician or a health facility in which the declarant is a patient; and that we are not persons who, at the present time, have a claim against any portion of the estate of the declarant upon the declarant's death. Witness Witness STATE OF TENNESSEE COUNTY OF  Subscribed, sworn to and acknowledged before me by  , the declarant, and subscribed and sworn to before me by   and  , witnesses, this   day of  , 20 . Notary Public My Commission Expires:

Click to view form.

Acts 1985, ch. 355, § 5; 1991, ch. 344, § 6.

Cross-References. Power of attorney for health care, right to die naturally, title 34, ch. 6, part 2.

Attorney General Opinions. Notarization of signatures of witnesses to living wills, OAG 98-032, 1998 Tenn. AG LEXIS 32 (2/9/98).

32-11-106. Revocation of declaration.

A declaration may be revoked at any time by the declarant, without regard to the declarant's mental state or competency, by any of the following methods, effectively communicated by the declarant to the attending physician or other concerned health care provider:

  1. Written revocation by the declarant, dated and signed by the declarant.
  2. By oral statement or revocation made by the declarant to the attending physician. This revocation shall be made a part of the declarant's medical record by the attending physician.

Acts 1985, ch. 355, § 6; 1991, ch. 344, § 13.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-402.

Law Reviews.

Neuronal Testimonial: Brain-Computer Interfaces and the Law, 71 Vand. L. Rev. 1365 (2018).

Attorney General Opinions. Revocation of declaration by incompetent, OAG 86-05, 1986 Tenn. AG LEXIS 213 (1/16/86).

32-11-107. Effective date of declaration — Subsequent declarations — Incapacitated declarants.

A declaration shall be effective from the date of its execution until revoked in a manner prescribed by this chapter. Nothing in this chapter shall be construed to prevent a declarant from reexecuting a declaration at any time in accordance with the formalities of this chapter, including reexecution after a diagnosis of a terminal condition. If the declarant has executed more than one (1) declaration, then the latest declaration known to the attending physician shall take precedence. If the declarant becomes comatose or if the declarant's condition renders the declarant incapable of communicating with the attending physician, the declaration shall remain in effect during the comatose condition or until the declarant's condition renders the declarant able to communicate with the attending physician.

Acts 1985, ch. 355, § 7.

32-11-108. Compliance with declaration — Failure to comply — Liability and penalties.

  1. Any physician or other individual health care provider who cannot in good conscience comply with the provisions of such a living will, on being informed of the declaration, shall so inform the declarant, or if the declarant is not competent, the declarant's next of kin or a legal guardian, and at their option make every reasonable effort to assist in the transfer of the patient to another physician who will comply with the declaration. Any health care provider who fails to make good faith reasonable efforts to comply with the preceding procedure as prescribed by the attending physician shall be civilly liable and subject to professional disciplinary action, including revocation or suspension of license. The health care provider shall not be subject to civil liability for medical care provided during the interim period until transfer is effectuated.
  2. A physician or other health care provider who, by no fault of such physician as health care provider, has not received notice of a declaration, revocation, or other change shall not suffer civil, administrative, or criminal penalties under this chapter.

Acts 1985, ch. 355, § 8.

Law Reviews.

A Time to Be Born and a Time to Die: Pregnancy and End-Of-Life Care, 50 Tenn. B.J. 28 (2014).

Durable Powers of Attorney for Health Care Decisions (David E. Fowler), 27  No. 1 Tenn. B.J. 20 (1991).

Liability for Improper Maintenance of Life Support: Balancing Patient and Physician Autonomy, 46 Vand. L. Rev. 1255 (1993).

Attorney General Opinions. Representation of incompetents, OAG 86-05, 1986 Tenn. AG LEXIS 213 (1/16/86).

32-11-109. Willful misconduct — Penalty.

Any person who willfully conceals, cancels, defaces, obliterates or damages the declaration or revocation of another without the declarant's consent, or who falsifies or forges the declaration or revocation of another shall be civilly liable and subject to criminal prosecution for a Class C misdemeanor, and if a provider, subject to administrative and professional discipline.

Acts 1985, ch. 355, § 9; 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

32-11-110. Construction and effect of chapter — Signatures — Severability — Liability for complying with chapter.

  1. The withholding or withdrawal of medical care from a declarant in accordance with this chapter shall not, for any purpose, constitute a suicide, euthanasia or homicide.
  2. The making of a declaration pursuant to § 32-11-104 shall not affect in any manner the sale, procurement or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by withholding or withdrawal of medical care from an insured declarant.
  3. No physician, health care facility or other health care provider, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital plan, shall require any person to execute a declaration as a condition for being insured for, or receiving, health care services.
  4. Nothing in this chapter shall impair or supersede any legal right or legal responsibility that any person may have to effect the withholding or withdrawal of medical care in any lawful manner. In this respect, the provisions of this chapter are cumulative.
  5. This chapter shall create no presumption concerning the intention of an individual who has not executed a declaration to consent to the use, withholding or withdrawal of medical care.
  6. A competent declarant, unable to sign the declaration, may make a signature as provided in § 1-3-105.
  7. If any provision of this chapter or the application of any provision of this chapter to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
  8. No physician or health facility that, acting in accordance with the requirements of this chapter, causes the withholding or withdrawal of medical care from a patient, shall be subject to civil liability therefrom. No health care provider, acting under the direction of a physician, who participates in the withholding or withdrawal of medical care in accordance with this chapter shall be subject to any civil liability. No physician, or health care provider acting under the direction of a physician, who participates in the withholding or withdrawal of medical care in accordance with this chapter shall be guilty of any criminal act or of unprofessional conduct.
  9. No physician or health care provider shall be subject to civil or criminal liability or considered guilty of unprofessional conduct as a result of actions under this chapter that are in accord with reasonable medical standards or as a result of another physician's or health care provider's actions or failure to act in accordance with this chapter.

Acts 1985, ch. 355, § 10; 1991, ch. 344, § 7.

Cross-References. Applicability of this section to power of attorney for health care provisions, § 34-6-212.

Power of attorney for health care, life insurance unaffected, § 34-6-213.

Attorney General Opinions. Constitutionality, OAG 86-05, 1986 Tenn. AG LEXIS 213 (1/16/86).

32-11-111. Living wills executed outside Tennessee — When effective.

A living will that is executed outside of this state by a nonresident of this state at the time of execution shall be given effect in this state if that living will is in compliance with either this chapter or the laws of the state of the declarant's residence.

Acts 1991, ch. 344, § 8.

32-11-112. Living wills executed before July 1, 1991 — When effective.

A living will executed before July 1, 1991, shall be effective if it was executed in compliance with this chapter as in effect on the date that living will was executed, notwithstanding that the living will does not comply with revisions to this chapter since that date.

Acts 1991, ch. 344, § 8.

32-11-113. Effect and interpretation of living wills.

  1. A living will entered into before July 1, 2004, under this chapter shall be given effect and interpreted in accord with this chapter.
  2. A living will entered into on or after July 1, 2004, that evidences an intent that it is entered into under this chapter shall be given effect and interpreted in accord with this chapter.
  3. A living will entered into on or after July 1, 2004, that does not evidence an intent that it is entered into under this chapter may, if it complies with the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18, be given effect as an individual instruction under that act.

Acts 2004, ch. 862, § 4.