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).

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).

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.
2. 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).

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).

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).

32-1-107. Foreign execution.

A will executed outside this state in a manner prescribed by §§ 32-1-101 — 32-1-108, 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).

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).

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).

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).

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.
5. 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.
2. 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.

3. The receipt by the personal representative or the clerk shall relieve the person of further responsibility as to possession of the instrument.
4. 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

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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).

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).

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.

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).

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).

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).

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.

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.

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).

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.

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).

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 §§ 32-5-101 — 32-5-103 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.

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.

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).

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).

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.

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).

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).

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 §§ 32-5-101 — 32-5-103 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.

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).