# FILED April 6, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) IN RE: ESTATE OF J. B. W ARREN , ) Haywood County Chancery Court DECEASED
. ) No. P-1160 ) ) C.A. No. 02A01-9806-CH-00156 )

______________________________________________________________________________ From the Chancery Court of Hay wood County at Brownsville. Honorable George R. Ellis, Chancellor
C. Thomas Hooper,

III , Brownsville, Tennessee Attorney for Respondent/Appellant Anita LeCornu. L. L. Harrell, Jr. , HARRELL & HARRELL , Trenton, Tennessee Attorney for Petitioner/Appellee Paul T. Warren.

OPINION FIL

ED: VACATED AND REMA NDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)R espondent Anita W. Goode LeCornu (Respondent) appeals the trial court ’ s judgment admitting to probate the will of J. B. Warren, Jr. (Testator). We vacate the trial court’s judgment based upon our conclusion that thecourt erred in ruling

that the Testator

did not effective

ly revoke one of the

will’s provisions.

These proceedings be

gan in N ovember 1997, when the Respondent’s brother, Petitioner Paul T. Warren (Executor), sought to probate the will of the parties’ father, the Testator, who had died earlier that month. The Executor subsequently filed a second petition seeking instructions and an interpretation of the Testator’s will. The second petition alleged that someone hadmade certain ma

rkings on the Tes

tator’s will and tha

t a dispute had a risen as to whether the markings constituted a revocation of a portion of the will. The Executor took the position that the markings had no effect upo n the will. T he Respond ent, howeve r, maintai ned that th e markings effectively revoked a portion of the will.

The Executor andthe Respondent were the only living beneficiaries under the will submitted for probate. Thewill devised to the Respondent the Testator’s “homeplace consisting of two lots 1-1/2 acres in

District 4, Hay

wood County, T

ennessee, to

be her s in fee simple and absolutely.” The will devis ed to the Executor “a house and lot located at Cherokee Landing Tennessee River in Decatur County, Tennessee.” In addition, th e will bequeathe

d to the Executor all of the Tes tator’ s “stoc

ks, bon ds and c ash inc luding all fun ds in [hi s] acco unt at J. C. Bradford.” This last bequest, however, had been underlined and enclosed in two sets of parentheses. Above the provision appeared the word “void,” the initials “J.B.Jr.,” and an additional word which was illegibl e. The will’s residuary clause devised and bequeathed the re mainder of the Testator’s property to both the Executor and the Respondent.

At trial, the Executor

testified that the

Testator’s h

ealt h began to decline when he suffered a stroke in 1987. Accordingto the Executor, the Testator’s decl

ine in health esca

lated, both physically

and mentally, after the death of his wife in 1991. The Testator entered a nursinghome in 1993 and remained there until his death at the age of 76. The Executor previously had

viewed the Testator’s will in 1991. The Exec utor testified tha

t, at that ti me, the Testator’s will contained no markings. The Executor did notsee the Testator’s will again until after his death in 1997, at whichtime he noticed the markings on the will. The Executor also testified that the writing and the initials which now appeared on the Testator’s will did not look like those of the Testator.

In contrast, the Respondent testified that the initials ap

pearing on the w

ill were those of the Testator. Although the Respondent had visited the Testator only once since 1991, she claimed to recognize his signature “[f]rom years of seeing him write it.” According to the Respondent, she examined a copy of th

e will with

a magnifying glass and determined that the illeg ible word written
on the document was “July 6.” The Respondent disputed the Executor’s description of theTestator’s mental health after his stroke in 1987. The Respondent testified that, despite his stroke, the Testator continuedto sign checks and discuss detailed f

inancial matters

with his wife until her death in 1991.

The only trial witness who was not a party was the parties’ cousin, Becky Taliaferro. Taliaferro testified that, after the T estator’s stroke

in 1987, “mentally

he was still

full of life.” The Testator often visited Taliaferro in the tax office where she worked so that he could sign checks and tax documents. Taliaferro began to handle the Testator’s financial affairs shortly after his wife ’ s death in 1991, and she continued to do so until the Testator’s death in 1997. According to Taliaferro, she and the Testator had exten sive discussions co

ncerning to who

m the Testator wan

ted to entrust his financial affa

irs. Taliaferro and the

Testator discussed the pros and cons of granting a power of attorney to various persons for this purpose, including the Executor and the Testator’s brother. The Testator rejected th e Executor because he “really wasn’t too good at ha ndling his own finances.” Ult ima tel y, the Testator chose Taliaferro, and he entrusted he rwith his checkbook

and his daily financial affairs. The Testator continued, however,to be actively involved in

his financial aff

airs. He periodic ally called Taliaferro when he had questions about his finances. Ta liaferr o acknowledge d that the Testator suff

ered a decline i

n his mental abili

ties over th

e years, b ut she stated that th

is decline occurred gradually and did not happen sudde nly as a result of the stroke in 1987. Taliaferro further testified that she remembered viewing a copy of the

Testator’s will withthe Executor in

1991. At that time, T

aliaferro obse

rved that a line ha

d been drawn on th

e will. Taliaferro didnot examine the docu ment more closely

, however, beca

use she felt uncomfortable, as if she were invading the Testator’s privacy. Taliaf erro testified that the initials appearing on the will
were “definitely” those of the Testator. Taliaferro had “[n]o doubt”that the Testator had signed his initials near the word

“v oid.” The Testator always signed his initials as “J.B.Jr.,” and not as“J.B.W.” as might be expected.

At the trial’s conclusion, the trial court found that the Testator had made the markin gs
on the will. Nevertheless, the court ruled that the markings did not constitute an effective revocation of the bequest to the Executor. Accordingly, the trial court entered a judg ment ad mitting the Testator’s will to probate “without any revocations, modifications, or amendments thereto.”

On appeal, the Respondent contends that the trial court erred in r uling t hat the markings made by the

Testator were ineffective to revoke the will’s provision bequeathing to the Executor all of the Testator’s stocks, bonds, and cash. We agree with this contention.

Tennessee’s probate code pr ovides that a will,

or any part thereof, is revoked by, inter alia , Being burned, torn, canceled, oblitera t ed or destroy

ed, with the intent and for the purpose of revoking it by the testator or by another person i n the testator’s presence and by the testator’s direction.
T.C.A. § 32-1-201(3) (Supp. 1997).

Although our research of Tennessee case law revea

led no decisions int

erpreting this specific statute, this court previously has addressed th

e question of what

constitutes a valid revocationof a will

provision. In In re Estate of Dye , 565 S.W.2d 219, 220 (Tenn. App. 1977), the testatrix had lined through a provision of her will dealing with the devise of realty. The testatrix also hadwritten the word “void” over the provisio n. In re Estate of Dye , 565 S .W.2 d at 22 0. In considering whether these alterations were sufficient to revoke the will’s realty provision, this court stated:
Although there does not seem to b e any autho rity in Tennessee squarely holding that revocation of a will in part by1 In re Estate of Dye was decided prior to the enactment of T.C.A. § 32-1-201(3). See

1985 Tenn. Pub. Acts 139.

physical act is possible, indications are that this is the law. 1 See 1 R. Pritchard, Law of Wills , § 270 (3d ed. 1955). For a revocation to be valid, concurrence

of an int ention to revoke and some act by the testator manifesting that intention is required. Donnelly v. Hendrix , 49 Tenn. App. 361, 355 S.W.2d 116 (1960); Parker v. West , 29 Tenn. App. 642, 199 S.W.2d 928 (19 46). As with most will p

roblems, the tes tat or’ s in ten t is thu s th e key.

In re Estate of Dye , 565 S.W.2d at 221. This court then concluded that the testatrix’s act of lining through the provision and writing the word “void” over it constituted an effective revocation of the provision. The court reasoned that

[t]his unequivocal act of cancellation of the realty clause necessa

rily is prima facie proof of a

valid rev ocation b y testa trix, which we do not think can be said to have been overcome by evidenc e of a contrary i ntent in the instant c

ircumstances. The evidence in this case, aside from the fact of cancellation itself, simply fails to

show intent clearly an d to rebut the strong inference of intent to revoke raised by the cance llation.
In re Estate of Dye , 565 S.W.2d at 221.

We believe that the disposition of the pres ent app eal is c ont rol led by In re Estate of Dye
. Contrary to

the trial court’s ruling in this case, we conclude that the will alterations made by the Testator were effective to revoke the provision bequeathing his stocks , bonds , and cash to the Executor. The T estator und erlined this provision and enclosed it in two sets of parentheses. The Testator also wrote the word

“void” above the

provision and sig

ned his initials. In ac

cordance with In re Estate of Dye , we conclude that this unequivocal act of cancellation of the provision constituted prima facie proof of a valid revocation by the Testator. Moreover, the other evidence in this case did not rebut the strong inference of intent to revoke raised by the cancellation.

When a will pro vision is validly revoked, the property refe rred to therein passes under the will’s residuary clause in the absence of a contrary intent. See 1 Jack W. Robinson, Sr., & Jeff Mob ley, Pritchard on the Law of Wills and Administration of Estat es § 283, at 448 & n.28 (5thed. 1994) (and authorities cited therein). In the present case , the provision at issue referred to the Testator’s stocks, bonds,

and cash, including all funds in his account at J. C. Bradford. In light of
our conclusion that the

subject provis

ion was va lidly revoke

d by the Test

ator, we hold that

this property pa

sses to both partie

s under the residu

ary clause of the Testator’ s will.

In urging this court to affirm the trial court’s judgment, theExecutor suggests that the markings on the Testator’s will were made by someone other than

the Tes tat or. As s tat ed p revi ous ly, the trial court found that the Testator had made the markings on the will. This finding is presumed to be correct unle

ss the prepon derance

of the evi

dence is o

therwise . Rule 13(d

) T.R.A.P.

We conclude that the evidence does not preponderate against this finding of fact.

Al tern ati vel y, the Executor sugg ests that the Testa

tor did not have the

requisite testamentary

capacity to revoke the will provision. The trial court’s comments made at the trial’s conclusion, however, indicated that the court placed significant weight on the testimon y of the parties’ cousin, Becky Taliaferro. The trial court has the opportunity to observe the manner and demeanor of the witnesses while testifying. Findings of fact dependent upon the c re dibi lity of witnesses are accorded great weight on appeal. Town of Alamo v. Forcum-James Co. , 327 S.W.2d 47 (Tenn. 1959); Sisk v. Valley Forge Ins. Co. , 640 S.W.2d 844 (Tenn. App. 1982). Taliaferro’s testimonyindicated that the line was drawn on the will sometime pr

ior to 1991 and that t

he initials appearing by the word “void” were those of the Testator. Her testimony furthe r indicat ed that, although the Testator suffered a stroke in 1987, turned over his financial affairs to Taliaferro in 1991, andthereafter expe

rienced a gra

dual decline in he

alth, the Testator

still k new and unde rstood the force and consequences of his acts when he altered his will. See In re Estate of Elam , 738 S.W.2d 169, 171-72 (Tenn. 1987); In re Estate of Keasler , 973 S.W.2d 213, 217-19 (Tenn. App. 1997); In
re Estate of Oakley , 936 S.W.2d 259, 260-61 (Tenn. App. 1996); Bills v. Lindsay , 909 S.W.2d 434, 439-40 (Tenn. App. 1993) ; Green v. Higdon , 870 S.W.2d 513, 522 (Tenn. App. 1993). Accordingly

, we decline to af

firm the trial cou

rt’s judgment on e

ither of these ba

ses.

The trial court’s judg

ment is vacated, a

nd this c ause is remanded for further proceedings consistent with this o pinion. Costs of this

appeal are

taxed to the Executor, for which
exe cut ion may i ssu e if nece ssa ry.____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)