### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Septem ber 18, 200 2 Session IN THE MATTER OF THE ESTATE O F JAMES T. SANDERSON, DECEASED Direct Appeal from the Chancery Court for Hardem an County No. P-1020 Roy B. Morgan, Chancellor

No. W2001-01938-COA-R3-CV - Filed October 28, 2002

This case concerns the administration of an estate. The decedent’s widow appe als the trial court’s judgment claiming that

it was error to deny

her claim for an elective share of the estate. Appellant also alleges error in the finding tha t the administrator

had not caused the estate to suffer monetary loss as a r esult of a ctions tak en by him in his ro le as adm

inistrato r. We aff irm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed; and Remanded
D AV ID R. F ARMER , J., deliver ed the opinion of the

court, in which A LAN E. H IGHERS and H OLLY K. L ILLARD , J.J., joined. Charles M. Cary, B olivar, Tennessee, for the appellant, Shirley Diane Sanderson. William C. Bell, Jr., Jackson, Tennessee, for the appellee, Joe B. Cole, Administrator. OPINION
Jame s T. Sanderson (Decedent) died testate on Aug ust 28, 1998. The decedent’s name d executor, the Bank of

Bolivar, declined to serve. Subsequently , decedent’s wife, Shirley Sanderson (Appellant), decline d to serve as administrator, as did decedent’s daug hter, Sheree Sanderson Rudd. Both parties recommended the appointment of Joe B. Cole (Administrator) as Administrator. Mr. Cole agreed to serve afte

r being asked personally

by Appellant if he would do so . Mr. Cole was appointed Administrator With Will Annexed on Decem b er 7, 199 8. Mr. Cole ’s agr eement to administer

the estate appears to be the last time that he and Appellant agreed about any issue relating to the estate.
At the time of his death, decedent ’s real pro perty included his law of fice upon which the Bank of Bolivar held a note secured by a deed of trust on the building and its contents, which included antique furniture and several thousand client files. The decedent’s Will provided that-2-

[s]ubject to the as sumpti on of outstanding debt secured by Trust Deed dated December

18, 1991. . .I give a one -third (1 /3) undivi ded inter est to my wife . . . and a two-thir ds (2/3) u ndivided interest t

o my daught er. . . astenants in

common, in

my law office building. . . together with all furniture a nd fixtures, including my law li br ar y, with the request that the building includ ing fur niture and fixtures and law library be leased to a law firm and the rent be u sed, fir st, to make m onth ly mortgage pay ments to the Ba

nk of Bol ivar with an appropriate amount

be placed in escrow by the Bank of Bolivar to pay for property

taxes and insurance . . . . Ap pa re nt ly, despite this specific devise and a lack of formal re nunciation of the gif

t, all p arties involved treated the law office property as estate property

after Mrs. Sanderson refused t o assumethe debt jointly with Ms. Rudd. The sale of the property was listed on the Estate’s 1999 Fiduciary tax return. The estate also included real property in Tishomingo County , Mississippi and Jackson, Tennessee. Appellant takes issue with all aspects of the Administrator’shandling of the law office pr opert y from the time she ref used t o assu me the debt t hrough the sale of the property

. In addition to her claim that the Administrator improperly managed the

law office, resulting in monetar y lo ss to the estate, Appellant also questions the Administrator’s actions regar ding persona lty held by the estate, m ost notably a pickup truck, Rolex watch, and diamond r ing, all of which were found to have been properly sold pursuant to a court order. Appellant claims that the Administrator’s sale of th ese itemsfor less t

han their apprais ed value

resulted in a loss to the estate. Appellant asserts that the Administrator failed in other areas of his estate administration as well, and that such fai lure also

resulted in moneta

ry loss to the estate. On March 29, 1999 the Administrator file d a motion seeking an extension of time for Appellant to file her notice of cla im fo r electi v e share. This motion was approved per an order of May 6, 1999 which provide d that
the Administrator W.W.A. is allowed until May 7, 1999 to file an inventory f or the e state h erein, or a reasonable time therea fter, and the surviving spouse, Shirley Sanderson [Appellant], shall be granted an extension o f time of t

hirty (30) days a

fter said inventory is filed within which to file a notice of dissent from the will. Appellant filed a motion for e

lective s hare on M ay

20, 1999. Pe

r an order of October 22, 1999 Appellant’s motion was “reserved, until such time as the [Appellant] is able t o mak e an acc urate determination of t he amount of claims to be paid and the assets available to the estate.” The Administrator

filed a motion to compel widow’s electionon S eptember 13, 2001. Appellant answered the mo tion claim ing t hat the lack o f a cap on administrative and attorney ’s fees was preventing her from making an informed decision as to her elec ti on. Appellant’s claim for an elective share w as d enied by an or der of January 2, 2002. The trial court also found that the Administrator was not responsible for losses suffered by the estate. This appeal ensued.
The extensive procedural history of this case, compr isin g a

technical record of twohundred and se venty one pages, is wel l kno wn to t he part ies an d does not b ear rep eatin g.-3- Issues Presented
Mrs. Sanderso n assert s that the t rial cou rt committed the follo wing er rors, wh ich she pr esents for our review: (1) The trial court was in error in approving the Administrator’s, c.t.a. payments to the Ba

nk of Bolivar. (2) The trial court was in error in approving the Administrator’s, c.t.a. pay ment of of

fice util ities and e

xpenses. (3) The trial court

was in er ror in finding that the A dministra

tor, c.t. a. timely and pr operl y sold th e pick up tru ck, Ro lex W atch, and di amond ring. (4) The trial court was in error in not finding that the Administrator’s, c.t.a. failure to invest funds was improper. (5) The trial cou

rt was in e

rror in a pproving the Admini strator’ s, c.t.a failure to pay estimate d tax pay

ments. (6) The trial court wa s in erro r in not finding tha

t the Admin

istrator ’s, c.t.a. failure to pay

the funeral expenses was improper. (7) The trial court wa s in error in not finding that the Administrator’s, c.t.a. ac ti on to di ss ol ve th e p ro fe ss io na l c or po ra ti on wa s u nt im el y. (8) The trial court was in e rror in n ot finding that the estate had suffered monetary losses due to the failure of the Administra tor, c.t. a. to timel

y a nd prope rly administer the estate. (9) The trial court wa s in error in deny ing the widow’s claim for an elective share. (10) The tr

ial court wa s in error in deny ing the widow’s claim for attorney fees and approving attorney fees and Admini strator, c.t.a. fees in the total sum of $45,000.00. Standard of Review
In a civil action we re

view a tr ial cour t’s findin gs of fa

ct de novo upon the record of the trial court. Such review is accompanied by a presumption of correctness, unless the-4-

eviden ce prepond

erates agains t such fin dings. T enn. R. Ap p. P. 13(d) ; Brooks v. Brooks , 992 S.W.2d 403,404 (Tenn. 1999). Questions of law are review ed de novo , with no presumption of correctness. Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 628 (Tenn. 1999). Appellant raises ten issues on appeal. As we view this matter, a finding that the trial court did not e rr in holding that the estate had suffered no moneta ry loss due to the failure of the Administrator

to timely and properly

administer t he estate (issue number eight), would render discussion of issues one throu gh seve n moot, as each of these assignments of error is alleged to have caused the estate to suffer monetary loss. We, there fore, beg in our disc ussion with

Appellan

ts assignm ent of er ror numbe

r eight

. Failure of A dministrator, c.t.a. to Time ly and Prop erly Administe r the Estate Appellant appear s to be of t

he opinion

that the A dministra

tor brea ched his d uty by f ailing to maximi ze the return on each transaction involving the estate . In fact, Appellant has g one to great lengths to document what she perceives to be losses suffered by the estate as a result of actions taken, or failed to have been taken, by the Administrator. Administrators are not, however, insurers. See Young v. Phillips , 93 S.W.2d 634, 636 (Tenn. 1936). While it is easy to put pencil to paper afte r the fact and determine that another course o f action

may have be en more b enefic ial to the estate, the well establish

ed rule in Tennessee is that “the situation as it appeared at the time must be considered in testing the liability of [an administrator,]” for “[i]t is an obvious truth that ‘a wisdom developed after an event, and having it and its consequences a s a source, is a s tandard [by which] no man should be judged . . . .’” Id

. (citation omitted). It is easy for Appellant to calculate theoretical losses basedon actions which could have been, but were not, ta ken by the Administrator. The Administrator, however, constrained b y inform ation ava ilable at the momen

t, does not

share th is benefit of hindsight. Accordingly , “[t]he facts must be considered as they presented themselves at the time the [a

dministra tor] acte d, and not

from the i lluminate d viewpoi nt of subsequent e vents. ” Id. (citing United States v. Am. Bell Tel. Co. , 167 U.S. 224, 261 (1897)) . It ismerely a tr uism that “[a] wisdom born after the event is the cheapest of all wisdom. Any body could hav e discovere d America after 1492.” Am. Bell Tel. Co. , 167 U.S. at 261.
The trial court foun d that “ [t]he Administrator was selected to serve at Ms. Sanderson’s request after Ms. Sanderson declined. The Administrator has acted prudently and considering the complexities and lack of cooperation of the parties, the Administrator is not foun d to be re sponsible for any losses to the estate.” After a thorough review of t his record, we have determined that the evide nce do es not prepo nderat e agains t thi s hol ding.

Denial of W

idow’s Claim fo

r an Electiv e Share Appellant contendsthat the tr

ial cour t erred in deny ing her claim for

an elec ti ve share provided for in Tenn. Code. Ann. § 31-4-101. Although the trial court made extensive findings, the order is devoid of any

findings of fact concerning this issue. “[T]he court speaks through its order, notthrough the transcript.” In re: The Adoption of Female Child, E.N.R. , 42 S.W.3d 26, 31 (Tenn.-5-

2001) (citations omitted). “Since the trial court made no findings of fact, there is not hing in th is record upon which the pres umption of correctness con

tained in Tenn. R. App. P. 13(d) can attach.” Kelly v. Kelly , 679 S.W.2d 458, 460 (Tenn. Ct. App. 1984). Therefore, “we will proceed to r eview the record de novo.” Id. This stand ard of r eview is war ranted becaus e a lack of suc h find ings pr ev ents us from de

termining , conclus ively , what fa ctors the trial cou rt relie d on in rea

ching it s decision. See Fisher v. Fisher , 648 S.W.2d 244, 245 (Tenn. 1983).
The doctrine

of elec tion “app lies wher e one ass erts con

flicting rights to pr operty, i.e., claiming under the will and making a separate c laim [such as that for an elective share] against the estate.” Elmore v. Covington , 172 S.W.2d 8 09, 810-11 (Tenn. 1943). Tennessee has long recognized

the “est ablished rule in e quity

that a man shall

not take a

ny b enefic ial inter

est in a wi ll, and at the sa

me time se

t up any right or claim of h

is own, even if otherwise legal and well founded, which shall defeat, or in any way pre vent, the full effect

and operation of ev ery

part of the will[. ]” Will iams v. W

illi ams , 83 Tenn. 438, 445 (1885) (internal quotation omitted). Applying the foregoing well-established pr inciples, we need

look no further

than Arti cle Six of decedent’s Will to determine this issue; for this section provides that the term “Residuary Estate” includes“ all of my property (wherever located) passing unde r this Will, oth er than

. . . propert y [specifically devised].” (e mphasis added) An agr eed orde r of June 19 , 2001, pr

ovided tha

t Appella nt, Shirley Sande rson [,] shall receive a quitclaim deed fr om the Aministrator, W.W.A. and Sher ee Rudd to

the fee simple inte

rest owned by the es tate in certa

in real p roperty located in Ti shom ingo Co un ty, Mississippi and . . .[s]aid conveyance is made subject to any and all t axes, fees, assessments or any other indebtedness that are now or may

become d

ue and sh all be the responsibility of Shirley Sanderson. (emphasis added) Recogn izing “th at any

one who a sserts an

interest under an instrumen

t, such asa will, is bound to give full effect thereto and may not both accept and reject the inst

rument or avail hims elf of the bene fits ther eof as to a part a nd defea t the provisions ther

eof as to other parts[,]” Pierce v. Tharp , 430 S.W.2d 787, 794 (Tenn. Ct. App. 1967) (citi ng Elmore , 172 S.W.2d at 811), we are of the opinion that Appellant, by entering into the aforemen tioned a greed order, e lected to receiv e estate propert y through the resid uary clause of the Will. The trial court was, therefore, correct in holding that she forfeited

any rig htto dissent from the will and claim an elective share of dece dent’s estate.-6-

Denial of W

idow’s Claim fo

r Attorney’

s Fees and Ap

proval of Administrator’

s Fees and Administrator’

s Attorney’

s Fees.
Appellan t takes iss ue with

the trial courts determination that she is not entitled to have her attorney’s f

ees paid by the e state. We agree with the trial court that an award of attorney ’s fees to the Appellant is not warranted in this case. The trial court’s order cited a “lack of cooperation of the [Appellan t] to approach and resolve this matter with the least cost” as a basis for the denial of an award of attorney’s f

ees. While it is true that “[f]ees for the services of an attorney not employed by the pers onal rep

resenta tive are sometimesall owed out o f the ass ets [of the estate, this applie s] only where the servi

ces have inured to the benefit o f the esta te .” Davis v. Mitchell , 178 S.W.2d 889, 915 (Tenn. Ct. App. 1943) (emphasis added ). Inherent in the trial court’s a ssertion that Appellant had not attempted to resolve the issue s that she presented in a more cost effective manner is the inescapa

ble conclusion that her actions have in no way benefitted, and more likely have harmed, the estate. Accordingly, the t rial court did not err in deny ing Appellant’s claim for attorne y’ s fees. Appellant contests the trial court’s approval of the Administrator c.t.a’s fee s. An administrator

“is entitled to reasonable compensation for their services, a nd to payment from the estate for rea sonable e

xpenses inc

urred in good fa ith for the exclusive

and nec essary

benefit of the estate.” In re Estate of Wallace , 829 S.W.2d 696, 700-701 (Tenn. Ct. App. 1992) (internal citation omitted). The trial court fo und that “[ t]he Administrator is entitled to [a] fee for his services on behalf of the Estate . . . .” The evidence does not prepondera te against this award of fees. Appellant also contests the award

of the Administrator’s attorney ’s fees from the estate. We notethat a significant portion of the legal fees that Appellant contests ar e the direct result of the Administrator’s having to answer to Appellant, through an a ttorney, for ne arly eve

ry act ion take n during the administration of the esta te; actio ns which w ere inva riably held not to have been a breach of the Administrator’s fiduciary duty. [W]hen an [administrator] is charged with a breach of its fiduciary duties or

when its accounting is challe

nged , it is the outcome of the proceedings that determines whether the [administrator’s] legal expenses incurred in def endi ng against the chall enge should be assessed against the e state. If th e [administ

rator] suc cessfully defends its conduct, its legal expenses may be charged ag ainst the estate. Id. at 704 (internal citation omitted). In light of our previous af firmance of the trial co urt’s holding , specifically tha t the administrator

had not caused the estate to suffer any

monetary loss as a r

esult of his administration of the estate, we affirm the award of the Administrator’s attorney’ s fees. To hold otherwise would, in effect, punish the Administrator for the proper exercise of his fiduc iary duty

.-7-

Ac co rd in gl y, we affirm the decision of the trial court and re m and this cause for further procee dings consistent with this opinion. We tax the costs of this appeal to Appellant, Shirley Dianne Sanderson, and her surety for which execution, if necessary , may issue.

___________________________________ DAVID R. FARMER, JUDGE