# FILED

September 2, 1997 Cecil W. Crowson Appellate Court Clerk September 2, 1997 1 FOR PUBLICATION 2 3 4 IN THE SUPREME COURT OF TENNESSEE 5 6 AT NASHVILLE 7 8 9 10 11 GERTRUDE JACKSON AND JOSEPHINE ( 12 J. JOHNSON, ( 13 ( 14 Plaintiffs-Appellants, ( 15 ( 16 ( Williamson Chancery 17 v . ( 18 ( Hon. Henry Denmark Bell, 19 ( Chancellor 20 HELEN PATTON, EXECUTRIX OF THE ( 21 ESTATE OF JENNIE MAI JACKSON, ( S. Ct. No. 01S01-9609-CH-00177 22 DECEASED, ( 23 ( 24 Defendants-Appellees. ( 25 26 27 28 For Plaintiffs-Appellants : For Defendants-Appellees : 29 30 Daniel L. Wischhof Joseph F. Welborn, III 31 Wischhof & Allen Bass, Berry & Sims 32 Goodlettsville Nashville 33 34 Susan B. Evans Douglas S. Hale 35 Brentwood Hale & Hale 36 Franklin 37 William D. Castleman 38 Goodlettsville 39 40 41 42 43 44 45 O P I N I O N 46 47 48 49 50 51 JUDGMENT OF COURT OF APPEALS 52 REVERSED; CASE REMANDED. REID, J. 53 This will contest case presents for review the decision of 54-2-

the Court of Appeals that the trial court erred in sustaining the 1 most recently executed instrument as the testatrix’s last will and 2 testament. For the reasons stated herein, the decision of the Court 3 of Appeals is reversed and the judgment of the trial court is 4 reinstated. 5 6

I 7 8 The testatrix, Jennie Mai Jackson, executed two 9 instruments, both of which proclaim to be her last will and 10 testament. The proponent of the 1977 will, which was admitted to 11 probate in common form, is Helen Patton. She is the granddaughter of 12 the testatrix and the sole beneficiary under the 1977 will. She is 13 the contestant of the later instrument. The proponents of the 1989 14 will, which was produced after the 1977 will had been probated, are 15 Gertrude Jackson and Josephine J. Johnson, two of the testatrix’s 16 several children. The testatrix’s heirs, per stirpes , are the 17 beneficiaries under the 1989 will. 18 19 All parties agree that the first instrument, which was 20 executed on February 18, 1977, was properly executed and is the 21 testatrix’s last will and testament, unless it was revoked by the 22 second instrument, which was executed on April 6, 1989. The 1989 23 will also is in proper form. It was prepared by an attorney, Vance 24 Little, who testified that he had practiced law since 1965 and had 25 written several hundred wills. It contains the testatrix’s 26 signature by her mark, an attestation clause, the signatures of two 27 attesting witnesses, and an affidavit signed by the attesting 281Tenn. Code Ann. § 32-1-104: 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 his will and either:

(A) Himself sign; (B) Acknowledge his signature already made; or (C) At his direction and in his presence have someone else sign his name for him; and

(D) In any of the above cases the act must be done in the presence of two (2) or more attesting witnesses. (2) The attesting witnesses must sign:

(A) In the presence of the testator; and (B) In the presence of each other.

2No issue is made regarding the jurisdiction of the chancery court to hear a will contest. SeeTenn. Code Ann. § 32-4-109 (Supp. 1996).

3Since 1992, an issue devisavit vel nonmay be tried by the court if a jury is not demanded. SeeTenn. Code Ann. § 32-4-107(a) (Supp. 1996).

-3- witnesses and a notary public. The contestant acknowledges that 1 facially the 1989 will meets all the requirements of Tenn. Code Ann. 2 § 32-1-104. 1The issue made by the pleadings is whether the 1989 3 will was executed in the manner required by the statute. 4 Specifically, the contestant asserts that the testatrix failed to 5 disclose to the attesting witnesses that the instrument was her last 6 will and testament and that the testatrix did not execute the 7 instrument in the presence of the attesting witnesses. 8 9 The case was tried by the chancellor2without a jury. 3 10 After hearing the testimony of the lawyer who prepared the will, the 11 proponents of the 1989 will, Mrs. Jackson and Mrs. Johnson, the 12 proponent of the 1977 will, Mrs. Patton, and the attesting witnesses, 13 Elizabeth Carothers and John H. Carothers, the trial court held that 14 the 1989 instrument is the last will and testament of the deceased, 15-4-

Jennie Mai Jackson. The court found specifically that: 1 2 Elizabeth Carothers and John H. Carothers did 3 subscribe his/her respective names as an 4 attesting witness to the said paper writing; 5 that the said paper writing was written in the 6 lifetime of [Testator], deceased, and published, 7 signed, and subscribed by her in the presence of 8 the attesting witnesses; that the said 9 [Testator] was then of sound mind; and at her 10 request, said attesting witnesses signed said 11 paper writing in her presence and in the 12 presence of each other on April 6, 1989. 13 14 15 16 The Court of Appeals reversed the decision of the trial 17 court sustaining the will, upon finding that the evidence showed the 18 testatrix had not signified to the attesting witnesses that the 19 instrument was her will. The Court of Appeals held that knowledge by 20 the attesting witnesses that the instrument was the testatrix’s will 21 did not meet the requirement of the statute if that knowledge was not 22 acquired from the testatrix personally. The court stated: “No 23 evidence is found that the testatrix signified to the attesting 24 witnesses that the instrument was her will. This is an 25 indispensable, statutory part of the attestation of a witnessed 26 will.” 27 28

I I 29 30 The first matter to be considered is the standard of 31 review on appeal. Prior to 1992, Tenn. Code Ann. § 32-4-107 (1984) 32 required an issue devisavit vel nonbe tried by a jury. Since the 33 1992 amendment, trial by jury is not required but may be demanded. 34 Tenn. Code Ann. § 32-4-107(a). When the issues of fact have been 35-5-

submitted to a jury and the jury verdict has been approved by the 1 trial judge, findings of fact will be set aside only if there is no 2 material evidence to support the verdict. In re Estate of Rhodes , 3 436 S.W.2d 429, 430-31 (Tenn. 1968); Rule 13(d), T.R.A.P.; 1 4 Pritchard on Wills and Administration of Estates§ 393 at 587-88 (5th 5 ed. 1994). However, where the issue has been tried by the court 6 without a jury, the review of findings of fact is d e novoupon the 7 record accompanied by a presumption of correctness, unless the 8 preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). 9 Therefore, the Court in this case must decide whether the evidence 10 preponderates against the trial court’s finding that the 1989 will 11 was executed according to the formalities required by the statute. 12 13

III 14 15 There is no dispute about the main events that occurred on 16 April 6, 1989. The disagreements are found in the details and the 17 significance of the testimony regarding those details. Prior to that 18 date, the attorney, Vance Little, had prepared for the testatrix a 19 last will using information given to him by another lawyer in his 20 firm. At that time, the testatrix was 80 years of age and used a 21 wheelchair. She was physically unable to write her name, and for 22 some time she had signed checks and apparently otherwise made her 23 signature by writing her mark. The contested instrument was executed 24 in the living room of the testatrix’s residence. Prior to the 25 execution of the instrument, Mr. Little spent approximately 15 26 minutes with the testatrix alone. Then she, Mr. Little, 27 Mrs. Jackson, Mrs. Johnson, another daughter, Mrs. McCoy, 28-6-

Mr. Carothers and Mrs. Carothers gathered in the living room. 1 Mr. Little presented the instrument to the testatrix, who then made 2 an “X” on the signature line immediately below the last paragraph of 3 the instrument, which states, “I am signing this will on April 6, 4 1989.” Then, Mr. and Mrs. Carothers signed immediately below the 5 attestation clause, which provides: 6 7 This Will was signed before both of us. We knew 8 that it was a Will, and we were requested to be 9 witnesses. We both witnessed the Will and 10 signed in the presence of the person making the 11 Will and in the presence of each other on the 12 above date. 13 14 15 16 Mr. and Mrs. Carothers also signed the affidavit of attestation. The 17 affidavit states: 18 19 We swear that the above Will was signed by 20 Jennie Mai Jackson before us. It was said to be 21 a Will and we were requested to be witnesses. 22 We witnessed the Will in her presence and in the 23 presence of each other. Jennie Mai Jackson was 24 more than 18 years old and was of sound mind 25 when the Will was signed. 26 27 28 29 Mr. Little then signed the affidavit as a notary public. 30 31 The contestant asserts two narrow factual issues which she 32 says were not proven and which therefore render the execution fatally 33 defective - the testatrix failed to signify to the attesting 34 witnesses personally that the instrument was her will and the 35 attesting witnesses did not witness the testatrix sign her mark on 36 the will. For these propositions, the contestant relies upon the 37-7-

testimony of the attesting witnesses. 1 2 The evidence shows that Mr. Carothers cannot write except 3 to sign his name and he cannot read, although he recognizes his 4 signature and the signature of Mrs. Carothers. The evidence also 5 shows that Mrs. Carothers has difficulty seeing but she is able to 6 recognize her signature. Mr. and Mrs. Carothers testified that they 7 recognized their signatures on the contested instrument, but they 8 testified they did not remember signing it. They remembered going to 9 the testatrix’s house and they remembered that one daughter was 10 present at the time. Mr. Carothers stated he knew all the daughters 11 but had forgotten their names. In response to the question, “Did 12 anybody ever explain to you what that document was?”, Mrs. Carothers 13 answered: “Well, when he came out of there, a lawyer came out there, 14 he was telling what it said, but other than that, I didn’t know.” 15 Mrs. Carothers, after identifying her signature, added: “If it’s my 16 signature, I had to do it, I guess.” Mr. and Mrs. Carothers also 17 testified that they did not read the attestation clause or the 18 affidavit and that no one read those provisions to them. Mr. and 19 Mrs. Carothers testified they did not see Mrs. Jackson sign the 20 instrument; however, their testimony was not unequivocal, as 21 Mrs. Carothers stated: “She could have did it,” “I’m remembering 22 back.” When asked on cross-examination, “Did you know what document 23 that you were signing?”, she replied, “No.” (Emphasis added.) 24 25 The contestant asserts that the testimony of the attesting 26 witnesses in this case constitutes denials of their attestations, 27 which causes the presumption of due execution, arising from the 28-8-

attestation clause, to fail. The contestant further asserts that in 1 the absence of the presumption, clear and convincing proof of 2 execution is required in order to sustain the will, and that such 3 proof is lacking in this case. She, therefore, concludes that the 4 instrument fails as a will. 5 6 The contestant rightly states that the presence of the 7 attestation clause creates a presumption that the instrument was 8 properly executed. However, the record does not support the 9 contestant’s contention that she has carried the burden of proving 10 the will was not executed according to the formalities of the 11

statute. 12 13 The proponent of a will in a will contest is required to 14 produce the subscribing witnesses if they can be found. Tenn. Code 15 Ann. § 32-4-l05; Jones v. Arterburn, 30 Tenn. 97, 103 (1850); Wheeler 16

v. Parr, 3 Tenn. Civ. App. 374, 381 (1912). However, the proponent, 17 by offering the testimony of the subscribing witnesses, does not 18 vouch for their credibility nor is the proponent bound by their 19 testimony. 1 Pritchard on Wills and Administration of Estates§ 348 20 at 531 (5th ed. 1994). An instrument may be sustained as the 21 decedent’s last will and testament in opposition to the testimony of 22 the subscribing witnesses. The rule applicable to this case is well 23 stated in Whitlow v. Weaver, 478 S.W.2d 57, 60-61 (Tenn. Ct. App. 24 1970): 25 26 [T]he general rule is that the proponents of a 27 will establish a prima facie case as to its due 28 execution when the genuineness of the signatures 29-9- of the testator and subscribing witnesses along 1 with an attestation clause containing 2 recitations of due execution is shown. Such a 3 prima facie case in favor of the due execution 4 of a will is not abandoned by presenting 5 testimony of living witnesses which is 6 otherwise. 7 8 9 10 That court continued: 11 12 13 14 . . . Thus it is held that by virtue 15 of the presumption the burden of going 16 forward with the evidence shifts from 17 the proponent of the will whose 18 execution is at issue to the 19 contestants. 20 21 The presumption is rebuttable, but 22 it is established that, to overcome the 23 presumption, the contestant must 24 present “clear and satisfactory” proof 25 of lack of due execution. 26 27 28 29 Id.at 61 (quoting from annotation, 40 A.L.R.2d 1225). 30 31 The evidence presented by the contestant in this case does 32 not overcome the presumption of due execution. It is admitted that 33 the instrument bears the signature of the testatrix and the 34 signatures of Mr. and Mrs. Carothers as attesting witnesses. The 35 testimony of Mrs. Jackson and Mrs. Johnson shows that the instrument 36 was signed by the testatrix and also by Mr. and Mrs. Carothers, and 37 that each signed in the presence of the other. 38 39 The fatal defect in the proof found by the Court of 40 Appeals was that the testatrix failed to signify to the witnesses 41 that the instrument was her will. The Court of Appeals found this to 42-10-

be “an indispensable, statutory part of the attestation of a 1 witnessed will.” The law is clear that for the execution to be 2 valid, the subscribing witness must know that the instrument is a 3 will. Cooper v. Austin, 837 S.W.2d 606, 611-13 (Tenn. Ct. App. 4 1992); Lawrence v. Lawrence , 250 S.W.2d 781, 784 (Tenn. Ct. App. 5 1957). However, the law is equally clear that a formal declaration 6 by the testatrix is not necessary. In Miller v. Thrasher , 251 S.W.2d 7 446, 447 (Tenn. Ct. App. 1952), the assignment of error was identical 8 to the finding by the Court of Appeals in the present case. The 9 opinion in that case reflects the applicable rule of law: 10 11 Under our statute it is not essential that 12 an express request be made by the testator to 13 the attesting witnesses that they witness his 14 will. The statute sets out that he shall 15 signify to them that the instrument is his will, 16 and this may be implied from his acts and 17 conduct and from the facts and attending 18 circumstances. . . . 19 20

. . . 21 22 . . . In this State evidence of due 23 execution of a will is not confined to the 24 attesting witnesses but may be proved by other 25 competent evidence including the testimony of 26 persons who were not subscribing witnesses but 27 were present at the execution of the will. 28 29 Id.at 448-49; see In Re Estate of Bradley, 817 S.W.2d 320 (Tenn. Ct. 30 App. 1991); Pritchard on Wills and Administration of Estates§ 213 at 31 352 (5th ed. 1994). 32 33 In this case the circumstances show that the purpose of 34 the meeting on April 6, 1989 was the execution of the testatrix’s 35 will. Both Mrs. Johnson and Mrs. Jackson testified that the 36 testatrix requested her three daughters, the lawyer, and the 37-11-

attesting witnesses to be present, to “see her make a new will.” 1 Mrs. Carothers, despite her denials, stated, “He [the lawyer] was 2 telling what it said.” The lawyer had just spent some time alone 3 with the testatrix and had possession of the instrument to be 4 executed. This evidence is a sufficient basis for the conclusion 5 that the lawyer identified the instrument and the purpose of the 6 occasion. 7 8 Neither Cooper v. Austin, 837 S.W.2d 606 (Tenn. Ct. App. 9 1992) nor Lawrence v. Lawrence , 250 S.W.2d 781 (Tenn. Ct. App. 1957) 10 supports the contestant’s position. In Cooper, the only evidence on 11 which the proponents could rely to prove that the subscribing 12 witnesses knew the instrument executed was a will, was the testimony 13 of the attesting witnesses and the notary public. Cooper, 837 S.W.2d 14 at 607-10. The proof, as found by the court, was: “there is 15 uncontroverted, affirmative proof that Dr. Bisson did not signify to 16 at least one attesting witness that the instrument to be witnessed 17 was his will or a codicil thereto.” Id.at 613. The inescapable 18 conclusion on the facts of that case was that at least one attesting 19 witness did not know the instrument was a will. In the case before 20 the Court, however, the surrounding circumstances suggest that all 21 interested parties knew the instrument was the testatrix’s will. 22 23

In Lawrence, the will had no attestation clause and the 24 testatrix did not signify to the attesting witnesses that the 25 instrument was her will. Lawrence, 250 S.W.2d at 782, 784. 26 Moreover, the testimony of the only surviving witness showed that she 27 did not know that the instrument was the will of the testatrix. Id. 28-12-

at 784. The Court, therefore, found that, “[b]y the uncontradicted 1 evidence before us that essential requisite of the execution of a 2 valid will is lacking.” I d

. 3 4 The Court concludes that the contestant has failed to show 5 that the will was not duly executed. Therefore, the evidence does 6 not preponderate against the trial court’s finding that the 7 instrument dated April 6, 1986 is the testatrix’s last will and 8

testament. 9 10 The decision of the Court of Appeals is reversed, and the 11 case is remanded to the trial court for further proceedings. 12 13 The costs are assessed against the contestant, Helen 14

Patton. 15

________________________________ 16 Reid, J. 17 18 Concur: 19 20 Anderson, C.J., Drowota, Birch, 21 and Holder, JJ. 22