## IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submitted on Bri efs, D ecem ber 4, 2002 BEN H. WILSON, WILLI AM C. WILSON, HELEN WILSO N WARD, MONTIE WILSON ANDERSON, JO YCE PARVIN DANIELS, and LINDA WILSON BAILEY, v. K ATE WILSON WARD, JAMES L. WILSON,

BILLY WILSON, SHIRLEY GR EGG and JOANNE SWEC KER Direct Appeal from the Chancery Court for Gr eene County No. 97000219 Hon. Thomas R. Frierson, II., Chancellor

FILED MARCH 24, 2003
No. E2001-02177-COA-R3-CV

The Trial Court, exercising its equita ble powe rs, orde red prop erty

sold and pr

oceeds d istributed in accordance with the ter

ms of a Will in

an estat e closed in 1982. On

appeal, we affi

rm.

Te nn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirm ed, a s Amended.

H ERSCHEL 

### P ICKENS 

### F RANKS 

### , J., delivered the opinion of the court, in which C HARLES 

### D. S USANO 

### , J R 

### ., J., and D. M ICHAEL 

### S WINEY 

### , J., joined.

Sandra Lee Stanbery , Greeneville, Tennessee, for Appe llants Kate Wilson Ward, Shirley Gregg and Joanne Swecker. Roger A . Woolsey , Greeneville, Tennessee, for A ppellee s.

OPINION

This is a dispute between the heirs of W.C. Wilson (“W.C.”) and Lura Fillers Wilson (“Lura”)as to the ownership of certain real pr oper ty. The parties a

re either children of W.C. and Lura or the children of

a deceased child. There wer e nine children born to the marriage, Clare nce (diedin 1995), Ben, Willy, Helen (died in 2000), survived by children Ca roline and Vena. Montie,

### -2-

Kate, her two daughters, Joann Swecker and Shirley Gregg are de

fendants; Geneva died in 199 6, survivedby daug

hter, Joyce, Lester, whose children a re Linda and Jimmy

and Clyde, whose ch

ild is Bi ll y.
At the ti me of W.C.’s death in 1977 , he owned re alty kno wn as the “Home P lac e” and another 48 acre parcel call ed the “ Russel l Pl ace, ” the latter being owne d as tenanc y by the entirety with Lura. This latter pro perty is no t at issue on th is app eal.

W.C .’s Will named sons Ben and C larence as co-execu tors of his estate, and his W ill stated in pertinen t part:

SECOND: I will an d be qu eath to m y wife Lu ra W ilso n for and dur ing h er na tura l life the re mai nder

of my property of

every kind realpersonal or mix ed w ith the privile ge (sic) t o s ell a ny a nd all the personal propertyneeded for her support during her lifet ime and to have full control over t he real estat e so long as she may li ve.
THI RD: After the death of my wife my execu tors shall sell my real estate and exe cute deed or deeds t o the purchaser or purchasers and convert any r emaining personal prop erty not u sed b y my wife to ca sh an d use as follow s. . . .
His Will conti nues that whe n the proper ty is s old, the p roce eds woul d be di stribut ed equa lly among his nin e ch ildre n afte r paym ent of d ebts a nd adm inistration costs. Th e executo rs closed W .C.’s Estate in 19 82.

Lura remained in the Home Place until her death in 1984. Clarence resi ded with her and helped care for her

needs, thoug h he al so had s ever e heal th pr oblems and was a double-amputee. Lura executed her Will in 1977, fol lowed by two codi cil s in 1 980 and 1983. The r ele vant p orti on of L ur a’s W ill is s tat ed in Ar tic le II:

In the wil l of

my deceased husband, W .C. “Bill” Wilson, he gr anted me a life estate in ce rtain r eal prop erty owned by him, but upon which our hom e was construct ed. In his will, he then directed tha t upon my death, the remain der o f h is proper ty shouldbe di vided equal ly among our ch ildren. I recognize that it is bey ond my power to eff ectivelydevise property i n which I only have a lif

e estate. I have, howe ver, been ad vised of my right to diss ent f rom my husband’s will and take a distributive sharethereof. I have been further advised of my right to use this property for my lifetime for my benefit, but I choose not to do either of thes e thi ngs o ut of

res pect for the me mory of my

decea sed hus band. Nonetheless, it is my wish t hat myson, Clar ence Wil son, should have the homeplace, incl uding the 2 0 acr es of rea l pr operty, allpers ona l i tems in the house, all farm machin ery and all li vestock. I , ther ef ore , r espe ctf

ull y reque st tha t a ll my

### -3- chil dren, and all other persons who may ha ve an int ere st o f an y kin d in thi s p rop erty, join in exec uting a deed, and such oth er releases as are necessa ry, to gi ve this proper ty to myson, Clar ence Wil son.
The Will and codicils further di rect that i f any heir ref used to execute a deed to the Hom e Place in fav or of Clarence, then Clar ence woul d rec eive the e ntire Russe ll Plac e, bu t i f t hey did c ooperate a nd convey the Hom e Place to Claren ce, then the R ussell Place w as to be sold and the p roceeds eq ually divi ded. Some of the siblings chal len ged Lur a’s Will on the gr ounds of incompe tenc e and und ue influence. However , a jury foundin f

avor o f t he Will , andthat verdict was af firmed on appeal to this Cou rt in 1986. Th e Hom e Place and personalty were ne ver sold as d irected by W.C .’s Will.

AfterLur a’s death, f

ive of the s ibli ngs and Clarence h ad a meeting , wh ere it was agreed that Clarence could remain on the Home Place and r ecei ve inc ome produ ced bythe farm, in return for

maint aini ng the pro perty a nd pa yin g the taxes and insurance. Clarence had filed bankruptcy in 1982, from which he never fi nanci all y recovered. In the b ankruptcy proce eding s, he claimed that all of the personaltyrelevant here was owned by hi s mothe r. The siblings shared in helpi ng Clarence aro und th e Hom e Place as well a s contrib utin g sub stan tia l money for bil ls a nd necessities. They had alw ays assisted their mo ther substan tially with both mo ney and labo r suppo rt until h er death , particu larly Kate an d Ge nev a.

In 1991, Claren ce e xecu teda de ed c onveying the Home Place and the Russell Place to De fenda nts Sw ecke r and G regg, his nie ces. The de ed purport s authori ty to co nvey by virtue of Lura’s Will. Swecker and Gregg testi fied theydid not know C larence had exec uted the de ed until he recorded it in 1993 an d from 199 3 forward, Sw ecker and Gregg paid the t axes and insu ranc e on the property. They also paid off a li en against it incurre d by a collection action against Clarence. No other heir paid taxe s on the pro perty a ft er Lura’ s deat h and be fore Clare nce’ s deat h in 1995 , exce pt for 2 years whe n Ka te and Helen each p aid on e-half.

In 199 7, Ben W ils on pet iti oned the Court to r e-ope n the estate of W.C. Wil son f

or the purpos e of distributing the prop erty as directed in the W ill. The petition was d enied, the C ourt finding there had b een no n ew disco very of assets which n ecessitated that action , and the interests of the p arties co uld b e adju dicate d with out re-o pen ing the e state.

This act ion was fi led on Octobe r 13, 1997, ultimately seeking to determine the l egal own ers hip of the Hom e Place, clear title, and sale by partition, as well as the p ersonal pro perty owned by W.C. at

the d eath of Lur a to b e ide ntif ied, sold, and the proceeds divided in accordance with W.C .’s W ill. First, the C han cellor gran ted su mm ary judgm ent to th e defen dan ts, findin g t h e petitioners were not en titled t o a partition of t he re alty or

sal e, bu t upon a Petition to Re conside r, held that the Cou rt had equitab le jurisdiction to remove any cloudfr om the t itl e of property becaus e there was no adequate remedy at law, and that itcouldset

asi de inv ali d deeds or makeother dispos iti on to afford comp lete relief to the parties and to avoid a multiplicity of lawsuits. The Chancellor filed a Memora ndum Opi nion af ter trial , ho ldi ng t

hatClaren ce d id n ot h ave a f ee s impl e i n th e Home Place, but byequitable conversion, Clarence owned only 1/9th interest in the p roperty under W .C.’s Will. Th e C ou r t di r ec t ed t he Cl er k a nd Ma ster

to sellat pu blic auction the Home Pl ace, and any1 

### The Judgment as entered, states that Gregg and Swecker were awar

ded 1/9th shares each. The sam e er ror of a 1/ 9t h fr act io n oc cur s wi th th e sh are s of Lind a W il son Bai ley a nd J ame s L. Ba il ey, children of Lester Wilson, deceased. The Court’s intent is clear in the Memorandum Opinion and the fractions are obviously clerical errors and will be corrected upon remand.

2 

### Wefind no an swer in

the record raising affirmative de fenses. However, unclean hands may be raised at any

stage of the litigation.

-4- remai ning ide nti fi abl e pe rso nal tyof W.C. Wilson and distribu te the balance o f the proceeds in 1/9th shares to the c hildre n of W .C. and Lura W ilson , pe r s tirpes , after payment of c osts and expenses. Defendan ts Gregg and Swecker were awarde d one- half each of Cl are nce’ s dis tri buti ve share of the net saleproce eds, or 1/ 18th e ach. 1 Becaus e the y ha d rec eive d the income fr om the p rope rty aft e r Clarence’s death in an approximately equal amount to the taxes and insurance they had paid since 1993, the Court held that Swecker and Gregg were not entitled to additional rei mburse ment fr om the net pro ceed s.
The issue raised by app ellants essentially is whether the T rial Court in the exercise of it s equi tabl e jurisdi cti on erred i n characterizi ng and resolving the dispute among the heirs as a cl oud up on the title to the pro perty and appe llants charged plain tiffs with coming into C ourt with unclean hands. 2

Questi ons of

law are revie wed de novo with no p resum ption of correc tness

. Union Carbide Cor

p. V. H udd leston , 865 S.W.2d 8 7, 91 (Ten n. 1993 ); Wells v. Tenn. Bd. Of Regents, 9 S.W.3d 779, 78 3 (Tenn . 1999). The Trial Court’s fi nding s of fa ct e njoya pre sumpti on of correctness and will be a f

firmed u nless the ev iden ce prep ond erates o therw ise. Cross v. City of Memphis, 20 S.W.3 d 642 (Tenn. 20 00).

The Chanc ell or’ s opi nion fr ames two is sues that a re mat ter s of la w: the v ali dity

of t he deed , and w heth er plain tiffs may assert a claim fo r the pe rson alty of the de cede nt.

The Tri al Court has jur isdi cti on to d ete rmi ne the vali dity of d eeds and to r emove clouds upon titles. Stearns Coal and Lbr. Co., v. Patton, 184 S.W . 855 (Ten n. 1916 ). An invalid deed granted to heirs creates a clou d upo n the title to the l and, and a court of equit y ha s jurisdi cti on to can cel or v oid th e deed upo n equ itable gro und s. Id . A court of equity will regard that “as d one which ought

to be done”.

. . and “grant rel ief where the right of relief or procedu re in law is inadequate.” Ame rican Mill C o., v. Cair o Oil M ill Co., 10 Tenn. Ct. App . 450 (192 9). Moreo ver, when a Chancery Court takes juri sdiction for one purpose it may exercise juri sdiction for al l purposes incidental to the ju risdictio n of the main subje ct, to pre ven t a mu ltiplicity of actio ns. Martin v. Martin , 755 S. W.2d 793, 79 7 (Tenn . Ct. App. 19 88). A pri ncipa l i ssue i s the nature and e xtent of the esta te held by Lura an d wh at prop erty she co uld d evise und er her W ill.

Wh ere a l if

e es tate i s be quea the d wi th an unlim ited pow er of disposition expressly

### -5-

given in the instrum ent, the fee is absolute w ith the pow er of disposition during the ben eficiary’s lifet ime, but any rema ining p rope rty will be su bject to the rem aind erman ’s intere st. Hobbs v. Wils on, 614 S.W.2d 328, 33 0 (Tenn . 1981); Ogle v. Ogle, 880 S.W .2d 668 (Tenn. 19 94); Tenn. Code Ann. § 66-1- 106. Also s ee, Redman v. Evans , 184 Tenn . 404 (194 7).

If the pow er of disposition is restricted, li m ite d or c onti ngent the l if e est ate is no t con verted into fee s impl e ow nersh ip. See Mar k v. Irwin , 136 S.W .2d 9 22 (T enn . 194 0).

The ca rd inalrul e f

or con structi on of will s is to as cer tai n and g ive e ff ectto the testator’s intent

. In re Walker, 849 S.W.2d 766, 76 8 (Tenn . 1993). W .C.’s Will is clear that Lura had the power to sell personal pro pertyfo r he r own support, and what was left over at her demise passed to the rem aind ermen . See Og le and Ten n. Co de An n. § 66-1 -106

. The Willthen deli neat es out the realty “for so long as she m ay live” and then d irects the gift over. Lur a re cei ved a li fe estate i n the Home Place by virtue of W.C.’s Will, and indeed the parties do not dispute this.

Lura did not attem pt to conv ey the property in fee, as her Will correctly acknowledges. See, McK night v. M cKnig ht, 115 S.W . 134 , 136 (Tenn . 190 8). She did express her wishes and desi res, and set forth cond itions she ho ped w ould b e accepted b y her children. Wh ile appellants do not d isput e that L ura he ld onl y a li fe estate, they

insi st t hat t he litigation over her W ill concluded in 1986 someh ow has converted her life estate into a feesimple interest. No authority has been shown f

or t his pr oposition . The conclu sion misc onstrues th e outcom e of that lawsuit. Examination of the Judgment entered reveal s that the v erdi ct me rel y he ld that t he Willwas val id. The jury f

ound and t

his Cour t af fi rmed t hat Lura wa s competentto make the Will and that she was not su bject to und ue influ ence .

Gregg and Sw ecker claim title by virt ue of Clar ence’ s deed . Cl are nce was to r ecei ve a child’s share or 1/9th equitable interest per the terms of W .C.’s Will. Acco rdingly, he could only convey his1/9th t otalto Swec ker a nd Greg g. The r emaini ng portion s of the deed are void. “A deed which purports to convey a great er estate than the grantor has willbe void only as to the excess and will be construed as a conveyance of that which it was in his power to convey.” Sloan v . Sl oan, 184 S.W.2d 391, 39 2 (Tenn. 19 45). The Trial C ourt correctly awarded Clarence’s sh are to these nieces. Wh ile not raised as an af fi rmative de fen se, appel lant s ins ist that becau se app ell ees remaine d sil ent and took no action to assert thei r claims, si nce Lura’s Estate had been concl uded they shouldnow be est opped f

rom as ser tinga cl aim

. This arg ument doe s not rec ogni ze a k ey ele ment of a suc cess ful estoppe l, i. e., the p arty rely ing upon the defense must sh ow pre jud ice or h arm cau sed by th e d ela y. Lane v. Associated Housing Developers, 767 S. W.2d 640, 647 (Te nn. Ct . App. 1988 ). Nor h ave defendants established plainti ffs have unclean hands.

Defendan ts have notshown ho w th ey su ffere d a ny d etri me nt b y the pla int iffs’ d ela y. There was t estim ony tha t defend ants d id no thing ex tra to the prop erty in terms of impr ovin g i t o r spending money on it, except f or maintenance.
The t axes and insurance th ey paid were app roximately equa l to the income generated by the property , and thus they suf fered no monetary l oss.

### -6- The Trial Court, i n its Supplemental Opinion, concluded that the statute o f li mita tion s was not app licable to the Court’s jurisdict ion to remove a cloud upon the title. Appellants conceded that there was no issu e of adver se pos sess ion an d Te nn. Code Ann. § 28-3- 110 is inapplicable becaus e it

deal s with the lia

bili ty of e xecut ors a nd admini str ator s, no t to actio ns to q uiet title. See Stear ns Coal and Lb r. Co., v. Patton, 184 S.W . 855, 859 -860 (Ten n. 1916 ). Assu ming arguendo the st atute of limit ations would apply, it appears that the sibli ngs partici pated in various d egrees i n tendi ng Clarence b efore his death, helping maintain the Home Place, and there i s no claim of adverse posses sion by Clarence. It was onl y whe n pl ain tiffs learned of the deed f rom Clarence to Swecker and Gregg upon recordation in 1993 , that they knew w ith certainty that defendants w ere cla imingthe entire est ate . Thi s action challenging the deed was brou ght well within the statutes of limitati ons.

For allthe f

oreg oing rea sons, we af fi rm th e Judg ment of

the Trial Court, wh ich will be mo difi ed to c orr ect cle rica l err ors in th e J ud gme nt a s m en tio ne d p rev iou sly.

We aff irm the Judgment of the TrialCourt and remand, with the cost of the appeal asses sed jo intly to the defend ants.



### _________________________ H ERSCHEL 

### P ICKENS 

### F RANKS 

### , J.