FILED

September 2, 1997

Cecil W. Crowson

Appellate Court Clerk

1 September 2, 1997

2 FOR PUBLICATION

3

4

5 IN THE SUPREME COURT OF TENNESSEE

6

7 AT NASHVILLE

8

9

10

11

12 GERTRUDE JACKSON AND JOSEPHINE (

13 J. JOHNSON, (

14 (

15 Plaintiffs-Appellants, (

16 (

17 ( Williamson Chancery

18 v . (

19 ( Hon. Henry Denmark Bell,

20 ( Chancellor

21 HELEN PATTON, EXECUTRIX OF THE (

22 ESTATE OF JENNIE MAI JACKSON, ( S. Ct. No. 01S01-9609-CH-00177

23 DECEASED, (

24 (

25 Defendants-Appellees. (

26

27

28

For Plaintiffs-Appellants 29 : For Defendants-Appellees :

30

31 Daniel L. Wischhof Joseph F. Welborn, III

32 Wischhof & Allen Bass, Berry & Sims

33 Goodlettsville Nashville

34

35 Susan B. Evans Douglas S. Hale

36 Brentwood Hale & Hale

37 Franklin

38 William D. Castleman

39 Goodlettsville

40

41

42

43

44

45

46 O P I N I O N

47

48

49

50

51

52 JUDGMENT OF COURT OF APPEALS

53 REVERSED; CASE REMANDED. REID, J.

54 This will contest case presents for review the decision of
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1 the Court of Appeals that the trial court erred in sustaining the

2 most recently executed instrument as the testatrix’s last will and

3 testament. For the reasons stated herein, the decision of the Court

4 of Appeals is reversed and the judgment of the trial court is

5 reinstated.

6

7 I

8

9 The testatrix, Jennie Mai Jackson, executed two

10 instruments, both of which proclaim to be her last will and

11 testament. The proponent of the 1977 will, which was admitted to

12 probate in common form, is Helen Patton. She is the granddaughter of

13 the testatrix and the sole beneficiary under the 1977 will. She is

14 the contestant of the later instrument. The proponents of the 1989

15 will, which was produced after the 1977 will had been probated, are

16 Gertrude Jackson and Josephine J. Johnson, two of the testatrix’s

several children. The testatrix’s heirs, per 17 stirpes , are the

18 beneficiaries under the 1989 will.

19

20 All parties agree that the first instrument, which was

21 executed on February 18, 1977, was properly executed and is the

22 testatrix’s last will and testament, unless it was revoked by the

23 second instrument, which was executed on April 6, 1989. The 1989

24 will also is in proper form. It was prepared by an attorney, Vance

25 Little, who testified that he had practiced law since 1965 and had

26 written several hundred wills. It contains the testatrix’s

27 signature by her mark, an attestation clause, the signatures of two

28 attesting witnesses, and an affidavit signed by the attesting
1

Tenn. 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.

2

No issue is made regarding the jurisdiction of the chancery court to

hear a will contest. See Tenn. Code Ann. § 32-4-109 (Supp. 1996).

3

Since 1992, an issue devisavit vel non may be tried by the court if a

jury is not demanded. See Tenn. Code Ann. § 32-4-107(a) (Supp. 1996). 

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1 witnesses and a notary public. The contestant acknowledges that

2 facially the 1989 will meets all the requirements of Tenn. Code Ann.

§ 32-1-104. 13 The issue made by the pleadings is whether the 1989

4 will was executed in the manner required by the statute. 

5 Specifically, the contestant asserts that the testatrix failed to

6 disclose to the attesting witnesses that the instrument was her last

7 will and testament and that the testatrix did not execute the

8 instrument in the presence of the attesting witnesses. 

9

The case was tried by the chancellor 2 without a jury. 310

11 After hearing the testimony of the lawyer who prepared the will, the

12 proponents of the 1989 will, Mrs. Jackson and Mrs. Johnson, the

13 proponent of the 1977 will, Mrs. Patton, and the attesting witnesses,

14 Elizabeth Carothers and John H. Carothers, the trial court held that

15 the 1989 instrument is the last will and testament of the deceased,
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1 Jennie Mai Jackson. The court found specifically that:

2

3 Elizabeth Carothers and John H. Carothers did

4 subscribe his/her respective names as an

5 attesting witness to the said paper writing;

6 that the said paper writing was written in the

7 lifetime of [Testator], deceased, and published,

8 signed, and subscribed by her in the presence of

9 the attesting witnesses; that the said

10 [Testator] was then of sound mind; and at her

11 request, said attesting witnesses signed said

12 paper writing in her presence and in the

13 presence of each other on April 6, 1989.

14

15

16

17 The Court of Appeals reversed the decision of the trial

18 court sustaining the will, upon finding that the evidence showed the

19 testatrix had not signified to the attesting witnesses that the

20 instrument was her will. The Court of Appeals held that knowledge by

21 the attesting witnesses that the instrument was the testatrix’s will

22 did not meet the requirement of the statute if that knowledge was not

23 acquired from the testatrix personally. The court stated: “No

24 evidence is found that the testatrix signified to the attesting

25 witnesses that the instrument was her will. This is an

26 indispensable, statutory part of the attestation of a witnessed

27 will.” 

28

29 I I

30

31 The first matter to be considered is the standard of

32 review on appeal. Prior to 1992, Tenn. Code Ann. § 32-4-107 (1984)

required an issue devisavit 33 vel non be tried by a jury. Since the

34 1992 amendment, trial by jury is not required but may be demanded. 

35 Tenn. Code Ann. § 32-4-107(a). When the issues of fact have been
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1 submitted to a jury and the jury verdict has been approved by the

2 trial judge, findings of fact will be set aside only if there is no

3 material evidence to support the verdict. In re Estate of Rhodes ,

4 436 S.W.2d 429, 430-31 (Tenn. 1968); Rule 13(d), T.R.A.P.; 1

5 Pritchard on Wills and Administration of Estates § 393 at 587-88 (5th

6 ed. 1994). However, where the issue has been tried by the court

7 without a jury, the review of findings of fact is d e novo upon the

8 record accompanied by a presumption of correctness, unless the

9 preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). 

10 Therefore, the Court in this case must decide whether the evidence

11 preponderates against the trial court’s finding that the 1989 will

12 was executed according to the formalities required by the statute. 

13

14 III

15

16 There is no dispute about the main events that occurred on

17 April 6, 1989. The disagreements are found in the details and the

18 significance of the testimony regarding those details. Prior to that

19 date, the attorney, Vance Little, had prepared for the testatrix a

20 last will using information given to him by another lawyer in his

21 firm. At that time, the testatrix was 80 years of age and used a

22 wheelchair. She was physically unable to write her name, and for

23 some time she had signed checks and apparently otherwise made her

24 signature by writing her mark. The contested instrument was executed

25 in the living room of the testatrix’s residence. Prior to the

26 execution of the instrument, Mr. Little spent approximately 15

27 minutes with the testatrix alone. Then she, Mr. Little,

28 Mrs. Jackson, Mrs. Johnson, another daughter, Mrs. McCoy,
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1 Mr. Carothers and Mrs. Carothers gathered in the living room. 

2 Mr. Little presented the instrument to the testatrix, who then made

3 an “X” on the signature line immediately below the last paragraph of

4 the instrument, which states, “I am signing this will on April 6,

5 1989.” Then, Mr. and Mrs. Carothers signed immediately below the

6 attestation clause, which provides: 

7

8 This Will was signed before both of us. We knew

9 that it was a Will, and we were requested to be

10 witnesses. We both witnessed the Will and

11 signed in the presence of the person making the

12 Will and in the presence of each other on the

13 above date.

14

15

16

17 Mr. and Mrs. Carothers also signed the affidavit of attestation. The

18 affidavit states:

19

20 We swear that the above Will was signed by

21 Jennie Mai Jackson before us. It was said to be

22 a Will and we were requested to be witnesses. 

23 We witnessed the Will in her presence and in the

24 presence of each other. Jennie Mai Jackson was

25 more than 18 years old and was of sound mind

26 when the Will was signed.

27

28

29

30 Mr. Little then signed the affidavit as a notary public.

31

32 The contestant asserts two narrow factual issues which she

33 says were not proven and which therefore render the execution fatally

34 defective - the testatrix failed to signify to the attesting

35 witnesses personally that the instrument was her will and the

36 attesting witnesses did not witness the testatrix sign her mark on

37 the will. For these propositions, the contestant relies upon the
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1 testimony of the attesting witnesses.

2

3 The evidence shows that Mr. Carothers cannot write except

4 to sign his name and he cannot read, although he recognizes his

5 signature and the signature of Mrs. Carothers. The evidence also

6 shows that Mrs. Carothers has difficulty seeing but she is able to

7 recognize her signature. Mr. and Mrs. Carothers testified that they

8 recognized their signatures on the contested instrument, but they

9 testified they did not remember signing it. They remembered going to

10 the testatrix’s house and they remembered that one daughter was

11 present at the time. Mr. Carothers stated he knew all the daughters

12 but had forgotten their names. In response to the question, “Did

13 anybody ever explain to you what that document was?”, Mrs. Carothers

14 answered: “Well, when he came out of there, a lawyer came out there,

15 he was telling what it said, but other than that, I didn’t know.” 

16 Mrs. Carothers, after identifying her signature, added: “If it’s my

17 signature, I had to do it, I guess.” Mr. and Mrs. Carothers also

18 testified that they did not read the attestation clause or the

19 affidavit and that no one read those provisions to them. Mr. and

20 Mrs. Carothers testified they did not see Mrs. Jackson sign the

21 instrument; however, their testimony was not unequivocal, as

22 Mrs. Carothers stated: “She could have did it,” “I’m remembering

23 back.” When asked on cross-examination, “Did you know what document

that you were signing 24 ?”, she replied, “No.” (Emphasis added.) 

25

26 The contestant asserts that the testimony of the attesting

27 witnesses in this case constitutes denials of their attestations,

28 which causes the presumption of due execution, arising from the
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1 attestation clause, to fail. The contestant further asserts that in

2 the absence of the presumption, clear and convincing proof of

3 execution is required in order to sustain the will, and that such

4 proof is lacking in this case. She, therefore, concludes that the

5 instrument fails as a will.

6 

7 The contestant rightly states that the presence of the

8 attestation clause creates a presumption that the instrument was

9 properly executed. However, the record does not support the

10 contestant’s contention that she has carried the burden of proving

11 the will was not executed according to the formalities of the

12 statute. 

13

14 The proponent of a will in a will contest is required to

15 produce the subscribing witnesses if they can be found. Tenn. Code

Ann. § 32-4-l05; Jones v. Arterburn 16 , 30 Tenn. 97, 103 (1850); Wheeler

17 v. Parr , 3 Tenn. Civ. App. 374, 381 (1912). However, the proponent,

18 by offering the testimony of the subscribing witnesses, does not

19 vouch for their credibility nor is the proponent bound by their

20 testimony. 1 Pritchard on Wills and Administration of Estates § 348

21 at 531 (5th ed. 1994). An instrument may be sustained as the

22 decedent’s last will and testament in opposition to the testimony of

23 the subscribing witnesses. The rule applicable to this case is well

24 stated in Whitlow v. Weaver , 478 S.W.2d 57, 60-61 (Tenn. Ct. App.

25 1970):

26

27 [T]he general rule is that the proponents of a

28 will establish a prima facie case as to its due

29 execution when the genuineness of the signatures
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1 of the testator and subscribing witnesses along

2 with an attestation clause containing

3 recitations of due execution is shown. Such a

4 prima facie case in favor of the due execution

5 of a will is not abandoned by presenting

6 testimony of living witnesses which is

7 otherwise. 

8

9

10

11 That court continued:

12

13

14

15 . . . Thus it is held that by virtue

16 of the presumption the burden of going

17 forward with the evidence shifts from

18 the proponent of the will whose

19 execution is at issue to the

20 contestants.

21

22 The presumption is rebuttable, but

23 it is established that, to overcome the

24 presumption, the contestant must

25 present “clear and satisfactory” proof

26 of lack of due execution.

27

28

29

Id. 30 at 61 (quoting from annotation, 40 A.L.R.2d 1225).

31

32 The evidence presented by the contestant in this case does

33 not overcome the presumption of due execution. It is admitted that

34 the instrument bears the signature of the testatrix and the

35 signatures of Mr. and Mrs. Carothers as attesting witnesses. The

36 testimony of Mrs. Jackson and Mrs. Johnson shows that the instrument

37 was signed by the testatrix and also by Mr. and Mrs. Carothers, and

38 that each signed in the presence of the other. 

39

40 The fatal defect in the proof found by the Court of

41 Appeals was that the testatrix failed to signify to the witnesses

42 that the instrument was her will. The Court of Appeals found this to
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1 be “an indispensable, statutory part of the attestation of a

2 witnessed will.” The law is clear that for the execution to be

3 valid, the subscribing witness must know that the instrument is a

4 will. Cooper v. Austin , 837 S.W.2d 606, 611-13 (Tenn. Ct. App.

5 1992); Lawrence v. Lawrence , 250 S.W.2d 781, 784 (Tenn. Ct. App.

6 1957). However, the law is equally clear that a formal declaration

7 by the testatrix is not necessary. In Miller v. Thrasher , 251 S.W.2d

8 446, 447 (Tenn. Ct. App. 1952), the assignment of error was identical

9 to the finding by the Court of Appeals in the present case. The

10 opinion in that case reflects the applicable rule of law:

11

12 Under our statute it is not essential that

13 an express request be made by the testator to

14 the attesting witnesses that they witness his

15 will. The statute sets out that he shall

16 signify to them that the instrument is his will,

17 and this may be implied from his acts and

18 conduct and from the facts and attending

19 circumstances. . . .

20

21 . . .

22

23 . . . In this State evidence of due

24 execution of a will is not confined to the

25 attesting witnesses but may be proved by other

26 competent evidence including the testimony of

27 persons who were not subscribing witnesses but

28 were present at the execution of the will.

29

Id. 30 at 448-49; see In Re Estate of Bradley , 817 S.W.2d 320 (Tenn. Ct.

31 App. 1991); Pritchard on Wills and Administration of Estates § 213 at

32 352 (5th ed. 1994).

33

34 In this case the circumstances show that the purpose of

35 the meeting on April 6, 1989 was the execution of the testatrix’s

36 will. Both Mrs. Johnson and Mrs. Jackson testified that the

37 testatrix requested her three daughters, the lawyer, and the
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1 attesting witnesses to be present, to “see her make a new will.” 

2 Mrs. Carothers, despite her denials, stated, “He [the lawyer] was

3 telling what it said.” The lawyer had just spent some time alone

4 with the testatrix and had possession of the instrument to be

5 executed. This evidence is a sufficient basis for the conclusion

6 that the lawyer identified the instrument and the purpose of the

7 occasion. 

8

Neither Cooper v. Austin 9 , 837 S.W.2d 606 (Tenn. Ct. App.

10 1992) nor Lawrence v. Lawrence , 250 S.W.2d 781 (Tenn. Ct. App. 1957)

11 supports the contestant’s position. In Cooper , the only evidence on

12 which the proponents could rely to prove that the subscribing

13 witnesses knew the instrument executed was a will, was the testimony

14 of the attesting witnesses and the notary public. Cooper , 837 S.W.2d

15 at 607-10. The proof, as found by the court, was: “there is

16 uncontroverted, affirmative proof that Dr. Bisson did not signify to

17 at least one attesting witness that the instrument to be witnessed

18 was his will or a codicil thereto.” Id. at 613. The inescapable

19 conclusion on the facts of that case was that at least one attesting

20 witness did not know the instrument was a will. In the case before

21 the Court, however, the surrounding circumstances suggest that all

22 interested parties knew the instrument was the testatrix’s will. 

23

24 In Lawrence , the will had no attestation clause and the

25 testatrix did not signify to the attesting witnesses that the

26 instrument was her will. Lawrence , 250 S.W.2d at 782, 784. 

27 Moreover, the testimony of the only surviving witness showed that she

28 did not know that the instrument was the will of the testatrix. Id.
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1 at 784. The Court, therefore, found that, “[b]y the uncontradicted

2 evidence before us that essential requisite of the execution of a

3 valid will is lacking.” I d .

4

5 The Court concludes that the contestant has failed to show

6 that the will was not duly executed. Therefore, the evidence does

7 not preponderate against the trial court’s finding that the

8 instrument dated April 6, 1986 is the testatrix’s last will and

9 testament.

10

11 The decision of the Court of Appeals is reversed, and the

12 case is remanded to the trial court for further proceedings.

13

14 The costs are assessed against the contestant, Helen

15 Patton.

16 ________________________________

17 Reid, J.

18

19 Concur:

20

21 Anderson, C.J., Drowota, Birch,

22 and Holder, JJ.