# FILED
June 27, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON

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JERE LYNN ROGERS and wife , ) CYNTHI A R . ROGERS, ) ) Fayette Chancery Plaintiffs/Appella nts ) Case No. 10904 v. ) ) MA RK W. DA

VIS, indiv idually

and as ) Appeal No. 02A01- 9610-CH-00258 Executor of the Estate of Winston ) C. Dav is, Deceased, an d TERESA ) DAVIS STEINBER G, MA RGA RET ) DAVIS PICKENS and GA RY ) STEPHEN DA

VIS, ) ) Defendants/Appellees )

APPEAL FROM THE CH ANCER Y COU RT OF FAYETTE COUN TY

AT SOMERVILLE, TEN NESSEE THE HONORABLE HOMER W. BRADBURY , CHANCELLO R

J. PA YSON MA

TTHEW S W. BOYETTEDENTON 205 W. Market St. Denton & Cary P.O. Box 819 P.O. Box 306 Somervill e, TN 38068 Bolivar, TN 38008 Attorney for Appellants Attorneys for Appellees

AF FIRMED

WILLIA M H. INM AN , SENIOR JUD GE

CONCUR:
DAVID R. FA RMER, JUD GE
ALAN E. HIGHERS , JUDGE2 O P I N I O N This is an acti on for specific per formance of a contract dated March 6, 1994 for the sale of 13.5 ac res of land. The propounded contrac t is a prin ted form, with various manuscripted provisions, some of which were canceled by line-drawing and some of which were interlined. In a reasonable light, the contract prov ides that the se ller agrees to convey “15 acres in” Fayette County to Jere Lynn Rogers and wife Cynthia Ross Rogers for $ 40,000.00 cash at c losing, l ess $500.00 earnes t money, conti ngent upon the purchaser

s obtaining a loan wit hin 20 days, and contingent “that the Winston Davis estate be c losed by theprojected cl osing date of thi s contract, 4 -29- 94.” The contract was executed “W inston C. Davis Est. by Mark W. Davis, Exec.” The closing d ate was in itially “20 days of this date” [M arch 6 1994] or March 26 1994. It was

changed to M arch 30, then to April 29, then to May 3, then to June 29, then to July 31, 1994, according to the m anuscripted alterations. The plaintiffs alleg ed that a closi ng date of “on or about” July

6, 1994 was agreed upon, that

the defendant did not appea r but informed “t he real estate agent or the closi ng attorney

” that he did not

intend to clos e the transacti on. They all eged that the contingency of the closing of the W inston Davis estate is not an obstacle since the non-closure was deliberate, and that the defend ant-executor has full power and aut hority to

sell subjec

t property

by vi rtue of the duly

probated wi ll of W inston C. Davis. Joined as defendants were Teresa Dav is Steinberg , Margaret Davis Pickens and Gary Ste phen Davis , against w hom no relief is sought. They answered separately

from the Executo r, allegi ng that (1) the complaint fail s to state a cl aim, (2) the contract ex pired and is unenforceable, (3) the property described i n the complaint “overlaps and/or encroaches” up on the property owned by

Gary Stephe n Davis and, thus, the plai ntiffs are seeking impossible r elief. They averred that if the3

Executor had the authority to sell the real estate by virtue of the will of Winst on C. Davis, s aid wil l requir

ed the Executor

to give these defendants the fir st refusal to purc hase the p rope rty. The defendant Executor filed an answ er allegi ng that he int ended to execute the contract i n his indiv idual capacit y but was “advis ed by his r eal estate age nt to sign as the Executor of the estate of Winston C. Davis ,” that the desc ription of the property i ncludes the res idence of Gary S. Davis , that he advi sed his real estate agen t tha t he wa s rea dy and able to co nvey hi s one -fo urth inte rest in th e pro pert y, but that he wa s not authoriz ed to convey the interests

of his sibli ngs. He al leged that the filing of this lawsuit prevented the closi ng of the estate; t hat in any ev ent the closing was “set for April 29, 1994" and did not occu r. Followi ng a trial on the merits, the chancellor denied specific

performance, holding that the purported co ntract wa s not clear a nd thus unenforceable, and that the Executor

had no authority

to sell the p roperty, but, even so, he was req uired to off er it f irst t o his sibli ngs. T he pl aint iff s app eal, and p rese nt f ive iss ues f or revi ew, which are directed to t he propriety of declining to grant spec ific performance. At the outset, we note that sinc e the complaint s eeks no reli ef against the defendants, Teresa Dav is Steinberg , Margaret Davis Pickens and Ga ry S. Da vis, the case against

them should have been dismissed on that ground, and they w ill not be further noticed. Our review is de novo

on the record, accompanied by the presumption t hat the chancellor’s findings of fact are correct unless the evidence oth erwise preponderates. T.R.A.P. 13(d); Hackett v. Sm ith County

, 807 S.W.2d 695, 699 (Tenn. Ct. App. 1990 ). The thrust of the appell ants’ argument is direct ed to their ass ertion that the Executor pos sessed the req uisite author ity to sel l the property pursuant to the will o f Winston C. Davis, w hich, as paraph rased, in the event he sur vived his wife, devised1 This item appears to include pro f

orma provisi ons. The wil l is 13 pag es, and Item Eight contains boiler-plate langua ge generally utilized for trust estates. 4 subject property to his four name d children. Item Eight of the will 1 gives the Executor “in the ex ercise of reas onable discre tion” the ri ght to “exercise any and all of the powers set forth in . . . T.C.A. 35-618 . . . .,” which, as pertinen t here, provides: 35-50-110. Specifically enumerated fiduciary powers w hich may be incorporated by

reference . -- Without diminution or restrict ion of the powers vested in the fiduci ary by law or elsewherein this instrument, and subject to all other prov isions of this instrument, thefiduciary, without t he nece ssi ty of pro cur ing any jud ici al a utho riz atio n the refo r, o r ap prov al t here of, shall be vested with, and in the application of such the beneficiaries of this instrument shall be autho rized to exercise, the powers hereunder specifically enumerated: * * * (6) By public or private sale or sales, and for such consideration, on su ch terms and subjec

t to such condi tions (if any) as in the j udgment of the fidu cia ry are for t he be st i nterests of th e est ate a nd th e ben efic iar iesthereof, to sell, ass ign, trans fer, convey , or exchan ge any real or persona l property of the estate, or the estate ’s undivided interest in such property, or any specific part of or interest therein (including, but not limited to, standing timber, rock, gravel , sand, grow ing crops , oil, gas and other minera ls or mineral rights or interests) , and to grant

easements on real property of the estate, and to participate i n the partiti on of real or per sonal property

in whic h the estate has an undivided interest; and to acco mplish any such transactions by contracts, endorsements, ass ignments, bil ls of sale, deeds of other appropri ate writ ten instruments executed and delivered by the fid uciary i n behalf of the estate, and to acknow ledge the execution of such in struments in t he manner provided by law for the acknowledgment of the execution o f deeds when such acknowledg ments are req uired or appr opriate.
The will also prov ided that “in the event it is necessar

y or prope r to sell a ny porti ons of th e farm realty that i n such event

I here by sp ecifically

gran t to eac h of my children herein a right of first refu sal with respect to the right to purchase said property.” The real propert

y of a testator

vests upon death in the named benefic iaries unless the w ill contai ns a specific pr ovision di recting t hat the property should be administered as

part of the estate s ubject to the co ntrol of the pers onal representativ

e. T.C.A. § 31-2 -103. The appellants argue tha t the statutory scheme then provides f or specifically enumerated fiduciar

y power s, T.C.A. § 35- 50-110, whi ch, when i ncorporated in the2 The plaintiffs filed three (3) contr acts in ev idence, each differi ng from the other. 5 will, vests in the Executor the right to administer the specificall y devi sed property as part of the estate sub ject to the control of the Executo r. This provision is the Executor’s right to sell the property, but only if in his judgment a sale is in the best interests of the estate and bene ficiaries thereof, or if the sale is ne cessary or proper. The record is replete w ith evidenc e that the estate of W inston C. Davis had been fully discharged, that there were no liens, taxes, claims or c harges ag ainst the estate , and that it was neither nece ssary nor proper for the E xecut or to sell t he pr ope rty. W e also agree with the chancellor that the propou nded contract 2 contains so many differing, conflicting and confusing pr ovisions as to render it unenforceable. Closing dates are different on each contract; conditions are different; some chang es are initial ed, while some are not. Al l in all, it is an obfuscat ory inst rument(s) and the chancellor w

as justified i n refusing to e nforce it. See Shuptrine v. Quinn , 597 S.W.2d 728 (Tenn. 1979). Moreover, the acreag e specified in t he contract i ncluded property a dmittedly ow ned indivi dually by Gary S. D avis, w ho was not a signatory to the agreement. The remedy of speci fic performance essen tially invokes th e discretio n of the chancellor. Parsons v. Hall, 199 S.W.2d 99 (Tenn. 1949); North v. Ro binette , 527 S.W.2d 95 (Tenn. 1975), and the contrac t must be certai n as to terms, must be clear, definiteand complete. The co ntract(s) at hand do not meet thes e criteri a. The judgment is affirmed, with costs assessed to the appellants

________________________________ W illiam H. I nman, Senior Ju dge6

CONCUR:

______________________________ David R. Farm er, Judge

______________________________ Alan E. Hi ghers, Ju dge