# FILED

Novemb er 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE

IN RE: ) ) ESTATE OF A LLA MAE LOCK E ) Davidson Probate No. 93P-908 SIMMONS, DECEASED. ) ) ALFORD

T. LOCKE, ) Appeal No. 01A01-9608-PB-00366 ) Petitioner/Appellee, ) ) v. ) ) CHRISTINE LOCKE FOSTER, ET AL., ) ) Defend ants/Appe

llants, )

APPEAL FROM THE PROBATE COURT OF DA VIDSON COUNTY AT NASHVIL

LE, TENNESSEE

THE HONORABLE F

RANK G. CLEMENT, JR., JUDGE

For the D efenda

nts/Appellants : For the Petitioner/Appellee : Allen Shoffner John C. Shofner Shelbyville, Tennessee Shelbyville, Tennessee

AFFIRMED

HOL LY KI RBY LI LL ARD , J.

CONCURS: ALAN E. HI

GHERS, J. DAV ID R. F ARM ER, J.1 Under the will, Locke was the sole beneficiar y still alive and would inherit the entire estate. OPINION This case involves the petition of the admin

istrator of an est ate to pr obate an alleged ly stolen will. The tria

l court fo und that the will had

been stol en and a

dmitted the

will to pro

bate. We affirm. In 1991, the decedent, Alla Mae Locke Simmons (“Decedent”) and her husband, an elder

ly couple, were cared for by a nurse , Ann Moore (“ Moore”). The Decedent gave Moore a power of attorney to help her manage her affairs. D uring this time period, on August 5, 1991, the Decedent execute d a valid w ill. Subsequently, a police investigation revealed that Moore had defrauded the Decede nt out of most of her liquid assets. She misused the Decedent’s credit cards, wrote large checks for

her own benefit , and cashed out some of the Decedent’s life insura nce policies, pock eti ng the pro ceeds. Subsequently, the Decedent and her husband were admitted to the hospital. Both Decedent and her husba nd we re in poor condition; Decedent was unable to speak. The D ecedent died on June 18, 1993. Moore absconded and has not been located. Sh ortly after the Decedent’s death, Appe llee Alfred T. Locke (“Locke” ), her surviving brother, filed a Petition for Appointment of Administrator, in wh ich he prayed to be appointed administrator

of Decedent’s estate. In the petition, he swore that a diligent search had been made for a will, that

none had been found, and that Decedent had died intestate. Locke subseque ntly filed an accounting. In 1995, a distributee of the estate filed a petition to compel distribution of the estate. The petition alleged that Locke was stalling distribution of the estate because he believed a will existed which would give him a greater share of the estate. 1 Citing this as a conflict of interest, the petitioner also asked that Locke be removed as administrator. Locke subsequently filed a petition to probate

a lost or stolen will. Nineteen distributees (“Distributees”) joined in filing an answer and counterpetition, once again seeking Locke’s removal as administrator. At the bench trial in this cause, the parties stipulated that the Decedent had executed a valid will on August 5, 1991. Over objection from the Distribute es, Locke read into evidence portions of

a depositio n taken f

rom Decedent’s sis ter-in- law, Ele anor Simmo ns (“Sim m ons”). Simmons testified in her de

position tha

t, on Augus t6, 1991, she rode with Decedent and Moore to the bank, where Decede

nt had a sa

fety deposit

box. Simmons stated that Decedent and Moore entered the2

ba nk with Decedent’s will and came out without it. On cross-examination, Simmons stat ed tha t Decedent had a tem

per and h ad been

known for

writing ne

w wills whe

n angered. She also

testified that Decedent’s practice was not to tea r up a will when she wished to

revoke it, but rather go to her attorney to have a new one drafted. Simmons acknowledged that she w as not ce

rtain tha t the will had been taken into the bank or deposited in the safety deposit box. Nashville Metropolitan Police Detective Patricia Goodman (“Goodman”) te stified at trial that she investigated Moore’s treatment of Decede nt and Decedent’s husband. In her investigation, she discovered that Moore had defrauded Decedent out of most of he

r liquid as sets, misus ing cred it cards, writing large checks for her own benefi t, and obtaining the cash value of life insurance policies. Goodman testified that Decedent and her husband we re both in poor

shape wh en she fi rst

saw them; the Decedent was incoherent at the time. Whe

n Goodman

saw them a

gain on May 15, 1992, Decedent

could not speak. Goodman called paramedics, and both Dece dent and her husband

were admitted to the hospital. Moore was to be prosecuted, b ut she absconded and could not be found. Locke introduced into evidence safety deposit box access re cords indicating that on August 6, 1991, Moore had op ened Decede nt’s box. Locke ar

gued that this was do ne to plac e the will inside. The records also showed t hat M oore subsequently opened the box on August 20, 1991. Finally, on September

20, 1991, Moore cleaned out the boxand closed the rental contract with the bank. At the trial, the Distributees read into evidence part of the de position of Wayne Detring, the attorney who had prep ared the August 5 wi ll for De cedent. Detring h ad a cop y of the A ugust 5 will in his files. Detring testified that he never saw Decedent a gain after execution of the will. The court also admit

ted into evidence

an order dated Ma

y 12, 1992, appointin g a conse rvator f or Dece dent. From this evidence, Locke argued that Dec edent execu ted a will on August 5 and, with Moore, placed it into the sa fety dep osit box on A

ugust 6. At

some poin

t after, Moore stole the contents of the sa

fety deposit box, including the will. The will was never found because it had been stolen by Moore, not because it had been revoked. In additio n, as of Ma y 12, 1992, until the ti me3

of her death, June 18, 1993, Decede nt was men

tally inco mpetent a

nd therefore could not hav e legally revoked the August 5 will during that time period. The Distributees argued that Simmons was not certain that the will was placed into the safety deposit box on August 6 and had no idea whether it was later removed by Moore or the purpose for which it was removed. The Distributees argued that Moore may have removed it at the Decede nt’s behest and given

it to her. T

he Distri butees a lso mainta

ined that Moore, na

med as ex ecutr

ix o f Decede nt’s esta te in the A

ugust 5 will , had no mo tive to ste al the wil l. At the conclusion of

the evidence, the trial court ruled from the bench. The court found that the will had been placed i n the saf ety depos it box and t

hat it could have been removed by Moore on August 20 or September 20. The court also foun d that, as of May of 1992, Decedent was incompet ent. The court then posed the quest ion, “[D ]id she [ Decede

nt] with sound mind revoke the will sometime

between August 20 of ‘91 and May of ‘92?” The court answered its own question: The evidence is clear

to me that Ann Moore was a disl oyal ser vant and e

ngaged in criminal activity

and clearly did not have the best interest of Mr. or Mrs. Simmons [Decedent]. I am convinced that if she withdrew documents from the dec edent’s safety deposit box for ill motive, that she would have had no motive to take the will to Mrs. Simmons [Decedent] for her future action. * * * I’m of the opi nion that s he [Moor e] close d it [the sa

fety dep osit

box] not for the benefit of the d ecedent, and I’m convinced that the criminal activity of Ann Moore interceded in this matter and clearly rebuts the presumption that thedecedent intentionally and competently revoked a will that she had written previously. The court cr edited Si mmons’ deposition testimony that Decedent always had a new will written when she wished to revoke an e arl ier one and the deposition testimony of Wayne Detring that he

never saw Dec edent ag ain afte

r the execution of

the Augus t 5 will as further evidence that Decede nt had never revoked the August 5 will. The court accepted the will into probate. From this decision, the Distributees now appeal. The Distributees raise several issues on appeal. First, they contend that the cour t erred by admitt ing Simmons’ de

position int

o evidenc e rathe

r than requiring Simm

ons to testi fy in per so n . They also asse

rt other e videntia ry issues , arguing

that the tr

ial court er

red by allowing an swers to lead ing questions in Simmons’ deposition to be read into evidence, by reading and cons idering a letter written b y Simmons co ntainin g hearsay and inadm issible opinions, and

by allowing certa

in testimony by Goodman which the Distributees claim was hearsay. The Distributees claim that the4

trial court’s findings were not supporte d by the ev

idence a nd that the

trial cou rt erre d in admitting the will to pro

bate. Fin ally, the y argue that Locke should have been judicially estopped fr om offering the will for probate and should have been r emoved as administrator of the estate. Our review of this ca se is de novo upon the record with a presumption of correctness of the findi ngs of fact

by t he trial c ourt. Abs ent err or of law , the tria

l court’ s decision will be affirmed, unless the evidence preponderates ag ainst the factual findings. Tenn. R. Ap p. P. 13(d ). No presumption of correctness attaches to the trial court’s c onclusions of law. See Carvell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). Rulings on the admissibility of evidence are

normally within the trial court’s discretion, only to be reversed upon an abuse of that discretion. Dockery v. Board of Prof’l Re sponsibility of the S. Ct. of Tenn. , 937 S.W.2d 863, 866 (Tenn. 1996). The Distributees argue first that the t ria l court erred in admitting Simmons’ deposition testimony. Without Simmons’ testimony, there is no evidence that the will was pl aced in t

he safe ty deposit box. A trial court may under some circumstances admit a non-pa rty’s deposition testimony

as substantive evidence instead of requiring the witness to testify in person. R ule 32.01 of th e Tenness ee Rules o f Civil Proc edure pr ovides, in pertine nt part: At the trial or upon the hear ing of a motion or an interlocutory proceeding, any part or a

ll of a de position, s o far as admissible under the rules of evidence applied as though the witness were then present and testifyin g, may be u sed against any party who was present or represente d at the taking of the deposition or who had reasona ble notic e there of, in ac cordanc e with any of the fo llowing pr

ovisions: * * * (3) The deposition of a witness, whether or not a party, may be used by any partyfor any purpose if the court finds: . . . (C) that thewitness is unable to attend or testify because of age, illness, infirmity, or imprisonment . . . . In admitting Simmons’ deposition testimony, the trial court remarked, “I will allow the introduction [of Simmons’ deposition into evidence] because of the fact that her de position reveals tha t sh e [Simmons] is of some

years, and upon Mr. John Shofner’s [Locke’s attorney’s] repr esentation that her health and years would make her present

attendance unreasonable.” Unde r Rule 32.01(3)(C),

we find no abuse of discretionin the tria l court’sadmission o f Simmons’ d eposition testimony i nto evidence. The Distributees also allege that the trial court should have sus tained the ir objec tion to certain questions in Simmons’ deposition as being leading. While the Distributees’ brief does not state clearly the questions in dispute on appeal, from the pages in the record cited, they appa

rently5

appeal t he trial c ourt’s a

dmission of

the following questi on: MR. JOHN SHOFNER: “And you [Simmons] wer e with th em [Decedent and Moore] on this occasion?” Answer: “Of course. I d idn’t read the will. I didn’t see it, but I knew the purpose of it.” “You had, to your

knowledge, just -- she [Decedent] had, to your knowledge, just executed a will?” MR. ALLEN SHOFFNER: That’s leading, Your Honor. The tria l court fo und that the questio n to be “bo rderline ” leadin g but perm itted it nonetheles s. On appeal, it must be noted that “[i]t is within the sound discretion of the trial court whether to allow a pa

rty to examine a witness by leading questions.” Wilkerson v. Altizer , 845 S.W.2d 744, 747 (Tenn. App. 1992). On review, “unless (the appe llate court) can see that the question was not only clearly

leading but clear

ly prejud icial, the action of

the (trial court) will not be interfered with.” Hale v. State , 198 Tenn. 461, 476, 281 S.W.2d 51, 58 (1955) ; see Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and otherwise appr opriate shall not be set aside unl ess , considering the whole

record, error involving a substantial right more probably than not affected the judgmentor would r

esult in pr ejudice to the judic ial proc ess.”). The only question objected to on the pages of

the record cited was whether, at the time of the August 6 trip to the bank, the Decedent had “just executed a will.” However, the parties stipulated that, on August 5, the Decedent executed

a valid will. Theref

ore, the Distributees cannot demonstr ate pre judice f rom the a dmission of

this testimony into evidence. The Distributees also objected to a letter by Simmons wh

ich Lock e attempt ed to ente r into evidence. The lette

r was not f

iled as a trial exh ibit, but the

trial cou rt read parts of it in order

to rule

on the Distributees’ hearsay objections. Although the Distributees can point to no part of the record which indicates that the trial court was influenced by the letter in making its ruling, they argue that the trial judg e should

have sustained their hearsay objection without reading any portion of the letter. In the absence of any demonstrated prejudice , the Distributees’ argument is with out merit. In addition, from a pr

actica l standpoi nt, it is dif

ficult to see how the trial court could have ruled on the Distributees’ objection without reading any portion of the letter. The tria l court is affirme d on this issue. The Distributees assert that the trial erred in allowing Goodman to testify that her6

investigation into Moore’s treatment of Decedent was prompted by a phone call alerting her to the problem. The trial court found that the statement was not hearsay because it was not admitted for the truth of the matter asserted. Rather, the statem ent merel y indicated what prompted Goodman to investigate. In res ponse to the trial court’s question, Goodman stated that she would have investigated the alleged mistreatment regardless of the vera city of the phone call. Thus, the phone callwas not hearsay and the trial court did not err i n admitting it. See Tenn. R. Evid. 801(c); Anderson v. Nichol

s , 39 Tenn. App. 503, 518, 286 S.W .2d 96, 103 (1955) ( holding tha

t hearsa y rule does not bar testimony that is relevant regardless of its truth or falsity). The Distributees also contend on appeal that there was insufficient e vidence to support the trial court’s findings o f fact a nd rebut t he presu mption that

the will had bee n revoke d. When a

will cannot be found at a testator’s death, a presumption arises that the will has bee n revoked. In re West , 729 S.W.2d 676, 678 (Tenn. App. 1987). T hi s presumption can be rebutted, however, by showing “that the testator did not have custody and control of the will after execution, or that he had lost his testamentary capacity for a period befor e his death and that the will was in existence at the time the loss of competency occurred.” Id. The loss or destru c tion of a will by means other than revocation by the testator can beproven by positive or circumstantial evidence. Haven v. W rinkle , 29 Tenn. App. 195, 212, 195 S.W.2d 787, 794 (1945). To set up a lost or stolen will, the petitioner must demonstrate that the testator execu ted a valid will, show that the testator did not revoke the will, show that the will cannot be found after a diligent search, and prove both the conte nts and the substance of the will. See Shrum v. Powell , 604 S.W.2d 869, 871 (Tenn. App. 1980). Finally, the proof necessary to establish a lost or stolen will must be clear, cogent, and c onvincing. See id. In this case, there is no dispute as to the validity of the will or as to its contents an d substance. The Distributees contend that the evidence presente d was inadequate to rebut the presumption that the w ill was revoked. The trial court found that Simmons’ deposition testimony, the safety deposit box access records, the fa ct that Decedent never

wrote a new will, and

Moore’s obvious criminal behavior were clear and convincing evidence that Moore or Decedent placed the will in the safety deposit box, that Moore later removed it, and that thewill could not be found later because Moore either kept or destroyed it. The Distributees note that the order app ointing a conservator

for Decedent made no finding of incompetency. H owever, Detective Goodman testified that when she first saw the Dec edent, she was incoherent, and when she saw the Decedent again on7

May 15, 1992, the Decedent was unable to speak. Viewing the evidence as a whole, we find that the trial court did not err

in finding the evidence clear and convincing that the Decedent did not revoke the August 5 will. The trial court is affirmed on this issue. The Distributees also maintain on appeal that Locke was judicially estopped from offering the will for probate. In his sworn Petition for Appointment of Administrator, Locke stated that he had searched

diligently

for a will and none had been found. Subsequently, Locke petitioned the trial court to admit the stolen will for probate. At the trial, the trial cour t a sked Locke’s attorney why Locke changed positions on the issue of the existence of a will. Locke’s attorney e xplained that Locke had not known of the will or of Moore’s activitie s until his a ppointmen

t as administrator of the estate. In closing arguments, Locke’s attorney began a rguing the issue of judicial estoppel. The trial court interrupted him and stated, “I agree with you. I’ m going to let you off the hook on that part of your argument.” The Distributees did not object to the fact that Locke did not take the stand to testify on this issue. Judicial estoppel

prevent s a party from denying the truth of a former sworn statement in any later proceeding, plea, or motion. See Terox Corp. of Am. v. Ca rr , 52 Tenn. App. 595, 602-03, 376 S.W.2d 735, 738-39 (1964). But “[i]t is well settled that judicial estoppel does not apply where there is an explanation showing such statement was inadvertent, inconsiderate, mistaken or anything short of a willfully false statement of fact.” Id. at 603-04, 376 S.W.2d at 739. Locke’s attorney explained to the trial court’s satisfaction that Locke’s original sworn statement that no will could be found and that Decede nt died inte state wa s due to lack of k nowledge , not an at

tempt at f raud. On appeal, The Distributees argue that Locke himself should have been called to testify to that effect. However, the D istribu tees point to no place in the record in which their counsel objected to the trial cour t’s acceptance

of the explanation given by Locke’s attorn ey without Locke’s testimony. If the Distributees failed to object at trial to the trial court’s ruling in the absence of testimony by Locke, this issue will not be considered on appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule sha ll be construed as requiring relief be grant ed to a pa rty resp onsible f

or an er ror or who failed

to take whateve r act ion was reasonably available to prevent or nullify the harmf ul effect of an error.”); Ammons v. Bonilla , 886 S.W.2d 239, 243 (Tenn. App. 1994); Guess v. M aury , 726 S.W.2d 906, 922 (Tenn. App. 1986). Finally, the Distributees cont end that the trial court should have removed Locke as8

administrator

of the estate because as the benef iciary of the will ha

d a confl ict of inte rest. Thi s issue is without merit. See Nutting v. Alsup , 60 Tenn. App. 467, 474-76, 448 S.W.2d 77, 80-81 (1969) (removal not necessary when “the actions of the administrator are not adverse to the interests of the estate or its distr

ibutees as such , but it is adverse to other interests of the distributees arising outside the personal estate, i.e., their rights to a share of the surplus of the r ealty after payment of debts”). The decision

of the tri al court

is affir med. Costs a

re asse ssed aga

inst the Appe ll ants, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J.

CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.