# FILED
Au gust 29, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

IN RE: ) C/A NO. 03A01-9703-CH-00099 ) The Est ate o f ECKLE S. ROSS, ) KNOX CHANCERY ) Deceased. ) HON. H. DAVID CATE, ) CH ANCELL OR ) ) REVERSED AND REMA NDED

PAUL T . C OLEMAN an d J ASON I . E PST EI N, BAKER, DONELS ON, BEARMAN & CA LDW ELL, Knoxville, for Appella nt/Pr oponent Fir st Tenness ee Bank National Association. A. BENJA MIN ST RAN D, JR., STRAND & GO DDA RD, Dandridge, for Appellee//Contestant Sonia Amos, and CAR LYLE UREL LO, PAINE , SWINEY , AND T ARW ATER , Knoxvill e, for Gle nda Ross, Stephanie Ross and Jennifer Ross.

O P I N I O N

Franks. J.

In this action the T rial Court determ ined that the ex ecution of decede nt’s will di d not meet t

he stat utoryrequir ements for a dmitting the wil l to pr obate, and the proponent of t

he will ha s appeale d. T.C.A. §32-1-104 sets forth the requirements for executing a valid Last2

Will a nd T estam ent:

W ill oth er th an ho log rap hic or n un cup ativ e.- The exec ution o f a w ill, other t han a holographic or nuncupative wil l, must be by t he signat ure of the testa tor and of at le ast tw o (2) w itnesse s as fo llow s: (1) The te stat or shal l si gnifyto the attes ting witnesses t hat the instrum ent is his will an d eithe r: (A) H imself sign; (B ) Ac kno wled ge his signat ure already made; or (C) At hi s dire ction and in his presence ha ve someone else s ign his name for him; and ( D) In any of the above cas es the act must be done in t

he presenceof two (2) or more att esti ng wit nes ses. (2) The attesting witnes ses must s ign: ( A) In the pr esence of the testator; and (B) In the presence of each other. Decedent’s wil l was witnes sed in t he Powell branc h of First Tennessee Bank. Three employ ees pres ent in t he bank were asked t o assis t in t he executi on of the w ill. The b ank is the de signa ted ex ecuto r of the will.

The executi on of the wil l took pl ace withi n the lobby of the bank. The Chancellor

in his findings said: On A pril 22, 1986, E ckel S. Ro ss, the decede nt, went w ith James R obert Pear son, a n attorn ey and th e prep arer of the w ill at issue, to th e Po we ll branch of the First

Tennessee Bank for t

he purpose of exec uting t he will. There is s ome conflict in tes timonyof James Robert Pearson, the attorney , and ShirleySmith and No rma Lucas, the attesti ng witnesses, and Brenda Stegal l, t

he notary

public, who notarize d an affidavi t of the attesting witnesses. W ith the exception of Pea rson, the three ladies w ere emp loyees of the F irst Ten nesse e Ba nk an d w orke d at the Pow ell branch. The executi on of the wil l took pl ace withi n the confi nes of one roo m a t the P ow ell br anc h. The first witness to the will , Norma Lucas, testi fied that she was at the desk w ith deceden t when he signed his will. In court, she testified that she w as awa re that it was dece dent’s w ill, but according to a d iscovery deposition tak en years earlier, she d id no t und erstan d that sh e w as w itnessin g a w ill.

The second witnes s to the will, Shirl ey Smit h, te sti fied that she was i n a teller ’s w ind ow , app rox ima tely 17 fee t fro m th e de sk w her e the dec ede nt w as sit ting
. She testifie d that s he was unaware of what he was signi ng untila third bank employ ee,3

Brenda Stegal l, a sked her t o witness t he decedent’ s signat

ure. The dece dent and Lucas had alr eady s igned the will bef ore she was aske d to participate. She remained at her window w hile signing the documen t and Stegall took it back to decedent. Ms. Stegall , a not ary public, testifie d that s he saw every one sign t he will, and that

the deceased signed in the presence of herself and the witnesses.

The T rial Judge determ ined that the w ill failed to meet the statutory requ ireme nts of exec ution o f a va lid w ill. Spec ifically, he fo und that Sh irley Smith being posi tioned a cross t he room, and unaware of t he proceedi ngs, meant

that Lucas could not ha ve signed “i n the pres ence” of the ot her attesti ng witnesse s. He found that N orm a L uca s did not und ersta nd t hat th e do cum ent s he w as sig nin g w as a wil l.

We reviewed the Tri al Court’ s findi ngs in this cas e de novo upon the record, which is accompanied by a presumption of correctness of the findings, unless t he prepondera nce of the evi dence is ot herwise. T.R.A.P. Rule 13(d). Proof of genuine si gnatures of the t estat or and attesti ng witnesse s, al ong with an attest ation clause reciting that

the willwas properl y exec uted, creat es a rebuttable presumpti on of due exe cutio n. In re Est ate of Bradley , 817 S.W .2d 3 20, 3 23 ( Te nn.A pp.1 991 ). Proponents of

a will are not obl iged to prove each fact essential to a will by

direct evidence; in the absence of anysati sfactory evi dence to the contra ry , the presumpti on is that the form alities req uired h ave b een m et. Co oper v. Au stin , 837 S.W.2d 606, 612 (Te nn. A pp. 1 992 ), citing Leathers v . Binkl ey , 196 Tenn. 80, 264 S.W.2d 561, 563 (1954). One of the TrialJudge’s bas es for i nvalidating t he will was a f

inding that t he firs t witnes s, Ms. Lucas, had not unders tood that the document t

hat she was sign ing wa s a w ill.

It i s well es tabli shed that the act of witness ing a willis di fferent from witnessi ng an ordinary si gnature a nd that t he att esti ng witness must be aware that

the1 It can als o be sai d that t he att estat ions cl ause co rrobo rated Lucas’ in cour t test imony. 4 doc um ent is a w ill. Rag sdale v. Hill , 269 S.W.2d 911 ( Tenn.App. 1954). The Trial Court’s f inding was bas ed on Lucas’ cont radictory testimony; in court she profes sed to kn ow ing tha t it was a will, w hile in h er earlie r dep osition she h ad state d that sh e did not know. Contra dictor y st atements by a witness in c onnecti on with the s ame fact may cance l each other. Price v. Becker , 812 S .W.2 d 59 7 (Te nn.A pp. 19 91); Cooper v. Aust in. The rule of canc ellation a pplies w hen th e inco nsisten cy in testim ony is unexplai ned and when neither versi on of the t esti mony is corrobor ated byother evidence. Stat e v. Matt hews , 888 S.W .2d 4 46, 4 50 ( Te nn.C r. A pp. 1 993 ), citing Taylor v. Nashvill e Banner Pub. Co. , 573 S.W .2d 476, 48 3 (Ten n.App . 1978).

The record revea ls that L ucas had n o exp lanatio n fo r wh y her ans we rs to the q ues tion of “ did you k now the d ocu me nt w as a wil l?” we re in con siste nt. Accordingly , the re is no positive te sti mony contr adicting the attes tati on clause, the presumpti on of proper exec ution remains and her testimony does not inval idate the
exec ution o f the w ill. Cooper. 1 The ev idence pre ponde rates against the T rial Court’s findings, and supports the f inding created by the presum ption that Lu cas wa s aware that t he d ocu me nt w as a wil l. See Inte rstat e Fire Ins urance Co. v. Kimbrough , 852 S.W.2d 887 (T enn.A pp. 1992 ).

The circumstances surrounding the attestation of the second witness, M s. Sm ith, prese nts a m ore d ifficu lt issue. T his jurisd iction h as no case d irectly addressing the elemen ts necessary for the testator and witnesses to b e in each o thers “presence .” This term is general ly construed accordi ng to the c ircumst ances of each case. 79 AmJur2d, Wills, §321 (1975). Emphasis is placed on the abil ity of the testa tor to actu ally see or b e ab le to s ee th e w itnes ses if he/s he w ishe d. Id; St anley v. Kelley, 102 So.2d 16, 18 ( Ala. 1958) ( “[it ] is not necessary t o prove that test ator2 The request to witness a will m ay be made

by a third pe

rson as the testator’s a

gent o r representative. In re: Estate of Bradley , page 323. 5 actua lly saw the witn esses s ign the ir nam es to the will. It is su fficien t if, from their relative p osition s, he co uld se e them .”); Moore v. Glover , 163 P.2d 1003, 1006 (Okla. 1945) (witness and t estat or suffi ciently in each others’ presence where t estat or waited outsi de in the car while witness s igned at desk insi de buildi ng; tes tator could see witness through large glass window). An attestati on in the same room or close vicinity with the testator is generally considered to be in his/her prese nce, unless there is a p hy si ca l o bs ta cl e b lo ck in g the vi ew. Id. at §32 2; In re Est ate of Holde n , 113 N.W .2d 87 , 92 (M inn. 19 62); Estate of Politowicz , 304 A.2 d 56 9 (N .J.Su per . 197 3). Th es e a ut ho riti es re ve al t ha t re lat iv ely s ho rt d ist an ce s, s uc h a s a cr os s th e b an k l ob by, may not necessaril y prevent the testator and witnesses from being in each others’ presence. Smith had known decedent, and saw him enter the bank and conduct business at Ms. Stega ll’ s desk, she tes tifi ed that she did not

know he was signing the will, bu t she w as sure it was his w ill whe n she signe d as a witn ess. Sh e reco gnize d his signa ture an d she wa s exp ressly told it w as de cede nt’s w ill. 2

Brenda Stegal l, t

he notary , te sti fied that she was pr esent during the entire trans acti on, was made aware that it was dece dent’s will, saw the tes tator and the other w itnesses sign the w ill, t hat no sub stitution occurred, and that the testator’s manner and behavior

were no differ ent than on any ot her ti me in which he vis ited t he bank. In vi ew of our findings , we do not rea ch the i ssue of whether Stegallcould be found to be an attesting witnes ss to s atis fy t he requirements of the stat ute. As p ublic p olicy in Te nnes see fa vors u pho lding a will w here it is possibl e to do so, Leathers v . Binkl ey , supra , we hold that the evidence s atis fies t he requir ements of the stat ute as t o the two attesting witnes ses. We reverse the Ch ance llor’s fin ding that the will sh ould not b e adm itted to p roba te and rema nd w ith6

the directi on that t

he will be admitt ed to probate for furt her procee dings i n this Estate
. The cost of the appeal is assessed to the appell ees.

________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Charles D. S usa

no, Jr., J.
Separate Concurring Opini on

____ William H. Inman, Sr.J.7 

# FILED
Au gust 29, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

IN RE: ) C/A NO . 03A01-9703-CH-00099 ) The Est ate o f ECKLE S. ROSS, ) KNOX CHANCERY ) Deceased. ) HON. H. DAVID CATE, ) CHANCEL LOR ) ) REVERSED AND REM ANDED

PAUL T . C OLEMAN an d J ASON I . E PST EI N, BAKER, DONELS ON, BEARMAN & CA LDW ELL, Knoxville, for Appella nt/Pr oponent Fir st Tenness ee Bank National Association. A. BENJA MIN ST RAN D, JR., STRAND & GO DDA RD, Dandridge, for Appellee/Contestant Sonia Amos, and CAR LYLE UREL LO, PAINE , SWINEY , AND T ARW ATER , KNOX VILLE, for Glenda Ro ss, Stephanie Ross and Jennifer Ross.
C O N C U R R I N G O P I N I O N By way of ana logy , the rule i s historic i n this juri sdiction that juror s will not be allow ed to s tultify their ve rdict. If th e rule w ere oth erw ise, ma ny verd icts w ould assuredl y be nul lifi ed depending upon t he quali ty and quanti ty of the i mportunati ons employe d. It se ems to me that

this rule s hould apply

with equal force t o the attesting witn esses to the w ill, who at the tim e they af fixed their sign atures therto, m ade o ath that theydid so in accordance with statutoryrequirements. To allow a sworn, attes ting witness, (as cont rast ed to a third party ) to i mpeach her action by testify ing, at probate, cont rari ly to her s ignator

y oat h, the reby approbati ng her stulti fication, i s, i n effect, to vest in such witness the power to null ify a will whether by whim, importunation, or from corrupt motives. I agree wit

h the opini on of Judge Franks, but would go furt her and hold t

hat an8

atte sti ng witness who does s o under oath wil l not t hereaft er be al lowed to st ulti fy her
se lf a nd sw ea r th e c on tra ry.

___________________________________ Willi am H. Inman, Senior Judge