# FILED April 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk ESTATE OF JOHN B. FERGUSON, JR., ) Deceased ) ) Davidson Probate JOHN and PATRICIA SYLAWA, ) No. 94P-736 ) Contestants/Appel

lees, )

) VS. ) ) FIRST AMERICAN TRUST CO., N.A., ) Appeal No. Executor, ) 01A01-9707-PB-00313 ) Proponent/Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE
APPEAL FROM

THE PROBATE COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE FRANK G. CLEME NT, JR., JUDGE

Fred W. Beesley, Jr., BPR #9892 Malcolm L. McCune, BPR #2660 Court Square Building 300 James Robertson Parkway Nashville, TN 37201 ATTORNEYS FOR CONTESTANTS/APPELLEES William L. Harbison, BPR #7012 Andree S. Blumstein, BPR #9357 424 Church Street Nashville, TN 37219 ATTORNEYS FOR PROPONENT/APPELLANT
REVERSED AND REMAN DED
. HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

ESTATE OF JOHN B. FERGUSON, JR., ) Deceased ) ) Davidson Probate JOHN and PATRICIA SYLAWA, ) No. 94P-736 ) Contestants/Appel

lees, )

) VS. ) ) FIRST AMERICAN TRUST CO., N.A., ) Appeal No. Executor, ) 01A01-9707-PB-00313 ) Proponent/Appellant. )



## O P I N I O N
This is a will contest ca

se involving a succession of wills, disputes as to the testamentary capacity of the testator at

the time of the maki

ng of each of th

e wills, and the sta

ndin g of th e contestants.At the present stage of the proceedings, the contestants are in the po sition o f plaintiffs, beca

use they init

iated the contest

.

On May 11, 1994,

a will made by

deceased on May

2, 1991, and a codi

cil made by him on May 8, 1991 , were probated in the Probate Cour

t in common form.

On November 17, 1994, John and Patricia Sylawa filed in the sameprobate proceeding a document entitled: Petition to Cont est Will of John B. Ferguson, Jr., To seek return of asse

ts from trusts and o

ther entities, and, to hear concurrently with both, separately-filed related claim against the estate of Mabel H. Ferguson Allegations of the petition material to this appeal were, in substance:

7. Deceased

lacked testamentary capacity on Ma y 2, and 8, 1991, when he executed the above mentione

d will and codicil.-3- 8. On July 22, 1986, when he possessed testamentary capacity , deceased executed a will which is his true last will and testam ent and which prov

ided a limited annu

al income to the Sylawas for life.
A copy, but not the original, of the July 22, 1986, will was exhibited to the petition.

On t he same date, November 23, 1994, the Sylawas’ filed a “complaint” v irtuall y identical to their “Petition,” except that they prayed that they be allowed to contest the May 2, 1991, will, and, in addition, alleged an additional will dated August 14, 1991.

Attached to the complaint was an affidav it of Robert Lee Perry, Jr., attorney , that he prepared and saw the due execution of an August 14, 1986 will of John B. Ferguson which gave the entire residue of his estate to the Sylawa s if his wife prede

ceased him. (The

wife did predecease the testator.)
It appears that the Sylawas did not attempt to establish the July 22, 1986, will, but

that they devote

d all of their eff

orts and proof to th

e August 14, 1986,

will.

On December 12, 19

94, the executor/pr

oponent moved to dis

m iss the petition and complaint of the Sylawas for lack of standing or, in the alternative that

the contest be certified to t he ci rcui t co urt for tri al b efor e a j ury.

On January

20, 1995, the Sylawas filed an amended complaint reques

ting that the “los

t will” of August 14, 1986, be probate d based upon a cop

y and affid

avits.
Counsel for the pa

rties filed a stipu

lation reading a

s follows: The Court has ordered that a hearing be held on December 17, 1996, for the purpose of determining whether the plaintiffs, John and

Patricia Syl

awa, have sta

nding to maintain the will contest that

they seek to bring

in this matter.-4- For purposes of the standing hearing to be held on December 17, 1996, and only

for purposes of that hearing and not for any other purpos e, the parties have agreed, as evidenced by the signatures of their respective counsel, that certain f a cts may be assumed by

the Court in

making its determination on the issue of standing. The facts to which the partie

s stipulate for purposes of th

e standing hear

ing are as follo

ws: 1. On August 14, 1986, John B. Ferguson, Jr., properly executeda wi ll d raft ed b y Rob ert Per ry. An unexecuted copy of that August 14, 1996, will is attached hereby as Exhibit A. 2. On August 14, 1986, John B. Ferguson, Jr., was mentally co

mpetent to make a w

ill. 3. The unexecuted copy of Mr. Ferguson’s Au gust 14, 1986, will in Exhibit A represents accurately the contents of that will as executed by Mr. Ferguson 4. John B. Ferguson, Jr., made and execu

ted the August 14, 1986, will in accor

dance with the fo

rms and requirem

ents of law. 5. The original of the will executed by Mr. Ferguson

on August 14, 1986, cannot be found even after due and proper search. 6. From

and a fterOctober 1990, John B. Ferguson lacked the mental capacity l

egally ne cessary to revoke a will. 7. John B. Ferguson , J r., died on April 21, 1994. The willand cod ici l th at M r. Fe rgus on e xec ute d, r esp ect ive ly, on May 2, and Ma

y 8, 1991, ha

ve been probate

d in this Court. The par ties further acknowledge and agree that the issue of standing is, un der Tenn essee law, a separate matter from the will contest itself and that a judgment on theissue of standing is appealable

as of right. Each party understands and agrees that the other pa

rty will appeal any adverse ruling on the standing issue an

d that neither par

ty willclaim on appeal that the other party

has waived the ri

ght toraise

an argument on appeal simply because that party ma y have agreed to a certain pr o cedure for th e purpose of facilitat ing the heari ng. In c on templation of appe al, the parties a

lso agree that,

with the permission of the Court, the pr esently sch

eduled trial date of Febr uary 1 0, 1 997, should be postponed pending the completion of the appeals process on the standing issue. On December 13, 1996, the Probate Judge entered the following order:

ORDER OF PART IAL SUMMARY JUDGMENT Plaintiffs have moved the Court for an Order of Partial Summary Judgmen t establishing for the purpose of this litigation that John B. Ferguson, Jr. has testamentary capacity-5- at all times up to a nd including Aug ust 14, 1986. This Motion was not opposed. After examination of P lain tiff’s Memorandum

and Exhibits and th

e record as a whole, the Court finds the Motion is well-taken, therefore, IT IS ORDERED ADJUDGED AND DECREED for the purpose of this litigationthatJohn B. Ferguson, Jr. had testamentary

capacity at all times up to and including August 14, 1986. On February 24, 1997, the Probate Judge entered the following order: AGREED ORDER AMENDING THE ORDER OF 12/23/96 This matter came to be heard on the 17th day of Jan uary, 1997, before the Honorable Fr ank G. Clement, Probate Judge, upo n the motion of First A merican Trust Company to alter or amend the orde r entered December 23, 1996, on the issue of st

andi ng. It appearing that there is no opposition to the motion and that prop er no tice has been givento all partie s, this Court is of the opinion that the motion is well taken and should be granted. It is accordingly ORDERED that the motion of First AmericanTrust Company to alter or amend the order entered December

23, 1996, on the issue of standing is hereby granted andthat this Court’s Order of December 23, 1996, is amended to read in its entir

ety as follo

ws: On moti on b y t he Defendant for this Court to hear evidenceand determine wh ether Plaintiffs p

ossess standingto bring a will contest, this matter came on to be heard o n Tue sda y, December 17, 1996. Upon the Court’s considerationof the parties’ M emoranda of Law, the Stipulations filed by the parties, the testimony of witness es, the Plaintiffs’ designated portions of certain depositions of witnesses,the argument of counsel and the record as a whole, this Court finds that Plai

ntiffs h ave st anding to bring a will contest and, therefore, It is ORDERED, ADJUDGE D, and DECRE

ED that Plaintiffs have established their standing and may proceed withtheir will contest. This order is final and appealable as of rig ht. Pritchard on Wills, 5t h ed., §354. Trial o

f the will contest is presently set for February 10, 1997. Since the parties agreed i n their stipulations, filed on December 12, 1996, that the i ssue of standing is, under Tennessee law, a separate matter fr om t he will contest itse lf and that a judgment on the issue of

standing is appealable as of right and that the non-pre vail ing party will appeal from this Court’s order o n the standing controversy, it is further ORDERED t hat the trial of the wil

l contest present

ly set t o begin o n February 10, 1997, is postponed pending the completion of the app eal s pr oces s on the sta ndi ng co ntr ove rsy.-6- Moreover, the Court expressly finds and dete

r mines that it is appropriate to direct the entry of a final judgment as to the standing issue

because, for th

e reasons set for

th below, there is no just reason for delay. Accordingly , it is fur the r ORDERED, ADJUDGED, andDECREED that, there being no j ust reas on f or d ela y, this Court’s order that the Plaintiffs have established standing to maintain a w ill contest is final, andthe Court hereby directs the entry of a final judgment on that issue. From the quoted or

der, the executor

has prosecuted th

is appeal.
The Chancery Court has exclusive jurisdiction to set up a will which has beenlost, destroyed or suppressed. Wall v. Millsaps , 199 Tenn. 241, 286 S.W.2d 343 (1956). Warmath v. Smi th , 198 Tenn. 257, 279 S.W.2d 257.

The Probate

Court of Davidson County, Tennessee has all the powers of a chancery

court in respect

to wills and estates.

Chapter 366, Sec.

2 Private Acts of 1974.

Will contests filed in Probate Court are triedin Circuit Court as providedby TCA § 32-4-101. However, its chancery powers include jurisdiction to esta

blish lost wills.

Before a contest can be certified

to the circuit court, the Probate Court must find that the conte

stant has standing

to pursue the conte

st . That is the contestant(s)

must show that he or they would take a share (or larger share) of decedent’s estate if the contest is succes sful; but if standing rests upon a prior will whichis lost, the priorwill must be established in chancery court before
a legatee under

the prior will has s

ta ndi ng to contest the l

ater will. It w

ould notbe proper to cer

tify both wills to circuit court before establishment of the-7-

lost will in chancery. In Re E stateof West, Tenn. App. 1987, 729 S.W.2d 676.

In order

to establ ish a lost will in chan cery, the f

ollowing facts mu

st be established by clear and convincing evidence: (1) The instrument was duly executed. (This was stipulated.) (2) The instrument cannot be found. (This was stipulated.) (3) The substance of the instrument. (This was stipulated.) (4) The beneficiaries of the will. (This was stipulated.) (5) The will has not been revoked . (This has not been shown by clear and convincing evidence.) Shrum v. Powell , Tenn. App. 1980, 604 S.W.2d 869, and authorities cited therein. These requirements are stringent. Haven v. Wrinkle , 29 Tenn. App. 1995, 1995 S.W.2d 787 (1945).

Absent evidence

of possession of the

willby someone other

than the testator, it must be presumed t hat it was i

n h is possession until its disappearance.

If a will is traced int

o the hands of th

e testator and cannot be found after his death, there is a pre su mption that the testa tor destroy

ed the will, thereby revoking it. Hickey v. Beeler, 180 Tenn. 31, 171 S.W.2d 277 (1942); Allen v. Jeter , 74 Tenn. (6 L ea) 1881). The b

urden of rebuttin

g this presumption is upon the person seeking to establish the w i ll. Sanders v. McClanahan , 59 Tenn. App. 590, 442 S.W. 668 (1969).

The stipulated fact

t hat the will cannot be found placed the burden squarely upo n th e con tes tan ts/ app ell ees t o pr ove by “stringent, clear and-8-

convincing evide nce” that the will which they seek to establish was not revoked by destruction by the testator.

The contestants have not satisfied the requirement of proving by “stringent,

clear and convincing evidence” that Mr. Ferguson did not revoke th e August 14, 1986, will upon which the contestants rely for standing and whi ch t hey s ough t to est abl ish in e qui ty.

The Probate Court heard the evidence wit hout a jury and entered a final judgme nt that the contesta nts have standing . This Court respec tfully disagrees for th e reason above stated, that the contestants failed to offer “stringent,

clear and convincing evidence” that the lost will

upon which they rely for sta

nding was not

revoked by the testator.

The judgment of the Proba te Court is reversed and vacated and the petitioners’ petition to contest i s dismis sed. Costs of this appeal, and of the proceedings upon the petition in Probate Court are taxedagain st the contestants.The cause is r emanded t o the Probate Court for entry of the judgment of this Cou

rt and for furthe

r appropriate pr

oceedings.

REVERSED AND REMAN DED
.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIA M C. KOCH, JR., JUDGE