IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 4, 2016

IN RE ESTATE OF ELLRA DONALD BOSTIC

Appeal from the Chancery Court for Hawkins County

No. 2015-PR-152 Douglas T. Jenkins, Chancellor

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No. E2016-00553-COA-R3-CV – Filed December 6, 2016

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Decedent’s sister was appointed as executor of the estate and subsequently filed a will 

contest complaint regarding a single bequest in the will. The trial court removed sister as 

executor and appointed an administrator pendente lite. Ultimately, the trial court 

dismissed sister’s will contest on the basis that the sister was estopped from attacking the 

will after her appointment as executor. Sister appeals. We affirm the trial court’s ruling 

with regard to sister’s standing to contest the will. However, we vacate the trial court’s 

dismissal of sister’s will contest on the basis of estoppel and remand for further 

proceedings consistent with this Opinion. Affirmed in part, vacated in part, and 

remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed 

in part, Vacated in part, and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR. and RICHARD H. DINKINS, JJ., joined.

Jerry J. Fabus, Jr., Johnson City, Tennessee, for the appellant, June Bostic Lane.

Russell W. Adkins, Kingsport, Tennessee, for the appellee, Linda M. Mullins.

David L. Robbins, Johnson City, Tennessee, for the appellee, Estate of Ellra Donald 

Bostic.

OPINION
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BACKGROUND

On May 22, 2015, Ellra Donald Bostic (the “Decedent”) executed a last will and 

testament (“the will”), naming Appellant June Bostic Lane (“Contestant”) as executor.1 

Under the terms of the will: (1) Decedent’s two grandsons were each to receive a 

monetary sum of $500.00 per month for twenty-four months; (2) Appellee Linda Mullins, 

Decedent’s “friend,” was to receive Decedent’s house, the contents of the house, a trailer, 

all camping equipment and accessories, and $25,000.00; and (3) Contestant was to 

receive the residue of the estate. The Decedent died on August 22, 2015, at the age of 

seventy-two. On September 11, 2015, Contestant filed a sworn complaint to probate the 

Decedent’s will and to be appointed executor of Decedent’s estate (“the Estate”) without 

bond in the Probate Division of the Hawkins County Chancery Court. On September 3, 

2015, the trial court entered an order admitting the will to probate, directing that letters 

testamentary be issued to Contestant, and waiving the requirement that Contestant file an 

inventory or make accounting to the trial court as provided in Tennessee Code Annotated 

section 30-2-301. On September 11, 2015, letters testamentary were issued to Contestant 

and Contestant’s “Oath of Execut[or]” was filed. The Oath specifically stated that 

Contestant would “honestly and faithfully discharge” her duties “according to the terms 

of” Decedent’s will. 

On December 2, 2015, Contestant filed a petition to contest Decedent’s will. 

Therein, Contestant alleged that Ms. Mullins was the paramour of Decedent. According 

to Contestant, however, Ms. Mullins fraudulently led Decedent to believe that her 

husband was deceased. Contestant alleged that this fraud, coupled with the confidential 

relationship between Decedent and Ms. Mullins, Decedent’s weakened mental and 

physical condition, and Ms. Mullins involvement in the creation of the will, established 

that the bequest to Ms. Mullins was the product of undue influence. Although the 

complaint did not allege fraud or undue influence against either of Decedent’s grandsons, 

it sought to set aside the entire will. 

On or about January 4, 2016, Ms. Mullins filed a motion to remove Contestant as 

executor and to appoint an “Administrator Pendente Lite”2pursuant to Tennessee Code 

Annotated section 30-1-108.3 According to the motion, Contestant allegedly “almost 

 

1 Although the will uses the term “[e]xecutrix,” we will use “executor” through this Opinion for 

consistency’s sake. See Black's Law Dictionary (10th ed. 2014) (defining an “executor” as a “person

named by a testator to carry out the provisions in the testator's will” without reference to any particular 

gender).

2 An “administrator pendente lite” means a “person appointed to serve as administrator of an 

estate solely because of an emergency or an unusual situation, such as a will contest.” Black’s Law 

Dictionary (10th ed. 2014).

3 Tennessee Code Annotated section 30-1-108 states that “probate judges are authorized to 
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immediately” removed contents from Decedent’s home, refused to account for their 

whereabouts, refused to communicate with Ms. Mullins as a beneficiary under the will, 

filed a police report and posted flyers in the neighborhood accusing Ms. Mullins of theft, 

and claimed ownership of Decedent’s tools. On or about the same day, Ms. Mullins also 

filed an objection to Contestant’s notice of contest on the bases of standing and two 

separate estoppel grounds: (1) that Contestant may not receive benefits under the will and 

at the same time attack it; and (2) that Contestant may not attack the will that she had 

previously sworn to uphold. On January 5, 2016, Contestant filed a motion to amend her 

will contest complaint to correct the standing issue raised by Ms. Mullins; specifically, 

Contestant sought to amend her will contest to only contest the provision of the will 

naming Ms. Mullins as beneficiary. Thereafter, Contestant also filed a response to Ms. 

Mullins’s objection to the will contest, denying the material allegations contained therein. 

On January 12, 2015, without objection by either party, the trial court granted 

Contestant’s motion to amend the will contest complaint, granted Ms. Mullins’s motion 

to remove Contestant as executor and appoint an administrator pendente lite, and 

appointed Appellee Attorney David Robbins as the “Administrator C.T.A.”4(“the 

Estate,” and, together with Ms. Mullins, “Appellees”). 

The trial court held a hearing on the will contest on February 3, 2016. On 

February 19, 2016, the trial court entered its order dismissing the will contest. First, the 

trial court found that Contestant had standing to contest the gift to Ms. Mullins because a 

successful contest could increase Contestant’s share as a residuary beneficiary under the 

will. The trial court also found that Contestant need not forfeit any benefits that she 

received under the will in order to contest the will.5 The trial court, however, ruled that 

Contestant was “estopped from contesting the will” or any of its provisions after she 

introduced and affirmed the Will, “requested and received appointment” as executor and 

“swore to adhere to the will’s provisions.” The trial court, therefore, dismissed the will 

contest 

Contestant timely filed a motion to reconsider or, in the alternative, to take proof 

for the matter to be properly decided on appeal, to which both the Estate and Ms. Mullins 

objected. The motion was heard on March 3, 2016. Over both the Estate’s and Ms. 

Mullins’s objection, the trial court allowed Contestant to make an offer of proof for 

 

appoint an administrator pendente lite in any case that may arise in their respective courts where any will 

may be the subject of contest or litigation.”

4 An “administrator cum testamento annexo” is “administrator appointed by the court to carry out 

the provisions of a will when the testator has named no executor, or the executors named refuse, are 

incompetent to act, or have died before performing their duties and no qualified successor has been 

named.” Black’s Law Dictionary (10th ed. 2014).

5 As support for its finding, the trial court ruled that the latter ground had been cured by the 

amended notice of contest.
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appeal purposes, wherein Contestant was sworn and testified as to the circumstances of 

how she found out about Ms. Mullins’s status as a non-widow. Contestant testified that, 

one month after she was appointed executor, she learned from Decedent’s first wife who 

allegedly learned it from “someone who just happened to know [the Mullinses] and their 

son who happened to be at [Decedent’s first wife’s]” that Ms. Mullins’s husband was still 

alive. The trial court stated on the record at the hearing that it did not believe that such 

offer of proof, even if true, would create a defense to the rule that once an executor to a 

will had been sworn, said executor was thereafter estopped from challenging a will. 

Thus, the trial court by order of March 18, 2016, denied Contestant’s motion for 

reconsideration, affirmed its February 19, 2016 order in its entirety, and certified that the 

order was a final order pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. 

Contestant timely appealed.

ISSUES

Contestant presents one issue for review: 

Whether an executor is estopped from contesting a specific bequest to an 

heir in a [w]ill when the executor only learns of alleged fraud committed by 

said heir after the Executor has already offered the will for probate and 

sworn to honestly and faithfully discharge the duties of the Executor.

The Estate presents two issues for review:

1. Whether the Trial Court proper[l]y found that the [Contestant] was 

estopped from contesting the will that she had previously offered for 

Probate.

2. Whether the [Contestant] lacked standing to contest the will that she had 

previously offered for Probate.

Ms. Mullins presents one issue for review: whether the trial court correctly dismissed 

Contestant’s will contest. 

DISCUSSION

Standing

The first issue that we will consider is Contestant’s standing to contest Decedent’s 

will. The standing of an individual filing a will contest is a threshold issue that must be 

adjudicated prior to any consideration of the merits of the will contest. As Tennessee law 

provides: “If the validity of any last will or testament . . . is contested, then the court 

having probate jurisdiction over that last will or testament must enter an order sustaining 

or denying the contestant’s right to contest the will.” Tenn. Code Ann. § 32-4-101(a). 
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“The right of a contestant to challenge the validity of a will presents a dispute separate 

and apart from the contest itself.” In re Estate of Otte, No. 02A01-9402-PB-00023, 1995 

WL 116013, at *1 (Tenn. Ct. App. Mar. 15, 1995) (citing Cowan v. Walker, 96 S.W. 

967, 968 (Tenn. 1906)). “As soon as the probate court is made aware of a contest, it must 

halt the . . . probate proceedings and determine whether the person seeking to contest the 

will has standing to pursue a will contest.” In re Estate of Boote, 198 S.W.3d 699, 714 

(Tenn. Ct. App. 2005) (citing In re Estate of King, 760 S.W.2d 208, 211–12 (Tenn. 

1988); In re Will of Ambrister, 330 S.W.2d 330, 334–35 (Tenn. 1959); Jenkins v. 

Jenkins, 77 S.W.2d 805, 806–07 (Tenn. 1935); Murrell v. Rich, 175 S.W. 420, 425 

(Tenn. 1914); 1 Jack W. Robinson, Sr. & Jeff Mobley, Pritchard on the Law of Wills and 

Administration of Estates §§ 354, at 543–44, 364, at 556–57, 377, at 569–71 (5th ed. 

1994 & Supp. 2004)); see also Estate of Ferguson, No. 01A01-9707-PB-00313, 1998 

WL 161090, at *3 (Tenn. Ct. App. Apr. 8, 1998) (“Before a contest can be certified to the 

circuit court, the Probate Court must find that the contestant has standing to pursue the 

contest.”).

“Standing to pursue a will contest is limited to those who would benefit under the 

terms of another will or codicil or the laws of intestate succession if the will contest is 

successful.” In re Estate of Boote, 198 S.W.3d at 714 (citing Jennings v. Bridgeford, 

403 S.W.2d 289, 290–91 (Tenn. 1966); Cowan v. Walker, 96 S.W. 967, 970; Robinson & 

Mobley, supra, §§ 354, at 540, 369, at 562). Here, Appellees argue that Contestant has no 

standing to contest the will because: (1) Contestant has no right to benefit if Decedent’s 

property passes through intestate succession; and (2) no prior will exists naming 

Contestant as a beneficiary. Appellees therefore argue that should the will be set aside, 

Contestant would have no right to benefit from Decedent’s property, depriving her of 

standing to file a will contest. We agree that such a rule applies when the entire will is 

contested. See, e.g., Keasler v. Estate of Keasler, 973 S.W.2d 213, 222 (Tenn. Ct. App. 

1997) (holding that contestant lacked standing to contest the validity of a more recent will 

because, if the more recent will were invalidated, contestant would receive nothing under 

the earlier will); In re Estate of W., 729 S.W.2d 676, 677–78 (Tenn. Ct. App. 1987) 

(“[B]efore the appellant may go forward with a will contest he must show that he would 

take a share of the decedent’s estate if the probated will were set aside [] by showing that 

he would take under a prior will.”) (internal citations omitted). Tennessee law, however, 

allows a contestant to “challenge the validity of part of a will without challenging the 

entire will.” In re Estate of McCord, 661 S.W.2d 890, 892 (Tenn. Ct. App. 1983) 

(emphasis added); see also Estate of Hamilton v. Morris, 67 S.W.3d 786, 796–97 (Tenn. 

Ct. App. 2001) (holding that a trial court may partially invalidate a will tainted by undue 

influence while at the same time uphold the remaining provisions of the will). Here, the 

Contestant is not contesting the entire will but rather only the provision naming Ms. 

Mullins as beneficiary. We note that Appellees did not argue that the trial court 

improperly granted Contestant’s motion to amend her will contest complaint to contest 
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only a single provision of Decedent’s will.6 Accordingly, the proper issue relevant to our 

discussion is whether the trial court correctly ruled that Contestant’s amendment to her 

notice of contest cured any standing defects in this case. 

To have standing to contest a will, “[a] contestant[] must show that [she] would 

take a share (or larger share) of decedent’s estate if the contest is successful.” Estate of 

Ferguson, No. 01A01-9707-PB-00313, 1998 WL 161090, at *3 (Tenn. Ct. App. Apr. 8, 

1998). It is well-settled that “[w]here [there is a residuary clause], unless a contrary 

intention appears, it is dispositive of lapsed or void legacies, [based] upon the 

presumption that the testator did not intend to die intestate as to any part of his property.” 

Davis v. Anthony, 384 S.W.2d 60, 63 (Tenn. Ct. App. 1964). In other words, there is a 

presumption that lapsed or void gifts generally become part of the residuary of the will, 

rather than pass through intestate succession. To avoid this presumption, Tennessee law 

“requires the use of words clearly limiting the gift of the residue, and showing in express 

terms an intention to exclude such portions of his estate as may fail to pass under 

previous clauses of the will, in order to take it out of the general rule[.]” Id.; cf. In re 

Estate of McFarland, 167 S.W.3d 299, 304 (Tenn. 2005) (holding that when the lapsed 

gift is already a part of the residue, “the lapsed gift falls out of the terms of the will and 

passes by intestate succession to the testator’s heirs at law”). Accordingly, where no 

contrary intent is established in the language of the will, if a specific bequest lapses or is 

voided, the property subject to the bequest will be included in the residue of the estate, 

and therefore, enure to the benefit of the residuary beneficiaries. 

Here, the trial court ruled that Contestant’s amendment to her complaint, which 

contested only a portion of the will, cured any standing issues that might have existed 

because a successful contest “could increase [Contestant’s] share as residuary beneficiary 

under the [W]ill.” No language in the will purported to limit the residuary estate in any 

way. If Ms. Mullins’s specific gifts under the will are invalidated, the void gifts would 

therefore pass to Contestant as the named residuary beneficiary and would thereby 

enlarge her share of Decedent’s estate. Because Contestant stands to increase her share 

under the will if the will contest were successful, the trial court did not err in ruling that 

Contestant has standing to pursue the will contest in this case. Having decided the 

Contestant has standing, we will proceed to consider whether Appellees’ estoppel 

arguments warrant dismissal of the will contest.

Estoppel 

Ms. Mullins first argues that the trial court erred in not dismissing Contestant’s 

will contest, where she has refused to disgorge the benefits she has already received 

under the will. As an initial matter, we note that although Ms. Mullins makes this 

 

6 Because Contestant only sought permission to amend a portion of her original complaint, we

will treat this as an amendment to a complaint and not an amended complaint. 
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argument in the body of her brief, the trial court’s decision on this issue is not specifically 

raised as an error in the statement of the issues section of Ms. Mullins’s brief.7Instead, 

Ms. Mullins only questions whether the trial court correctly dismissed the will contest 

petition. See, e.g., Accredo Health Grp. Inc. v. GlaxoSmithKline LLC, No. W2015-

01970-COA-R9-CV, 2016 WL 4137953, at *13 (Tenn. Ct. App. Aug. 3, 2016) (treating 

appellant’s issue as waived when not designated as an issue in its petition for 

interlocutory appeal); Rigsby v. Rigsby, No. E2014-02095-COA-R3-CV, 2015 WL 

7575075, at *7 (Tenn. Ct. App. Nov. 25, 2015) (citing Champion v. CLC of Dyersburg, 

LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App. 2011)) (“Because Mother did not raise the 

issue of attorney’s fees on appeal in her statement of the issues, we determine this issue 

to be waived.”); Culpepper v. Culpepper, No. E2014-00815-COA-R3-CV, 2015 WL 

6735909, at *6 (Tenn. Ct. App. Nov. 4, 2015) (same). As previously discussed, however, 

the trial court did not dismiss the will contest petition on this basis, but rather on the basis 

that Contestant should not be allowed to attack a will that she was appointed to uphold. 

Accordingly, because Appellee asserts that the trial court’s ruling was in error, it was her 

duty to designate this argument as an issue on appeal, regardless of the fact that she is an 

appellee in this appeal. See Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 

2011) (holding that appellee waived an issue by his failure to designate it as an issue in 

his statement of the issues even though it was argued in the body of the appellate brief).8 

Her failure to do so results in a waiver of this issue on appeal. 

Appellees next argue that Contestant, by swearing to uphold the Will, may not 

thereafter attack it. “Executors, as fiduciaries, owe a duty of undivided loyalty to the 

estate and must deal with the beneficiaries in the utmost good faith.” In re Estate of 

Wallace, 829 S.W.2d 696, 705 (Tenn. Ct. App. 1992) (citing Mason v. Pearson, 668 

S.W.2d 656, 663 (Tenn. Ct. App. 1984); In re Cuneo’s Estate, 475 S.W.2d 672, 676 

(Tenn. Ct. App. 1971); Baker v. Baker, 24 Tenn. App. 220, 240, 142 S.W.2d 737, 750 

(1940)). The named executor in a will has the duty to both offer the will for probate and 

defend the will against any challenges to its validity. Love v. Cave, 622 S.W.2d 52, 57 

(Tenn. Ct. App. 1981). Occasionally, an executor may wish to contest a will. Pritchard 

on Wills, supra, § 364. If the executor “had knowledge of defects in the will but 

nevertheless proceeded to probate it,” then the executor is estopped from contesting the 

 

7 This argument is also not raised as an issue, or argued at all, in the Estate’s appellate brief. 

8 Likewise, although the Estate purports to designate an issue under the heading of estoppel, the 

crux of its argument is that Contestant failed to allege facts sufficient to prove the elements of fraud, and, 

therefore, this Court may affirm the trial court’s ultimate ruling on this basis. We decline such invitation 

to determine the merits of this issue, however, because (1) this argument was not designated as an issue 

on appeal; (2) this issue was not argued in the court below; and (3) this Court will generally not address 

matters not ruled upon by the trial court. See Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn. 2011) 

(citations omitted) (“[I]ssues addressed by the appellate courts should be limited to those that have been 

raised and litigated in the lower courts[.]”).
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will. Id. However, it has been held that an executor is not estopped from challenging a 

will after presenting it for probate when she “presented [the will] in good faith” and had 

“no knowledge of any defects” to the will at the time she was appointed. McClure v. 

Wade, 235 S.W.2d 835, 838 (Tenn. Ct. App. 1950); see also Boote, 198 S.W.3d at 720 

(Tenn. Ct. App. 2005) (citing favorably Pritchard on Wills, supra, § 363) (describing 

Pritchard on Wills as “stating that an executor who offered a will for probate would not 

be estopped from contesting it later where the executor offered the will for probate in 

good faith and without knowledge of the defects in its execution”). Under such 

circumstances, the executor must resign from her position, and the trial court should 

appoint an administrator pendente lite to take charge of the estate and represent it during 

the pendency of the probate proceedings. See McClure, 235 S.W.2d at 838 (allowing 

executor to resign as co-executor and appointing a replacement); see also Tenn. Code 

Ann. § 30-1-108 (“The probate judges are authorized to appoint an administrator 

pendente lite in any case that may arise in their respective courts where any will may be 

the subject of contest or litigation.”); Crozier v. Goodwin, 69 Tenn. 368, 368 (1878) 

(holding that a county court may appoint an administrator pendente lite “to hold the 

property during the pendency of a contest”).

As explained above, once a determination has been made that an executor is not 

estopped from contesting a will, the executor must resign and an administrator ad litem 

be appointed. Here, the trial court removed Contestant as executor and dismissed her will 

contest without making the threshold inquiry: whether Contestant had knowledge of the 

defects in the will at the time she was appointed. See McClure, 235 S.W.2d at 838. 

Without a determination on this issue, supported by appropriate findings of fact and 

conclusions of law, we conclude that the trial court’s dismissal on this basis is in error. It 

is well-settled that estoppel is an affirmative defense, with the burden shouldered by the 

party invoking the doctrine. See Tenn. R. Civ. P. 8.03. (“[In an answer] to a preceding 

pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to 

constitute . . . estoppel [as] an affirmative defense.”); Buchholz v. Tenn. Farmers Life 

Reassurance Co., 145 S.W.3d 80, 85 (Tenn. Ct. App. 2003) (“Estoppel is not favored 

and it is the burden of the party seeking to invoke the doctrine to prove each and every 

element thereof.”). In this case, the trial court improperly placed the burden on 

Contestant to prove that she was not estopped from challenging the will without any 

evidence that Contestant either acted in bad faith or had knowledge that Ms. Mullins’s 

husband was still alive at the time she was appointed executor. Contestant made an offer 

of proof at the February 3, 2016 hearing that she did not learn of Ms. Mullins’s alleged 

status until one month after she was appointed executor. However, Appellees, as the 

party asserting estoppel, should have been required to prove that estoppel does apply, 

including any facts alleging that Contestant acted in bad faith or had knowledge of facts 

that would invalidate the will at the time of her appointment. 

In addition, the trial court failed to make any findings of fact or conclusions of law 

on this particular issue. Rule 52.01 of the Tennessee Rules of Civil Procedure specifically 
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requires that in all cases that are “tried upon the facts without a jury, the [trial] court shall 

find the facts specially and shall state separately its conclusions of law and direct the 

entry of the appropriate judgment.” Rule 52.01’s requirement that the trial court make 

findings of fact and conclusions of law “is mandatory regardless of whether a party 

requests these findings.” Irvin v. Irvin, No. M2010-01962-COA-R3-CV, 2011 WL 

2436507, at *11 (Tenn. Ct. App. June 15, 2011); see also Lake v. Haynes, No. W2010-

00294-COA-R3-CV, 2011 WL 2361563, at *5 (Tenn. Ct. App. June 9, 2011) (describing 

Rule 52.01 as “making the issuance of findings of fact and conclusions of law 

mandatory”). Here, despite the fact that Contestant introduced evidence by way of her 

offer of proof regarding her knowledge prior to becoming executor of the will, the trial 

court made no findings of fact or conclusions of law as to whether Contestant had prior 

knowledge that would estop her from contesting the will or otherwise acted in bad faith 

in filing her will contest. Based on the law above, however, these factual issues must be 

determined prior to a ruling on Appellees’ estoppel defense. See McClure, 235 S.W.2d at 

838. Without findings of fact and conclusions of law on this issue, we are unable to 

conduct meaningful appellate review of whether the trial court properly dismissed 

Contestant’s will contest. Accordingly, we vacate the trial court’s dismissal of the will

contest on this basis. 

CONCLUSION

Based on the foregoing, we affirm the trial court’s finding that Contestant had 

standing to pursue her will contest but vacate the trial court’s dismissal of Contestant’s 

will contest based on estoppel. We, therefore, remand to the trial court for all further 

proceedings consistent with this Opinion. Costs of this appeal are taxed to Appellees, 

Linda Mullins and the Estate, for all of which execution may issue if necessary. 

_________________________________

J. STEVEN STAFFORD, JUDGE