# FILED
Au gust 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ IN RE: ESTATE OF MAPLE IONE STOCKS GWYNETH J. HUGHES and LINDA LYONS, CO-ADMINISTRATRICES C.T.A, Appellants, Obion Chancery No. 19,535 Vs. C. A. No. 02A01-9612-CH-00310 ANNA GAYLE IRONSIDE a nd WILLIAM A. GRISHAM, Appellee s.

____________________________ _______________________________________________ _ FROM THE OB ION COUN TY CHANCE

RY COURT THE HONORABLE W. MICHAEL MALOAN, CHANCELLOR

H. A. Nohs ey of Uni on City For Appellants Philip J. Coop er of Me

mphis For Appellees

AFFIRMED AND R

EMANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.
CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This appeal arises from the probate of the Last Will and Testament of Maple Ione Stocks (Stocks) in the Chancery Court of Obion County. The co-admi nistratr ices C.T. A., Gwyne

th J. Hughes (Hughes) and Linda Lyons (Lyons), appeal the order of the chance ry court vacating the2

order adm itting Stocks’s will to probate because of a lack of jurisdiction and/or venue, wh ic h was made final pursuant to Tenn. R. Civ. P. 54.02. Stocks died on Ma

y 26, 1996 in Obion Cou

nty as a r esult of a stroke she suffered a few days earlier

while attending the funeral of one of her friends in Obion, Tennessee. Stocks, who
was eighty-years-old and a widow, was a resident of Shelby County, Tennessee at the time of her d eath . She left

a will beq

ueathing $50,000.0 0 to the Tr

inity Baptis t Church in

Memphis, Tennessee with the rest, residue, and remainder of her estate passing to a cousin, James Neely, and, in the eve

nt of his death, to his wife, Jewell Neely. James Neely died on June 4, 1991, and his wife died on May 21, 1996. In fact, it was at Jewell Nee ly’s funeral that Stocks suffered the stroke that led to her death. Hughes was a

friend of Stocks and owns Cryer Funeral Home in Obion County, which handled Stocks’s funeral and burial arrangements. Shortly after Stocks’s death, Lyons, who was also a friend of Stocks, and Hughes contacted Stocks’s first cousin and only known next of kin, Joanne N. Warren of South Fulton, Tennessee, regarding Stocks’s estate. Hughes and Lyons visited Sto ck s’s resid

ence in M emphis an d also visit ed the ba nks wher e she did business in Memphis and Obion, but they were unable to gain access to Stocks’s two safety d eposit box es.
Hughes and Lyons then contacted H. A. Nohsey, the attorney in Union City, Tennessee who prepar

ed Stocks’ s will on July 3 , 1989. On June 6, 1996, Nohsey filed a petition for administration in the Chancery Court of O bion County

on behalf of Hughes and Lyons seeking to probate the copy of the will and to have Hughes and Lyons appo inted co -administratrices C.T.A. Stocks’s only known next of kin, Joann

e Warr en, and h er attor ney, Hunt er B. Whitesell, joined in this petition. The petition avers that

Hughes is the only known creditor of the estate and that Hughes and Lyons see

k to adminis ter the e state in O bion County

rather thanShelby County because of convenience. Warre

n, Stocks’ s only known next of kin, joins in the petition for the purpose of consenting to the appointment of Hughes and Lyons as co-administratrices C.T.A. and to the administration of the estate in Obion County. The trial court admitted t

he copy o f the will t

o1 The par ties agree that the

chance ry court admitted t

he copy o f the will t

o probate and appointed Hughes and Lyons as co-administratrices C.T.A. on this day. The c ourt’s order, however, was dated June 17, 1996. 3 probate and appointed Hughes and Lyons as co-administratrices C.T.A. on June 6, 1996. 1 On June 7, 1996, Hughes and Lyon went t o Memphis and, after obtaining access to Stocks’s safe deposit box, foun d Stocks’soriginal will. Hughe s and Lyon s filed the o riginal will in the Chancery Court of Obion Count y along w ith an amended petition on June 11, 1996. The chancery court entered an order admitting the original will, rather than the copy o f the will, to probate on June 17, 1996. Hughes and Lyons began the administration of the estate after giving notice to creditors in both Obion County and Shelby County. On July 30, 1996, Anna Gayle Ironside (Ironside) and William A. Grisham ( G ri sham) filed a petition

in the Ch an cery Court of Obion County to vacate the order admitting Stocks’s will to probat

e based on a lack of venue. In the petition, Ironside and Grisham allege that they
are the half-sister and half-brother of Stocks and ar e her next of kin under the Tennessee law s of descent and distribution. Hughes and Lyons filed a response to the petition on September 6, 1996, and they f

iled an a mended r esponse t o the petition on Sept

ember 9, 1996. In th

eir response s, they assert certain procedural and substantive defenses including, inter alia , that the petition to vacate was untimely and that Ironside and Grisham’s only remedy was to appeal to this Court. At a hearing on September 19, 1996, Ironside and Grisham presented certified copies of their birth certifi cates in dicating that Ace Grisham, Stocks’s b iologica l father , was also

their biological father . Shortly

thereafter, on September 25, 1996, the chanc ery court entered an order titled “Order Vacating Order Admitting To Probate The Last Will A

nd Testam

ent Of Ma ple Ione Stocks For Lack Of Jurisdiction And/Or Venue.” In addition to vacating the a dmission of the will to probate, the court also discharged Hughes and Lyons as co-administratrices C.T.A. upon their filing of a

final accounting within thirty days of the date of the order. In its order, the cour t recognized

that Hughes, Lyons, their attorney, Nohsey, and Whitesell, the attorney of Stocks’s first cousin, Joanne W arren, all perf ormed va luable service s for the

estate a nd that the

y should be compensa

ted by the estate. The cour

t then directe d t hat these parties file requests for fees within the thirty-day period for the final accounting. Hughes an d Lyons fil e d their notice of2 These documents have not been considered or a pproved by the trial court and, although made an appendix to Hughes and Lyons’s brief, will not be considere d by this Court on appeal. See T.R.A.P. 13(c). 4 appeal on Octo ber 24, 1996 and, on October 25, 1996, filed an accounting of the assets of the estate with the chancery court. Hughes, Lyons, Nohsey, and Whitesell also filed their

request s for fees with the chancery cour t on October 25, 1996. 2 Hughes and Lyons present two issues for our review: 1) whether the simultaneous probate of the La st

Will and Testament of Maple Ione Stocks in the Chancery Court of Obion County, Tennessee and

the appointment, qualification, and gran t of lette rs of adm inistratio n to Hughes and Lyons as co-administratrices C.T.A. were prope r under the circumstances, and

2) whether the original order admitting the will to probate and granting letters of administration was properl y vacated by a subsequent order in view of the procedural and substantive defenses raised by Hughes and Lyons. We will consider these issues together. The proper venue in which to probate a will is set forth in T.C.A. § 32 -2-101, which providesas follow s:

32-2-101. Place of

proving and r

ecording will and gra

nting letters testamentary. —Wills shall be proved and recorded and letters t e stamenta

ry grant ed in the p

robate c ourt of the county where the testator hadhis usual residence at the time of his death, or, in case he had fixed places of reside nc e in more t han one county, in either or any of those counties. T.C.A. § 32-2-101 (1984). The same venue is established for intestate estates. T.C.A. § 30-1- 102 (1984). I

n the cas e befor

e us, the t e statrix’s named executors are decea sed, and the court appointed Hughes a

nd Lyons c o-adminis tratric es with the wil l an nexed. T.C.A. § 30-1-115 (1984). Under the above statutes, a court in a county other than that in which the deceased had his or her usual residence does not have jurisdiction to admit the will the probate or to gra nt letters of administration. Nonetheless, it is well-settled that the admission of a will to pro

bate in the wrong county cannot be collaterally attacked. Townsend v . Townsend , 44 Tenn. (4 Cold.) 70, 80 (1867) ; Johnson v. Gaines , 41 Tenn. (1 Cold.) 288 , 289-90 ( 1860). Th e probat e of a will in the wrong county mus tstand until the probate is revoked or vacated by the court gra nting the probate or until reversed

by the proper appellate tribunal. Townsend , 44 Tenn. at 80; Johnson , 41 Tenn. at 289-90. The same is true with respe ct to the g ranting o f letter s of admin istration in3 Obion County is not a county in which the legislature specifically transferred

jurisdiction over probate matters to a probate court. Thus, under T.C.A. § 16- 16-201(a), jurisdiction over the probate of wills and other administration matters in Obion County lies exclusively in the chancery court of that county. 5 the wrong county. See Bellenfant v. Ame rican Nat’

l Bank , 184 Tenn. 50, 195 S.W.2d 30, 31- 32 (1946); Franklin v. Fr anklin , 91 Tenn. 119 , 131, 18 S.W . 61, 64 (1 892); East Tennessee, V. & G. Ry. Co
. v. Mahoney , 89 Tenn. 311, 318-19. 15 S.W. 652 (1890). Jurisdiction over pro

bate matt ers for merly re sided exc lusively in the county courts. See Townsend

v. Townsen d , 44 Tenn. at 79. Probate jurisdiction was transferred to the chance ry court in c ertain c ounties by legislati on codifi ed as T.C. A. § 16-16 -201(a) : In all counties where not otherwise specifically provided by public, private, special or local acts, all jurisdiction relatingto the probate of wills and the administration of estates of every nature

. . . is here

by vested in the cha

ncery c ourt o f the respective counties
. The chancer

y court in such counties shall have exclusive jurisdiction over the probate of wills and the administration of

estates of every nature, including the estates of de cedents. . . and a

ll mattersrelating

thereto , hereto fore ve st e d in the county court. T.C.A. § 16-16-201(a) (1994). The statutes previously relating to jurisdiction of county courts now apply to chancery courts or, wher

e otherw ise provi ded by pub lic or pri vate ac t, to probat e courts . 3 T.C.A. § 16-16- 202 (1994). The record

in this case indicates that Stocks was a re sident of Shelby Coun

ty at the ti me of her death, and none of the parties suggests that she was a resident of both Shelby and Obion Counties. Therefore, under T.C.A. § 32-2-101, Shelby County, and not Obion County, was the proper county in which to admit the will to probate and to grant letters of administration. By the
sametoken, Obion County was the prope r county i n which to

directly attack the probate of the will, as in this case. Hughes and Lyonsalso asse rt that Ir onside and Grisham ’s recourse is limited to appeal from the chancery court’s order admitting the will to probate. They further assert that since the petition to vacate was filed more than thirty days after entry of the trial court’sorder admitting the will to probate, the petition to vacate came too late. We disagree with both assertions. T.C.A. § 16 -16-107 p

rovides i n pertine

nt part: 16-16-107. Original jur isdiction. - The cou nty c ourt has6 original j urisdicti on in the f ollowing c ases:
* * * (2) The granting of letters testamentary and of a dmin- istration, and the repeal and revocation there of . . . . T.C.A. § 16 -16-1 07 (1994). “[Letters of administration may], upon proper applica tion and showing, be revoked by that county court which ordered the ir issuance, this power of revocation being vested in that court by § 10 225 (2) [now T.C.A. § 16-16-107 (2)] of the Code.” Bellenfant

, 184 Tenn. at 52, 195 S.W.2d at 31. These pr in ciples now apply to the chancery court in the instant case. T.C.A. § 16-16-202 (1994). Hughes and Lyon s’s as sertions t hat the pe

tition to va

cate co mes too lat

e is equa lly without me

rit. T.C.A . § 32-4-1 08 (Supp. 1 996) prov ides: Statute of limita

tions. - All a ctions or proceedings to set aside the probate of any will, or petitio ns to certify such will for an issue of devisavit vel non, must be brought within two (2) years from entry of the orde r admittin g the will to

probate, or be forever barred, saving, however, to persons under the age of eightee n (18) years or of unsound mind, at the time the caus e of act ion accr ues, the rights conferred by § 28-1-106. A s stated previously, Stocks was a resident of Shelby County at the time of her death. Thus, the Probate Court

of Shelby County is the

court wit h proper jurisdict ion over t he proba te of the will and the administration of the estate in this case. Appellants may file their claim for fees an d expens es in that c ourt. Accordingly, the trial court’s order vacating the admission of t he will to p robate i s affirmed, and this case is remanded for such further pr oceedings as may be necessary. Costs are
assesse d against

the appe llants.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE