### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 17, 2003 Se ssion IN RE: ESTATE OF GLORIA ELEANO R FRANKLIN, EDWARD MANNING AD MINISTRATOR WITH THE WILL ANNEXED,

v. W. JESS WALTMAN Direct Appeal from the Chancery Court for Cocke County No. P-3490 Hon. Telford E. Forgety, Jr., Judge

FILED NOVEMBER 20, 2003 No. E2003-00926-COA-R3-CV

The Trial Court following an evidentiary hearing, held decedent’s holog raphic will to be conditional and inoperative. On appeal, we reve rse. Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery C ourt Reversed and Remande

d. H ERSCHEL P ICKENS F RANKS , J. delivered the opinion of the cour t, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined. Mark A. Co wan, Mor

ristown, T ennesse e, for A ppellant

. Roy T. Campbell, Jr., Newport, Tennessee , for Appellee.

OPINION

Gloria Eleanor Franklin died on May 16, 1999. A will executed by her in 1975 was admitted to probate on December 15, 1999, designating Edward Manning as Administrator, with the will annexed. On January 18, 2000, a pe tition was filed to probate a later will, which was signed on July 7, 1993 with two attesting witnesses who were her siste rs. The w ill had been recently found by the petitione

r and his w ife. I

n rejec ting the

latter w ill, the Trial Court said “The questionof whether or not the document proffered for probate wa s in the handwriting of the decedent and found among her papers met the formal requirements for a holog raphic will or a witnessed will was not an issue in this hearing, and the case wa s heard o n the leg al issue o f whethe r or not the docume

nt was a conditional document and not subject to probate.” The Court then found t hat the do cument in1 The hand written document s tates: I Gloria Franklin lea

ves [sic] everything to Ter ry & Jess Waltman. I Gloria F ranklin le aves [sic] e

very thin g I own including farm, vehickles [sic] ev er yth in g t o J es s & Te rr y Wa lt ma n i n c as e I d ie on my w ay t o & fr om Je rs ey. The document

was sig ned by

Gloria F ranklin a nd Jessie M. Hall and G

ertrude E. Hall, and date d July 7, 1993. -2- question “was a c onditiona l documen

t which by

its terms was to take effect only upon the happening of a certain contingency , and that the contingency did not occur.” The Court’s Judgment was appealed and this Court in remanding the issue for trial, said: Our

survey of the decisions of other jurisdictions leads us to conclude that whether the decedent in the instant case intended her will to be operative onlyif she died on her way to or from New Jersey should not be a scertained based solely upon the use of what is argua

bly conting ent lang

uage in the will. 1 In our judgment, other r elevant factors should also be considered: (1) the circumstances surrounding the execution of the document; (2) any

statements made by the dece dent following the execution of the document; (3) the manner in which the document was kept after the time for the purported contingency had lapsed; (4) the decedent’s educa tion and kn owled ge of the law; (5) whether any subsequent testamentar

y documents were made; (6) whether the contingency

bears a reasonable relati on to the disposition of the decedent’s property; (7) whether a finding of a conditional will mean s that the decedent died inte state; (8 ) whethe r effe ctuating

the terms of the w ill would be equitabl e under

the circumstances; and (9) such other rele vant factors as bear

on the issue at hand. The propone

nts of the will offered

several witnesses who testified that the deceased had said repeatedly

that she wanted Jess and Terry Waltman to have her property

. The estate offered no proof. The Courtobserved the decedent wrote the will and sig ned it in the presence of her sisters and that s he did so be cause sh e had he ard abou

t an autom

obile ac cident. T

he Co urt t hen considered

the fac tors set ou

t in this Court’s Opinion and found that the circumstances surrounding the making of the will was that decedent was about to take a road trip and heard about a bad accide nt. The Court found that decedent’s husband predeceased her and they had no children. The Court further found that the Waltmans did a lot for the decedent.

The Court found that the decedent made statements to many people regarding the f

act-3-

that she wanted

the Waltmans to have all of her property because they

had done so much for her and because sh e w an te d t he pr op er ty k ep t i n t he fa mi ly. The Court found the 1975 will of decedent and her husband w as kept in

a safe a nd that the

will in question was given to Terry in a sealed envelope and kept by her until afte

r decedent died. The Court thought i twas notable that the safe contained other importantdocument s and the deceased could have aske d for the holographic will and placed it in the sa

fe as we ll. The Court found that decedent had no special education or knowledge of the law, and that there we re no lat er wills ma

de, but fo und it sig nifican

t that dec edent ha

d ta ke n steps toward making another

will. The Court con cluded th e distribu tion set fo rth in the hologra

phic will w ould not be inequitable considering the circumstances, but that the 1975 will’s distribution was not inequita ble either. The Court found the contingency

in the will bore no relation to the disposition. The Court ruled that the petitioner failed to carry the burden of proof on the factors enumerated

by this Court, and said the most important factor to consider was that decedent intended to make ano ther will, and sh e probably would not have c onsidered doing so if she thought the holographic will was valid.

The issue on appea l is whethe

r the holo graph

ic will is c onditiona

l? The proof is undisput

ed that decedent w as motivat ed by the news of an aut

omobile accident to make a will. It is also undisputed, however, that decedent told others that she wanted the same disposition of property whe ther she died on the trip or at any other time. It is undisputed that decedent told several people before a nd after the trip to New Jersey that she w anted he

r proper ty to go to the Waltmans andnever changed her mind about that disposition. Decedent

gave th e documentto Terry

in a seal ed envelope and n ever as ked for it back. The Tria

l Court wa s concer

ned abou t this, spec

ulating that if the dec edent wa nted this document to control s he could h ave aske d for it ba ck some time in the ensuing six years and pla ced it in her safe where the

1975 wills w ere fou

nd. Ther e is no suggestion that the decedent thoug ht the document would not be kept safely by her niec e. The Trial Cou rt correc tly found decede nt had no spe cial e ducat ion an d know ledge of the law, and this factor is significant because it demonstrates the decedent would have no reason to think that the la

nguag e she use d about the trip to Ne w Jersey

might some

how aff ect the v alidity of the will. The Trial Court correctly found that no subsequent testimony or documents weremade, altho ugh the Court thought it was significant that the decedent appa rently met with an attorne y and talked about mak

ing a fo rmal will. The Tria

l Court obse

rved tha t if the decedent

had intended the hologra phic will to control, or thou ght it wa s still valid, decedent would not have sought to make ano ther will. However, the undisputed proof was the decedent wa nted the Waltmans to ha ve he r pr op er ty n o m at te r w ha t, no t j us t i f s he di ed on a t ri p t o N ew Je rs ey.-4- The Trial Court correctly

found that the finding of a conditional will would not leave the decedent intestate, as the older will controll ed, and th at the ter ms of the hol ographic will wo uld be equita ble under the circumstance s, as the Wa ltmans had

done so muc

h for the decede nt. Taking into account the evidence as to the factors in their entire ty, we conc lude the Trial Court erred in ruling the will was conditional. The Trial Court, in making his ruling said: And as the Court has said . . . it is a close case. The biggest thing in the Court’s mind is the fac t without qu estion thislady indicate d an inten

t to make a

later fo rmal Will, even took steps toward doing it. The point of that being, that if she intended that earlier Hologr aph to be a

permane nt Will, and if she intended the same disposition later then why g o through the steps of making a later for mal Will. We conclude that the Trial Court’s finding as to what motivated decedent to consider ma ki ng a new will is not supported by the evide nce. There is no proof that decedent wa nted a different disposition than if the decedent did not survive the trip to New Jersey . In fact, the proof clearly established that she continued to tell everyone up until her death six years later that this was the dispos ition she int ended. There is no evidence to infer that had she made a new will, the disposition of

her esta te would h ave bee

n any differe nt from he

r hologr aphic will. The fa

ctor tobe considered

is whether any

subsequent tes ta me nt ar y documents were made by deceased, and there are none. In sum, taking into account and evaluating the fa ctors set forth in our

prior Opinion, we conclude that the holographic will should be admitted to probate a nd executed. Based upon the guiding principles from other jurisdictions and the p roof in the reco rd, the hol ograp hic will re

flects th e deced ent’s inte nt, and the

trip menti oned ther

ein was simply

a n induceme nt to its mak

ing and not a cond

ition prec edent to

its operation. See Black

v. Taylor , 259 P.2d 1014, 1018 (Cal. Dist. Ct. App. 1953); McMerriman v. Shiel , 140 N.E. 600 (Ohio 1923); In re Will of Cohen , 491 A.2d 1292 (N.J. Sup. Ct. App. Div. 1985); Mason v. Mason , 268 S.E.2d 67 (W. Va. 1980); and Longshore v. Desmond , 35 Cal. Rpt r. 737 (Ca

l. Dis t. Ct. App. 1963) . We revers e the Judgment of the Trial Court and remand, with the direction that the w ill be admitted to probate as the de cedent’ s will. The cost of the appeal is assessed to the estate.

_________________________ H ERSCHEL P ICKENS F RANKS , J.