# FILED

July 24, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

IN RE: ESTATE OF LILLIE ) KERLEY PORTER (DECEASED) ) LOUDON CHANCERY ) SHIRLEY PO RTER WHEELER and ) TEDDY LEE PORTER, ) ) NO. 03A01-9703- CH-OO105 Plaintiffs/Appella nts ) ) v. ) HON. FRAN K V. WILLIAMS, III ) CHANCELLOR THOMAS STEVE HAR VEY, ) individual ly and in his capacity as ) Executor of the Estate of Lillie Porter, ) ) Defendants/Appellees ) AFFIRMED

Jess D. Campbell, Knoxville, for Appellants. Mary Katherine Longworth, Peggy J. S. Monger, Loudon, for Appellees.

O P I N I O N INMAN, Se nior Jud ge The dispositiv

e issue in thi s case is w hether Clyde and Lillie Porter contr acted to make mutual wills. Clyde and Li llie Porter

were husba nd and wife. Eac h was marr ied previ ously. Lilli e was su rvived by an a dop ted s on of her p revio us ma rriage , Th oma s Ste ve Har vey , thedefen dant

in t hisact ion. Cly

de was s urv iv ed by

tw o chi ldren of a prev ious marr iag e, Sh irl ey P ort er Wheel er a nd Te ddy Lee P ort er, the p lai ntiffs herein. On June 24, 1975, Clyde and Lillie executed their reciprocal wills. Each devised and be queathed his/her entire estate to the other; the contingent beneficiaries w

ere the same in ea ch will . Each was appointed exec utor/execut rix of the other’s will. On October 23, 19 80 Lillie executed a codici l to her w ill expr essly affirmi ng and rat ifyi ng her

1975 w ill. She al so appo inted a differe nt Ex ecutor

whos e name was later obliterated.2 On October 26, 19 84, Lillie e xecuted another codicil by

which s he appointed still another person as executor, but whose nam e was later obliterated. She again ratified and conf irmed her 1975 will. On October 23, 19 80, Clyde executed a cod icil to hi s will by whi ch he appoin ted Edw in H. Arnol d Exe cutor of his w ill, who w

as, ci rcums tantia lly , the s ame person appointed by

Lillie i n her codici ls, but w hose name was o bliterated. Clyde died August 4, 1985. His will was duly probated through which his entire estate p assed to Lill ie. Lillie executed another w ill, on September 14, 1990, by w hich she dev ised the bulk of her estate to he r adopted son, the def endant herein. She execute d a codicil to this w ill in 1993, appointing he r son Exec utor, and increasing his share of the residual est ate. She died November 22, 1993. As may be deduce d, it is thi s 1990 wil l - the “breaking of the faith” - whic h, upon its probate, trigg ered this li tigation, fil ed by the two children of C lyde Porte r who seek the specific perf ormance of an alleged co ntract between Clyde and Lillie where by the y agree d tha t af ter t he de ath o f th e sur vivor ea ch pl aint iff would rece ive one-third of thei r property , which w ould have been t he case had Lill ie not revoked her 1975 will. In support of their

theory, th e plaintiffs tendered Lillie’s discover

y depositi on taken August 18 , 1986 whic h had been filed in an action by these plaintiffs i n the Probate Court against Lil lie as Executrix of the estate of her deceas ed husband, contesting the will of Clyde Porter. The Chancellor ruled that the discovery deposition was inadmissible because (1) the parti es in the w ill contest were not t he same as in the case at bar, and ( 2) the issues w ere not the same. The Chancellor found that the plainti ffs had failed to prove a contract as alleged, and d ismissed the complaint. The plaintiff s appeal and present f or review six ( 6) issues, only one of which we need consi der, that being whether th e discover y depositi on of Lillie was admissible on the issue of whether she and Clyde contracted to make m utual wills,1 The plaintiffs are i n a dilemma of their own making . The anomaly of

cont esti ng t he w ill of Cl ydePor ter in a n ear lie r li tig atio n on g roun ds of invalidity while necessarily asserting its validity in this cas e to support thei r theory of mutuality of wills is readil y apparent, k

eeping in min d that the plaint iffs seek the equi table remedy of specific performanceof the alleged contract between Lillie and Clyde. The defendant raises the issue of judici al estoppel w hich we do not take lig htly, si nce the policy of the law w ill not per mit anyone to “ gainsay what he has de liberately sworn to in the course of a judicial proceed ing,” McLemore v. Charleston and Memphis R.R.W., 111 Tenn. 639, and ‘publ ic policy does not permit a complaint in a subsequent sui t to set up a cl aim thus contrad icted by hi m in a previ ous judicial proceeding.’ Hamilt

on v. Zimmerman, 37 Tenn. 39 (1857 ). 3 and, if so, wh ether it was, in conjunc tion wit h all the ev idence, sufficient t o prove the requi site cont ract . If t his d epo sitio n is in adm issib le, t here is cle arly no subs tant ive evidence to support the compl aint and hence no reason to consider the remaining issues. Our review is de novo on the record, with no presumption of the correctness of the decision of the t rial court on questions

of law. NCNB Nat’l Bank v. Thrailkill, 856 S.W .2d 150 (Tenn. Ct. App . 1993). The questioned depos ition was taken in case No. 3885 sty led Shirley Por ter Wheeler and Ted Lee Por ter, plainti

ffs, v. Lil lie Porter, Executrix of the Estate of Clyde Porter, in the Loudon Count y Probate C ourt. The plaint iffs alleged that they were the s ole heirs at law of Cly de Porter, w ho died August 14, 1985, and that a paper wri ting dated Jun e 24, 1975 together with tw o codicils

executed in 1980 and 1984, purportingto be the last will of Clyde Port er, wereadmitted to probat e. They alleged that said instru ment was not t he last wi ll of Clyde Porter becaus e he executed another

will which was in the posses sion of Lilli e Porter w ho was fraudulently suppressing it to her fina ncial advantage. Other matters, not he re relevant, were all eged. 1 Beca use L illie ’s tes timo ny in t he will cont est is diff icult to su mma rize, we reproduce it verbatim, as it pertains: Q: Did you make a Will yourself at that time? A: Uh-huh (positive). Q: And I know I can read it, but before I do, did you and he have any d iscussion ab out what you all wou ld be doing with yo ur pro pert y?4 A: If he died first, hewas wi lli ng e ver

yth ing to me ; and if I died first, I w

as will ing ever

ything t o him; and then, at o ur death, everything would be divided three ways. That’s what he wanted. Q: Okay. So, regardles s of how the deeds were or how things were, you wanted to be sure to take care of each other - - - A: That’s rig ht. We sure did. Q: - - - in your later years; and then, you and h e wanted to see to it that t here was no difference made betw een the children. A: Right. Q: He wanted to

see that your

son got his

share and you wanted to see that his chil dren got thei r share? A: That’s rig ht. Q: And that is how you and he understood your W ills? A: That’s rig ht. Q: And had you done a Will that would haveaccomplished that also? A: The W ill ha dn’t been chan ged o r anyt hing. I don ’t kno w. Q: Well, did you do a Will in June of ‘75 al so? A: Yes. We done it at the same ti me. Q: Now was it still you and your husband’s intention in October of ‘84, that you and he w ould divi de your est ates once you all were all gone to take care of the three surviv ing chil dren? A: Yes. That’s what w e intended to do and w hat we wanted to do. Q: And is that sti ll what you wi sh to accomplis h? A: W ell, I would not che at anybo dy out of anything. Q: W ell, maybe we can - - - A: I want to do what Cly de said to do. Q: What is it that he told yo u to do that you want to do? A: Told me not to do any thing until my death. H e sat rig ht out there in the yard. Q: He wanted y

ou to liveon this proper ty until you died? A: He said to l eave it li ke it was ; he said if there’s anythi ng lef t af ter m y deat h, why, he wan ted t o divid e it th ree wa ys5 but not until my

death. Q: All right. Okay. Now do you still -- - the Will you made in ‘75, have you changed it - - - A: W hat W ill? Q: The Will in 1 975 that you ma de at D on McM urray ’s offic e at thesame time that Mr. Porter made a W ill? A: None of it has been c hanged. Q: That’s still your W ill? A: Uh-huh (positive). Q: In ot her wo rds, even t hou gh the real e stat e ma y have passed to you by deed as w ife and co-ow ner of that prop erty, are yo u advi sing u s tha t what you wan t to h ave happen is the same t hing you and your husb and wanted to have ha ppen in the begin ning? A: I want to do what Cly de wanted me to d o. Q: All rig ht. Mrs. P orter, to cont inue the depositi on, the 1975 W ill basically has remained the same through the se codicils w ith the exc eption of the exec utors being changed? A: That’s rig ht. Q: And has it been your - - - was it your agreement with Mr. Porter back i n ‘75 when y ou all pooled y

our stuff together somewhat that y

ou wanted each of your chil dren to participate in whatever was left over of the estate once the two of you had lived - - - onc e the two of you had comple ted living? A: Right. Q: So, in essence, with you and your hus band wanting to make sure that w hoever of the tw o of you lived the longest, had the property for your life f or whatever use you had to make of it. Is that correct? A: Yes. He to ld me I could do anything I wanted. I f I wanted to se ll it, okay. Q: All right. Under the circumstances if you had died bef ore he - - - A: To do the same. Q: You wanted him to be able to l ive on that property u ntil he died? A: Oh, yes. Take it just l ike I did hi m. I mean my pr operty over there - - - that I ha d over the re and eve rything. Q: W hat yo u’ve - - - assu ming he’d died firs t, you would have6 expected that he would have benefited from not only what he [sic] brou ght into the mar riage, but what he broug ht into the marri age? A: Yeah. Q: And then, if he used i t all up in hi s years of sickness or whatever

that was al l right with you?

A: Yes. And it was all right with him. He was always afraid that somebody would have to take care of us and he said that we would try and save and do without hel p so that nobody would have to take care of us. Q: And now, g oing back to the situation that resulted, if he died before you, he wanted you to have not o nly yo ur property b ut his proper ty to li ve on? A: That’s rig ht. Q: And if you got sick and had to sell it all to liv e until yo u died, that was the way

you all w

anted it? A: That’s the way he wan ted it. He to ld me that Saturday before we was in the hospital the next week. Q: All rig ht. He wa nted it that way and you did too? A: Uh-huh (Affirmative). Tha t’s what he told me and I didn’t ask for it. H e just told me ou t there sitti ng in the yard. Q: Okay. Now , if at the end of your all’s - - - after both of you had pas sed on, if there was stil l prop erty

that ha d come from your family

and come from his famil y, you a ll had decided the way you w anted it done was for each of the three childr

en to get a thi rd of it? A: Yes. After I had died. Q: W hether there was a little bit of property or whether there was a lo t of prop erty? A: Right. Q: And do I understand that is yo ur position still as far a s your Will is concer ned? A: I’m going to do what Clyde wanted me to do regardless. Q: All rig ht. And your Will has not been changed i n that regard? A: No, sir.

. . . . . . . This is heady

testimony, since Lill ie essential ly admits she agreed to abide her husband’s w ishes for reci procal w ills. H er swor n resolve“to do what Clyde w anted7

me to do regar

dless” apparently melted away on September 14, 1990, w hen she executed another

will, essentially

devisingthe estate she i nherited from Cl yde to her son, whic h was rat her at odds w ith her prev ious intention to which she testified.

Unde r th e ear lie r ca ses of Daniels v. Combusti on Engineering C

o., 583 S.W.2d 768 (Tenn. Ct. App. 1978) and Pridemar k Custom

Plating, Inc. v. Upjohn Co., Inc., 702 S.W .2d 566 (Tenn. Ct. App . 1985), the depositiona l testimony of Lillie in the case cont esting the w ill of Clyde would not be admissible i n the case at Bar because neither the parties nor the issues ar

e the same. The T ENNESSEE R ULES OF E VIDE NCE were adopted in 1990. R ULE 803(3) provides that a statement of the dec larant’s then existin g state of mind . . . such as intent, plan, moti ve or desi gn . . . re lating to t he execution, revocati on . . . or ter ms of the declarant’ s will is not ex cluded by th e hearsay r ule, a departure from previous case law which excluded such ev idence in w ill contest s. This rul e aligns Tennes see with the maj ority of Stat es in admittingevidence of a ment al state to pr ove the execution or

terms of a wi ll. See, Hickey v. Beeler, 171 S.W .2d 277 (Tenn. 194 3), R ULE 804(b)(1) provides: (1) Form er te stim ony. Testimony g iven as a w itness at another hearing of the same or a dif ferent proceeding or in a depo sition taken in compliance with law in the course of the same or another proceeding, if the party ag ainst whom t he testimony is now offered had both an opportunity

and a similar

motive to dev

elop the testimony

by direc t, cross or redirect examination . . . [is] not excluded by the hearsay rule if the declarant is unavailable as a witness. Under R ULE 32.01, T ENN

. R. C IV

. P RO ., the same prin ciple is app licable to depositions. The appellee arg ues that R ULE 804 specificall y requi res, as a condi tion prec ede nt to the a dmis sibil ity of Lilli e’s d epo sitio nal t esti mon y, tha t he s hall have been accorded “b oth an opportunity and similar

motive to dev

elop the testimony ,” and that whi le he had the oppor tunity, he h ad no motive to develop the t estimony. This argument app ears to be well-taken i n light of the o bvious fact th at neither the existence nor the val idity of the p urported contr act between C lyde and Lil lie was at2 Enacted in 1977 w ith mostly precatory

language. It was re-enacted in 1978 in its pres ent form, apparently in response t o the “larg e body of case l aw dealingwith the subject,” Junot, supra . It may not be applied in retrospect, but is applicabl e to the case at hand because the 1980 and 1984 codicils executed by Li llie reaffirmed and republished her 1975 will. 8 issue in the contest of Clyde’s will; superimposed is the f act that it was a discovery deposition, as contrasted to a trial deposi tion, that was taken, and the ap pellee obviously

had no motive to develop Li llie’s testimony concer ning a matter not pleaded or before the Court. This conclusion is strengthened by the official advisory

comme nts resp ecting R ULE 804(b) that therequirement of “both an opportuni ty and a similar moti ve” was carefully crafted to avo id the interpr etation of the companion F EDERAL R ULE 804 by the Si xth Circuit in Clay v. Johns-Manvil le Sales Cor

p., 722 Fed.2d 1289 (1983)

. For these rea sons, we find that the defendant Harv ey, who is the “part

y against whom the testimony is now offered ” had no ‘motive to develop’ Lillie’s testimony as

to whether

she and Clyde contracted to make mutual wi lls, and the deposition is thus not adm issible against him in the case at Bar. But if we are mistaken in t his conclusi on, we think Lillie’s testimony i n any event does not satisfy the r equirements of Tenn. Code Ann. § 32-3- 107, in earli er times known as the Troutman Act . This statute 2 provides: 32-3-107. Contracts to make or revoke wills. - (a) A contr act to make a will or devise, or not to revoke a will or devise, or to die inte stat e can be es tabl ishe d onl y by: (1) Prov isions of a w ill stati ng material provisi ons of the contract ; (2) An express reference in a will to a contract and extrinsic evidence proving the terms of the cont ract; or (3) A w riting s igned by the decedent evi dencing the contract. (b) The exec ution of a joint w ill or mutual wills does not create a presum ption o f a con tract to make a will, or to ref rain fro m revoking a will. The statute is des cribed in Junot v. Estate of Gilliam , 759 S.W.2d 654 (Tenn. 1988), as “r igidly

prescribi ng the req uirements of a contr act to make a w ill, not to revoke a w ill, or t o die intestate. ” The Supreme Cour t held, “It prescribes exclusive [emphasis suppl ied] methods by which a contract to makea will , to revoke a will , or to die i ntestate may be esta blish ed . . . the provis ions [of which] are e xclus ive an d ma nda tory . . . “9 The e xec utio n of t hese1975rec iprocal wi llscre ated no pr esum ptio n of a contract to make a will. Tenn. Code Ann . § 32-3-107(b). The will must contain provisions stating material provisions of the contract, an d there must be “an express reference in the w ill to a con tract and ex trinsic ev idence prov ing the ter ms of the contract” or

a writ ing sig ned by the deced ent evidenci ng the contra ct.

W hether the reciprocal wills contain material provisions of the contract is arguable; but

it is not controverte d that neither w ill contai ns an expres s reference to

a con trac t, an d the re is n o writi ng sign ed by L illie evide ncin g a con trac t. Th us, we are t augh t by Junot

[rigid, exclusi ve, mandatory ] that the evi dence is insuffici ent to establish a contract to make a will. The judgment is affirmed at the appellant s’ costs.

_____________________________ W illiam H. I nman, Senior Ju dge

CONCUR:

_______________________________ Housto n M. Godd ard, Pre siding Jud ge

_______________________________ Charles D. Susano , Jr., Jud ge