1 Mr. Bir on is not a pa rty to this appea l. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE July 11, 2000 Sess

ion JUNE YATES MERRITT v. AILEEN BIRON YATES, ET AL 

### . Direct Appeal from the Chancery Court for Davidson County No. 97-1350-II Ellen Hobbs Lyle, Chancellor

No. M1999-00775-COA-R3-CV - Filed October 10, 2000

This appeal involves a dispute betwee n Plaintiff June Yate

s Merritt (“Ms. Me

rritt”) and Def

endants Aileen Biron Yates (“Mrs. Yates”) and Claire Biron (“Mr. Biron”) re garding the proper interpretation or construction of mutual wills executed in April of 1985 b y Mrs. Yates and her husband Thomas Harry Yates (“Mr. Yates”), who was the father of Ms. Merritt. After the death of Mr. Yates in December of 1985, Mrs. Yates deeded certain real property

to Mr. Biron, gif

ted certain personal property to Mr. Biron, and established a revocable trust using money received as a result of her h usb and ’s d eat h. In an ac tio n fi led by M s. Merr itt challenging these transactions, the trial court determined that there were no genuine issues of material fact and entered a judgment in favor of Ms. Merritt. Additi

onally, the court denied M s. Merritt’s motion f

or discretionar

y costs. Mrs. Yates appeals the court’s order g ranting a judg

ment in favor of Ms

. Merritt and Ms. Mer ritt appeals the court’s ruling r

egarding her

motion for discret

ionary cost

s. 1 For the reasons set forth below, we affirm the ruling of the trial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed; and Remanded.

D AVID R. F ARMER , J., delivered the opinion of the court, in w

hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.

Robert A. Anderso

n, Nashville, Tenn

essee, for the a

ppellant Aileen Biron Yates.
John J. Archer, Nash

ville, Tennessee

, for the appelle

e June Yates Merri

tt.

OPINION2 In November of 1995, Mrs. Yates execut ed a corrected deed co nveying this sam e prope rty to Mr. B iron. This deed is ide ntical to the pre vious deed except that the habendu m clause of the previous d eed was lined out.
-2- Ms. Merritt ( formerly June Yates Flesch) is the step-daughter of Mrs. Ya tes, who married Ms. Merritt’s father, Mr. Yates, in 1959. Mr. Biron is the brother of Mrs. Yates. In April of 1985, Mr. Yates execute

d a will providing

as follows: My Wife, Ail een Biron Yates, is e xecuting simultane

ously herew

ith a Will containing provisions similar to those set o ut herein, and our

said Wills are executed eachin consideration o

f the other and pu

rsuant to our agreemen

t as to the disposition of our respective properties at our deaths, that is, tha

t after certain

specific beques

ts made by each of us

as set out in our respective Wills, the remainder of the estate of the first to die will pass to the survivor of us, and on the death of the survivor his or her estate will pass to June Yates Flesch.

On the same date, Mrs. Yates executed a will containing a provision that is identical to the one quoted above, except that the word “Husband” and the name Thomas Harry Yates is substituted for the word“Wife” and name Aileen Biron Ya

tes. Mr. Yates die

d in December of

1985, at which time the majority of his property, including a piec e of real property located at 49 29 Roselawn Circle, passedto Mrs. Yates by

right of survivorship (not through his probate estate). In January of 1991, Mrs. Yates deeded the

Roselawn Circle pr

operty to Mr. Biron, reservinga life estate in th e property for herself. 2 Additionally, in September of 19 94, Mrs. Yates ga

ve all of her furniture, f

urnishings, andother personal effects to Mr. Biron but retained the right to use these items of personal property for the remainder of

her lifetime. Fin

ally, in March of 1996, Mrs. Yates created a revocable trust and placed assets tot

aling $174,770.1 7 into the trust. The trust instrument contains specific instructions regarding the disposition of the trust property following the death of Mrs. Yat

es. Under these i

nstructions, none o

f the trust property passes

to Ms. Merritt.

In April of 1997, Ms.

Merritt filed a c

omplaint against

Mrs. Yates and Mr. Biron asking the court to set aside the transfer

of the Roselawn Cir

cleproperty to Mr. Biron and enjoin Mrs. Yates from making any

further convey

ances of her pr

operty that

would defeat or i

mpair the in

tentio n of the wills that she and Mr. Yates executed in 1985. Ms. Merritt fi led an amend ed complaint in October of 1997 asking the cour

t to determine the rights of the parties with respect to the furniture, furnishings,

and other personal effec

ts that Mrs. Yates gifted to Mr. Biron and the property contained in the revocable trust that Mrs. Yates established in 1996. In January

of 1998, the trial court entered
a memorandum and order finding that there are no genuine issues of material fac t between the parties andthat Ms. Merritt is entitled to a judgment as a matter of law. Thereafter in September of 1999, the court entered orders

setting aside the

deeds that Mrs. Ya

tes had executed in

favor of Mr. Biron, the transfer of Mrs.

Yates’ furnitur

e, furnishings,

and personal ef

fects, and the re

vocable trust estab lis hedby Mrs. Yates. Ms. Merritt subsequently filed a motion seeking an award of discretionary costs, which was denied by the trial court. This appeal by Mrs. Yates followed.-3-

The issues raised

by the parti

es on appeal, as w

e perceive them

, are as follows:

I. Was the agreement between Mr. and Mrs. Yates regarding the disposition of their property at their deaths void for lack of consideration?

II. Under the terms of this agreement, was Mrs. Yates prohibited fro m transferring certain real

property, t

angible person

al property

, and intangible personal property that did not pass to her as part of the probate estate of Mr. Yates?

III. Assuming that the a greement did

prohibit Mrs. Yates from trans ferring this pro pert y, is the amount by which the proper

ty increased after the death of Mr. Yates also subjec

t to the terms of the

agreement?

IV. Did

the trial court err in denying Ms. Merritt’s motion

for discretiona

ry costs? To the extent that these issues involve questions of fact, our review of the trial court’s ruling is de
novo with a presumption of correctness and thus we may not reverse the court’s factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996); T.R.A.P. 13(d). With respect to the

court’s legal co

nclusions, however, our review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder
v. Icar d, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. , 986 S.W.2d 550, 554 (Tenn. 19 99) ; T.R.A.P. 13(d).

Mrs. Yates first conte

nds that her agr

eement with Mr. Ya

tes that the su

rvi vor of the two would leave his or her estate to Ms. Merritt is void for lack of consideration. In support of t his argument, Mrs. Yates claims

that, because no property passed to her under Mr. Yates’ w ill thatshe
was not already entitled to receive by right of survivorship, she did not receiv e a benefit as a r

esult of the execution of this will. In order t o be enforceable, a contract must be supported by consideration. Smith v. Pickwick Elec. Co-op. , 367 S.W.2d 775, 780 (T enn. 1963); Frank Rudy Heir s A ssocs. v. Moore & Assocs., Inc. , 919 S.W.2d 609, 613 (T enn. Ct. App. 1995) ; Price v. Mercury Supply Co. , 682 S.W.2d 924, 933 (T enn. Ct. App. 1984) . It iswell settled that the mutual promises of the parties to th e contract to eith

er take some act

ion or refrain

from taking some action
can serve a s consider ation for a contract. See Buraczynski v. Ey ring , 919 S.W.2d 314, 322 n.6 (Tenn. 1996); Rodgers v. Southern Newspapers, Inc. , 379 S.W.2d 797, 800 (Tenn. 1964); Squibb
v. Smith , 948 S.W.2d 752, 755 (Tenn. Ct. App. 1997); Pearson v. Garrett Fin. Servs

. , 849 S.W.2d 776, 779 (Tenn. Ct. App. 1992). In the instant case, Mr. and Mrs. Yates both promised each other that they would

execute wills disposing of their propert y pursuant to

their agreeme

nt that the last to die would leave his or her property to Ms. Merritt. This is evidenced by the statement

in both o f their wills that “our said Wills are executedeach in consideration of the other and pursuant to our agreement

as to the disposition of our respective properties at our deaths.” Thus, t he mu tual promises of

Mr. and Mrs. Yates served as consideration for their agreement regarding the disposition3 The term “mut ual wil ls” has been descri

bed as separ

ate wil ls of t wo persons t

hat are r eciproc al i n their provisions

. See, e.g., In re Estate of H urdle , 868 S.W .2d 627 , 629 (T enn. Ct. Ap p. 1993 ).

4 While the common law m ay affect the methods by which M rs. Yates obtained any such property , it “ does not preclude contracts i

n mutual wills bindingthe surviv or to a given dis

position [i

n a] will. ” Ashley v. V olz , 404 S.W.2d 239, 244 (Tenn. 1966 ).
-4- of their property. We therefore reject Mrs. Yates’ a rgument that the agreement is unenforceable for lack of consideration.

The remaining two issues raised on appeal by Mrs. Yates both req uire u s to determine the precise terms of the agreement betwee n Mr . and Mrs. Yates. When two persons execute mutual wills 3 pursuant to an agreement re garding the ma

nner in which thei

r property is to be disposed of, the terms of the agreement must be ascertained by examining the

contents of the wil

ls themselves. See 1 Jack W. Robinson, Sr. & Jeff Mobley,

Pritchard on Wills

andAdministration of Estates § 25 (5 th ed. 1994). Thus, this Court must attempt to ascertain and enforce the intention of Mr. and Mrs. Yates as expressed by

the language

of the wills

that they executed in 1985. See Wil liams v. Estate of William s , 865 S.W.2d 3, 5-6 (Tenn. 1993) ; Wright v . Brandon , 863 S.W.2d 400, 402 (Tenn. 1993); Daugherty v. Daughe rty , 784 S.W.2d 650, 653 (Tenn. 1990).

As stated above, the

wills of Mr. and Mrs . Yates state that “after certa

in specific beque

sts made by each of us as set out in our respective Wills, the remainde r of the estate of

the first to die will pass to the survivor of us, a nd on the d eath of the survivor his or her estate will pass to June Yates Flesc h.” It is Mrs. Yates’ position on appeal t hat her agree

ment with Mr. Yates

applies only to property that

passed through t

he estate of the first to die a

nd therefore do

es not apply t

o property that she received by right of survivorship upon the death of Mr. Yates 4 or to any incre

asein value to this property that occurred subsequen t to Mr. Ya tes’ death. We thin k, however, that t

his contention is contrary

to intention expresse

d in Mr. and Mrs. Yates’ will s. There is n o language in the wills limiting the scope of the agreement to the probate estate of the first to die. Rather, the wills state that “on the death of the survivor his or her estate will pass to June Yates Flesch.” Thus, Mr. and Mrs. Yates ag

reed that the ent

ire estate of the

last to die

would ultimately

pass to Ms. Merritt, regardless

of the origin of

the assets contained

in the estate. The

estate of the sur

vivor, Mrs. Yates , contains prope rty that

she received through the probate estate of Mr. Yates, property that she received by

right of survivor

ship upon the death

of Mr. Yates,

and the amount by which the value of these assets have increased following Mr. Yates’ death . Be cause Mrs. Yat es is bound by her agreement

with Mr. Yates to

devise the entirety of

this property to Ms. Merritt, we conclude that the trial court properly set aside the deeds that Mrs. Yates executed in favor of Mr. Biron, the transfer of Mrs. Yates’ furniture, furnishings, and personal effects to Mr. Biron, and the revoc able trust
es tablish edby Mrs. Yate s. We therefore a

ffirm the ruling

of the trial court

with respect to the

se matters.
With this ruling, we by no mean s suggests that Mrs. Yates may not reasonably use for her
own benefit the prope

rty which she received from Mr. Yates. We merely recog nize that the mutual wills made by Mr. and Mrs. Yates simply limit her use of the property to reasonableuse, and that5 While Ashley v. V olz involve d a joint wil

l, we note that Daniel v. Ahar onian involved a mutual will. We find these guidel

ines would apply

equally in

either case

. -5- Mrs. Yates may

not dispose of the property in a manner inconsistent with the obvious intent of the wills.

The Tennessee Supreme Court adopted this rationale i n Ashley v. Volz , 404 S.W.2d 239 (Tenn. 1966). Quoting the Rhode Island case of Daniels v. Aharonian , 7 A.2 d 767 ( R.I. 1939), the supreme court stated:

if that part of the agreement which binds the surviving party [, the m utu al will,] contains no provision defining such party’s powers over the whole property during the survivorship, but only provides that he shall by w

ill dispose of his pro

perty at his death to certain benef

iciaries a c ertain way, then it seems to be well settled that he ho l ds all the property subject to a trust to carry out the agreement, but may use not only the income but reasonable portions of the pri ncipal for his support and for ordinary e

xpenditures, and ma

y change the form of it

by reinvestment and the like, [b]ut must not give aw

ay any considerable

portions of

it or do anyth

ing else with it that would be inconsiste

nt with the spirit o

rthe obvious intent and purpose of the agreement. Ashley v. Volz , 404 S.W. 2d 239 (Tenn . 1966) (qu oting Daniel v. Aharonian , 7 A.2d 767 R.I. 1939). 5 We feel that th is ruling p roves clear a nd fair guid elines for t he use of pro perty obtained through a mutual will and, as such, l imit Mrs. Yates’ use

of the property

to reasonable use not inconsistent with the intent or purpose of the agre ement.
Fin all y, Ms. Merritt argues on appeal that the trial court erred in

refusing to grant her motion for discretionary

costs. Rule 54.04 of the Tennessee Rules of Civil Procedure, which authorizes the court to award di

scretionary

costs, provides in p

ertinent part as f

ollows:

Costs not included in the b ill of costs prepar

ed by the cle

rk are allowable

only in the court's discretion. Discretionary costs allowable are: reasonable and necessary court reporter expenses for depositions or trials, re asonable and nec

essary expe

rt witness fees for d eposition s or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs.

T.R.C.P. 54.04(2). Thus, Rul e 54.04 expressly

authorizes the tria

l court, in its discretion, to award
as discretionary

costs only ce

rtain types

of expenses. Tria

l courts are afforded

a great deal of discretion when considering whether to award cos t s. See, e.g., Place ncia v. Placencia , 3 S.W.3d 497, 503 (Tenn. Ct. App. 1999). Absent a clear a buse of discretio

n, appellate

courts genera

lly will notalter a trial court's ruling with respect to c osts. See, e.g., Place ncia , 3 S.W.3d at 503 (citing Perdue v. Gr een Branch Mining Co. , 837 S.W.2d 56, 60 (Tenn.1992)). In her motion f o r discretionary

costs, Mrs. Yates sought reimbursement in the amount of $2,467.77 for the expense-6-

of filing a Notice of Lis Pendens against the Roselawn Circle property , the expense of

obtaining an appraisal of the Roselawn Circle pr operty, an d certain court r

eporter expenses . With respect to the fee for filing a Notice of Lis Pendens and the fee of the property assessor, we do not think that these type of expenses qualify as discretionary c osts within the meaning of Rule 54.04. Court reporter fees, however, may

be awarded as d

iscretionary

costs in the trial c

ourt’s discretio

n. See T.R.C.P. 54.04(2). In its order denying Mrs. Yates’ request for such fees, the trial court stated, and we agree, that “this litigation wa

s prosecuted by

both sides in good f

aith.” Under suc

h circumsta

nces, we conc lude that the trial court did not abuse its discretion in denying Mrs. Yates’ motion for discretionary costs and therefore affirm the court’s r uling with respect to this matter.

Based on the for

egoing, the ru

ling of the trial c

ourt is in all respe

cts affirmed. Th

e costs of this appeal are assessed against Aileen Biron Yates and her surety , for which execution may issue if necessary.

________________________________ DAVID R. FARMER, JUDGE