Agnieszka Rybak
Legal Research and Writing
Prof. Landers
Cooper v. Austin, 837 S.W. 2d 606; 1992 Tenn. App. LEXIS 173
Facts- On the August 20th, 1984, Dr. Bisson on the way back from the Memorial Park
asked Michael E. Harrison and Charles L. Harrison to do him a favor as soon as they are
back in his residence located on Park Avenue, however without specifying what it all was
about. When three gentlemen arrived at Dr. Bisson place, he requested from Charles
Harrison to call fro Ms. Thomas a public notary because her presence also will be needed
for this procedure. Shortly after Ms. Thomas came, Dr. Bisson without any explanation
about the kind of a document handed the paper to Charles and Michael to witness in front
of Ms. Thomas who later notarized it.
History-On 1985 Greer filed a petition in court to admit the June 18, 1982 two codicils
from August 20, 1984 as the Last Will and Testament of Dr. Bisson. The petition was
admitted on November 20, 1985. Later on May 20, 1986, Austin filed petition in court to
contest those codicils and court granted this appeal.
Issue(s)- “The first issue is whether the trial court erred in denying Greer’s motion for
summary judgment on the grounds that Mr. Austin’s will contest was barred by T.C.A.
32-4-108 (Supp. 1991). The second issue for review is whether the trial court erred in
directing a verdict for the contestant Austin by refusing to allow the 1984 codicil to be
submitted to the jury.”
Holding(s)-Austin’s motion had been granted by the trial court. The verdict was made on
the grounds that Ms. Greer didn’t provide enough evidence to prove that Dr. Bisson did “
signify to the attesting witnesses that the [ 1984 codicil] is his will…” as required by the
statute. That’s why the will made on June 18, 1982, will be admitted to probate without
any codicils.
Reasoning- First the court considered Greer’s argues that probate of any will, or petitions
to certify such will for an issue of devisavit vel non , must be brought within two years
from entry of the order admitting the will to probate or be evermore expelled and in this
situation this statute bars Austin’s action, because the 1984 codicil was admitted on
November 26, 1985, and Austin didn’t answer to the complain until December 2, 1988
which means that the action is barred by the two year statue of limitations in T.C.A. 32-4108. However the court disagree with Greer because the statute clearly states that the
probate of a will is introduction matter and there a separate and distinct issue from the
issue of devisavit vel non, and order of the probate court sustaining of denying the right
contest the will is an appeasable. See Winters v. American Trust Co., 158, S.W. 2d 740
(1929) where this law applies only in this case. Secondly court looked at the testimony
given by witnesses which claimed that Charles Harrison stated “ this codicil that I want
you all to notarize for me and witness” and Michael Harrison’s testimony indicated both
that it was a codicil and that he wasn’t informed by Dr. Bisson that it was a codicil. In
this situation Michael Harrison’s testimony was disqualified because of the opposing
statements.
Disposition/Results-The Court affirmed and remanded the case.