                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                FEBRUARY 20, 2004 Session

   MARY RACHEL BROWN WILLIAMS v. JEWELINE R. CRENSHAW

                  Direct Appeal from the Chancery Court for Shelby County
                      No. CH-01-0197-1    Walter L. Evans, Chancellor



                      No. W2003-01029-COA-R3-CV - Filed June 30, 2004


Plaintiff brought suit on a defectively executed joint will, arguing that, despite its infirmities as a
testamentary instrument, it is still enforceable as a contract for the benefit of a third party. In her
suit, Plaintiff sought to recover certain property, purportedly covered by the defective joint will, that
Decedent had devised to Defendant in a subsequent will. The lower court granted Defendant’s
motion for summary judgment, finding that the defective joint will does not constitute an enforceable
contract. For the following reasons, we affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Newton P. Allen, Malinda C. Allen, Memphis, TN, for Appellant

Thomas Barnett, Memphis, TN, for Appellee

                                              OPINION

                                   Facts and Procedural History

        On June 8, 1978, William Brown (“Mr. Brown”), his wife Pauline Brown (“Decedent”), and
their daughter Sophronia Johnson (“Ms. Johnson”) executed an instrument entitled “My Last Will
and Testament of William Brown, Jr” (“Instrument”). In the Instrument, the signatories purported
to devise all of their real and personal property to Mary Rachel Brown Williams (“Plaintiff”) in the
event that she survived them. It states:

               I, William Brown, Jr. of Memphis, Shelby County, Tennessee, being of soul
        [sic] mind, and disposing memory, do hereby make, publish and declare the
       following to be my last will and testament, hereby revoking any and all other wills
       heretofore made by me and my wife, Pauline N. Brown.
               I give, devise and bequeath all my property real and personal, furniture, all
       money, all contents of my home at 1977 Murley and the home of our daughter,
       Sophronia Johnson at 1938 Murley, to mu [sic] sister, Mary Rachel Brown Williams
       of 1749 Netherwood Ave, Memphis, Tennessee, if she should survive me or us.
       Without having to pay inheritance taxes.
               My signature on this the 8 day of June 1978
       Signed:                                              Witnesses:
       /s/ William Brown, Jr.                               /s/ Joseph B. Scott
       /s/ Pauline N. Brown                                 /s/ James Sanders
       /s/ Sophronia Johnson

Despite the two signatures of witnesses, it is undisputed that the Instrument was not witnessed in
accordance with statutory requirements and, therefore, does not constitute a valid will.

         Mr. Brown died on February 7, 1980, and Ms. Johnson passed away on October 6, 1996,
leaving Decedent as the last surviving signatory of the Instrument. Upon her death on July 23, 2000,
Decedent left a document entitled “Last Will and Testament of Pauline Brown,” dated August 25,
1992. This document devised certain personal property, as well as the real property at 1977 Murley,
to Jeweline Crenshaw (“Defendant”), a friend of Decedent. Shortly after Decedent’s death,
Defendant took possession of the residence located at 1977 Murley, though she did not attempt to
probate Decedent’s will at that time. On January 30, 2001, Plaintiff filed her complaint seeking to
establish her right to the property in Defendant’s possession, due to her status as a third-party
beneficiary to the Instrument. Plaintiff argued that, although the Instrument is not a valid will, it is
still enforceable as a contract for her benefit. She further argued that the terms of the Instrument
precluded Decedent from executing a subsequent will for the benefit of another.

        On January 28, 2003, Defendant filed a motion for summary judgment, asserting that the
Instrument did not create a legal obligation to enter into an irrevocable will, nor was it supported by
consideration. In response, Plaintiff maintained that genuine issues of material fact remained
regarding the authenticity of Decedent’s signature on the Instrument and that summary judgment
was, therefore, inappropriate. Plaintiff also filed a motion to amend her complaint to include a claim
of conversion, alleging that Defendant wrongfully accessed and converted funds in Decedent’s bank
account. After conducting a hearing on March 28, 2003, the trial court granted Defendant’s motion
for summary judgment and denied Plaintiff’s motion to amend. For purposes of summary judgment,
the lower court presumed that the signature of Decedent on the Instrument was genuine and found,
nevertheless, that the Instrument did not constitute a valid contract as a matter of law. Plaintiff then
timely filed her notice of appeal on April 28, 2003.

       At a hearing on May 23, 2003 to rule on certain issues pertaining to the statement of
proceedings, the trial court reconsidered its prior ruling granting summary judgment. The lower
court opined that a genuine issue of material fact remained, and summary judgment was


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inappropriate, unless Defendant stipulated that Decedent’s signature on the Instrument was genuine.
The trial court disagreed with Defendant’s contention that the Tennessee Rules of Civil Procedure
do not require a party to stipulate to disputed issues of fact but, instead, allow a court to presume
those facts in favor of the nonmoving party and determine whether the moving party is still entitled
to judgment as a matter of law. Accordingly, Defendant entered the stipulation on May 28, 2003,
and the trial court entered an order affirming its previous grant of summary judgment.

                                               Issues

       Plaintiff raises the following issues for our consideration:

       I.      Whether the trial court erred in granting Defendant’s motion for summary judgment
               based on its finding that the Instrument does not constitute a valid third-party
               beneficiary contract.
       II.     Whether the trial court erred in denying Plaintiff’s motion to amend her complaint.

       Defendant raises an additional issue:

       III.    Whether the trial court erred in requiring Defendant to stipulate to a disputed fact in
               order to preserve the grant of summary judgment.

                                       Standard of Review

        In Staples v. CBL & Assocs., Inc., 15 S.W.3d 83 (Tenn. 2000), the Tennessee Supreme Court
set forth the standards governing appellate review of a trial court’s grant of summary judgment:

       Since our inquiry involves purely a question of law, no presumption of correctness
       attaches to the lower court’s judgment, and our task is confined to reviewing the
       record to determine whether the requirements of Tenn. R. Civ. P. 56 have been met.
       See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran
       Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil
       Procedure 56.04 provides that summary judgment is appropriate where: (1) there is
       no genuine issue with regard to the material facts relevant to the claim or defense
       contained in the motion; see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); and
       (2) the moving party is entitled to a judgment as a matter of law on the undisputed
       facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993).

Staples, 15 S.W.3d at 88.




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                                          Law and Analysis

        In her first issue on appeal, Plaintiff argues that the lower court erred in finding, as a matter
of law, that the Instrument signed by Mr. Brown, Ms. Johnson, and Decedent does not constitute a
valid contract to give certain property to Plaintiff, the third-party beneficiary. Having reviewed the
relevant authority, we do not find that the trial court erred in its ruling. Plaintiff’s theory that the
Instrument constitutes an irrevocable contract is based on the erroneous legal assumption that the
existence of a joint will is, by itself, conclusive evidence of a contract. Rogers v. Russell, 733
S.W.2d 79, 85 (Tenn. Ct. App. 1986).

         It is clear from the face of the Instrument, entitled “Last Will and Testament,” that the
signatories intended it to operate as a testamentary device. Plaintiff maintains that they also intended
it to act as a contract for her benefit. In support of her argument, Plaintiff simply states that “it is
obvious that [the Instrument] clearly expressed the intent of the principal parties thereto . . . that if
Mary Rachel Brown Williams survived all three of the principal parties, Mary would receive the
properties described in the document. It is likewise obvious that there was sufficient consideration
. . .” As such, Plaintiff is arguing that the signatories’ intent for the Instrument to act as a contract
can be gleaned from the plain language of the Instrument. We disagree. The Instrument does not
contain any language indicating that it was intended to be a contract. There are no words such as
“contract” or “agreement,” nor any recital of consideration. Instead, the Instrument only contains
the typical testamentary language commonly found in joint wills. This is not a sufficient basis upon
which to find that the Instrument constitutes a contract. It is well settled in Tennessee that the mere
execution of a joint will does not mean that the will was executed pursuant to a contract or that it
constitutes a contract. See Tenn. Code Ann. § 32-308 (1977) (presently codified at Tenn. Code Ann.
§ 32-3-107 (2001)); Rogers, 733 S.W.2d at 86. In Rogers, this Court stated:

        By requiring more proof of the existence of a contract other than the execution of a
        joint will, our courts have followed the majority view recognizing that
            The fact that joint wills and mutual wills are usually executed as a result of
            a common intention does not in any way mean that they are always executed
            pursuant to a contract between the parties respecting the making of such wills
            ....
        Thus, our courts have always required more than the proof of the execution of a joint
        will to sustain a claim that a contract existed between the two parties to dispose of
        their estates in accordance with the terms of the will.

Rogers, 733 S.W.2d at 86 (citation omitted). As Plaintiff’s only proof of the existence of a contract
is the execution of the Instrument itself, her claim must fail as a matter of law. Consequently, we
affirm the trial court’s grant of summary judgment on this issue. We note that our holding on this
matter pretermits Defendant’s only issue on appeal. We will, therefore, conclude our analysis by
considering the final issue raised by Plaintiff.




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        On February 23, 2003, Plaintiff filed a motion to amend her complaint, seeking to add a
claim of conversion against Defendant. Plaintiff maintained that, in the course of caring for
Decedent and helping Decedent manage her financial affairs, Defendant wrongfully spent funds from
Decedent’s bank account for personal expenditures, rather than for Decedent’s benefit. Apparently,
Plaintiff argued that these funds, had they not been wrongfully spent, would have remained in
Decedent’s estate and passed to Plaintiff under the terms of the Instrument. In its order dated April
11, 2003, the trial court denied Plaintiff’s motion to amend. For the following reasons, we affirm
the ruling of the lower court.

         The granting or denying of a motion to amend a complaint is within the sound discretion of
the trial court and will not be reversed absent an abuse of discretion. Merriman v. Smith, 599
S.W.2d 548, 559 (Tenn. Ct. App. 1979). In making its determination, the trial court should consider
such factors as “[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving
party; repeated failure to cure deficiencies by previous amendments; undue prejudice to the opposing
party; and futility of amendment.” Id. Here, Plaintiff sought to add a claim of conversion to her
complaint against Defendant. It is a well-accepted principle that “conversion can be maintained only
if the plaintiff can show possession or a right to immediate possession of the item converted . . . .”
Mammoth Cave Prod. Credit Ass’n v. Oldham, 569 S.W.2d 833 (Tenn. Ct. App. 1977). Plaintiff
maintains that she has a right to the allegedly converted funds because they fall within the scope of
the Instrument which serves as a contract for her benefit as a third-party beneficiary. As we
discussed above, however, the trial court was correct in finding that Instrument does not constitute
a contract. Consequently, it affords no right upon which Plaintiff may base her conversion claim.
Plaintiff’s proposed amendment is, therefore, futile, and the trial court did not abuse its discretion
in denying the motion to amend.

                                             Conclusion

        For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are
taxed to the Appellant, Mary Rachel Brown Williams, and her surety, for which execution may issue
if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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