                    IN THE COURT OF APPEALS OF TENNESSEE

                         EASTERN SECTION AT KNOXVILLE           FILED
                                                                  July 24, 1997

                                                               Cecil Crowson, Jr.
                                                                Appellate C ourt Clerk
IN RE: ESTATE OF LILLIE                    )
KERLEY PORTER (DECEASED)                   )    LOUDON CHANCERY
                                           )
SHIRLEY PORTER WHEELER and                 )
TEDDY LEE PORTER,                          )
                                           )    NO. 03A01-9703-CH-OO105
       Plaintiffs/Appellants               )
                                           )
v.                                         )    HON. FRANK V. WILLIAMS, III
                                           )    CHANCELLOR
THOMAS STEVE HARVEY,                       )
individually 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.



                                      OPINION

                                           INMAN, Senior Judge

       The dispositive issue in this case is whether Clyde and Lillie Porter contracted

to make mutual wills.

       Clyde and Lillie Porter were husband and wife. Each was married previously.

Lillie was survived by an adopted son of her previous marriage, Thomas Steve

Harvey, the defendant in this action. Clyde was survived by two children of a

previous marriage, Shirley Porter Wheeler and Teddy Lee Porter, the plaintiffs

herein.

       On June 24, 1975, Clyde and Lillie executed their reciprocal wills. Each

devised and bequeathed his/her entire estate to the other; the contingent

beneficiaries were the same in each will. Each was appointed executor/executrix of

the other’s will.

       On October 23, 1980 Lillie executed a codicil to her will expressly affirming

and ratifying her 1975 will. She also appointed a different Executor whose name

was later obliterated.
       On October 26, 1984, Lillie executed another codicil by which she appointed

still another person as executor, but whose name was later obliterated. She again

ratified and confirmed her 1975 will.

       On October 23, 1980, Clyde executed a codicil to his will by which he

appointed Edwin H. Arnold Executor of his will, who was, circumstantially, the same

person appointed by Lillie in her codicils, but whose name was obliterated.

       Clyde died August 4, 1985. His will was duly probated through which his

entire estate passed to Lillie.

       Lillie executed another will, on September 14, 1990, by which she devised the

bulk of her estate to her adopted son, the defendant herein. She executed a codicil

to this will in 1993, appointing her son Executor, and increasing his share of the

residual estate. She died November 22, 1993.

       As may be deduced, it is this 1990 will - the “breaking of the faith” - which,

upon its probate, triggered this litigation, filed by the two children of Clyde Porter who

seek the specific performance of an alleged contract between Clyde and Lillie

whereby they agreed that after the death of the survivor each plaintiff would receive

one-third of their property, which would have been the case had Lillie not revoked

her 1975 will.

       In support of their theory, the plaintiffs tendered Lillie’s discovery deposition

taken August 18, 1986 which had been filed in an action by these plaintiffs in the

Probate Court against Lillie as Executrix of the estate of her deceased husband,

contesting the will of Clyde Porter.

       The Chancellor ruled that the discovery deposition was inadmissible because

(1) the parties in the will contest were not the same as in the case at bar, and (2) the

issues were not the same.

       The Chancellor found that the plaintiffs had failed to prove a contract as

alleged, and dismissed the complaint.

       The plaintiffs appeal and present for review six (6) issues, only one of which

we need consider, that being whether the discovery deposition of Lillie was

admissible on the issue of whether she and Clyde contracted to make mutual wills,



                                            2
and, if so, whether it was, in conjunction with all the evidence, sufficient to prove the

requisite contract. If this deposition is inadmissible, there is clearly no substantive

evidence to support the complaint 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 trial court on questions of law. NCNB Nat’l Bank v. Thrailkill,

856 S.W.2d 150 (Tenn. Ct. App. 1993).

       The questioned deposition was taken in case No. 3885 styled Shirley Porter

Wheeler and Ted Lee Porter, plaintiffs, v. Lillie Porter, Executrix of the Estate of

Clyde Porter, in the Loudon County Probate Court. The plaintiffs alleged that they

were the sole heirs at law of Clyde Porter, who died August 14, 1985, and that a

paper writing dated June 24, 1975 together with two codicils executed in 1980 and

1984, purporting to be the last will of Clyde Porter, were admitted to probate. They

alleged that said instrument was not the last will of Clyde Porter because he

executed another will which was in the possession of Lillie Porter who was

fraudulently suppressing it to her financial advantage. Other matters, not here

relevant, were alleged.1

       Because Lillie’s testimony in the will contest is difficult to summarize, 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 discussion about what you all would be doing
              with your property?




       1
         The plaintiffs are in a dilemma of their own making. The anomaly of
contesting the will of Clyde Porter in an earlier litigation on grounds of invalidity while
necessarily asserting its validity in this case to support their theory of mutuality of
wills is readily apparent, keeping in mind that the plaintiffs seek the equitable remedy
of specific performance of the alleged contract between Lillie and Clyde. The
defendant raises the issue of judicial estoppel which we do not take lightly, since the
policy of the law will not permit anyone to “gainsay what he has deliberately sworn to
in the course of a judicial proceeding,” McLemore v. Charleston and Memphis
R.R.W., 111 Tenn. 639, and ‘public policy does not permit a complaint in a
subsequent suit to set up a claim thus contradicted by him in a previous judicial
proceeding.’ Hamilton v. Zimmerman, 37 Tenn. 39 (1857).

                                             3
A:   If he died first, he was willing everything to me; and if I
     died first, I was willing everything to him; and then, at our
     death, everything would be divided three ways. That’s
     what he wanted.

Q:   Okay. So, regardless of how the deeds were or how
     things were, you wanted to be sure to take care of each
     other - - -

A:   That’s right. We sure did.

Q:   - - - in your later years; and then, you and he wanted to
     see to it that there was no difference made between the
     children.

A:   Right.

Q:   He wanted to see that your son got his share and you
     wanted to see that his children got their share?

A:   That’s right.

Q:   And that is how you and he understood your Wills?

A:   That’s right.

Q:   And had you done a Will that would have accomplished
     that also?

A:   The Will hadn’t been changed or anything. I don’t know.

Q:   Well, did you do a Will in June of ‘75 also?

A:   Yes. We done it at the same time.

Q:   Now was it still you and your husband’s intention in
     October of ‘84, that you and he would divide your estates
     once you all were all gone to take care of the three
     surviving children?

A:   Yes. That’s what we intended to do and what we wanted
     to do.

Q:   And is that still what you wish to accomplish?

A:   Well, I would not cheat anybody out of anything.

Q:   Well, maybe we can - - -

A:   I want to do what Clyde said to do.

Q:   What is it that he told you to do that you want to do?

A:   Told me not to do anything until my death. He sat right
     out there in the yard.

Q:   He wanted you to live on this property until you died?

A:   He said to leave it like it was; he said if there’s anything
     left after my death, why, he wanted to divide it three ways


                                   4
     but not until my death.

Q:   All right. Okay. Now do you still - - - the Will you made in
     ‘75, have you changed it - - -

A:   What Will?

Q:   The Will in 1975 that you made at Don McMurray’s office at the same
     time that Mr. Porter made a Will?

A:   None of it has been changed.

Q:   That’s still your Will?

A:   Uh-huh (positive).

Q:   In other words, even though the real estate may have
     passed to you by deed as wife and co-owner of that
     property, are you advising us that what you want to have
     happen is the same thing you and your husband wanted
     to have happen in the beginning?

A:   I want to do what Clyde wanted me to do.

Q:   All right. Mrs. Porter, to continue the deposition, the 1975
     Will basically has remained the same through these
     codicils with the exception of the executors being
     changed?

A:   That’s right.

Q:   And has it been your - - - was it your agreement with Mr.
     Porter back in ‘75 when you all pooled your stuff together
     somewhat that you wanted each of your children to
     participate in whatever was left over of the estate once
     the two of you had lived - - - once the two of you had
     completed living?

A:   Right.

Q:   So, in essence, with you and your husband wanting to
     make sure that whoever of the two of you lived the
     longest, had the property for your life for whatever use
     you had to make of it. Is that correct?

A:   Yes. He told me I could do anything I wanted. If I wanted
     to sell it, okay.

Q:   All right. Under the circumstances if you had died before
     he - - -

A:   To do the same.

Q:   You wanted him to be able to live on that property until he
     died?

A:   Oh, yes. Take it just like I did him. I mean my property
     over there - - - that I had over there and everything.

Q:   What you’ve - - - assuming he’d died first, you would have


                                  5
             expected that he would have benefited from not only what
             he [sic] brought into the marriage, but what he brought
             into the marriage?

      A:     Yeah.

      Q:     And then, if he used it all up in his years of sickness or
             whatever that was all 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 help so that
             nobody would have to take care of us.

      Q:     And now, going back to the situation that resulted, if he
             died before you, he wanted you to have not only your
             property but his property to live on?

      A:     That’s right.

      Q:     And if you got sick and had to sell it all to live until you
             died, that was the way you all wanted it?

      A:     That’s the way he wanted it. He told me that Saturday
             before we was in the hospital the next week.

      Q:     All right. He wanted it that way and you did too?

      A:     Uh-huh (Affirmative). That’s what he told me and I didn’t
             ask for it. He just told me out there sitting in the yard.

      Q:     Okay. Now, if at the end of your all’s - - - after both of you
             had passed on, if there was still property that had come
             from your family and come from his family, you all had
             decided the way you wanted it done was for each of the
             three children to get a third of it?

      A:     Yes. After I had died.

      Q:     Whether there was a little bit of property or whether there
             was a lot of property?

      A:     Right.

      Q:     And do I understand that is your position still as far as
             your Will is concerned?

      A:     I’m going to do what Clyde wanted me to do regardless.

      Q:     All right. And your Will has not been changed in that
             regard?

      A:     No, sir.

                                   . . . . . . .

      This is heady testimony, since Lillie essentially admits she agreed to abide her

husband’s wishes for reciprocal wills. Her sworn resolve “to do what Clyde wanted


                                            6
me to do regardless” apparently melted away on September 14, 1990, when she

executed another will, essentially devising the estate she inherited from Clyde to her

son, which was rather at odds with her previous intention to which she testified.




       Under the earlier cases of Daniels v. Combustion Engineering Co., 583

S.W.2d 768 (Tenn. Ct. App. 1978) and Pridemark Custom Plating, Inc. v. Upjohn

Co., Inc., 702 S.W.2d 566 (Tenn. Ct. App. 1985), the depositional testimony of Lillie

in the case contesting the will of Clyde would not be admissible in the case at Bar

because neither the parties nor the issues are the same.

       The TENNESSEE RULES OF EVIDENCE were adopted in 1990. RULE 803(3)

provides that a statement of the declarant’s then existing state of mind . . . such as

intent, plan, motive or design . . . relating to the execution, revocation . . . or terms of

the declarant’s will is not excluded by the hearsay rule, a departure from previous

case law which excluded such evidence in will contests. This rule aligns Tennessee

with the majority of States in admitting evidence of a mental state to prove the

execution or terms of a will. See, Hickey v. Beeler, 171 S.W.2d 277 (Tenn. 1943),

       RULE 804(b)(1) provides:

       (1) Former testimony. Testimony given as a witness at another hearing
       of the same or a different proceeding or in a deposition taken in
       compliance with law in the course of the same or another proceeding, if
       the party against whom the testimony is now offered had both an
       opportunity and a similar motive to develop the testimony by direct,
       cross or redirect examination . . . [is] not excluded by the hearsay rule if
       the declarant is unavailable as a witness.

       Under RULE 32.01, TENN. R. CIV. PRO ., the same principle is applicable to

depositions.

       The appellee argues that RULE 804 specifically requires, as a condition

precedent to the admissibility of Lillie’s depositional testimony, that he shall have

been accorded “both an opportunity and similar motive to develop the testimony,”

and that while he had the opportunity, he had no motive to develop the testimony.

This argument appears to be well-taken in light of the obvious fact that neither the

existence nor the validity of the purported contract between Clyde and Lillie was at



                                             7
issue in the contest of Clyde’s will; superimposed is the fact that it was a discovery

deposition, as contrasted to a trial deposition, that was taken, and the appellee

obviously had no motive to develop Lillie’s testimony concerning a matter not

pleaded or before the Court. This conclusion is strengthened by the official advisory

comments respecting RULE 804(b) that the requirement of “both an opportunity and a

similar motive” was carefully crafted to avoid the interpretation of the companion

FEDERAL RULE 804 by the Sixth Circuit in Clay v. Johns-Manville Sales Corp., 722

Fed.2d 1289 (1983).

       For these reasons, we find that the defendant Harvey, who is the “party

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 wills, and the

deposition is thus not admissible against him in the case at Bar.

       But if we are mistaken in this conclusion, we think Lillie’s testimony in any

event does not satisfy the requirements of Tenn. Code Ann. § 32-3-107, in earlier

times known as the Troutman Act. This statute2 provides:

       32-3-107. Contracts to make or revoke wills. - (a) A contract to
       make a will or devise, or not to revoke a will or devise, or to die
       intestate can be established only by:
       (1) Provisions of a will stating material provisions of the contract;
       (2) An express reference in a will to a contract and extrinsic evidence
       proving the terms of the contract; or
       (3) A writing signed by the decedent evidencing the contract.
       (b) The execution of a joint will or mutual wills does not create a
       presumption of a contract to make a will, or to refrain from revoking a
       will.

       The statute is described in Junot v. Estate of Gilliam, 759 S.W.2d 654 (Tenn.

1988), as “rigidly prescribing the requirements of a contract to make a will, not to

revoke a will, or to die intestate.” The Supreme Court held,

       “It prescribes exclusive [emphasis supplied] methods by which a
       contract to make a will, to revoke a will, or to die intestate may be
       established . . . the provisions [of which] are exclusive and mandatory .
       ..“




       2
         Enacted in 1977 with mostly precatory language. It was re-enacted in 1978
in its present form, apparently in response to the “large body of case law dealing with
the subject,” Junot, supra. It may not be applied in retrospect, but is applicable to
the case at hand because the 1980 and 1984 codicils executed by Lillie reaffirmed
and republished her 1975 will.

                                           8
       The execution of these 1975 reciprocal wills created no presumption 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, and there must be “an express

reference in the will to a contract and extrinsic evidence proving the terms of the

contract” or a writing signed by the decedent evidencing the contract.




       Whether the reciprocal wills contain material provisions of the contract is

arguable; but it is not controverted that neither will contains an express reference to

a contract, and there is no writing signed by Lillie evidencing a contract. Thus, we

are taught by Junot [rigid, exclusive, mandatory] that the evidence is insufficient to

establish a contract to make a will.

       The judgment is affirmed at the appellants’ costs.



                                          _____________________________
                                          William H. Inman, Senior Judge


CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Charles D. Susano, Jr., Judge




                                           9
