                                                                                       06/24/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                        Assigned on Briefs December 3, 2018

                     IN RE ESTATE OF BILLY JOE KERBY

               Appeal from the Chancery Court for McNairy County
                    No. P1319    William C. Cole, Chancellor


                           No. W2018-00728-COA-R3-CV


This appeal concerns the trial court’s summary judgment dismissal of the petitioner’s
claim against the estate of the decedent. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and D. MICHAEL SWINEY, C.J., joined.

John E. Talbott and G.W. Sherrod, II, Henderson, Tennessee, for the appellant, Jerry
Edward Mitchell, Administrator of the Estate of Jo Ellen Kerby.

Melissa G. Stewart-Leitschuh, Savannah, Tennessee, for the appellee, Estate of Billy Joe
Kerby.

                                       OPINION

                               I.     BACKGROUND

       Billy Joe Kerby (“Decedent”) and Jo Ellen Kerby (“Petitioner”) were married in
1989. Decedent executed a last will and testament on August 8, 2013, more than two
years prior to his death on January 15, 2016. Pursuant to the terms of the will, Decedent
bequeathed a life estate to property and a house, along with other items, to Petitioner.
The remainder of his estate was left to his daughters from a prior marriage, Kay and
Theresa Kerby. Decedent named Kay Kerby (“Executrix”) as the executrix of his estate.
Executrix admitted the will to probate on February 18, 2016, and letters testamentary
were issued on the same day. A notice of the court’s issuance of letters testamentary was
published in the local paper for two consecutive weeks, beginning on February 24, 2016.
       On November 4, 2016, Petitioner filed a petition for specific property, year’s
support allowance, elective share, and application for homestead. Petitioner conceded
that she and Decedent had entered into an antenuptial agreement that specified the
divestiture of Decedent’s residence but was vague as to the remaining financial assets of
either party. Petitioner claimed that she was unaware of the extent and value of
Decedent’s property at the time of the execution of the antenuptial agreement. Petitioner
further claimed that she did not receive notice of the probate action until May 3, 2016.

       Executrix objected to Petitioner’s request for relief and asserted that her claims
should be denied pursuant to the terms of the antenuptial agreement. She further asserted
that Petitioner’s application should be denied because her claims against the estate were
not made within nine months as required by statute.

       Petitioner passed away during the pendency of the proceedings on February 13,
         1
2017. Executrix moved for summary judgment dismissal of Petitioner’s claims, alleging
that dismissal was warranted because Petitioner’s claims were not filed within nine
months of Decedent’s death as required by statute. Executrix also filed a motion to
dismiss Petitioner’s claims pursuant to the terms of the antenuptial agreement, which
provided, in pertinent part, as follows:

             [Petitioner] hereby releases, renounces and quitclaims all interest in the real
             property and all right to participate in the distribution of the personal
             property of [Decedent] should she survive him, both as to property now
             owned by him and property hereafter acquired; together with the right to
             administer on his estate.

       On January 5, 2018, Petitioner filed a motion to compel inventory of the estate and
her responses to the motions for summary judgment and dismissal. Petitioner alleged that
she was unaware of and was provided no information concerning the probate proceeding
until May 3, 2016, when she finally received a copy of the will from Executrix’s counsel
and notice of the probate action. She then made repeated inquiries concerning the
condition of the estate and expenses; however, Executrix did not file an inventory of the
estate. Citing Tennessee Code Annotated section 31-4-103,2 Petitioner claimed that
Executrix’s failure to file the inventory precluded the summary dismissal of the petition.
Petitioner further asserted that the antenuptial agreement was invalid based upon the lack
of disclosures made to her at the time of the execution of the contract.


1
    The court substituted Petitioner’s estate as the petitioner in this action.
2
 “To enable the surviving spouse to act as personal interest may require, the personal representative shall
disclose, upon application, the state and condition of the spouse-testator’s estate.”
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       Executrix filed the requested inventory of the estate on March 19, 2018. The case
then proceeded to a hearing, after which the court granted summary judgment dismissal
of Petitioner’s claims based upon her failure to file the petition within the applicable
nine-month statutory time frame. In so holding, the court further found as follows:

       No application for information related to the state and condition of the
       Estate of Billy Joe Kerby was made by the surviving spouse or her estate as
       required by Tennessee Code Annotated section 31-4-103 during the nine
       month period following the death of [Decedent].

This timely appeal followed.

                                   II.    ISSUE

     The sole and dispositive issue on appeal is whether the court erred in granting
summary judgment.

                           III.   STANDARD OF REVIEW

       The appropriate summary judgment standard to be applied is as follows:

       [W]hen the moving party does not bear the burden of proof at trial, the
       moving party may satisfy its burden of production either (1) by
       affirmatively negating an essential element of the nonmoving party’s claim
       or (2) by demonstrating that the nonmoving party’s evidence at the
       summary judgment stage is insufficient to establish the nonmoving party’s
       claim or defense.

Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

      “We review a trial court’s ruling on a motion for summary judgment de novo,
without a presumption of correctness.” Rye, 477 S.W.3d at 250 (citations omitted). “In
doing so, we make a fresh determination of whether the requirements of [Rule 56] have
been satisfied.” Id. (citations omitted). We must view all of the evidence in the light
most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).

                                            -3-
       This appeal also involves the interpretation of statutes. Statutory construction is a
question of law that is reviewed de novo without any presumption of correctness. In re
Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This court’s primary objective is to
carry out legislative intent without broadening or restricting a statute beyond its intended
scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In
construing legislative enactments, we presume that every word in a statute has meaning
and purpose and should be given full effect if the obvious intention of the legislature is
not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a
statute is clear, we should apply the plain meaning without complicating the task.
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

                                  IV.    DISCUSSION

       Our legislature has provided certain safeguards for a surviving spouse to recoup
property and other items from a decedent spouse’s estate beyond that which is provided
for in the decedent’s will. A surviving spouse may petition the court to receive the
homestead, an elective share of the estate, specific property, and an allowance of year’s
support. Such a petition for any of the aforementioned claims must be made within nine
months of the decedent’s passing. Tenn. Code Ann. § 31-4-102(a)(1) (“The surviving
spouse may elect to take the spouse’s elective share in decedent’s property by filing in
the court . . . a petition for the elective share within nine (9) months after the date of
death.”); see also Tenn. Code Ann. §§ 30-2-101(d); -102(g); and 204(b) (referring to the
time limits set by Section 31-4-102(a)(1)).

       Here, the Parties agree that Petitioner did not petition the court within nine months
of Decedent’s passing. Petitioner claims that the court erroneously foreclosed her claims
due to her failure to comply with the nine-month timeframe when Executrix failed to file
an inventory or advise her as to the state and condition of the estate as required by
Tennessee Code Annotated section 31-4-103, which provides as follows:

       To enable the surviving spouse to act as personal interest may require, the
       personal representative shall disclose, upon application, the state and
       condition of the spouse-testator’s estate.

(Emphasis added.). While Petitioner claimed that she made “inquiries” concerning the
status of the estate, the record contains no evidence by affidavit or otherwise establishing
that she made the required application for information related to the state and condition of
the estate within the relevant time period. Petitioner did not file her motion to compel an
inventory of the estate until January 5, 2018, well beyond the nine-month period. With
these considerations in mind, we affirm the summary judgment dismissal of her petition.

                                            -4-
                                 V.     CONCLUSION

      We affirm the decision of the trial court and remand for such further proceedings
as may be necessary. Costs of the appeal are taxed to the appellant, Jerry Edward
Mitchell, Administrator of the Estate of Jo Ellen Kerby.


                                               _________________________________
                                               JOHN W. McCLARTY, JUDGE




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