                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                      July 9, 2001 Session

             IN RE: ESTATE OF GLORIA ELEANOR FRANKLIN

                      Appeal from the Chancery Court for Cocke County
                       No. P-3490   Telford E. Forgety, Jr., Chancellor

                                    FILED AUGUST 9, 2001

                                 No. E2000-02687-COA-R3-CV



This is apparently a case of first impression. The appellant, W. Jess Waltman, filed a petition in the
trial court seeking to probate a document purporting to be the last will and testament of Gloria
Eleanor Franklin (“the decedent”). The will, dated “July 7 93,” directs that the appellant and his
wife, Terry Waltman, are to receive the decedent’s estate “in case I die on my way to & from
Jersey.” The trial court held that the will was not eligible for probate because it was a conditional
will and the specified condition or contingency, i.e., Ms. Franklin’s demise “on the way to & from
Jersey,” had not occurred. We vacate the trial court’s judgment and remand for further proceedings
consistent with this opinion.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY , JJ., joined.

Mark A. Cowan, Morristown, Tennessee, for the appellant, W. Jess Waltman.

Roy T. Campbell, Jr., Newport, Tennessee, for the appellee, Estate of Gloria Eleanor Franklin,
Edward Manning, Administrator.

                                             OPINION

                                                  I.

         The will sought to be probated is a handwritten document dated July 7, 1993. In its entirety,
it states, with spelling and grammatical errors, as follows:
                     On this day July 7

                     I Gloria Franklin leaves everything to Terry & Jess Waltman in

                     I Gloria Franklin leaves everything I own inclouding farm, vehickles
                     everything to Jess & Terry Waltman in case I die on my way to &
                     from Jersey.

                                                                          /s/ Gloria Franklin
                                                                          /s/ Jessie M. Hall
                                                  July 7, 93              /s/ Gertrude E. Hall

It was stipulated at the hearing below that the decedent had traveled safely to and from New Jersey
after the date of the will and had died of natural causes six years later.

        At the hearing, the trial court appears to have heard only legal argument on the issue of
whether the 1993 will was conditional and thus not subject to probate.1 There is nothing in the
record before us indicating that the trial court received any oral testimony at the hearing below.2 The
trial court found that the document was “a conditional document which by its terms was to take
effect only upon the happening of a certain contingency, that is ‘In case I die on my way to or from



         1
             The trial court’s order d enying pro bate provides, in p art, as follows:

                     This cause came on to be heard on this 13 th day of June, 2000, before the
                     Hono rable Telford E. Fogerty, Jr. Chancellor, upon the Petition of W . Jess
                     Waltman to adm it a new w ill to probate , the Answ er of Geo rge C. Fra nklin, Ne ttie
                     A. Moore and Beatrice Hensley, the statements and stipulations of counsel, the
                     appearance of the parties in Court, and the entire record in the cause from all of
                     which the C ourt finds and d ecrees as follows:

                                                            *   *     *

                     The question of whether or not the document proffered for probate was in the
                     handwriting of the deceden t and found among her papers m et the formal
                     requirem ents for a holographic will or a witnessed will, was not an issue in this
                     hearing, and the case was heard on the legal issue of whether or not the document
                     was a conditional document and not subject to probate.

The “stipulations” referenced in the order are no t detailed in the record, bu t there is no reaso n to beli eve they were
extensive in nature or touched upon the relevant subjects referred to later in this opinion.

         2
           There are a number of affidavits in the record. T hey app ear to have be en filed in co nnection with the p robate
of an earlier w ill of the dece dent date d May 12, 197 5. In any even t, there is nothing in the reco rd indicating that those
affidavits were considered by the trial court on the issue of whether the July 7, 1993, will was or was not a conditional
will.

                                                                -2-
Jersey.’”3 Because the contingency had not occurred, the trial court denied the appellant’s petition
to admit the will to probate. The effect of this ruling was to leave in place the probate of an earlier
will of the decedent dated May 12, 1975. This appeal followed.

                                                           II.

        The trial court apparently determined, as a matter of law, that the document in question, on
its face, reflects that it is a conditional will and, since the condition was not satisfied, that the
instrument does not qualify as the last will and testament of the decedent. Our review in this matter
is de novo with no presumption of correctness attaching to the trial court’s legal conclusions.
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

                                                          III.

       The goal in this case is to ascertain and give effect to the intent of the testator; that intent
controls unless to honor it would be to violate some rule of law or public policy. See In re Walker,
849 S.W.2d 766, 768 (Tenn. 1993). Our inquiry is subject to the following principles recognized
by the Supreme Court:

                  [T]he testator’s intention must be ascertained from that which he has
                  written in the will, and not from what he may be supposed to have
                  intended to do, and extrinsic evidence of the condition, situation and
                  surroundings of the testator himself may be considered only as aids
                  in the interpretation of the language used by the testator, and the
                  testator’s intention must ultimately be determined from the language
                  of the instrument weighed in the light of the testator’s surroundings,
                  and no proof, however conclusive in its nature, can be admitted with
                  a view of setting up an intention not justified by the language of the
                  writing itself.

Id. (quoting Nichols v. Todd, 20 Tenn. App. 564, 570-71, 101 S.W.2d 486, 490 (1936)) (internal
quotation marks omitted).

        The issue of what constitutes a conditional will or, put another way, a contingent will,4
appears to be one of first impression in Tennessee. The parties have cited no Tennessee cases, nor
are we aware of any, on this particular subject. Our research has revealed, however, that conditional
wills have been addressed by appellate courts in other jurisdictions.


         3
           The will uses the words and symbol “to & from”; the trial court in its order adopted the obvious meaning of
the instrum ent, i.e., “to or from.”

         4
          Some of the cases refer to a “condition” while others refer to a “contingency.” The label placed on the subject
is not important in the instant case.

                                                          -3-
        A conditional or contingent will is one that takes effect only upon the satisfaction of a certain
condition or the happening of a specified contingency. See Bagnall v. Bagnall, 225 S.W.2d 401,
402 (Tex. 1949). If the condition is not satisfied, or the contingency fails, the will is rendered
inoperative and void. See id. In determining whether a will is conditional or contingent, a court
must first determine “whether the happening of the possibility referred to is a condition precedent
to the operation of the will, or whether the possibility of the happening was only a statement of the
motive or inducement which led to the preparation and execution of the instrument.” Id. The
testator’s intent to make a conditional or contingent will must be clear. Black v. Taylor (In re
Taylor’s Estate), 259 P.2d 1014, 1018 (Cal. Dist. Ct. App. 1953). Language that appears to limit
the operation of a will based upon a condition or contingency should be strictly construed. “Courts
will not regard a will as conditional when it reasonably can be held that the testator was merely
expressing his inducement to make it, however inaccurate his use of language might be if strictly
construed.” Id.; see also McMerriman v. Shiel, 140 N.E. 600, 602 (Ohio 1923) (“The courts should
treat the statement as an inducement for making the will, if possible, and not as a condition to its
operation, unless the words or the surrounding circumstances clearly show that it was intended to
be contingent.”); In re Will of Cohen, 491 A.2d 1292, 1294 (N.J. Sup. Ct. App. Div. 1985) (“Courts
will generally regard a will as absolute rather than conditional unless the language employed by the
testator unequivocally shows his intention to make the entire will conditional.”) (internal quotation
marks omitted). If it is not clear that the testator intended to make a conditional or contingent will,
courts generally have found the will to be absolute in nature, so as to prevent intestacy. See Porter
v. Coleman (In re Estate of Coleman), 359 P.2d 502, 504 (Mont. 1961) (“If the will is open to two
constructions, that interpretation will be given it which will prevent intestacy.”); Mason v. Mason,
268 S.E.2d 67, 68 (W. Va. 1980) (“The rule of wills construction that favors testacy over intestacy
makes courts prefer holding a will absolute, if it is possible to construe questionably conditional
language as the testator’s motivation to write a will.”); see also Watkins v. Watkins’ Adm’r, 106
S.W.2d 975, 977 (Ky. 1937) (“For, after all, conditional wills are of so peculiar a description, and
operate usually so disastrously, not to say senselessly, that any doubt should be resolved in favor of
absolute character and a probate.”).

        In addition to the testamentary language itself, courts have looked to other factors in order
to determine the testator’s intent. In Mason v. Mason, 268 S.E.2d 67 (W.Va. 1980), the testatrix
wrote a holographic will that began, “Nov 4th 1973 – I am in the hospital for surgery, and in case
I do not survive. Everything I have belongs to Mervin.” 268 S.E.2d at 68. The testatrix survived
the surgery but died three years later of an unrelated illness. Id. The West Virginia Supreme Court
found that the will was not conditional, noting that the decedent had retained the document for years
following the 1973 surgery:

                The fact that the testator preserves the document for a long time after
                the passing of the time for the occurrence of a possible event
                mentioned in the will is admissible in evidence as tending to show
                that the possibility of the occurrence was a mere inducement for the
                making of the will, and not a condition precedent to the operation of
                the will.

                                                  -4-
Id. at 69 (quoting 79 Am. Jur.2d Wills § 746).

        In Longshore v. Desmond (In re Estate of Desmond), 35 Cal. Rptr. 737 (Cal. Dist. Ct. App.
1963), the testatrix’s holographic will stated as follows: “The enclosed should convey my wishes
of disposition to be made of any and all of my personal and tangible possessions in case I should
have a mishap and not return due to some unforeseen accident.” It also included a reference to “[m]y
last will and testament before leaving on a short trip.” 35 Cal. Rptr. at 739. Before leaving for her
trip, the testatrix gave the document to her daughter. Id. Upon her return, she took back the
document and placed it in a safe in her bedroom “in a striking, arresting position immediately
observable to anyone opening the safe.” Id. In determining whether the will was conditional or
absolute, the Court looked not only to the language of the will itself, but also several other factors,
including

                the circumstances surrounding the execution of the document and its
                delivery; the testator’s state of health; his plans for the future; the
                preservation of the document, particularly after the contingency has
                failed; instructions upon delivery; subsequent declarations of the
                testator; lack of another subsequent will; lack of alternative
                disposition of the property and the amount of the estate disposed of
                by the instrument.

Id. The Court found particularly significant the fact that the will was kept in the testatrix’s safe after
the contingency had failed and had been stored where it easily could be found; that the testatrix made
statements to the effect that she had made her will and arranged her affairs; and that no other
testamentary document was found. Id. at 740. Based upon these circumstances, the Court concluded
that the will was absolute in nature. Id.

        In McMerriman v. Schiel, 140 N.E. 600 (Ohio 1923), the testator’s will concluded with the
following statement: “This in case that I meet with accident on this journey....” 140 N.E. at 601.
The Ohio Supreme Court concluded that the will was absolute based upon several factors: (1)
Although the testator had several children, he named his daughter Louise, who was also his
housekeeper, his chief beneficiary. The Court noted that Louise’s designation as chief beneficiary
appeared “to be an act of justice, and if the will should be avoided, thereby resulting in a distribution
of the property among all the children equally, an injustice will result to the daughter Louise.” Id.
at 601. (2) After the testator had made his journey without incident, he had kept the will in a safe
place and had not changed its terms. Id. (3) The testator had written the will himself, and he “was
manifestly comparatively illiterate and wholly unlearned in the law, and...probably gave no thought
to the effect of the last paragraph of his will, and therefore entertained no intent in regard thereto.”
Id. (4) The Court found nothing “to indicate that an accident during the course of his journey to
Montana, or within a reasonable time thereafter, would have had any reasonable or logical relation
to his property or to the objects of his bounty.” Id.



                                                   -5-
        As illustrated by the above cited cases, the mere use of the phrase “in case” does not
automatically render a will contingent in nature and thereby justify a court in denying probate. A
court must examine the situation further and ascertain “whether the happening of the possibility
referred to is a condition precedent to the operation of the will, or whether the possibility of the
happening was only a statement of the motive or inducement which led to the preparation and
execution of the instrument.” Bagnall, 225 S.W.2d at 402. Our survey of the decisions of other
jurisdictions leads us to conclude that whether the decedent in the instant case intended her will to
be operative only if she died on her way to or from New Jersey should not be ascertained based
solely upon the use of what is arguably contingent language in the will. In our judgment, other
relevant factors should also be considered: (1) the circumstances surrounding the execution of the
document; (2) any statements made by the decedent following the execution of the document; (3)
the manner in which the document was kept after the time for the purported contingency had lapsed;
(4) the decedent’s education and knowledge of the law; (5) whether any subsequent testamentary
documents were made; (6) whether the contingency bears a reasonable relation to the disposition of
the decedent’s property; (7) whether a finding of a conditional will means that the deceased died
intestate; (8) whether effectuating the terms of the will would be equitable under the circumstances;
and (9) such other relevant factors as bear on the issue at hand.

         In the instant case, it appears from the meager record before us that the trial court relied
solely upon the language “in case I die on my way to & from Jersey” in holding that the handwritten
document purporting to be the decedent’s last will and testament was, in the words of the trial court,
“a conditional document.” We do not mean to criticize the trial court for proceeding as it did. There
was no Tennessee case authority to guide the court on this particular subject. Furthermore, it appears
that each of the parties relied solely upon the writing in pursuing their competing theories, thereby
leaving the trial court without any other evidence to consider. Regardless of the reason for the trial
court’s approach in this case, we fear that complete justice cannot be achieved on the record before
us. Accordingly, we remand this case for an evidentiary hearing based upon the principles set forth
in this opinion. We do so pursuant to the provisions of T.C.A. § 27-3-128 (2000), which provides
as follows:

               The court shall also, in all cases, where, in its opinion, complete
               justice cannot be had by reason of some defect in the record, want of
               proper parties, or oversight without culpable negligence, remand the
               cause to the court below for further proceedings, with proper
               directions to effectuate the objects of the order, and upon such terms
               as may be deemed right.

       Our decision to remand should not be construed as favoring or disfavoring a finding of a
conditional will in this case. We express no opinion on this, the ultimate issue to be decided on
remand.




                                                 -6-
                                                IV.

       The judgment of the trial court is vacated. This case is remanded for further proceedings,
consistent with this opinion. Costs on appeal are taxed to the appellee, the Estate of Gloria Eleanor
Franklin, Edward Manning, Administrator.


                                                      _______________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




                                                -7-
