                                                                                           03/22/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              September 13, 2017 Session

                   IN RE ESTATE OF JAMES HOOD NICHOLS

                 Appeal from the Probate Court for Jefferson County
                    No. 2013-12-310 Dennis Roach, II, Judge
                      ___________________________________

                           No. E2017-00600-COA-R3-CV
                       ___________________________________


This case involves an order by the trial court directing the personal representative of the
Estate of James Hood Nichols (the Estate) to sell a portion of the real property of the
Estate. James Hood Nichols (the deceased) died testate. He bequeathed annuities to his
daughters, Connie Jane Nichols Cinder and Nan Nichols Jones (the beneficiaries). In the
will, the deceased gave a $75,000 annuity to Connie Jane Nichols Cinder and a $50,000
annuity to Nan Nichols Jones. According to the final settlement filed by Richard N.
Swanson and Earl Wayne Campbell (the co-executors), the net distributable probate
estate is $8,712.01. The co-executors proposed to distribute that amount to the
beneficiaries in proportion to the amount left to each beneficiary. The beneficiaries filed
an objection to the proposed final settlement, asking the court to order the sale of a
portion of the deceased’s real property in order to fund the annuities. Finding that the
bequests to the beneficiaries are higher priority than other bequests and devises in the
will, the trial court ordered the personal representative to sell a portion of the deceased’s
real property sufficient to fund the annuities. The trial court also awarded the
beneficiaries their attorney’s fees. The co-executors appeal. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Mark A. Cowan, Morristown, Tennessee, for the appellants, Richard N. Swanson and
Earl Wayne Campbell.

Eddy R. Smith, Knoxville, Tennessee, for the appellees, Connie Jane Nichols Cinder and
Nan Nichols Jones.
                                       OPINION

                                            I.

      The trial court admitted the deceased’s will to probate and appointed the co-
executors nominated in his will. In addition to being named co-executors, Richard N.
Swanson and Earl Wayne Campbell also served as co-trustees under the will. Article
THIRD of the will provides the following:

             I give to my daughter Nan Jones a paid up annuity which is to
             be purchased by my estate. The purchase price for such
             annuity is to be in the amount of fifty thousand dollars
             ($50,000). Said annuity is to be payable to my daughter for
             her life time [sic] and shall be payable to her in equal monthly
             installments. This annuity shall be purchased from an
             insurance company as a non-assignable annuity contract
             without refund provisions, and the delivery of such contract
             to the annuitant shall release my Executor from any further
             liability to the annuitant.

             I give to my daughter Connie Nichols a paid up annuity
             which is to be purchased by my estate. The purchase price
             for such annuity is to be in the amount of seventy-five
             thousand dollars ($75,000). Said annuity is to be payable to
             my daughter for her life time [sic] and shall be payable to her
             in equal monthly installments. This annuity shall be
             purchased from an insurance company as a non-assignable
             annuity contract without refund provisions, and the delivery
             of such contract to the annuitant shall release my Executor
             from any further liability to the annuitant.

       The will also contains a residuary clause. Article FIFTH of the will provides, in
pertinent part, the following:

             If my wife . . . survives me, I give all the rest, residue and
             remainder of my property and estate, both real and personal,
             of whatever kind and wherever located, that I own or to
             which I shall be in any manner entitled at the time of my
             death (collectively referred to as my “residuary estate”), to
             my Trustees, IN TRUST, to hold the same in a separate trust
             (referred to as the “Marital Deduction Trust”), to manage,
             invest and reinvest the same, and to dispose of the net income
             therefrom and principle thereof, as follows:
                                          -2-
              (a) My Trustees shall pay the entire net income therefrom to
              my wife . . . for so long as she lives, in quarter-annual or
              more frequent intervals as determined by my Trustees in their
              absolute discretion.

(Capitalization and bold font in original.)

       The co-executors filed a final settlement and petition to close the estate providing
that the net distributable probate estate was $8,712.01. Because that amount is
insufficient to fund the annuities, the co-executors proposed distributing the net estate to
the beneficiaries in proportion to the amounts stated in the will: $5,227.21 (60%) to
Connie Jane Nichols Cinder and $3,484.80 (40%) to Nan Nichols Jones.

       The beneficiaries filed an objection to the proposed final settlement. They claim
that the bequests of the annuities are of a higher priority than the other bequests or
devises in the deceased’s will. The beneficiaries assert that, based upon the deceased’s
inheritance tax return, the Estate contains assets valued in excess of $3,000,000,
including real property valued at $3,196,000. The beneficiaries asked the trial court to
order the sale of a portion of the deceased’s real property sufficient to fund their
annuities.

       Article ELEVENTH of the will gives the co-executors/co-trustees all powers
provided in Tenn. Code Ann. § 35-50-110. The will specifically gives the co-
executors/co-trustees the power to “purchase, dispose of, or deal with any real or personal
property . . . .”

       Tenn. Code Ann. § 31-2-103 provides, in pertinent part, as follows:

              The real property of a testate decedent vests immediately
              upon death in the beneficiaries named in the will, unless the
              will contains a specific provision directing the real property to
              be administered as part of the estate subject to the control of
              the personal representative. . . . If the decedent’s personal
              property is insufficient for the discharge or payment of a
              decedent’s obligations, the personal representative may utilize
              the decedent’s real property in accordance with title 30,
              chapter 2, part 4. After payment of debts and charges against
              the estate, the personal representative shall distribute . . . the
              property of a testate decedent to the distributees as prescribed
              in the decedent’s will.

       Tenn. Code Ann. § 30-2-401 provides the probate court with jurisdiction to sell a
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decedent’s real estate:

              The probate court shall have concurrent jurisdiction with the
              chancery and circuit courts to sell real estate of decedents and
              for the distribution or partition, and the mode of procedure in
              such a case in the probate court shall conform in every respect
              to the rules and regulations laid down for the conduct of
              similar causes in the chancery and circuit courts.

       The trial court held that the deceased’s real property should be sold to fund the
annuities, finding as follows:

              [T]he Court hereby finds that the language found under
              Article THIRD of the will of the Testator evidences a general
              bequest of personal property to the [b]eneficiaries named
              thereunder. The Court therefore Orders that the general
              bequest to the beneficiaries must first be satisfied before the
              residuary estate may be distributed. Because the personal
              property of the estate is insufficient to satisfy these bequests,
              the Personal Representative is hereby ordered to place the real
              property of the Estate for sale, with the proceeds of said sale
              to fund annuities on behalf of the beneficiaries . . . as stated
              under Article THIRD. In support, the Court finds this to be
              the clear and unambiguous intent of the Testator, and not in
              violation of established law or public policy. The Court also
              Orders that reasonable attorney’s fees shall be awarded to the
              [b]eneficaries . . . .

       The co-executors filed a Rule 59.04 motion to alter or amend, which the trial court
denied. On appeal, the beneficiaries argue that the Rule 59.04 motion was not timely
filed and, therefore, this appeal is not properly before the Court. Rule 59.04 requires a
motion to alter or amend to be “filed and served within thirty (30) days after entry of the
judgment.” Tenn. R. Civ. P. 58 provides, in pertinent part, as follows:

              Entry of a judgment or an order of final disposition is
              effective when a judgment containing one of the following is
              marked on the face by the clerk as filed for entry:

                                   *       *         *

              (3) the signature of the judge and a certificate of the clerk that
              a copy has been served on all other parties or counsel.

                                               -4-
(Emphasis added.) The trial court’s order signed by the judge was marked filed on July
19, 2016. The trial court, however, did not serve the order by fax until July 21, 2016.
Accordingly, the judgment was not effective until July 21, 2016. Therefore, the co-
executor’s motion to alter or amend filed on August 19, 2016 was timely filed within
thirty days of the effective date of the judgment. The case is properly before this Court.

       The beneficiaries filed a motion for attorney’s fees and costs. The trial court made
findings on each of the factors set forth in Tennessee Supreme Court Rule 8, Tennessee
Rule of Professional Conduct 1.5 governing attorney’s fees. Finding that the attorney’s
fees of the beneficiaries are reasonable in light of the relevant factors, the court ordered
the co-executors to pay $20,932.50 in attorney’s fees.

                                             II.

       The co-executors present the following issues as taken verbatim from their brief:

              Must the beneficiary in whom land has already vested by
              statute sell his land to fund an unsatisfied bequest?

              Did the trial court err in awarding [the beneficiaries’ attorney]
              $20,932.50 from the [E]state to represent his clients?

(Paragraph numbering in original omitted.)

       The beneficiaries counter with their own issues, which we have slightly changed:

              Was this appeal timely filed and is it properly before this
              Court?

              Did the trial court properly hold that the deceased left general
              bequests to the beneficiaries?

              Did the trial court properly hold that the beneficiaries’
              legacies are charges on the residue, including the real estate?

              Did the trial court properly order the co-executors to sell real
              property to pay the beneficiaries’ charges against the estate?

              Did the trial court properly hold that its order comports with
              the deceased’s clear and unambiguous intent?

              Did the co-executors waive their arguments regarding the trial
              court’s award of attorney’s fees and discretionary costs?
                                            -5-
              Did the trial court abuse its discretion in awarding attorney’s
              fees and discretionary costs to the beneficiaries?

(Paragraph numbering in original omitted.) These issues raised by the beneficiaries, with
the exception of the issue pertaining to the timeliness of this appeal, are subsumed and
addressed in our analysis. Therefore, we do not talk about those issues separately.

                                             III.

       “Construction of a statute and its application to the facts of a case are issues of
law.” Patterson v. Tenn. Dept. of Labor and Workforce Development, 60 S.W.3d 60,
62 (Tenn. 2001). “The construction of a will is [also] a question of law for the court.”
McBride v. Sumrow, 181 S.W.3d 666, 669 (Tenn. Ct. App. 2005). “The review of a
question of law is de novo, with no presumption of correctness afforded to the
conclusions of the court below.” State v. McKnight, 51 S.W.3d 559, 562 (Tenn. 2001).

       “The basic rule in construing a will is that the court will seek to discover the
intention of the testator, and will give effect to it unless it contravenes some rule of law or
public policy.” Third Nat. Bank of Nashville v. First American Nat. Bank of Nashville,
596 S.W.2d 824, 828 (Tenn. 1980) (quoting Bell v. Shannon, 367 S.W.2d 761, 766
(Tenn. 1963)); see also Strickley v. Carmichael, 850 S.W.2d 127, 131 (Tenn. 1992).
“That intention is to be ascertained from the particular words used, from the context and
from the general scope and purpose of the instrument.” Daugherty v. Daugherty, 784
S.W.2d 650, 653 (Tenn. 1990) (citations omitted). Furthermore, the testator’s “ ‘intent[]
is to be gathered from the scope and tenor of the whole will . . . .’ ” In re Estate of
Vincent, 98 S.W.3d 146, 150 (Tenn. 2003) (quoting Podesta v. Podesta, 189 S.W.2d 413,
415 (Tenn. Ct. App. 1945) (citation omitted)).

                                             IV.

                                              A.

       As noted in this opinion, the probate court had jurisdiction to sell a decedent’s real
property. Tenn. Code Ann. § 30-2-401. Tenn. Code Ann. § 31-2-103 provides that the
personal representative may utilize a decedent’s real property if the personal property is
“insufficient for the . . . payment of the decedent’s obligations.” (Emphasis added.) That
provision also directs the personal representative to distribute the property of a testator
“[a]fter payment of debts and charges against the estate.” (Emphasis added.)

       In Hutchinson v. Gilbert, the Supreme Court provided the following rule:

              The rule of construction that a gift or bequest of a money
              legacy, followed by a gift of the residue of the real and
                                         -6-
              personal estate, indicates an intention that the former is to be
              paid out of the testator’s real estate, if necessary to do so after
              paying debts, and will be a charge upon such real estate,
              commends itself to us, not only on account of the high
              authority thereof, but because it addresses itself to our
              judgment, as founded upon the “rule of rules” in relation to
              wills, which makes the intention of the testator the corner-
              stone upon which all construction must rest.

7 S.W. 126, 128 (Tenn. 1888) (italics in original). This Court has stated the following:
“[We] are of the opinion that . . . general legacies consisting of . . . annuities are a charge
upon both the estate of the decedent consisting of both personal and real property and are
also a charge upon the individual . . . .” Moore v. Moore, 315 S.W.2d 526, 530 (Tenn.
1958). “[W]hen the testator gives pecuniary legacies without indicating from what
source the legacies are to be paid and then includes a general residuary clause disposing
of both real and personal property as one mass or fund, the legacies are a charge on the
entire residuary estate, including the real property.” Rick v. Middle Tenn. Med. Ctr.,
Inc., No M2000-01662-COA-R3-CV, 2003 WL 1797952, at *4-5 (Tenn. Ct. App., filed
Apr. 7, 2003).

        In this case, it is undisputed that the annuities left to the beneficiaries are general
legacies. These gifts are followed by a gift of the residue of the decedent’s combined real
and personal property in trust to his wife. Based upon the above-cited cases, a general
pecuniary legacy followed by a gift of a combined residuary estate acts as a charge on
both the personal property and real property. Clearly, that rule applies in this case. The
gifts of the annuities to the beneficiaries are charges on the residuary estate consisting of
both the deceased’s personal property and real property.

        On appeal, the issue raised by the co-executors is whether the “beneficiary in
whom land has already vested” must sell the land to fund the annuities. Based on the
will, however, the land did not directly pass to any specific beneficiaries under the will.
The will leaves the decedent’s real property to his trustees, in trust. In In re Estate of
Culp, this Court stated that “[w]hile the legislature did not define the term ‘beneficiaries,’
as it is used in [Tenn. Code Ann. § 31-2-103], it is our view that the term refers to the
beneficiaries of the will, rather than beneficiaries of a trust established by the will.” No.
M2015-01412-COA-R3-CV, 2016 WL 2899122, at *2 (Tenn. Ct. App., filed May 12,
2016). In that case, we rejected an argument that the trustee lacked the authority to sell
real property, but we found that real property vested immediately in the trustee who had
the authority to sell the real property. Id. In this case, we fail to see how the trustees in
whom the real property vested could sell the real property to fund the residuary trust but
refuse to sell the real property to fund the annuities, which are charges on the real
property.

                                             -7-
       The co-executors also focus on the rapid decline of the deceased’s personalty prior
to his death due to large nursing home bills. They argue that this decline somehow
changed his intention that the beneficiaries should receive the annuities provided for in
the will. The deceased’s clear intention, however, was to leave annuities to the
beneficiaries. His will provides that the annuities are “to be purchased by [his] estate.”
“The word ‘estate’ is now ‘broadly used in Tennessee to include realty and personalty.’
. . . Tennessee’s courts construe it to include ‘every description of property,’ that is
descendible.” In re Estate of Trigg, 368 S.W.3d 483, 501 (Tenn. 2012) (bracketing and
internal citations in original omitted). Furthermore, the deceased’s will specifically
contemplates a decline in his personalty. Article FIRST of the will provides the
following: “I direct that the expenses of my last illness and funeral and expenses of the
administration of my estate shall be paid from my residuary estate without
apportionment.” Thus, the deceased allocated the payment of the expenses of his last
illness to come from his residuary estate and not from the annuities left to the
beneficiaries.

        As previously noted, “[t]he basic rule in construing a will is that the court will
seek to discover the intent of the testator, and will give effect to it unless it contravenes
some rule of law or public policy.” Third Nat. Bank in Nashville v. First Am. Bank of
Nashville, 596 S.W.2d 824, 828 (Tenn. 1980). The deceased’s will leaves annuities to
the beneficiaries, and that evinces the deceased’s clear intention. These annuities are
general legacies followed by a gift of the residue and act as charges on the deceased’s
real property. The probate court has jurisdiction to sell a deceased’s real property. Tenn.
Code Ann. § 30-2-401. The personal representative may use a decedent’s real property to
satisfy the obligations of the decedent when the personal property is insufficient, and the
personal representative is directed to distribute the deceased’s property after the payment
of charges against the Estate. Tenn. Code Ann. § 31-2-103. Nothing in Tenn. Code Ann.
§ 31-2-103 changes the rule that a general legacy may act as a charge on a decedent’s real
property. Based on the foregoing, we find no rule of law or public policy that
contravenes the intent of the deceased that the annuities he left to the beneficiaries be
funded by his estate, which includes his real property. The trial court did not err in
ordering the personal representative to sell the real property of the deceased to satisfy
charges against the real property. The judgment of the trial court ordering the sale of a
portion of the deceased’s real property sufficient to fund the annuities left to the
beneficiaries is affirmed.

                                             B.

       The co-executors challenge the trial court’s award of attorney’s fees to the
beneficiaries. The co-executors claim that the beneficiaries should not be awarded
attorney’s fees to preserve their own legacies, and if they are entitled to attorney’s fees,
the amount should be reduced to a reasonable amount.

                                            -8-
       The Supreme Court has stated the following with respect to a trial court’s
discretion to award attorney’s fees:

              The trial court’s determination of a reasonable attorney’s fee
              is “a subjective judgment based on evidence and the
              experience of the trier of facts,” and Tennessee has “no
              mathematical rule” for determining what a reasonable fee is.
              Accordingly, a determination of attorney’s fees is within the
              discretion of the trial court and will be upheld unless the trial
              court abuses its discretion. We presume that the trial court’s
              discretionary decision is correct, and we consider the
              evidence in the light most favorable to the decision. The
              abuse of discretion standard does not allow the appellate court
              to substitute its judgment for that of the trial court, and we
              will find an abuse of discretion only if the court “applied
              incorrect legal standards, reached an illogical conclusion,
              based its decision on a clearly erroneous assessment of the
              evidence, or employ[ed] reasoning that causes an injustice to
              the complaining party.”

Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011) (internal citations
omitted). This Court has stated that “[d]etermining (1) whether filing suit to construe the
will was necessary, (2) whether the attorney’s services benefitted the estate, (3) whether
the parties’ attorney’s fees should be paid from the estate, and (4) the amount of the
attorney’s fees are discretionary decisions.” In re Estate of Greenamyre, 219 S.W.3d
877, 885 (Tenn. Ct. App. 2005).

       In this case, the trial court made extensive findings on the issue of attorney’s fees.
The court made specific findings on each of the factors listed in Tennessee Supreme
Court Rule 8, Rule of Professional Conduct 1.5 governing attorney’s fees. The court
found that the beneficiaries’ attorney’s fees were reasonable given the work involved and
the fact that $125,000 was at stake in an estate with assets valued in excess of
$3,000,000. According to the trial court, the attorneys for the beneficiaries met every
deadline and never requested an extension of time in a case that extended over two years.

       The co-executors claim that the attorney’s fees involved were only incurred to
preserve the legacies of the beneficiaries. We disagree. This case involved a novel legal
issue of the application of Tenn. Code Ann. § 31-2-103 to a court-ordered sale of a
decedent’s real property. This case clearly involves more than the beneficiaries’ attempt
to preserve their legacies. It involves an issue of statutory interpretation and the
application of the statute to the facts in the case. The trial court had the discretion to
determine whether the beneficiaries should be awarded attorney’s fees and whether the
amount of the attorney’s fees is reasonable. We find no abuse of the trial court’s
                                            -9-
discretion in awarding attorney’s fees to the beneficiaries.

                                             V.

       The judgment of the trial court is affirmed. The costs on appeal are assessed to the
appellants, Richard N. Swanson and Earl Wayne Campbell. This case is remanded for
enforcement of the trial court’s judgment and for collection of costs assessed by the trial
court.



                                            _______________________________
                                            CHARLES D. SUSANO, JR., JUDGE




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