                  IN THE COURT OF APPEALS OF TENNESSEE

                                     AT KNOXVILLE                     FILED
                                                                          May 19, 1998

                                                 Cecil Crowson, Jr.
JAMES A. HELM and JUDY NELSON, ) C/A NO. 03A01-9710-PB-00497 Clerk
                                                 Appellate C ourt

                               )
     Plaintiffs-Appellants,    ) CUMBERLAND PROBATE AND
                               ) FAMILY COURT
v.                             )
                               ) HON. JAMES A. BEAN,
HELEN A. HAYES and HARRY       ) JUDGE
SABINE,                        )
                               ) AFFIRMED AND
     Defendants-Appellees.     ) REMANDED




DUDLE Y W. TAY LOR, THE TAYLO R LAW FIRM, Knoxville, for Plaintiffs-
Appellants.

JOE M. LO ONEY, LO ONEY & LOONE Y, Crossville, for Defendants-Appellees.




                                        O P I N IO N


                                                             Franks, J.


               After the w ill of the testatrix M ildred L. Fin k had bee n admitted to

probate, plaintiffs, children of deceased, filed this action contesting the validity of the

will, alleging th at “she lack ed testame ntary capacity” to m ake a will.

               The testatrix, at the time she executed her will, advised her attorney that

she had no child ren and a statem ent to tha t effec t was in corpor ated into her wil l.

Plaintiffs assert that this establishes that the testatrix was suffering from an insane

delusion, and the W ill should be declared void. A fter an evidentiary hearing before

the Judge without a jury, the Trial Judge ruled that the Will was valid, by concluding

the testatrix had the requisite tes tamentary cap acity to make a Will.
                 The order of the Probate Court admitting the will to probate, was prima

facie evidence of the valid ity of the will, 1 and the burden shifted to opponents of the

will to p rove th at the T estatrix w as of u nsoun d mind . See Matlock v. Simpson, 902

S.W.2d 3 84; Harper v. Watkins, 670 S .W.2d 611, 62 8 (Ten n. App . 1983) .

                 The courts of this state have recognized that a person suffering from an

insane delu sion that ma terially influences the disposition s made in th eir wills wo uld

be a basis to void such wills. This Court has explained an insane delusion thus:

                 A person is possessed of a delusion - that is, an insane delusion - when
                 he conceives something extravagant or unreasonable to exist which has
                 no existence except in his own abnormal imagination, but having once
                 conceived the thing or conditioned to exist, it is impossible to reason
                 him out of it.

Melody v. Ham blin, et al., 21 Te nn. Ap p. 687, 7 01 (19 37). Accord: Gass’ Heirs v.

Gass’ Executors, 22 Tenn. 278 at 28 3-4 (1842).

                 Plaintiffs made out a prima fac ie case that the testatrix was suffering

from a delusion, that is, the statement to her attorney and in her will that she had no

children. The proponents of the will then offered evidence from the preparer of the

will, witness to the will, the testatrix’s treating physician and testatrix’s sisters that

convinced the Trial Judge that the testatrix was not suffering from a delusion at the

time she execu ted her w ill.

                 The issue thus becomes whether the evidence preponderates against the

finding s of the Trial Ju dge. T .R.A.P . Rule 1 3(d).

                 The evid ence estab lished that the testatrix aban doned h er two ch ildren in

the early 1950's when they were ages 5 and 6, and their abusive father took them and

placed them in a foster home. The testatrix had no further contact with these children

throughout the remainder of her life, except she was approached by the son in the




   1
       The will was executed on March 17, 1994, and testatrix died on February 25, 1995.


                                                  2
1980's when she told him she had no children. The attorney who prepared the

testatrix’s will testif ied that after h er death he learned tha t she did hav e children, an d it

was his opinion “that she deliberately chose not to tell me the truth” about having

children. The testatrix’s sister testified at length about having numerous conversations

with the testa trix about the se children o ver the years, an d that the testatrix would

enquire about them periodically. She testified as follows:

               Q.      Did you speak with her [testatrix] with some degree of frequency
                       right up until the time she died in February of 1995?

               A.      Yes.

               Q.      Did you continue to discuss family matters with her in many of
                       those conversations?

               A.      Yes.

               Q.      And by family matters, did that also include discussion of these
                       children?

               A.      Yes.

The testatrix’ personal p hysician, the on ly expert to testify, said th at to a reason able

degree of medical ce rtainty, he had no reason to b elieve that she “could no t direct a

will in a competent manner”. The Trial Judge found the sister, Mrs. Partin, credible,

and relied upon her testimony in finding that the testatrix was not suffering from an

insane delusion. He stated:

               So, based on what Mrs. Partin testified to, obviously the testatrix knew
               she had children, acknowledged she had children, but for some reason,
               chose no t to make th em bene ficiaries in her will.

               When we look to another item, we can all speculate that perhaps as a
               result of her hospitalization with a nervous breakdown that this blocked
               her knowledge of these children. However, I think that’s refuted by
               Mrs . Partin’s testim ony.

Also, the Judge relied on the doctor’s testimony to buttress his finding.

               We conclude the evidence does not preponderate against the Trial

Court’s finding that at the time of the execution of the Will the testatrix knew of the


                                                3
existence of her two children, and was therefore not suffering from an insane delusion

which wo uld void her Will. T.R.A .P. Rule 13(d).

              The judgment of the Trial Court is affirmed and the cause remanded,

with the cost of the appeal assessed to appellants.




                                          __________________________
                                          Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




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