                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 12, 2002 Session


       IN RE: ESTATE OF DONALD BEN HENDERSON, DECEASED,
              JEFF HENDERSON v. KENNETH HENDERSON

                      Appeal from the Probate Court for Monroe County
                        No. 98-116    Edwin C. Harris, Probate Judge

                                   FILED JANUARY 29, 2003

                                  No. E2002-01155-COA-R3-CV



Donald Ben Henderson (“Deceased”) died in 1998. Jeff Henderson (“Appellant”) is the Deceased’s
grandson. Kenneth Henderson (“Appellee”) is the Deceased’s son. Appellant and Appellee each
submitted documents for probate purporting to be the last will and testament of the Deceased. In
total, three wills and a revocation were filed with the Probate Court. The Probate Court entered its
Order of Probate on October 18, 2001, holding that none of the three documents submitted should
be admitted to probate as the Deceased’s will. Based upon this determination, the Probate Court
held the Deceased died intestate. More than thirty days after October 18, 2001, Appellee filed a
motion to excuse the administrator ad litem and requested he be appointed personal representative
of the estate. Appellant opposed the motion and filed a will contest. The Probate Court’s order of
April 23, 2002, appointed Appellee personal representative of the estate and stated its earlier order
holding the Deceased died intestate was a final order. Appellant appealed. Appellee argues this
Court lacks jurisdiction to hear the appeal because the notice of appeal was filed late. We hold the
notice of appeal was not filed timely. We, therefore, are without jurisdiction to hear this appeal and,
accordingly, dismiss the appeal.


         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed, Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.

John W. Cleveland, Sweetwater, Tennessee, for the Appellant, Jeff Henderson.

Charles Dungan, Maryville, Tennessee, for the Appellee, Kenneth Henderson.
                                              OPINION

                                             Background

                 Appellant petitioned the Probate Court to admit to probate a document dated August
21, 1996, purporting to be the last will and testament of the Deceased. A revocation of this August
1996 will, dated July 28, 1997, also was submitted to the Probate Court. Subsequently, Appellee
petitioned the Probate Court to admit to probate a document dated October 20, 1998, purporting to
be the last will and testament of the Deceased. A third document purporting to be the last will and
testament of the Deceased, dated February 27, 1986, also was filed with the Probate Court.

                 The record on appeal is incomplete, making it difficult for this Court to piece together
the history of this case. Appellant filed a notice stating no transcript or statement of the evidence
or proceedings would be filed in the appeal. In addition to the Probate Court’s orders, the petitions
to admit, the three wills, and the revocation, the record also contains several documents referencing
a conservatorship of the Deceased, including an order entered October 18, 2001, releasing and
discharging the conservator from her duties. Appellant’s brief states stipulations were made to the
Trial Court. However, nothing in the record documents the substance of the stipulations. We are
left to piece together the story using the few documents provided in the record.

               The Order of Probate was entered on October 18, 2001, by the Probate Court holding
the 1986 will was revoked by the 1996 will; the 1997 revocation revoked the 1996 will; the
Deceased was subject to a conservatorship and not competent to execute the 1998 will; and that
based upon the foregoing, the Deceased died intestate. The Order of Probate also appointed an
administrator ad litem and stated “the proponents of the wills submitted to this Court file their will
contests and/or counterclaims forthwith.”

               In December of 2001, Appellee filed a motion requesting the Probate Court excuse
the administrator ad litem and appoint Appellee as the personal representative of the estate.
Appellee’s motion correctly stated more than thirty days had elapsed from the entry of the Order of
Probate. Appellee argued since no appeal had been filed, the determination of intestacy was a final
one and res judicata as to the wills rejected by the Probate Court. Appellant filed a response to
Appellee’s motion and also filed a notice of will contest. Appellant’s complaint to contest will
contested both the October 20, 1998 will and the July 28, 1997 revocation. The Probate Court
entered an order on April 23, 2002, appointing Appellee personal representative of the estate and
holding its October 18, 2001, order holding the Deceased died intestate to have been a final order.
Appellant filed a notice of appeal on May 13, 2002.

                                              Discussion

               Although not stated exactly as such, Appellant presents one issue for review: whether
the Probate Court had jurisdiction to find the propounded wills invalid and declare the Deceased died
intestate without giving the parties notice it was acting as a trial court in a will contest. Appellee


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presents two additional issues: 1) whether this Court has jurisdiction to hear this appeal because the
notice of appeal was not filed within thirty days of the entry of the order rejecting the three wills
submitted for probate; and 2) whether the judgment of the Probate Court rejecting the three wills for
probate is binding on all interested parties. As our answers to Appellee’s issues may pretermit
consideration of Appellant’s issue, we start with a discussion of Appellee’s issues.

               An analysis of Appellee’s first issue, whether this Court has jurisdiction over this
appeal, hinges upon whether the Probate Court’s order rejecting all three of the wills submitted for
probate was a final order appealable as of right under Tenn. R. App. P. 3. If the order rejecting the
wills was a final order, Appellant had thirty days from October 18, 2001, in which to appeal. See
Tenn. R. App. P. 4.

               The question of whether an order rejecting all propounded wills and holding a
decedent died intestate is a final order apparently presents a matter of first impression in Tennessee.
Neither the parties nor this Court found any Tennessee case directly on point. However, Pritchard
on the Law of Wills and Administration of Estates does speak directly to this subject.

                If the probate court, on hearing the proof, rejects the will, the proponent
       doubtlessly would be entitled to an appeal to the circuit court of the county, the Court
       of Appeals, or the Supreme Court, as the case may be. But the judgment rejecting
       the will, if unappealed, is binding upon all persons interested, though a different
       result might have followed had the executor appealed. The propounder of the will
       is the representative of the will for the purpose of its probate, and acts for himself and
       all similarly interested persons though they are not formal parties to the proceeding
       and may have no notice of its pendency. This is true whether they are sui juris or
       laboring under infancy, insanity or other disability.

               The distinction between a judgment of the probate court in favor of the will
       and one against it, therefore, is marked. In the former case, it is binding while in
       force, but may be recalled by the probate court or set aside on a will contest; but
       when a will has been propounded by a party interested and fairly rejected on the
       merits, it would defeat the policy of the law and be productive of many mischiefs if
       it could be propounded again by the same person or others who might be interested,
       and the contest renewed from time to time. The judgment, therefore, against the will,
       must be regarded as a judgment against all claiming under it, standing upon a footing
       analogous to the cases known as judgments in rem, which, being adjudications upon
       the subject matter, are regarded as final and conclusive not only in the courts in
       which they are pronounced, but in all others in which the question arises.

Jack W. Robinson, Sr. & Jeff Mobley, 1 Pritchard on the Law of Wills and Administration of Estates
§ 340 (5th ed. 1994) (citations omitted).




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                 Appellant’s reply brief argues the language “the proponents of the wills submitted to
this Court file their will contests and/or counterclaims forthwith” included in the Order of Probate
makes the order an interim one. Appellant argues the Order of Probate was an interim order for the
administration of the estate pending further proceedings and the order simply adjudicated whether
any of the wills should be admitted to probate “preliminarily.” We find this argument unconvincing.
The Order of Probate adjudicated all the claims, rights and liabilities of all parties as to the
propounded wills. See Tenn. R. Civ. P. 54.02. The quoted language was superfluous and did not
change the character of the final order.

               Appellant further argues the Order of Probate was not a final order because it
remained within the court’s control and was modified by the April 23, 2002 order. Appellant has
misconstrued the April 23, 2002 order. The April 23, 2002 order did nothing more than relieve the
administrator ad litem from his duties and appoint a personal representative of the estate. The April
23, 2002 order did nothing in regard to the Probate Court’s determination that the propounded wills
not be admitted to probate and that the Deceased died intestate. In no way did the April 23, 2002
order modify the holding of the October 18, 2001 Order of Probate.

                 We find the quoted section from Pritchard persuasive. We hold that when a court
rejects all purported wills submitted for probate and enters an order holding the decedent died
intestate, such order constitutes a final order and must be appealed from, if at all, within thirty days.
Appellant did not file his notice of appeal until May 13, 2002, more than 180 days after the entry of
the Order of Probate. Appellant did not timely appeal the Order of Probate and this Court lacks
jurisdiction to hear the appeal. The Order of Probate entered October 18, 2001, was a final order
and, since it was not timely appealed, is binding upon all interested parties. As this Court lacks
jurisdiction, this appeal must be dismissed.

                                              Conclusion

               The appeal is dismissed, and this cause is remanded to the Trial Court for such further
proceedings as may be required, if any, consistent with this Opinion and for collection of the costs
below. The costs on appeal are assessed against the Appellant, Jeff Henderson, and his surety.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




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