                       IN THE SUPREME COURT OF TENNESSEE
                                   AT JACKSON
                                      NOVEMBER 14, 2001 Session

                  IN RE ESTATE OF FANNIE CORRINE BARNHILL

                    Rule 11 Appeal from the Chancery Court for Fayette County
                           No. P-3-43 Martha B. Brasfield, Chancellor



                       No. W2000-00289-SC-R11-CV - Filed December 20, 2001



        We granted this appeal to determine whether the Fayette County Chancery Court had
jurisdiction to hear the issue of devisavit vel non1 in this case, and whether the law in Tennessee
permits a voluntary dismissal without prejudice in a will contest. We conclude that the chancery
court had jurisdiction to hear the will contest in this case, but that the appellant’s voluntary dismissal
was with prejudice, barring the filing of a second will contest. Accordingly, the judgments of the
trial court and the Court of Appeals are affirmed.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the trial court and the Court of
                                   Appeals Affirmed.

FRANK F. DROWOTA , III, CJ., delivered the opinion of the court, in which E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER , and WILLIAM M. BARKER, JJ, joined.

Lee S. Saunders, Somerville, Tennessee, for the appellant, Beatrice Rice.

J. Houston Gordon, Covington, Tennessee, for the appellee, Helen Weston Armour Lawson, and
William S. Rhea, Somerville, Tennessee, for the executrix of the estate of Fannie Corrine Barnhill,
Annie Jane Bailey

                                                      OPINION

                                   I. Factual and Procedural Background

        Fannie Corrine Barnhill died on November 27, 1995, and her will was ordered into probate
in the Fayette County Chancery Court on January 29, 1996. The estate was closed on November 20,

         1
           “The issue o f dev isavit vel non m eans ‘Did he m ake a will or not?’ It originated in the chancery practice of
sending the question to a court of law to try the valid ity of a paper asserted and d enied to be a will.” Green v. Higdon,
891 S.W.2d 220, 222 (Tenn. Ct. App. 1994). The determination of issues of devisavit vel non is commonly called a
will co ntest, w hich will be used throu gho ut this opinio n.
1996. On December 20, 1996, the appellant, Beatrice Rice, a niece of the decedent, filed a notice
of will contest in the Fayette County Chancery Court, on the basis that the executrix of the will
exerted undue influence on the decedent’s execution of the will. After more than two years without
further resolution, primarily because of procedural mishaps relating to the substitution of attorneys
for the parties, the will contest was set for trial in the Fayette County Chancery Court on March 8,
1999.

        On the first day of trial in chancery court, the attorney for the appellant filed a motion to
transfer the will and the record to “chancery jurisdiction,” arguing that the chancery court did not
have jurisdiction, since there had been no “certification” of the record from probate court to chancery
court. The Fayette County Chancery Court also exercises probate jurisdiction and is the probate
court for Fayette County. Therefore, the chancellor denied the motion to transfer the will contest
and the appellant’s ensuing request for an interlocutory appeal. The chancellor stated that trial of
the will contest would proceed without further delay. The appellant made an opening statement, and
thereafter, the attorney for the executrix objected on the basis that the appellant’s opening statement
was contrary to the pleadings because the appellant’s counsel asserted that a will devisee, rather than
the executrix, exerted undue influence on the decedent. The chancellor denied the appellant’s
request to amend the pleadings to conform to the argument, and required that the appellant’s
arguments before the court conform to the pleadings. Following this ruling, counsel for the appellant
requested a voluntary dismissal which was granted by the chancellor. On August 19, 1999, the
appellant filed a second notice of will contest in the Fayette County Chancery Court, and on
September 3, 1999, the appellant filed a “complaint” seeking permission to contest the will. On
September 23, 1999, the appellee filed a motion to dismiss the appellant’s second will contest on the
ground that Tennessee law does not recognize a voluntary dismissal without prejudice in a will
contest and that the voluntary dismissal was with prejudice. The chancellor granted the motion to
dismiss, ruling that the appellant’s taking of a voluntary dismissal in a will contest is with prejudice,
and bars a second will contest.

        On appeal, the appellant raised two issues before the Court of Appeals: (1) whether the
Fayette County Chancery Court had jurisdiction to try the will contest absent certification; and (2)
whether the taking of a voluntary dismissal by the appellant barred the refiling of a second will
contest. The Court of Appeals, in an opinion authored by Judge Crawford and concurred in by
Judges Farmer and Lillard, affirmed the trial court’s decision, holding that the chancery court had
jurisdiction to hear the will contest, and that the taking of a voluntary dismissal in a will contest is
with prejudice and bars the appellant’s filing of a second will contest. We granted permission to
appeal and now affirm.

                                             II. Analysis

        The first issue before this Court is whether the Fayette County Chancery Court had
jurisdiction to try the will contest, absent certification of the contest from the probate court. The
appellant contends that the chancery court did not have jurisdiction to hear the will contest, and
therefore taking the voluntary dismissal had no legal effect barring the filing of the second will
contest. The appellee responds that the chancery court had jurisdiction to hear the will contest,

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and alternatively, if this Court finds that it did not have jurisdiction, the appellant’s second will
contest is barred by the running of the statute of limitations.2

        In our view, the chancery court had jurisdiction over the will contest proceeding. In
1991, the Tennessee legislature granted chancery courts concurrent jurisdiction with circuit
courts to try will contests:

         Any court of record having probate jurisdiction, whether a chancery court or other
         court of record established by private or public act, has concurrent jurisdiction
         with the circuit court to conduct trials upon the validity of wills, all in the same
         manner and to the same extent as prescribed in this chapter for circuit courts,
         except that no certificate of the contest or certificate of the verdict and judgment
         shall be required in the absence of any referral to another court.

Tenn. Code Ann. § 32-4-109. In addition, section 16-16-201(a) of Tennessee Code Annotated
provides that

                 [i]n all counties where not otherwise specifically provided by public,
         private, special or local acts, all jurisdiction relating to the probate of wills and the
         administration of estates of every nature . . . is hereby vested in the chancery court
         of the respective counties. The chancery court in such counties shall have
         exclusive jurisdiction over the probate of wills and the administration of estates . . .
         .

Fayette County is not governed by a public, private, special or local act that otherwise provides
for probate jurisdiction; therefore, the chancery court in Fayette County has probate jurisdiction.
Nonetheless, the appellant contends that the failure of the Fayette County Chancery Court to
certify the will contest for trial is a fatal procedural flaw which rendered the Fayette County
Chancery Court without jurisdiction to try the will contest in this case. We do not agree.

         Prior to 1991, once a will contest had been established in the probate court, jurisdiction to
try the will contest was transferred to the circuit court upon certification from the probate court.
See Tenn. Code Ann. § 32-4-101; Lillard v. Tolliver, 285 S.W. 576 (Tenn. 1926). Jurisdiction to
try will contests was held exclusively by the circuit courts. Clark v. Hefley, 238 S.W.2d 513,
517 (Tenn. Ct. App. 1950). Even under prior law, however, jurisdiction to try the will contest
was not defeated by a failure of the probate court to certify the will contest. In Delaney v. First
Peoples Bank of Johnson City, 380 S.W.2d 65 (Tenn. 1964), this Court held that


         2
           Section 32-4-108 o f Ten nesse e Co de A nno tated establishes that, w ith the exception to the rights of minors
and perso ns of unso und min d, “[a]ll actions or proceedings to set aside the probate of any will, or petitions to certify
such will for an issue of devisavit vel non, mu st be brought within two (2) y ears from entry of the order admitting the
will to pro bate.” Under this argument, the appellee contends that the will contest was properly dismissed since the
August 19, 1999, filing of the second notice of will contest falls outside the two-year statute of limitations which began
when the will was entered into probate on January 29, 1996.

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        if it be a contested will, the only power possessed by [the probate] court in respect
        of it is to cause the fact that it is contested to be certified to the circuit court, and to
        send the original will to that court, and to take such action in respect of bonds, et
        cetera, as our statutes authorize in such cases; but the failure of the county or
        probate court to do any or all of the acts above set out will not defeat the
        jurisdiction of the circuit court over the contested will.

380 S.W.2d at 69 (quoting Murrell v. Rich, 175 S.W. 420 (Tenn. 1914))(emphasis added).

         We hold that when a chancery court serves as the probate court for a county, pursuant to
Tenn. Code Ann. § 16-16-201(a), the chancery court has discretion to certify the will contest for
trial in the circuit court or it may simply assume jurisdiction over the trial of the will contest, as it
did in this case, when the chancery court makes its intention clear to all parties. The parties to
this will contest were clearly notified of the chancery court’s intention to exercise jurisdiction
when, on December 17, 1998, they signed the scheduling order setting the case for trial in the
Fayette County Chancery Court on March 8, 1999. Furthermore, section 32-4-109, which grants
concurrent jurisdiction over will contests to chancery courts, clearly states that “no certificate of
the contest or certificate of the verdict and judgment shall be required in the absence of any
referral to another court.” Requiring the chancery court to certify the will contest to itself is not
required by statute and, in light of Delaney, does not defeat the chancery court’s jurisdiction to
hear the contest. Therefore, we hold that the chancery court had jurisdiction to try the will
contest, and therefore the appellant’s claim is rejected.

        The second issue before this Court is whether Tennessee law bars the appellant’s filing of
a second will contest after previously taking a voluntary dismissal. The Court of Appeals in this
case, relying on the unpublished 1998 decision, In re: Estate of Barnwell, No. 01A01-9711-PB-
00656, 1998 WL 755011 (Tenn. Ct. App. Oct. 30, 1998)3, held that the taking of a voluntary
dismissal in a will contest bars a second action. In Barnwell, the party contesting the will was
granted a voluntary dismissal on the opening day of trial of the will contest. Upon the
contestant’s filing of a second “complaint,” the trial court dismissed the will contest with
prejudice. Affirming the trial court’s decision, the Court of Appeals in Barnwell held that the
Tennessee Rules of Civil Procedure do not permit voluntary dismissals without prejudice in will
contests.

        The Barnwell opinion held that, prior to the adoption of the Rules of Civil Procedure,
parties were not permitted to file a second will contest after previously taking a voluntary
dismissal. 1998 WL 755011 at *2. Barnwell cited Arnold v. Marcum, 352 S.W.2d 936 (Tenn.
Ct. App. 1961), which held that a will contestant is not permitted to file a second will contest
after previously taking a voluntary dismissal. Arnold held that “the principle underlying these
cases is to be determined in such proceeding, not only as to who is entitled to inherit the property


        3
            Authored by Jud ge Farm er and concu rred in by Judge s Craw ford an d Hig hers.

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but also to hasten the administration of the estate and the payment of debts, and that public
policy demands that the courts should shorten as far as possible the litigation lest the estate be
absorbed in Court costs and expenses.” 352 S.W.2d at 939 (citing Jones v. Witherspoon, 187
S.W.2d 788, 791 (Tenn. 1945)). In resolving the issue, the Arnold court held that will contest
“proceedings are in rem and that there are no parties who can withdraw or take a non-suit, and
thus put the matter where it was at the start, as in actions between individuals.” 352 S.W.2d at
939 (citing Collins v. Collins, 34. S.E. 195 (N.C. 1899)). The Barnwell court also noted the
decision in Larus v. Bank of Commerce & Trust Co., 257 S.W. 94, 100 (Tenn. 1923), which held

       that, after a will has been certified to the circuit court for contest, and the issues
       have been made up, the contestant cannot dismiss the suit or withdraw from the
       case over the objection of the proponent, and thereby prevent the proponent from
       having the issue as to the validity of the will determined by verdict and judgment
       in said proceeding.

Barnwell, 1998 WL 755011 at *2.

        In examining the issue under the Tennessee Rules of Civil Procedure, the Barnwell court
also held that the Rules do not permit the taking of a voluntary dismissal without prejudice in
will contests. Tennessee Rule of Civil Procedure 41.01 provides that “[s]ubject to the provisions
of Rule 23.05 or Rule 66 or any statute . . . the plaintiff shall have the right to take a voluntary
nonsuit to dismiss an action without prejudice . . . by an oral notice of dismissal made in open
court during the trial of a cause.” The Barnwell court cited the Arkansas case of Screeton v.
Crumpler, 617 S.W.2d 847 (Ark. 1981), which interpreted Arkansas’ Rule 41 (identical to Tenn.
R.Civ. P. 41.01) as prohibiting a voluntary dismissal in a will contest. Screeton held that

       [a] will contestant cannot take a nonsuit under Rule 41, because such a contest is
       not an independent proceeding in itself. It would seriously disrupt the
       administration and distribution of estates if a will contest could be dismissed,
       voluntarily or without prejudice, and refiled at some indefinite later date. Hence
       the dismissal in the probate court was necessarily with prejudice.

617 S.W.2d at 849.

        Tennessee Rule of Civil Procedure 41.01 also makes the granting of voluntary dismissals
subject to the provisions of Rule 66, which governs procedure in cases involving receivers. Rule
66 provides that

       [a]n action wherein a receiver has been appointed shall not be dismissed except by
       order of the court. The practice in the administration of estates by receivers or by
       other similar officers appointed by the court shall be in accordance with the
       statutes of this state and with the practice heretofore followed in the courts of this
       state. . . .


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The Barnwell opinion interpreted Rule 66 as preventing parties in will contests from taking
voluntary dismissals because the court likened the role of estate administrators to the positions of
court-appointed receivers, and therefore, in will contests, Rule 66 prevents parties from ending
the contest on their own. In addition, section 30-1-310 of Tennessee Code Annotated likens the
administrator of an estate to a receiver in chancery, holding the administrator to the same
responsibilities and duty to report to the court. We believe the Barnwell court to be correct in its
view that the involvement of administrators of estates in will contests brings such actions into the
purview of Rule 66, and reflects the historical understanding that a will contest “is a proceeding
in rem, involving the distribution of the res, the estate,” Arnold, 352 S.W.2d at 939, and that
“[t]he proceedings do not depend on or refer to parties as did the proceedings in the common law
courts; in a sense all the world are parties.” Green, 891 S.W.2d at 222. Although the appellant
contends that a voluntary dismissal is a court order under the language of Rule 66 since the court
must enter an order granting the dismissal of the will contest, Rules 41 and 66, when considered
together, do not permit such an interpretation, but indicate that voluntary dismissals are not
permitted in will contest proceedings.

                                         III. Conclusion

        We conclude that the Fayette County Chancery Court had jurisdiction to try the
appellant’s will contest. By statute, the Fayette County Chancery Court has exclusive probate
jurisdiction in that county, and maintains concurrent jurisdiction with the circuit court to hear
will contests. We find no merit to the appellant’s contention that the chancery court, serving in
its probate function, must formally certify that the appellant has the right to contest the will.
Section 32-4-109 of the Code clearly indicates otherwise. Only when the probate court transfers
the case to another court for trial would certification of the contest be required by statute.
Therefore, the chancery court had jurisdiction to hear the case. The appellant’s voluntary
dismissal was with prejudice and had the legal effect of dismissing the will contest. As stated
above, we find that Tennessee Rules of Civil Procedure 41.01 and 66 do not allow the institution
of a second will contest after having taken a voluntary dismissal. Further, we find that the taking
of voluntary dismissals in will contests defeats the goals of efficiency and quick resolution in
probate and will contest proceedings. The judgments of the trial court and the Court of Appeals
are hereby affirmed. Costs of this appeal are taxed to the appellant, Beatrice Rice.




                                              _________________________________________
                                              FRANK F. DROWOTA, III, CHIEF JUSTICE




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