             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                            FILED
                                                            September 1, 1999

ALLISON COOKE BATTLES and                   )             Cecil Crowson, Jr.
LESLIE COOKE JONES,                         )            Appellate Court Clerk
                                            )
       Plaintiffs/Appellants,               )
                                            )   Appeal No.
                                            )   01-A-01-9809-CH-00497
VS.                                         )
                                            )   Sumner Chancery
                                            )   No. 97C-136
FIRST UNION BANK, PEGGY SMITH               )
BEVERLY G. PITT. LEIGH ANN                  )
HOWARD, and EXCHANGE                        )
INSURANCE COMPANY,                          )
                                            )
       Defendants/Appellees.                )


      APPEALED FROM THE CHANCERY COURT OF SUMNER COUNTY
                    AT GALLATIN, TENNESSEE

                THE HONORABLE TOM E. GRAY, CHANCELLOR




BRENDA RHOTON LITTLE
Suite 511, Cummins Station
209 Tenth Avenue, South
Nashville, Tennessee 37203
       Attorney for Plaintiffs/Appellants

H. ROWAN LEATHERS
2200 First Union Tower
150 Fourth Avenue North
Nashville, Tennessee 37219
      Attorney for Defendants/Appellees First Union Bank,
      Peggy Smith, Beverly Pitt and Leigh Ann Howard




                            AFFIRMED AND REMANDED




                                                BEN H. CANTRELL,
                                                PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.
                                 OPINION
                 Two of the beneficiaries of a will sued the witnesses and a notary public

because the will was not properly executed. The plaintiffs also sued a bank, the

witnesses’ employer, for not training its employees on how to properly witness wills.

The Chancery Court of Sumner County granted the defendants summary judgment.

We affirm.



                                             I.



                 The plaintiffs are the daughters of Cleon H. Cooke, Jr., who prior to his

death owned a business in Sumner County. On November 28, 1995 one of the

plaintiffs took Mr. Cooke to a branch of the First Union National Bank in

Hendersonville. While Mr. Cooke waited in the car, the daughter went inside and

asked Beverly Pitt, a customer service representative, to go out to the car and

notarize some documents for Mr. Cooke. Ms. Pitt observed Mr. Cooke sign a

document which he then handed to her without comment.



                 Ms. Pitt took the document, entitled “Last Will and Testament,” into the

bank and got two bank employees to sign the will in the place designated for

witnesses. The statement appearing on the will signed by the two witnesses stated

the following:

                         We, __________ and __________, being the
                 attesting witnesses to the foregoing will of Cleon H.
                 Cooke, Jr., being first duly sworn, make oath that he
                 signed the foregoing will consisting of two typewritten
                 pages, this page not included on the ___ day of
                 __________, 1995, in our joint sight and presence and
                 declared the same to be his last will and testament; that
                 we, in his sight and presence and in the sight and
                 presence of each other, at his request, signed our names
                 thereto as attesting witnesses; that we believed the said
                 Cleon H. Cooke, Jr. to be, at that time, of sound mind and
                 disposing memory; and that this affidavit is being made at
                 the request of the said testator.

                      Witness our signatures on this the ___ day of
                 _________, 1995.

                                             _______________________
                                             _______________________

                                            -2-
The blanks were filled in by hand with the names of Peggy Y. Smith and Leigh Ann

Howard and the date of November 28, 1995. The signatures of the two witnesses

appear below on the lines provided for them.



                Immediately below the witnesses’ signatures, Beverly G. Pitt certified

that the instrument was “Sworn to and subscribed before me this the 28th day of Nov.,

1995.”



                The plaintiffs in this case are Allison Cook Battles and Leslie Cooke

Jones. They allege in the complaint that they are two of Mr. Cooke’s seven children

living at the time of his death. The will Mr. Cooke executed on November 28, 1995

left his business known as C & S Cleaners of Hendersonville to his living children.

The residue of his estate would have passed to his widow, Angelina Q. Cooke, if she

survived him.



                The complaint also alleged that Mr. Cooke had a 1976 will that left all

of his property, real and personal, to Angelina Q. Cooke; that when the 1995 will was

offered for probate, Angelina Q. Cooke filed a will contest, alleging that the 1995 will

was not properly executed and that the decedent’s last will was the 1976 will. The

complaint concluded that if the will contest is successful, the plaintiffs will lose the

one-seventh share of their father’s business they would have received under the 1995

will.



                As a basis for liability, the plaintiffs allege that the witnesses were

negligent, that they committed perjury in signing a false affidavit, and that the notary

was negligent in failing to see that the documents she notarized were properly

attested in accordance with the law, and in failing to keep a proper log of the

signatures she notarized. The plaintiff sued the bank, alleging it was liable for the acts

of its employees. They also sued the notary’s bonding company.



                                          -3-
                  The chancellor granted summary judgment to all defendants.



                                                      II.



                  The facts are not in dispute.                The only question is whether the

defendants are entitled to a judgment as a matter of law. 1 Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993).



                                             a. The Notary



                  The appellants assert that the notary had a duty to read the attestation

clause and see that the will was properly executed and witnessed. They did not cite

any authority for that position, and we are not aware of any. On the other hand, we

are aware of authority for the notary’s position that she is not under a duty to give

advice about the legal effects of papers to which she witnesses a signature.

Vanderhoof v. Prudential Savings and Loan Association, 120 Cal. Rptr. 207 (Cal. App.

1975).



                  In Vanderhoof, the notary knew that she had been asked to witness the

signature of a testator to his last will and testament and that the testator was of the

belief that his notarized signature would make a valid will. The notary also knew that

the testator was mistaken. Nevertheless, she notarized his signature without advising

him that the law required two witnesses to make the will valid. The California Court

of Appeals said:

                         We conclude that, under the circumstances alleged
                  in the complaint, Larson’s duty as a notary public was

         1
          There are two critical issues that were not raised in the c ourt b elow . The first is whe ther th is
action is premature. The complaint does not allege that the probate court invalidated the will, only that
it had been challenged. We might assume what the outcome will be in view of the requirements of the
W ills Act, see Tenn. Code Ann. § 32-1-104, but so far as the record shows the will has not been
declared invalid.

       The second is the absence of the other sibling s. As we read R ule 19.01 , Tenn . R. Civ. Pro c.,
they would be indispen sable pa rties. But, since these issues have not been raised below, we will not
address them here.

                                                    -4-
               simply to take the acknowledgment by Swanson that he
               was the person who executed the document in question
               and to so certify. Having done so she performed her duty
               under the law. The failure to volunteer information as to
               the legal effect of the manner of its attestation is not
               actionable for the reason that she not only had no duty in
               this respect, but for her to have done so would have been
               an illegal act.

120 Cal.Rptr. at 209.



               So far as we can determine, the cases in Tennessee dealing with a

notary’s duties generally find only a duty to make sure the person executing a

document is the person he/she purports to be. See Figures v. Fly, 193 S.W. 117

(Tenn. 1917); State v. Easley, 140 S.W.2d 149 (Tenn. 1940). That duty requires only

an exercise of ordinary care because the notary “is not an insurer of the truth of [her]

recitals.” Figures v. Fly, supra at 120. Beyond that we are confident that a notary

does not have a duty to give legal advice.



               The notary’s certificate had no bearing on the validity of the will. The

service of a notary is not mentioned in the Wills Act. W hy she was asked to witness

the signatures does not appear in the record. The affidavit of the two witnesses would

have made probate of the will easier, see Tenn. Code Ann. § 32-2-110, but it did not

add to or take from the will itself. The witnesses’ signatures alone without the oath

included in the affidavit would have been sufficient. See Tenn. Code Ann. § 32-1-104.

Therefore we cannot see how the notary’s services affected the will or caused the

plaintiffs any loss.



                                  b. The Witnesses



               The plaintiffs also assert that the witnesses had a duty to read the

certificate they signed prior to signing it, and to refuse to sign it because it was not

true. The appellees do not contest the statement as a general principle. We would

go further and say that any affiant, making a statement under oath, has a solemn duty


                                         -5-
to state the truth. We also think the witnesses would concede that the statements in

their affidavit were not true. They did not see the testator sign the will, and they did

not sign it in his presence.



              But did they have a duty to the plaintiffs? A duty owed by the defendant

to the plaintiff is an essential part of a claim for negligence. Bradshaw v. Daniel, 854

S.W.2d 865 (Tenn. 1993). The existence or nonexistence of a duty is a question of

law for the court. Glenn v. Conner, 533 S.W.2d 297 (Tenn. 1976); Dooley v. Everett,

805 S.W.2d 380 (Tenn. App. 1990). To determine if a duty exists a court should

consider

              . . . whether, upon the facts in evidence, such a relation
              exists between the parties that the community will impose
              a legal obligation upon one for the benefit of others -- or,
              more simply, whether the interest of the plaintiff which has
              suffered invasion was entitled to legal protection at the
              hands of the defendant. This is entirely a question of law
              to be determined by reference to the body of statutes,
              rules, principles and precedents which make up the law;
              and it must be determined only by the court . . . . A
              decision by the court that, upon any version of the facts,
              there is no duty, must necessarily result in judgment for
              the defendant.


Bradshaw v. Daniel, 854 S.W.2d at 869.




              What interest of the plaintiffs was invaded by the fault of the witnesses

to the will? In the abstract, the plaintiffs had an interest in receiving a part of their

father’s estate, but even with a properly executed will they did not have a vested

interest in his property while he lived. Since “a will speaks as of the date of the death

of the testator” a beneficiary under a will has no property rights in the testator’s

property until the testator’s death. Doughty v. Hammond, 341 S.W.2d 713 at 716

(Tenn. 1960).    The right to leave property by will is a right given only to the testator.

Epperson v. White, 299 S.W. 812 (Tenn. 1927). When the plaintiffs left the bank on

the fateful day of November 28, 1995, they had exactly the same interest they had



                                           -6-
when they arrived: a hope that they could receive a portion of their father’s estate.

We do not think the witnesses had a duty to see that the hope turned into a reality. 2



                 We are aware of cases where a beneficiary under a will has been able

to sue a person who undertakes to draw a will when the will fails for a lack of due

execution. See Biakanja v. Irving, 320 P.2d 16 (Cal. 1958) and cases collected at 65

A.L.R.2d 1363. But in drafting a will, a defendant assumes a much greater burden

than one who is merely called to witness the testator’s signature. And that is why we

are comfortable in saying that the community may impose a legal burden on one and

not the other.




                                             c. The Bank



                 The plaintiffs asserted that the Bank had a duty to train its employees

on the legal requirements for a valid will. This claim was not pressed on appeal, and

we are not aware of any authority for it. The Bank was also sued for the fault of its

employees. Since we have found that the employees were not at fault, the Bank was

also entitled to summary judgment.




        2
         Although it was not raised in the court below the witnesses in this case may be entitled to the
s am e immunity they would have enjoyed if they had given the same testimony in open court. This so-
called “witness immunity” shields a witness in a judicial proceeding from an action for damages for false
testimony -- even tho ugh give n ma liciously or with k nowled ge of its fals ity. Buckner v. Carl ton, 623
S.W.2d 102 (Tenn. App. 1981). See also Cooley v. Galyon, 70 S.W . 607 (T enn. 190 2); Felts v.
Paradise, 158 S.W.2d 727 (Tenn . 1942); Log an’s S upe rma rkets , Inc. v . McC alla, 343 S.W.2d 892
(Tenn . 1961).

        The ques tion o bviou sly is wheth er the execution of the affidavit occurred in a “judicial
procee ding.” The shield has been held to apply to witnesses appearing before a school board in a
teacher tenure c ase, Buckner v . Carlton, 623 S.W.2d 102 (Tenn. App. 1981); and to witnesses
appearing before a legislative co mm ittee, Log an’s S upe rma rkets v. Mc Calla , 343 S.W.2d 892 (Tenn.
1961). Since the affidavit executed in this case was dra wn for us e in the pro bate co urt, the def endan ts
may be entitled to the s ame imm unity .

                                                   -7-
             The judgment of the court below is affirmed and the cause is remanded

to the Chancery Court of Sumner County for any further proceedings necessary. Tax

the costs on appeal to the appellants.




                                         _________________________________
                                         BEN H. CANTRELL,
                                         PRESIDING JUDGE, MIDDLE SECTION


CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE



_____________________________
WILLIAM B. CAIN, JUDGE




                                         -8-
