                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  MARCH 17, 2005 Session

          IN RE: ESTATE OF WILLIAM HUGH LUCK
 THOMAS BENTON LUCK, ET AL., EXECUTORS v. FDS/GOLDSMITH’S

                   Direct Appeal from the Probate Court for Shelby County
                            No. C-8370     Donn Southern, Judge



                      No. W2004-01554-COA-R3-CV - Filed June 7, 2005


Following the decedent’s death, his estate was not admitted to probate until well over one year from
the date of his death. A creditor filed a claim against the estate over twenty-one months after the
decedent’s date of death. The executors filed an exception to the creditor’s claim arguing that it was
barred since it was not filed within one year of the decedent’s date of death. The probate court,
relying on a previous decision rendered by this Court, held that the creditor’s claim was not barred
by the applicable statutes. After reviewing the applicable statutory language and the decisions
rendered by this Court interpreting those statutes, we reverse.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

David J. Waynick and Thomas B. Luck, Nashville, TN, for Appellants

No Appellees Brief filed
                                                    OPINION


                                                          I.
                         FACTUAL BACKGROUND AND PROCEDURAL HISTORY


        On January 1, 2002, William H. Luck (“Decedent”) died a resident of Memphis, Shelby
County, Tennessee. After his death, three documents in Decedent’s handwriting were discovered.1
On August 14, 2003, William H. Luck, Jr. and Thomas B. Luck (hereinafter “Executors” or
“Appellants”), Decedent’s sons, filed a petition in the Probate Court of Shelby County seeking to
admit the three documents into probate as Decedent’s holographic will and codicils. That same day,
the probate court entered an order admitting the documents into probate as the holographic will and
codicils of Decedent, issued “Letters Testamentary” to Executors, and issued a “Notice to Creditors.”

        On October 17, 2003, FDS/Goldsmith’s (hereinafter “Goldsmith’s” or “Appellee”) filed a
claim against the estate in the amount of $751.32 representing an outstanding credit card balance
owed by Decedent. Executors filed an exception to Goldsmith’s claim alleging it was barred by
section 30-2-307(a)(1)(B) of the Tennessee Code since it was not filed by January 1, 2003, or one
year from the Decedent’s date of death. The probate court subsequently entered an order denying
Executor’s exception and allowing Goldsmith’s to proceed with its claim against the estate. In the
order, the probate court stated:

                         The decedent died on January 1, 2002. The estate was opened
                  August 14, 2003 (over nineteen (19) months after date of death). The
                  Notice to Creditors was likewise given on August 14, 2003 (over
                  twenty-one (21) months after date of death). Goldsmith’s filed this
                  claim on October 17, 2003. Executors have argued that because the
                  claim was not filed within one year of the date of death of the
                  decedent, it is forever barred.
                         This court has looked to Estate of Divinny v. Wheeler
                  Bonding Co., No. M1999-00678-COA-R3-CV, 2000 WL 337584
                  (Tenn. Ct. App. Mar. 31, 2000). . . .
                         ....
                         In the case at bar, Goldsmith’s filed its claim against the estate
                  within four months after the opening of the estate, but over twelve
                  months after the decedent’s death. Therefore, under the authority of
                  Estate of Divinny v. Wheeler Bonding Co., this court holds that



         1
           The first document, dated January 11, 1999, is drafted on stationary from Decedent’s law office and purports
to be his will. The second document is also dated January 11, 1999, and purports to be a codicil. The third document,
dated January 31, 2000, purports to be a second codicil.

                                                         -2-
                  Goldsmith’s sufficiently complied with the statutory requirements for
                  filing his [sic] claim against the estate.
                          It is therefore ordered that the exception is overruled and
                  Goldsmith’s claim against Decedent’s estate is allowed.


        Executors have appealed2 the probate court’s ruling to this Court and present the following
issues for our review:3

(1) Whether section 30-2-307(a)(1)(B) and section 30-2-310(a) of the Tennessee Code should be
interpreted to mean that, if the creditor receives no notice of the death of the debtor, a claim is barred
unless filed within twelve (12) months from the decedent’s death; and
(2) Whether this Court’s decision in Estate of Divinny v. Wheeler Bonding Company., No. M1999-
00678-COA-R3-CV, 2000 Tenn. App. LEXIS 212 (Tenn. Ct. App. Mar. 31, 2000) should be applied
to the case at bar.

For the reasons set forth more fully herein, we reverse the decision of the probate court.

                                                          II.
                                            STANDARD OF REVIEW

        The issues in this case present questions concerning the proper construction to be given to
section 30-2-307(a)(1)(B) and section 30-2-310(a) of the Tennessee Code. “Construction of a statute
is a question of law which we review de novo, with no presumption of correctness.” Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998); see also Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000).

         “[T]he polestar of statutory interpretation has always been the intent of the legislature.” Ellis
v. Ellis, 71 S.W.3d 705, 712 (Tenn. 2002); see also In re Estate of Dobbins, 987 S.W.2d 30, 34
(Tenn. Ct. App. 1998). “The court must examine the language of the statute and, if the language is
unambiguous, apply the ordinary and plain meaning.” Galloway v. Liberty Mut. Ins. Co., 137
S.W.3d 568, 570 (Tenn. 2004) (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d
677, 679 (Tenn. 1998)). If the language selected by the legislature is clear and unambiguous, we will
not force an interpretation which would limit or expand a statute beyond its express application.
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004); see also In re Estate of Soard,


         2
           Goldsmith’s did not file a brief or otherwise respond to the appeal filed by Appellants in this matter. On
January 19, 2005, this Court entered an Order giving Goldsmith’s until February 4, 2005, to show cause why the matter
should not be submitted for decision solely on the record, Appellant’s brief, and Appellant’s oral argument. After
Goldsmith’s failed to respond, this Court entered another Order on February 11, 2005, submitting the matter for
resolution based on the record before the probate court, Appellant’s brief, and Appellant’s oral argument.

         3
          For reasons which will become apparent infra, the statement of the issues in this opinion tracks the language
used by the Appellants when setting forth the issues in their brief.

                                                         -3-
No. E2004-01434-COA-R3-CV, 2005 Tenn. App. LEXIS 128, at *14 (Tenn. Ct. App. Feb. 28,
2005). “If the language of the statute is ambiguous, the court must examine the entire statutory
scheme and the legislative history to ascertain and give effect to the legislative intent.” Galloway,
137 S.W.3d at 570 (citing Parks, 974 S.W.2d at 679).

        Moreover, we cannot review a statute in a vacuum. “A statute should be construed, if
practicable, so that its component parts are consistent and reasonable.” Marsh v. Henderson, 424
S.W.2d 193, 196 (Tenn. 1968); see also In re Estate of Dobbins, 987 S.W.2d at 34. “A construction
will be avoided, if possible, that would render one section of the act repugnant to another.” Tenn.
Elec. Power Co. v. City of Chattanooga, 114 S.W.2d 441, 444 (Tenn. 1937).

                                               III.
                                         LAW AND ANALYSIS

        Ordinarily, within thirty (30) days after the letters testamentary have been issued to the
personal representative of an estate, the clerk of the court in which the estate is being administered
must issue a public notice of the personal representative’s qualification regarding the estate. Tenn.
Code Ann. § 30-2-306(a) (2003). Section 30-2-306(c) of the Tennessee Code mandates that the
Notice to Creditors shall provide, in relevant part, that “[a]ll persons, resident or nonresident, having
claims, matured or unmatured, against the estate are required to file the same with the clerk [of the
court in which an estate is being administered] within four (4) months from the date of the first
publication (or of the posting, as the case may be) of this notice, otherwise their claims will be
forever barred.” Tenn. Code Ann. § 30-2-306(c) (2003). Unless a creditor has already filed a claim
against the estate, the personal representative is charged with the duty of providing “a copy of the
published or posted notice as described in subsection (c) to all creditors of the decedent of whom the
personal representative has actual knowledge or who are reasonably ascertainable by the personal
representative, at such creditors’ last known address.” Tenn. Code Ann. § 30-2-306(e) (2003).

        In 1999, the legislature amended section 30-2-306 of the Tennessee Code by adding
subsection (f), which provides that “[t]he requirement of subsection (a) [governing the clerk’s duty
to issue a Notice to Creditors] shall not apply if the letters testamentary or of administration are
issued more than one (1) year from the decedent’s date of death.” Tenn. Code Ann. § 30-2-306(f)
(2003); 1999 Tenn. Pub. Acts ch. 491, § 5. In the instant case, Decedent died on January 1, 2002.
The probate court issued the “Letters Testamentary” to Executors on August 14, 2003. The clerk
issued the “Notice to Creditors” that same day providing that any creditors of Decedent’s estate had
four (4) months within which to submit their claims against the estate. As Appellants correctly note,
since the “Letters Testamentary” were issued more than one (1) year from Decedent’s date of death,
they did not have to seek or provide a “Notice to Creditors” in the first instance. See Tenn. Code
Ann. § 30-2-306(f) (2003).

      During the proceedings below and again on appeal, Executors assert that, even though
Goldsmith’s filed its claim within four months of the issuance of the “Notice of Creditors,” its claim



                                                  -4-
is still barred by section 30-2-307(a)(1)(B) and section 30-2-310(a) of the Tennessee Code since it
was not filed within one (1) year of Decedent’s date of death.

        Section 30-2-307 of the Tennessee Code governs claims filed against an estate and provides
that “[a]ll claims against the estate arising from a debt of the decedent shall be barred unless filed
within the period prescribed in the notice published or posted in accordance with § 30-2-306(c).”
Tenn. Code Ann. § 30-2-307(a)(1) (2003). However, in section 30-2-307 of the Tennessee Code,
the legislature created two exceptions to the four (4) month period set forth in section 30-2-306(c)
of the Tennessee Code. See Bowden v. Ward, 27 S.W.3d 913, 918 (Tenn. 2000); In re Estate of
Burns, No. W1999-01888-COA-R3-CV, 2001 Tenn. App. LEXIS 442, at *5 (Tenn. Ct. App. June
18, 2001). At issue in this case is the exception found in section 30-2-307(a)(1)(B) of the Tennessee
Code which provides:

                  If a creditor receives actual notice less than sixty (60) days before the
                  date which is twelve (12) months from the decedent’s date of death
                  or receives no notice, such creditor’s claim shall be barred unless
                  filed within twelve (12) months from the decedent’s date of death.

Tenn. Code Ann. § 30-2-307(a)(1)(B) (2003) (emphasis added). Furthermore, section 30-2-310 of
the Tennessee Code provides as follows:

                  All claims and demands not filed with the probate court clerk, as
                  required by the provisions of §§ 30-2-306 – 30-2-309, or if later, in
                  which suit shall not have been brought or revived before the end of
                  twelve (12) months from the date of death of the decedent, shall be
                  forever barred.

Tenn. Code Ann. § 30-2-310(a) (2003) (emphasis added).

       The record is devoid of any evidence indicating when, or even if, Goldsmith’s received any
form of notice regarding Decedent’s death or a copy of the “Notice to Creditors.” Goldsmith’s claim
does not state when or if they received notice, Executors’ exception does not state when or if
Goldsmith’s got notice, and the probate court’s order does not state when or if Goldsmiths received
any notice. We gather from the manner in which Appellants framed their first issue, however, that
Goldsmith’s did not receive notice of Decedent’s death or a copy of the “Notice to Creditors.” Thus,
since Goldsmith’s did not receive any notice, section 30-2-307(a)(1)(B) of the Tennessee Code is
applicable to its claim.4


         4
            Perplexing as it may be that Goldsmith’s was still able to file a claim against the estate, it is apparent, for
reasons we explain more fully infra, that, even if Goldsmith’s had received notice and the exception in section 30-2-
307(a)(1)(B) were applicable for that reason, Goldsmith’s claim would still be barred because it was not filed within one
(1) year of the date of Decedent’s death. Likewise, if the exception did not apply, section 30-2-310(a) of the Tennessee
Code would still bar Goldsmith’s claim.

                                                           -5-
         The probate court relied on the decision rendered by this Court in Estate of Divinny v.
Wheeler Bonding Company Inc., No. M1999-00678-COA-R3-CV, 2000 Tenn. App. LEXIS 212
(Tenn. Ct. App. Mar. 31, 2000) to reach its decision that Goldsmith’s claim was not barred by
section 30-2-307(a)(1)(B) of the Tennessee Code. In Estate of Divinny, the decedent died on March
10, 1997. Estate of Divinny, 2000 Tenn. App. LEXIS 212, at *2. After no one came forward
seeking to admit the decedent’s estate into probate, a creditor5 of the decedent filed a complaint on
August 10, 1998, pursuant to section 30-1-301 of the Tennessee Code.6 Id. In January of 1999, the
court appointed a personal representative for the decedent’s estate, and by mid-January of 1999 she
had obtained the Notice to Creditors required by section 30-2-306 of the Tennessee Code.7 Id. On
January 29, 1999, the creditor filed its claim against the decedent’s estate. Id. Shortly thereafter,
the personal representative filed an exception to the claim. Id. at *3. Even though the creditor filed
its claim within the period required by the Notice to Creditors, the probate court denied the creditor’s
claim as untimely filed. Id.

         The creditor appealed and argued that, since it filed the claim within the time period required
in the Notice to Creditors, section 30-2-307 and section 30-2-310 of the Tennessee Code did not bar
its claim. Id. at 5. The creditor also argued that, since the estate had not been opened within a year
from the date of the decedent’s death, it would have been impossible for the creditor to file a claim
within the one (1) year period required by these statutes. Id. In reversing the judgment of the
probate court, this Court stated:

                          From our reading of the relevant statutes, we are of the
                   opinion that WBC followed the statutory requirements for filing its
                   claim against Mr. Divinny’s estate. WBC sought to have a personal
                   representative appointed to administer Mr. Divinny’s estate, since no


         5
           In 1995, the decedent in Estate of Divinny entered into a contract with the creditor in which the creditor agreed
to guarantee an appearance bond for a third party. Estate of Divinny, 2000 Tenn. App. LEXIS 212, at *1. W hen the
third party failed to appear in court, the creditor paid a forfeiture judgment and sought to recoup the amount from the
decedent. Id. at *2.

         6
             Section 30-1-301 of the Tennessee Code provides:

                            The chancery court of the county in which any person resided at the time
                   of the decedent’s death, or in which the decedent’s estate, goods, and chattels or
                   effects were at the time of the decedent’s death, may appoint an administrator when
                   six (6) months shall have elapsed from the death, and no person will apply or can
                   be procured to administer on the decedent’s estate.

Tenn. Code Ann. § 30-1-301 (2003).

         7
          At the time of the decision by the lower court in Estate of Divinny, the legislature had not amended section
30-2-306 of the Tennessee Code to include subsection (f). See 1999 Tenn. Pub. Acts ch. 491, § 5; Estate of Divinny,
2000 Tenn. App. LEXIS 212, at *3 (noting that the trial court conducted the hearing on May 12, 1999). Therefore, even
though subsection (f) was in effect at the time the case reached this Court, it did not control our decision in Estate of
Divinny. See Brady v. Sm ith, 56 S.W.3d 523, 527 (Tenn. Ct. App. 2001).

                                                            -6-
                 one had come forward to do so. Once that personal representative
                 published a notice to creditors, WBC filed its claim and then its
                 amended claim within the prescribed six-month8 period of time. As
                 WBC notes in its brief, the emphasis in both Tennessee Code
                 Annotated §§ 30-2-307 and 30-2-310 is on requiring creditors to file
                 their claims against an estate within a six-month period of time.
                         Ms. Mathes argues that allowing creditors to wait for more
                 than one year after a decedent's death to come forward with claims
                 against an estate would violate public policy. While we are mindful
                 of Ms. Mathes’s public policy argument, we are also aware that by
                 construing the relevant statutes according to her reasoning, relatives
                 of a decedent could avoid payment to a decedent’s creditors by not
                 seeking probate until a year had elapsed. We do not believe this is
                 what our legislature intended.

Id. at *8.

         In Brady v. Smith, 56 S.W.3d 523 (Tenn. Ct. App. 2001), this Court faced a similar factual
dispute as the one addressed in Estate of Divinny. The decedent died in 1992, and his estate was
never administered. Brady, 56 S.W.3d at 524. In April of 1996, the decedent’s sisters filed a
complaint seeking to partition and sell some of the decedent’s real property. Id. In April of 1997,
two individuals filed an answer to the complaint alleging they were the decedent’s biological
children. Id. at 525. In September of 1998, the children filed an intervening petition seeking an
adjudication of their paternity and right to inherit from the decedent. Id. After DNA testing
established that the decedent was indeed the biological father of the children, the trial court
conducted a hearing and determined that, since the decedent’s estate was never administered, the
statutes of limitations applicable to a creditor’s claim against an estate did not apply. Id. Instead,
the trial court held that the ten-year statute of limitations found in section 28-3-110 of the Tennessee
Code applied, therefore, the children’s claim was not barred. Id.

        The decedent’s sisters filed an appeal to this Court arguing that sections 30-2-307 and 30-2-
310 of the Tennessee Code barred the children’s claims. Id. In affirming the trial court’s ruling, we
stated:

                        While we agree with Plaintiffs that the above-cited statutes
                 provide certain limitation periods for creditors’ assertion of claims
                 against an estate, we do not agree that these statutes prohibit as
                 untimely the Children’s assertion of their right to inherit from
                 Decedent. This Court in Estate of Divinny v. Wheeler Bonding Co.,
                 held that the creditor of Divinny who asserted a claim against the


        8
          The legislature amended section 30-2-306(c) of the Tennessee Code in 1997 and changed the period from six
(6) months to four (4) months. See 1997 Tenn. Pub. Acts ch. 426, § 5.

                                                       -7-
               estate more than one year after death was not time-barred by Tenn.
               Code Ann. § 30-2-307 or § 30-2-310. Estate of Divinny v. Wheeler
               Bonding Co., 2000 Tenn. App. LEXIS 212, No.
               M1999-00678-COA-R3-CV, 2000 WL 337584, at *3 (Tenn. Ct. App.
               Mar. 31, 2000), perm. app. denied Dec. 4, 2000. . . . Accordingly,
               applying this Court’s holding in Divinny . . . we hold that the
               Children’s claim to inherit from Decedent is not barred by any
               applicable statute of limitations.

Id. at 526. This Court went further, however, and noted the legislature’s recent addition to section
30-2-306 of the Tennessee Code, stating:

                       We recognize that Tenn. Code Ann. § 30-2-306 was amended
               recently and that this amendment would lend support to Plaintiffs’
               argument that the Children had only twelve months from Decedent’s
               death to make their claim against the estate if the amendment was
               applicable to this case. The amendment added the following
               subsection:

                       (f) The requirement of subsection (a) shall not apply
                       if the letters testamentary or of administration are
                       issued more than one (1) year from the decedent's date
                       of death.

               Tenn. Code Ann. § 30-2-306(f). Subsection (a) requires notice be
               given to creditors of the qualification of the personal representative.
               Subsection (c) mandates the form of this notice which also notifies
               creditors of the four month claim period. Subsection (f), however, is
               not applicable to the Children’s assertion of their right to inherit
               from Decedent since Decedent died well before the effective date of
               the amendment, June 17, 1999. Tenn. Code Ann. § 30-2-306(f). The
               partition suit was filed before that date as well. Likewise, the
               decedent in Estate of Divinny v. Wheeler Bonding Co., died and suit
               was filed before this amendment took effect. See Estate of Divinny,
               2000 WL 337584, at *1.

Id. at 526–27 (emphasis added).

       Most recently, in Glanton v. Lord, No. M2002-02363-COA-R3-CV, 2005 Tenn. App. LEXIS
96 (Tenn. Ct. App. Feb. 15, 2005), perm. app. pending, we were faced with an estate that was not
submitted to probate within the year following the decedent’s death. Glanton, 2005 Tenn. App.
LEXIS 96, at *3. In ruling that the decedent’s biological children were entitled to inherit from the
decedent’s estate, this Court stated:


                                                -8-
                        The statutes of limitation applicable to creditors’ claims - and
               thus to a non-marital child’s claim of paternity and a corresponding
               right to inherit by intestate succession - do not begin to run until after
               a decedent's estate is submitted to probate and a statutory Notice to
               Creditors is published or posted. Tenn. Code Ann. §§ 30-2-306,
               30-2-307, 30-2-310; Brady v. Smith, 56 S.W.3d 523, 526 (Tenn. Ct.
               App. 2001); Estate of Divinny v. Wheeler Bonding Co., 2000 Tenn.
               App. LEXIS 212, No. M1999-00678-COA-R3-CV, 2000 WL
               337584, at *2-3 (Tenn. Ct. App. Mar. 31, 2000), perm. app. denied
               (Tenn. Dec. 4, 2000). As a result, until a probate estate is opened,
               neither creditors’ claims nor assertions by non-marital children of a
               right to inherit by intestate succession are barred by the applicable
               statutes of limitation. Moreover, under Tennessee law, there is no
               limit on the time for submitting an estate to probate. 1 JACK W.
               ROBINSON, SR. & JEFF MOBLEY, PRITCHARD ON THE LAW
               OF WILLS AND ADMINISTRATION OF ESTATES § 35, at 56
               (5th ed. 1994); In re Estate of Overton, 1997 Tenn. App. LEXIS 345,
               1997 WL 269473, at *1-2. Thus, Grandfather Luther’s estate could
               still be probated even at this late date, and creditors would then be
               able to file claims against the estate. Accordingly, under Bilbrey v.
               Smithers, the claim of the Disputed Heirs to inherit from Grandfather
               Luther by intestate succession is not yet barred by any applicable
               statute of limitations.

Id. at *25–26 (emphasis added).

        While we recognize the probate court’s duty to follow the precedents set forth by this Court,
Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976), our decision in Estate of Divinny and its
progeny have misconstrued the statute of limitations applicable to a creditor’s claim against an
estate. The exception found in section 30-2-307(a)(1)(B) of the Tennessee Code expressly and
unambiguously states that a “creditor’s claim shall be barred unless filed within twelve (12) months
from the decedent’s date of death.” See Tenn. Code Ann. § 30-2-307(a)(1) (2003) (emphasis added).
Regarding section 30-2-307(a)(1)(B), our supreme court has stated:

               Tenn. Code Ann. § 30-2-307(a)(1)(B) provides for an absolute one
               year limit on the filing of claims against the estate, and this
               limitations period applies whether the creditor has received proper
               notice or no notice at all. Thus, [the creditor’s] claim was required
               to be filed within a year of [the decedent’s] death.

In re Estate of Jenkins v. Guyton, 912 S.W.2d 134, 138 n.3 (Tenn. 1995); see also Bowden v.
Ward, 27 S.W.3d 913, 918–19 (Tenn. 2000); In re Estate of Key v. Hamilton County Nursing



                                                  -9-
Home, No. 03A01-9810-CH-00319, 1999 Tenn. App. LEXIS 201, at *12–13 (Tenn. Ct. App. Mar.
24, 1999).

        Moreover, to construe section 30-2-307(a)(1)(B) of the Tennessee Code to mean that, when
an estate is not opened for more than a year after the decedent’s death, a creditor may still file a
claim when the estate is eventually opened would make that statute repugnant to other parts of Title
30, Chapter 2, Part 3. See Tenn. Elec. Power Co. v. City of Chattanooga, 114 S.W.2d 441, 444
(Tenn. 1937) (“A construction will be avoided, if possible, that would render one section of the act
repugnant to another.”). As we noted in Brady, the legislature amended section 30-2-306 of the
Tennessee Code in 1999 by adding subsection (f) which provides that the personal representative of
the estate is not required to provide the creditors of an estate with notice “if the letters testamentary
or of administration are issued more than one (1) year from the decedent’s date of death.” Tenn.
Code Ann. § 30-2-306(f) (2003); 1999 Tenn. Pub. Acts. ch. 491, § 5. Furthermore, section 30-2-
310(a) of the Tennessee Code provides:

                  All claims and demands not filed with the probate court clerk, as
                  required by the provisions of §§ 30-2-306 — 30-2-309, or if later, in
                  which suit shall not have been brought or revived before the end of
                  twelve (12) months from the date of death of the decedent, shall be
                  forever barred.

Tenn. Code Ann. § 30-2-310(a) (2003) (emphasis added);9 see also In re Estate of Cunningham,
No. M2001-01965-COA-R3-CV, 2002 Tenn. App. LEXIS 571, at *6–7 (Tenn. Ct. App. Aug. 7,
2002); In re Estate of Key, 1999 Tenn. App. LEXIS 201, at *12–13. If allowed to stand, our holding
in Estate of Divinny and its progeny would render these provisions meaningless.

         In Glanton, this Court, relying on our decisions in Divinny and Brady, held that “[t]he
statutes of limitations applicable to creditors’ claims . . . do not begin to run until after a decedent’s
estate is submitted to probate and a statutory Notice to Creditors is published or posted.” Glanton,
2005 Tenn. App. LEXIS 96, at *25. This statement is erroneous for two reasons. First, section 30-2-
306(f) of the Tennessee Code expressly states that, if the letters testamentary are issued more than
one (1) year after the decedent’s date of death, the personal representative does not have to seek or
provide a Notice to Creditors. See Tenn. Code Ann. § 30-2-306(f) (2003). Second, neither of the
statutes at issue in this case provide that the time periods contained therein begin to run only when
the estate is submitted to probate. See Tenn. Code Ann. §§ 30-2-307(a)(1)(B), 30-2-310 (2003).
To the contrary, they expressly state, as our supreme court has previously noted, that a creditor’s
claim which is not filed within twelve (12) months from the date of the decedent’s death is forever
barred. See In re Estate of Jenkins, 912 S.W.2d at 138 n.3; Bowden, 27 S.W.3d at 918–19.


        9
           Thus, even if section 30-2-307(a)(1)(B) of the Tennessee Code were inapplicable to Goldsmith’s claim, it
would still be subject to the one (1) year statute of limitations found in section 30-2-310 of the Tennessee Code and
would be barred. See In re Estate of Key, 1999 Tenn. App. LEXIS 201, at *11–12.



                                                        -10-
        We are also mindful of the public policy concern raised in Divinny to the effect that “relatives
of a decedent could avoid payment to a decedent’s creditors by not seeking probate until a year had
elapsed.” Estate of Divinny, 2000 Tenn. App. LEXIS 212, at *8. However, this Court’s concern
in Divinny is not well founded. The legislature has afforded protection to a creditor faced with the
dilemma of pursuing its claim against an estate that has yet to be administered. Section 30-1-301
of the Tennessee Code provides:

                        The chancery court of the county in which any person resided
               at the time of the decedent’s death, or in which the decedent’s estate,
               goods, and chattels or effects were at the time of the decedent’s death,
               may appoint an administrator when six (6) months shall have elapsed
               from the death, and no person will apply or can be procured to
               administer on the decedent’s estate.

Tenn. Code Ann. § 30-1-301 (2003) (emphasis added); see also Tenn. Code Ann § 30-1-106 (2003);
33 C.J.S. Executors and Administrators § 41 (1998).

        After reviewing the applicable statutory language and the decisions previously rendered by
this Court, we have concluded that the legislature clearly intended that a creditor’s claim which is
not filed within one (1) year of the date of the decedent’s death, regardless of whether the estate has
been opened or not, will be forever barred. Accordingly, we reverse the decision of the probate court
and hold that Goldsmith’s claim against Decedent’s estate is barred by the express language of
section 30-2-307(a)(1)(B) and section 30-2-310 of the Tennessee Code.

                                                  IV.
                                            CONCLUSION

         For the foregoing reasons, we reverse the decision of the probate court. This case is
remanded to the probate court for any further action which may be necessary as a result of this
opinion. Costs of this appeal are taxed to the Appellee, FDS/Goldsmith’s, for which execution may
issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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