                 IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
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JERE LYNN ROGERS and wife,         )
CYNTHIA R. ROGERS,                 )
                                   )                    Fayette Chancery
      Plaintiffs/Appellants        )                    Case No. 10904
v.                                 )
                                   )
MARK W. DAVIS, individually and as )                    Appeal No. 02A01-9610-CH-00258
Executor of the Estate of Winston  )
C. Davis, Deceased, and TERESA     )
DAVIS STEINBERG, MARGARET
DAVIS PICKENS and GARY
                                   )
                                   )
                                                        FILED
STEPHEN DAVIS,                     )
                                   )                       June 27, 1997
      Defendants/Appellees         )
                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk




       APPEAL FROM THE CHANCERY COURT OF FAYETTE COUNTY
                    AT SOMERVILLE, TENNESSEE
         THE HONORABLE HOMER W. BRADBURY, CHANCELLOR




J. PAYSON MATTHEWS                                      W. BOYETTE DENTON
205 W. Market St.                                       Denton & Cary
P.O. Box 819                                            P.O. Box 306
Somerville, TN 38068                                    Bolivar, TN 38008
Attorney for Appellants                                 Attorneys for Appellees




AFFIRMED



                                               WILLIAM H. INMAN, SENIOR JUDGE



CONCUR:


DAVID R. FARMER, JUDGE


ALAN E. HIGHERS, JUDGE
                                      OPINION

       This is an action for specific performance of a contract dated March 6, 1994

for the sale of 13.5 acres of land.

       The propounded contract is a printed form, with various manuscripted

provisions, some of which were canceled by line-drawing and some of which were

interlined. In a reasonable light, the contract provides that the seller agrees to

convey “15 acres in” Fayette County to Jere Lynn Rogers and wife Cynthia Ross

Rogers for $40,000.00 cash at closing, less $500.00 earnest money, contingent

upon the purchasers obtaining a loan within 20 days, and contingent “that the

Winston Davis estate be closed by the projected closing date of this contract, 4-29-

94.”

       The contract was executed “Winston C. Davis Est. by Mark W. Davis, Exec.”

The closing date was initially “20 days of this date” [March 6 1994] or March 26

1994. It was changed to March 30, then to April 29, then to May 3, then to June 29,

then to July 31, 1994, according to the manuscripted alterations.

       The plaintiffs alleged that a closing date of “on or about” July 6, 1994 was

agreed upon, that the defendant did not appear but informed “the real estate agent

or the closing attorney” that he did not intend to close the transaction. They alleged

that the contingency of the closing of the Winston Davis estate is not an obstacle

since the non-closure was deliberate, and that the defendant-executor has full

power and authority to sell subject property by virtue of the duly probated will of

Winston C. Davis.

       Joined as defendants were Teresa Davis Steinberg, Margaret Davis Pickens

and Gary Stephen Davis, against whom no relief is sought. They answered

separately from the Executor, alleging that (1) the complaint fails to state a claim, (2)

the contract expired and is unenforceable, (3) the property described in the

complaint “overlaps and/or encroaches” upon the property owned by Gary Stephen

Davis and, thus, the plaintiffs are seeking impossible relief. They averred that if the


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Executor had the authority to sell the real estate by virtue of the will of Winston C.

Davis, said will required the Executor to give these defendants the first refusal to

purchase the property.

       The defendant Executor filed an answer alleging that he intended to execute

the contract in his individual capacity but was “advised by his real estate agent to

sign as the Executor of the estate of Winston C. Davis,” that the description of the

property includes the residence of Gary S. Davis, that he advised his real estate

agent that he was ready and able to convey his one-fourth interest in the property,

but that he was not authorized to convey the interests of his siblings. He alleged

that the filing of this lawsuit prevented the closing of the estate; that in any event the

closing was “set for April 29, 1994" and did not occur.

       Following a trial on the merits, the chancellor denied specific performance,

holding that the purported contract was not clear and thus unenforceable, and that

the Executor had no authority to sell the property, but, even so, he was required to

offer it first to his siblings. The plaintiffs appeal, and present five issues for review,

which are directed to the propriety of declining to grant specific performance.

       At the outset, we note that since the complaint seeks no relief against the

defendants, Teresa Davis Steinberg, Margaret Davis Pickens and Gary S. Davis, the

case against them should have been dismissed on that ground, and they will not be

further noticed.

       Our review is de novo on the record, accompanied by the presumption that

the chancellor’s findings of fact are correct unless the evidence otherwise

preponderates. T.R.A.P. 13(d); Hackett v. Smith County, 807 S.W.2d 695, 699

(Tenn. Ct. App. 1990).

       The thrust of the appellants’ argument is directed to their assertion that the

Executor possessed the requisite authority to sell the property pursuant to the will of

Winston C. Davis, which, as paraphrased, in the event he survived his wife, devised




                                             3
subject property to his four named children. Item Eight of the will1gives the Executor

“in the exercise of reasonable discretion” the right to “exercise any and all of the

powers set forth in . . . T.C.A. 35-618 . . . .,” which, as pertinent here, provides:


       35-50-110. Specifically enumerated fiduciary powers which may be
       incorporated by reference. -- Without diminution or restriction of the
       powers vested in the fiduciary by law or elsewhere in this instrument, and
       subject to all other provisions of this instrument, the fiduciary, without the
       necessity of procuring any judicial authorization therefor, or approval thereof,
       shall be vested with, and in the application of such the beneficiaries of this
       instrument shall be authorized to exercise, the powers hereunder specifically
       enumerated:
                                            * * *
       (6) By public or private sale or sales, and for such consideration, on such
       terms and subject to such conditions (if any) as in the judgment of the
       fiduciary are for the best interests of the estate and the beneficiaries thereof,
       to sell, assign, transfer, convey, or exchange any real or personal property of
       the estate, or the estate’s undivided interest in such property, or any specific
       part of or interest therein (including, but not limited to, standing timber, rock,
       gravel, sand, growing crops, oil, gas and other minerals or mineral rights or
       interests), and to grant easements on real property of the estate, and to
       participate in the partition of real or personal property in which the estate has
       an undivided interest; and to accomplish any such transactions by contracts,
       endorsements, assignments, bills of sale, deeds of other appropriate written
       instruments executed and delivered by the fiduciary in behalf of the estate,
       and to acknowledge the execution of such instruments in the manner
       provided by law for the acknowledgment of the execution of deeds when such
       acknowledgments are required or appropriate.


       The will also provided that “in the event it is necessary or proper to sell any

portions of the farm realty that in such event I hereby specifically grant to each of my

children herein a right of first refusal with respect to the right to purchase said

property.”

       The real property of a testator vests upon death in the named beneficiaries

unless the will contains a specific provision directing that the property should be

administered as part of the estate subject to the control of the personal

representative. T.C.A. § 31-2-103.

       The appellants argue that the statutory scheme then provides for specifically

enumerated fiduciary powers, T.C.A. § 35-50-110, which, when incorporated in the




       1
       This item appears to include pro forma provisions. The will is 13 pages, and
Item Eight contains boiler-plate language generally utilized for trust estates.

                                             4
will, vests in the Executor the right to administer the specifically devised property as

part of the estate subject to the control of the Executor.

         This provision is the Executor’s right to sell the property, but only if in his

judgment a sale is in the best interests of the estate and beneficiaries thereof, or if

the sale is necessary or proper. The record is replete with evidence that the estate

of Winston C. Davis had been fully discharged, that there were no liens, taxes,

claims or charges against the estate, and that it was neither necessary nor proper

for the Executor to sell the property.

         We also agree with the chancellor that the propounded contract2 contains so

many differing, conflicting and confusing provisions as to render it unenforceable.

Closing dates are different on each contract; conditions are different; some changes

are initialed, while some are not. All in all, it is an obfuscatory instrument(s) and the

chancellor was justified in refusing to enforce it. See Shuptrine v. Quinn, 597

S.W.2d 728 (Tenn. 1979). Moreover, the acreage specified in the contract included

property admittedly owned individually by Gary S. Davis, who was not a signatory to

the agreement.

         The remedy of specific performance essentially invokes the discretion of the

chancellor. Parsons v. Hall, 199 S.W.2d 99 (Tenn. 1949); North v. Robinette, 527

S.W.2d 95 (Tenn. 1975), and the contract must be certain as to terms, must be

clear, definite and complete. The contract(s) at hand do not meet these criteria.

         The judgment is affirmed, with costs assessed to the appellants



                                                ________________________________
                                                William H. Inman, Senior Judge




         2
             The plaintiffs filed three (3) contracts in evidence, each differing from the
other.

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CONCUR:



______________________________
David R. Farmer, Judge



______________________________
Alan E. Highers, Judge




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