                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 September 17, 2002 Session

         IN RE: ESTATE OF EDWARD HILTON MORRIS, Deceased
           ROGER CLAYTON MORRIS v. LOLA JANE MORRIS

                A Direct Appeal from the Chancery Court for Gibson County
                 No. 15061-P The Honorable George R. Ellis, Chancellor



                   No. W2002-00001-COA-R3-CV - Filed October 24, 2002


        Widow, electing to take against husband’s will, filed a petition for year’s support, exempt
property, elective share, and homestead. Because the estate had no personal property with which to
satisfy claims against the estate and the widow’s benefits, widow filed a petition to sell the real
property to provide such funds. The trial court declined to order a sale of the real property,
contingent upon the executor paying the claims against the estate, exclusive of the claimed widow’s
benefits. Widow appeals. We affirm in part, reverse in part, and remand.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
                            Reversed in Part, and Remanded

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

Sam J. Watridge, Humboldt, For Appellant, Lola Jane Morris

Harold E. Dorsey, Humboldt, For Appellee, Roger Clayton Morris

                                             OPINION

        This case involves a dispute over a widow’s elective share, homestead, and year’s support
as they are affected by life insurance and pension payments that pass to the widow outside the estate.
There is no dispute as to exempt property. Edward Hilton Morris (“Decedent”) died testate on
August 22, 2000. The Estate of Edward Hilton Morris (the “Estate”) was opened on September 1,
2000 and a will dated June 20, 1994 was probated. Decedent’s son, Roger Clayton Morris
(“Appellee,” or “Executor”) was named Executor. Decedent’s widow, Lola Jane Morris
(“Appellant,” “Widow,” or “Mrs. Morris”) elected against the will and filed a petition for elective
share, year’s support, exempt property, and homestead. An Agreed Order substituting Last Will &
Testament was entered on May 23, 2001, which replaced the June 20, 1994 will with a subsequent
will dated September 6, 1995. On May 29, 2001, Mrs. Morris filed a Petition to Sell Real Property
because the assets of the Estate were insufficient to pay the claims against the Estate and the
surviving spouse’s entitlements of homestead, year’s support, and elective share. Appellee filed a
Response to Petition to Sell Real Property on June 18, 2001. Before hearing the Petition to Sell Real
Estate, the trial court ordered a complete accounting of assets and inventory of the Estate. The
accounting was filed with the court on July 2, 2001 and listed the value of the real property located
at 9 Dollar Road in Humbolt (the “Property”) as $58,000. The accounting also indicated that Mrs.
Morris received $25,000 from a life insurance policy and a monthly pension benefit of $539.19 for
her lifetime. The personal property of the Estate was ordered to be turned over to Mrs. Morris on
October 24, 2001. On October 20, 2001, Mrs. Morris renewed her Motion to Sell Real Property. All
motions were heard on July 2, 2001. The parties agreed that there was no personal property left in
the Estate and that Mrs. Morris was entitled to all exempt property. On the issues of homestead,
year’s support, and elective share, Appellant took the position that the insurance proceeds and
pension payments she received would have no effect on her entitlement to homestead, year’s support
or elective share and that the real property should be sold since there was no more personalty left
from which to satisfy her claims. Appellee asserted that receipt of the insurance proceeds and
pension more than satisfied any entitlements to homestead, year’s support, and elective share due
Mrs. Morris and that there was no need to sell the real property because nothing further was owed,
but, if the trial court found that any further compensation was owed to Mrs. Morris, the Appellee
asserted that the Estate should have the option of satisfying those obligation without having to sell
the Property. The record indicates that, although the trial court held that the homestead, year’s
support and elective share claims of Mrs. Morris were valid, the court stopped short of mandating
the sale of the real estate. Rather, the court put the responsibility of paying the debts and Widow’s
claims on the Estate and indicated that, if the Estate could not satisfy its obligations by October 5,
2001, the court would order the sale of the real property. A subsequent hearing was held on
November 21, 2001 for the purpose of determining whether the Estate had paid its obligations. At
the time of this hearing, the real property had not been sold. However, the Executor indicated that
he was willing and, in fact, had secured a loan to satisfy the obligations of the Estate. It is obvious
from the transcript of the November hearing that the trial court’s exact ruling was not clear to either
party. The final Order of the court, filed December 3, 2001, reflects this ambiguity. The Order
reads:

                       THIS CAUSE came on to be heard on the 2nd day of July,
               2001, in Trenton, Tennessee, before the Honorable George R. Ellis,
               Chancellor, upon the Petition of the Surviving Spouse for an elective
               share, exempt property, homestead, year’s support, Motion to Sell
               Real Property and the widow’s claim for funeral expenses, and for
               good cause shown

                     THEREFORE IT IS HEREBY ORDERED, ADJUDGED
                AND DECREED:

                1. That Lola Morris is the surviving spouse of Edward Morris who
                died August 22, 2000.


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                2. That the surviving spouse is entitled to all the personal property,
                the automobiles, the furniture and all tangible property.

                3. That there are claims against the estate in the approximate amount
                of Twenty-thousand dollars ($20,000.00).

                4. That the claim of Lola Morris against the estate for Six Thousand
                two dollars and fifty seven cents ($6,002.57) for the funeral expenses
                of the decedent Edward Morris is approved and the objection to the
                claim overruled.

                5. That payment of homestead and year’s support and elective share
                are contingent upon the real property being sold because there is no
                personal property in the estate.

                6. That the Motion to Sell the Real Property is a valid motion and,
                unless the executor can pay off the claims against the estate the real
                property will be sold.

                7. If the real property is sold, there will be personal property
                available from which to pay homestead, year’s support and elective
                share.

        Widow appeals and presents one issue for review as stated in her brief:

                If the personal property of an estate is insufficient to pay claims against the
        estate, may the Executor refuse to sell the real property, transfer it to himself and
        deny payment to the surviving spouse of year’s support, homestead and elective
        share?

        At the outset, we note that the order appealed is at the very least questionable as a final order
appealable as of right. However, we are dealing with a very modest estate that should not be
encumbered with unnecessary attorney fees and expenses, if at all possible. The parties have
interpreted the court’s order in such a manner as to allow a final resolution on this appeal and, in the
interest of the Estate and judicial economy, we will consider the order final.

         In addition to the Widow’s issue on appeal, the Estate has presented four issues as stated in
its brief:

                1. Must the surviving spouse’s elective share be offset by property
                passing outside of the estate?




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                2. Must any compensation based upon the year’s support statute be
                recovered from personal property of the estate?

                3. May benefits provided by the Homestead statute be withdrawn
                from personal property of the estate?

                4. May the Executor and beneficiaries personally pay estate debts to
                avoid the sale of real property of the estate?

        Turning to the Widow’s first issue, it is abundantly clear that real estate may be sold to
provide funds to pay claims against the estate if there are insufficient personal assets to satisfy the
claims. See T.C.A. § 30-2-402. Thus, to answer the issue as phrased, the Executor cannot defeat
the payment of claims and the Widow’s entitlements by failure to subject the real property for
payment thereof. However, the sale of real estate may be by public or private sale and it is largely
within the discretion of the probate court as to the terms and provisions of such sale. In 2 Harry
Phillips & Jack W. Robinson, Pritchard on Wills and Administration of Estates Embracing the Law
and Practice in Tennessee § 908 (5th ed. 1983 & Supp. 2002), it is stated:

                § 908. Private sales; confirmation.

                       The Act [§ 30-2-402] authorizes either public sales or private
                sale of real estate for the payment of debts: “The court is also
                empowered, in a like proceeding, to ratify contracts of private sale
                and to authorize the consummation of the same by the personal
                representative.”

                        In many instances, a private sale of real estate may be more
                desirable, especially when the fair market value has been established
                by a competent appraisal and the sale price of the real estate equals or
                exceeds the appraised value. Expenses may be minimized as well as
                the risk that a public sale might not produce an adequate sale price.

         If all valid claims and obligations of the Estate are satisfied, then obviously it is not necessary
for the real property to be sold. For example, if a devisee of the real estate undertakes to pay all valid
claims and obligations of an insolvent estate, the devisee may keep the real estate and the estate itself
can be validly closed by the probate court. Thus, the answer to this issue also serves to answer the
Estate’s fourth issue.

        We will now consider the Estate’s remaining issues, which we have rephrased as follows:

                1. Whether surviving spouse is entitled to homestead allowance from
                the Estate.



                                                    -4-
               2. Whether surviving spouse is entitled to year’s support from the
               real property of the Estate.

               3. Whether surviving spouse’s elective share must be offset by
               property passing outside the Estate.


                               Whether surviving spouse is entitled
                             to homestead allowance from the Estate

       T.C.A. § 26-2-301(a) establishes Mrs. Morris’ right to homestead as follows:

               An individual, whether a head of family or not, shall be entitled to a
               homestead exemption upon real property which is owned by the
               individual and used by the individual or the individual’s spouse or
               dependent, as a principal place of residence. The aggregate value of
               such homestead exemption shall not exceed five thousand dollars
               ($5,000)...

Id.

       Homestead in Tennessee is a constitutional right:


               There shall be a homestead exemption from execution in an amount
               of five thousand dollars or such greater amount as The General
               Assembly may establish.

TENN. CONST. art. XI, § 11

       Although Mrs. Morris is entitled to a $5,000 homestead from the Estate, there is no

legislative mandate that the Property be sold or partitioned in order to satisfy this allowance. T.C.A.

§ 30-2-209 provides that:

               If real estate is so situated that homestead cannot be set apart, as
               herein provided, then the realty shall be sold and five thousand dollars
               ($5,000) of the proceeds invested in real estate, under the direction of
               the court having jurisdiction to be held as homestead subject to the
               law governing homestead, or if the court deems it more desirable and
               practical, it may order the payment of five thousand dollars ($5,000)
               in cash or other personal property outright. . . .


                                                 -5-
Id. (emphasis added)

       Appellee asserts that Mrs. Morris’ homestead allowance has been satisfied by her receipt of
the $539.19 per month pension and the $25,000 life insurance payment. Appellee argues that the
pension and the life insurance proceeds fall under the definition of “personal property” found in
T.C.A. § 30-2-209. There is nothing in the statute to indicate that the homestead allowance is to be
reduced or otherwise affected by any assets coming to the Widow outside the Estate.

        Mrs. Morris is entitled to the $5,000 homestead allowance, and this can be accomplished by
a cash payment in lieu of sale. This is a valid obligation of the Estate, which must be satisfied to
avoid the sale of the real property.

                        Whether surviving spouse is entitled to year’s
                        support from the real property of the Estate

       T.C.A. § 30-2-102 governs year’s support allowance and provides as follows:

               (a) In addition to the right to homestead, an elective share under title
               31, chapter 4, and exempt property, the surviving spouse of an
               intestate, or a surviving spouse who elects to take against a decedent’s
               will, is entitled to a reasonable allowance in money out of the estate
               for such surviving spouse’s maintenance during the period of one (1)
               year after the death of the spouse, according to such surviving
               spouse’s previous standard of living, taking into account the
               condition of the estate of the deceased spouse. The court may
               consider the totality of the circumstances in fixing the allowance
               authorized by this section, including assets which may have passed to
               the spouse outside probate.

                   *                            *                                *
               (c) The court may authorize the surviving spouse to receive any
               personal property of the estate in lieu of all or part of the money
               allowance authorized by this section, and in any case where the court
               makes an allowance in money, the surviving spouse shall be entitled
               to select and receive any personal property of the estate, of a value not
               exceeding the allowance in money, which shall be in lieu of an which
               value shall be credited against the allowance.

Id.

       Although Mrs. Morris is entitled to year’s support, it is an established principle in
Tennessee that year’s support is not chargeable against the real property of an estate. In re
Estate of Gray, 729 S.W.2d 668, 672 (Tenn. Ct. App. 1987) (citing Cate v. Cate, 43 S.W. 365


                                                 -6-
(Tenn. Ch. App. 1897). Since there is no dispute that the Estate at issue in this case consists only
of real property and exempt property, there is no personalty left from which to carve out a year’s
allowance. Consequently, surviving spouse is entitled to no further compensation under T.C.A. §
30-2-101.

                            Whether surviving spouse’s elective share must be
                             offset by property passing outside the Estate.

        It is undisputed that Mrs. Morris was the beneficiary of a $25,000 life insurance policy
and that she receives $539.19 per month from a pension plan at Eaton Axle.1 Under T.C.A. §
31-4-101 (a)(1), Appellant is entitled to 10% of the net estate as her elective share. Calculation
of the net estate is pursuant to T.C.A. §31-4-101(b), which provides:

                    The value of the net estate includes all of the decedent’s real and
                    personal property subject to disposition under the provisions of the
                    decedent’s will or the laws of intestate succession, reduced by the
                    following: secured debts to the extent that secured creditors are
                    entitled to realize on the applicable collateral, funeral and
                    administration expenses, and award of exempt property, homestead
                    allowance and year’s support allowance.

Id.

         Using this formula, the net estate is calculated as follows:

                    Real Estate                $58,0002
                    Personal Property          $18, 6683
                           Total               $76,668

         Less Deductions:
               Secured Debts                             $18,384.034

         1
           The value of the pension plan at Eaton Axle was calculated based upo n the plan’s payout of $539.19 per
mon th X 12 mo nths per year X 33.5 4 years = $2 17,0 13.1 9. The life expectancy of M rs. M orris is 33.54 years. T he life
expectancy calculation is based upon mortality tables in Volume 13 (M ortality Table III) of the T .C.A. Mrs. Morris was
45 years old at the time of this calculation.

         2
           From the record, it appears that the $58,000 value of the Property is taken from the tax assessor’s information
and is undisp uted.

         3
             This number is taken from the Executor’s accounting as provided in Exhibit 4.

         4
          This numb er reflects only the se cured debts filed against the Estate. Accord ing to the record, these deb ts
included a $15,15 5.76 mortgage w ith Union P lanters, and $3,228.27 vehicle loan with Union Planters. Additional
                                                                                                         (continued...)

                                                            -7-
                    Administrative Fees                  $5,788.735
                    Exempt Property                      $18,6686
                    Homestead                            $5,0007
                    Year’s Support                       $0.008
                           Total Deductions              $47,840.76

         Net Estate:         $76,668 (total of real and personal property)
                less         $47,840.76 (total deductions)
                             $28,827.24

         Under T.C.A. §31-4-101(a)(1), Mrs. Morris is entitled 10% of the net estate as her elective
share:

         Elective Share:     $28,827.24 (net estate as calculated above)
                       Times        10%
                             $2,882.72

       However, the elective share calculation is not complete until we apply T.C.A. §31-4-101(c),
which provides that:

                    After the elective-share amount has been determined in accordance
                    with the foregoing subsections (a) and (b), the amount payable to the
                    surviving spouse by the estate shall be reduced by the value of all
                    assets includable in the decedent’s gross estate which were
                    transferred, or deemed transferred, to the surviving spouse or which
                    were for the benefit of the surviving spouse. For the purposes hereof,
                    the decedent’s gross estate shall be determined by the court in the
                    same manner as for inheritance tax purposes pursuant to T.C.A. §§
                    67-8-301 et. seq., except that the value of any life estate or trust for


         4
         (...continued)
unsecured claims were filed against the Estate.

         5
             There is no dispute in the record as to ad ministrative fees. T his number is tak en from App ellee’s brief.

         6
          There is some dispute in the record as to whether Appellant received all of the personalty in form of exempt
property. Appellant did receive some portion of the person alty of the Estate. In our determination of whether the
Appellant is entitled to additional monies under the elective share statute, the end result is not affected by deducting the
entire amount of $18,668 as exempt property or by deducting nothing for exempt property from the net estate. Since
we include the calculations only for purpo ses of clarification, we will leave the full ded uction in place.

         7
             As discussed supra.


         8
             As discussed supra.

                                                            -8-
               the lifetime benefit of the surviving spouse shall be actuarially
               determined.

Id.

        The issue of whether the Appellant’s elective share should be reduced by the amount of the
life insurance and pension that passed outside the Estate depends upon whether the insurance
proceeds and/or pension are part of the gross estate. Because we find that the insurance proceeds
are included in the gross estate, we pretermit discussion of whether the pension payments are also
part of the gross estate.

       T.C.A. § 67-8-306 provides that:

               (a) If the decedent was a resident of this state, there shall be included
               in the gross estate the proceeds of insurance policies payable to
               named beneficiaries, or to the decedent’s estate, or in such manner as
               to be subject to claims against the decedent’s estate and to
               distribution as a part thereof.

               (b) This section shall include the proceeds of insurance policies
               commonly known as “paid-up contracts” or “investment contracts”
               or “annuity contracts” or similar types or forms of policies, the
               surrender value of which was subject to the control of the decedent
               prior to death.

               (c) Where life insurance, the proceeds of which are under the control
               of the decedent, is left by the decedent in such manner that the
               proceeds thereof cannot be subjected to the payment of the decedent’s
               debts and where the proceeds of such insurance are received by
               beneficiaries thereof and are not subjected to the debts of the
               decedent, the fact that the decedent may have been insolvent and that
               a portion of the decedent’s debts may remain unpaid shall not affect
               the liability for inheritance tax upon such insurance.

Id. (emphasis added).

        From the clear language of this statute, the insurance proceeds of $25,000 received by Mrs.
Morris are included in the gross estate. Turning back to T.C.A. § 31-4-101(c), we must reduce the
elective share of $2,882.72 by the $25,000 insurance paid to the surviving spouse. Notwithstanding
the question of whether the pension amount should also be deducted from the elective share as part
of the gross estate, Appellant has exhausted her elective share and is entitled to no more
compensation under T.C.A. § 31-4-101.



                                                 -9-
         For the foregoing reasons, we reverse the order of the trial court to the extent that it holds the
payment of homestead is contingent upon the sale of the real property and affirm the order of the trial
court to the extent that it grants the Appellant $5,000.00 homestead. We reverse the order of the trial
court to the extent that it grants any further elective share to the Widow and to the extent that it
purports to grant a year’s support to the Widow out of real property. The order of the trial court is,
in all other respects, affirmed. The case is remanded to the trial court for further proceedings and
payment of all valid obligations and claims of the Estate and the closing thereof. Costs of the appeal
are assessed one-half to the Appellant, Lola Morris, and her surety, and one-half to the Appellee,
Roger Clayton Morris, Executor of the Estate.



                                                 __________________________________________
                                                 W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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