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09/27/89 BETHEL RICE v. ELIZABETH DANIEL HALE

COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION, AT NASHVILLE


September 27, 1989

BETHEL RICE, ET AL., PLAINTIFFS-APPELLEES,
v.
ELIZABETH DANIEL HALE, ET AL., DEFENDANTS-APPELLANTS

FROM THE CHANCERY COURT, PUTNAM COUNTY, THE HONORABLE VERNON NEAL, CHANCELLOR.

Ben H. Cantrell, Judge, Henry F. Todd, Presiding Judge, Samuel L. Lewis, Judge, Concur.

The opinion of the court was delivered by: Cantrell

OPINION

BEN H. CANTRELL, JUDGE

This is an action by defendants for a declaratory judgment construing portions of the will of O. V. Race. The dispute is whether a phrase in item six of the will, "all items connected with the Rice Motor Inn in which I have an interest" covers land adjacent to the Motor Inn which was owned by the decedent in colon with others.

A.

In 1966, three brothers, O. V. Rice, Oliver Rice, and O. D. Rice owned approximately seven acres of land on the south side of Interstate 40 in Cookeville. They constructed a service station on part the land and leased it to an oil company. Another part of he land, on which they had constructed a motel, they conveyed to Rice Motor Inn, Inc., a corporation, in which they each owned one-third of the shares of stock.

Before O. V. Rice died in 1978, the motel had been expanded and the addition rooms extended over the line owned by the corporation onto the property still owned by the three brothers. The brothers also built a diesel service station on their land and later converted it into a rental unit for which the motel collected the rent. Apparently the three brothers did not take much notice of which property was owned by them individually and which was owned by the corporation since they owned he remaining land in the same proportions they owned the shares in the motel.

Apparently the same was true with respect to the cent from the service station. From the time it was first leased until this dispute arose, the rent from the station had been paid to the motel corporation and the corporation had, in turn, paid expenses incurred by the station such as real estate taxes and insurance.

O. V. Rice died in 1978. His will contained the following paragraph which is the subject of this dispute:

SIXTH: I will, devise and beneath to Bethel Rice and O. J. Wright all of the stock in the corporation known as the Rice Motor Inn and all items connected with the Rice Motor Inn in which I have any interest, and this includes the Rice Motor Inn Restaurant, together with any and all sums which may be due me at the time of my death from the said corporation or the restaurant, and the said Bethel Rice and O. J. Wright to share and share alike in all of same property.

In 1988, Bethel Rice Oliver Rice, and Betty Rice Burgess filed this action to determine if, under the language of paragraph six of the will, O. J. Wright had any interest in the service station and the remaining property around the motel. Thus, the question presented was whether the surrounding property was included in the phrase, "all items connected with the Rice Motor Inn in which I have any interest." (We should note that this dispute does not involve the small area onto which the motel had expanded. That property had been conveyed to the corporation before this case was tried.) The chancellor held that that expression in the will did not cover the service station and the surrounding property.

We are persuaded that the chancellor was correct. Our task is the same as the chancellor's and that is to ascertain the intention of the testator. Third National Bank in Nashville v. Stevens, 755 S.W.2d 459 (Tenn. Ct. App. 1988). Ordinarily, we accomplish that task by considering only the language contained within the four corners of the will. Farris v. Bry-Block Co., 205 Tenn. 482, 346 S.W.2d 705 (1961). Parol evidence, however, may be admitted to resolve uncertainties or ambiguities in the will, Treanor v. Treanor, 25 Tenn. App. 133, 152 S.W.2d 1038 (1941), or to give the court knowledge of the conditions and circumstances surrounding he testator when he made the will. Greer v. Anderson, 36 Tenn. App. 507, 259 S.W.2d 550 (1953).

In this case we think the language in O. V. Rice's will meant that he was leaving the motel to Bethel Rice and O. J. Wright. He specifically mentions the restaurant and any sums due to him at the time of his death from the corporation or he restaurant. It is notable that he does not mention the service station. We believe that if he had intended to include the service station and the surrounding property in the sixth item of his will, he would have mentioned the specifically.

It is true that all of the interested parties, from the date O. V. Rice's death until 1987, acted as if O. J. Wright had an interest in the service station and the surrounding property. And, the corporation itself executed a lease to the service station in 1981 a the owner of the station. Most, if not all, of the proof, however, concerned incidents that occurred years after O. V. Rice's death. There is very little proof of the circumstances surrounding the testator at the time he executed the will or at the date of his death. We think, therefore, that we are left with the problem of ascertaining the intention of O. V. Rice from the four corners of the will. Our Conclusion that he intended to leave the motel and the items connected to it to Bethel Rice and O. J. Wright. The motel did not include the service station or the land around the motel.

B.

The appellant also raised a statute of limitations defense in reliance on Tenn. Code Ann. § 32-4-108 (1988):

All actions or proceedings to set aside the probate of any will, or petitions to certify such will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or of unsound mind, at the time the cause of action accrues, the rights conferred by § 28-1-106.

This statute applies to will contests and not to questions of will interpretation. There is no applicable state to limit the time period which an action to interpret the provisions of a will may be brought.

The appellants also argue that the doctrine of laches applies because of the ten year period between probate and the filing of this action. Laches is an equitable defense that arises where the party seeking relief has unreasonably delayed bringing the action and the one against whom the relief sought has been prejudiced by the delay. Murphy v. Emery, 629 S.W.2d 895 (Tenn. 1982).

It is the element of prejudice that we think is missing in this case. The appellant does not cite any specific prejudice by the long delay between O. V. Rice's death and the institution of this action. We find none in the record and conclude that laches is not a defense available to the appellant.

The judgment of the court below is affirmed and the cause is remanded to the Chancery Court of Putnam County for any further proceedings necessary. Tax the costs on appeal to the appellant.

19890927

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