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In re Estate of Smelcer

Court of Appeals of Tennessee, Knoxville

June 22, 2015

IN RE: ESTATE OF GEORGIA MYERS SMELCER

Assigned on Briefs April 30, 2015

Appeal from the Chancery Court for Greene County No. 12P00043 Douglas T. Jenkins, Chancellor

Jeffrey A. Cobble, Greeneville, Tennessee, for the appellant, Hal H. Lane.

Jerry W. Laughlin, Greeneville, Tennessee, for the appellee, Joseph J. Holt.

Douglas L. Payne, Greeneville, Tennessee, for appellee, the Estate of Georgia Myers Smelcer.

Judy S. Robinson, Greeneville, Tennessee, Administratrix ad litem for the Estate of Georgia Myers Smelcer.

Whittney N.L. Good, Greeneville, Tennessee, Guardian ad litem for unknown heirs of the Estate of Georgia Myers Smelcer.

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.

OPINION

D. MICHAEL SWINEY, JUDGE

Background

Deceased died in January of 2012. Deceased's Last Will and Testament ("the Will") was admitted to probate, and Joseph J. Holt was appointed to serve as Administrator of Deceased's Estate. In pertinent part, Deceased's Will provides: "Property in Hartshaw Addition will go to the persons that take care of me until my death. If nobody does this it will be sold and go into the trust fund to help take care of me."

Mr. Holt filed a motion seeking guidance with regard to the construction of the above quoted portion of the Will, in addition to other things. Hal H. Lane filed a petition seeking to establish his status as a beneficiary under the Will and alleging, in part, that he qualified to inherit the property in Hartshaw Addition under the Will. The case proceeded to trial without a jury in April of 2014.

Mr. Holt testified at trial. He explained that he was the nephew of Glen Smelcer, Deceased's purported common law husband, who died in 1995. After Glen Smelcer's death, Mr. Holt continued to visit Deceased. Mr. Holt and Deceased also spoke regularly on the phone. Mr. Holt explained that Deceased's Estate contains, in addition to other items, two parcels of real property, the Hartshaw Addition property and approximately 6.4 acres on Hill in Gallahar. Mr. Holt stated that Hal Lane gets an acre and a half of the 6.4 acres in Gallahar pursuant to the Will, leaving around five acres left in that parcel after that specific bequest.

Mr. Holt testified that Deceased fell and fractured a hip and her pelvis in November of 2010. Prior to her fall Deceased was able to get around, was driving, and was functioning normally. Deceased called Mr. Holt when she fell. He told Deceased to call 9-1-1, and he then went to her home and accompanied her to the hospital. Mr. Holt stayed with Deceased and signed papers for her in the hospital. Mr. Holt testified that while Deceased was in the hospital after her fall he: "had keys, pocketbook, I carried her pocketbook with me. Every time I saw her, I had her insurance cards, her check books and everything."

Mr. Holt explained that Deceased had asked Mr. Holt prior to her fall to assist her with her financial affairs. Deceased had placed Mr. Holt's name on her checking account in May of 2010. Mr. Holt testified that "[s]he wanted help paying her bills, keeping track of her affairs, financial affairs. She had a shaky hand, couldn't write checks good . . . ." Mr. Holt testified that he was a signator on many of Deceased's checks and that he paid her monthly bills including cable and electric.

After her fall Deceased was in the hospital for almost a week and then was in a rehabilitation facility for a little over a month. Mr. Holt testified that he assisted in making the accomodations so that Deceased could return to her home after leaving the rehabilitation facility. Mr. Holt explained:

I assisted. We hired a lady, interviewed at Laughlin Healthcare and hired a lady to take care of her when she did come home. We did a shower seat and helped the shower to where she could sit down and not stand up. The rest of the house was pretty much left as it was.

Mr. Holt testified that Deceased had a security system for her home. Mr. Holt: "had the, the code and the password and if it ever went off I was, they called the homeowner and if they don't answer then they call someone else and I was the first person they called after that." Mr. Holt testified that this arrangement was set up when Deceased had asked Mr. Holt to be at her house on the day the security system was installed.

Mr. Holt fed Deceased's three cats and watered Deceased's flowers while Deceased was in the hospital and then the rehabilitation facility. No one else had a key to Deceased's house at that time.

Deceased never drove again after her fall. Prior to her fall Deceased mowed her own lawn using a riding mower. After her fall Deceased did not mow her lawn. Mr. Holt was asked how Deceased's lawn was taken care of after Deceased's fall, and he stated: "We, she had a neighbor behind her that had somebody mowing their, her yard, so we hired him to take care of hers. He would mow it and weed eat and blow the trimmings off of the driveway every week. And I paid him at the end of every month."

Mr. Holt testified that after Deceased's fall he took her to all of her doctor's appointments. With regard to Deceased's doctor's appointments, Mr. Holt testified:

Well, I took her to the doctor. They had my name so, make an appointment, they gave me the appointment. If there was a change in it they called her and they also called me at the same time. . . . I would sign her in at the desk and when we were called back I would go back with her to the exam, examining room and the doctor would tell me or look at me and tell what he was thinking and tell her at the same time or any questions or any procedure that he would recommend, share with both of us and give my input on any procedures. I know one procedure wasn't, they kind ...

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