Assigned on Briefs June 1, 2017
from the Chancery Court for Morgan County No. P-6-12, 14-79
Frank V. Williams, III, Chancellor
brought this action challenging the settlement agreement
reached by the contestants in a will contest. Appellant, the
legitimated child of Decedent's deceased son, filed suit
to set aside the settlement agreement based on allegations
that the will contestants, including Appellant's
half-siblings, i.e., Appellees, engaged in fraud and
misrepresentation in an effort to exclude Appellant from her
share of Decedent's estate. Because Appellant had
knowledge of the will contest, chose not to participate in
the will contest, and there is no evidence that the Appellees
acted in bad faith or fraudulently, we conclude that the
trial court did not err in refusing to order a share of the
Decedent's estate to be distributed to Appellant.
Affirmed and remanded.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded.
W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Sara
H. Dunaway, LaFollette, Tennessee, for the appellees, Susan
Collins, Nancy Wilson, and Joe McCartt.
Armstrong, J., delivered the opinion of the court, in which
Charles D. Susano, Jr. and W. Neal McBrayer, JJ., joined.
the second appeal of this case involving an agreement among
the heirs of Vida Mae McCartt ("Decedent")
regarding the distribution of assets of Decedent's
estate. As set out in our first opinion, In re Estate of
Vida Mae McCartt, No. E2014-02185-COA-R3-CV, 2015 WL
5635114 (Tenn. Ct. App. Sept. 25, 2015) ("McCartt
I"), on February 2, 2012, Decedent died testate at
the age of 102. McCartt I, . at *1. Decedent had
five children: Betty Jane McCartt Newman, Mary Elizabeth
McCartt Sanders, G.M. McCartt, A.K. McCartt, and J.D.
McCartt, Sr. Id. When Decedent executed her will, on
May 18, 1994, her son, A.K. McCartt, was deceased.
Id. Decedent's will bequeathed $5, 000 each to
A.K. McCartt's two children, Kelly McCartt and Ginger
McCartt West. Id. To J.D. McCartt, Sr., who
predeceased Decedent, but died after Decedent executed her
will, Decedent bequeathed a mobile home and a truck.
Id. The remainder of Decedent's property,
including real estate holdings of more than $1, 000, 000, was
divided evenly among her three surviving children.
February 23, 2012, a will contest was filed by Decedent's
five grandchildren: Kelly McCartt and Ginger McCartt West,
children of the deceased A.K. McCartt; and Appellees, Susan
Collins, Nancy Wilson, and Joe McCartt, the children of the
deceased J.D. McCartt, Sr.. By their complaint, the
grandchildren averred that the May 18, 1994 "instrument
is not the Last Will and Testament of Vida Mae McCartt . . .
because she was . . . of unsound mind at the time said paper
was executed and she was incompetent to make a valid
Will." The grandchildren further averred that Decedent
was unduly influenced by G.M. McCartt. McCartt I, at
*1. Thereafter, the parties participated in court-ordered
mediation, which culminated in a September 24, 2012
agreement, resolving all issues among them. Id. at
*2. On November 20, 2012, the trial court entered an order,
which incorporated the parties' September 24, 2012
agreement. The November 20, 2012 order divided Decedent's
real, personal, and residual property, awarding a one-fifth
share to each of Decedent's three surviving children,
one-fifth to the heirs of A.K. McCartt, and one-fifth to the
heirs of J.D. McCartt, i.e., Appellees. The parties'
September 24, 2012 agreement further provides that
if any claims are filed by individuals asserting an interest
as an illegitimate child of J.D. McCartt, then the heirs of
J.D. McCartt agree to indemnify and hold harmless all other
heirs of Vida Mae McCartt from any claims which may be
pursued by purported heirs at law of J.D. McCartt.
November 4, 2013, Appellant Sara Shannon Armes filed a
complaint, alleging, in relevant part, that:
On February 23, 2012 a Complaint to Contest Will was filed
with this honorable Court in behalf of several of the
decedent's grandchildren. In the Complaint, it is
asserted that J.D. McCartt, Sr., one of Vida Mae
McCartt's children, predeceased his mother and left
surviving him three (3) children, Susan Collins, Nancy
Wilson, and Joe McCartt. In fact, J.D. McCartt had four (4)
children, one of whom is Sara Shannon Armes.
Pursuant to Final Order dated December 7, 2004, in the matter
styled In re: Estate of Joseph D. McCartt, docket
number P-14-02, this honorable Court determined that Sara
Hickman (now Sara Armes) is the daughter of Joseph D.
McCartt. A copy of the Final Order is attached hereto and
made a part hereof. Further, pursuant to Final Settlement of
Administrator dated March 1, 2005, Sara Hickman (now Sara
Armes) was entitled to a child's share of the residuary
estate of her father, equal to that of Susan V. Collins,
Joseph D. McCartt, Jr., and Nancy K. McCartt.
On November 20, 2012 an Agreed Order was entered in this
cause of action which approved and incorporated a mediated
agreement. This Agreement resolved the issues between the
parties relative to the will contest and determined that the
heirs of J.D. McCartt should receive a twenty percent (20%)
interest in certain liquid assets . . . and certain specified
real property from the Estate of Vida Mae McCartt, deceased.
The heirs of J.D. McCartt are listed as Joe McCartt, Susan
Collins, and Nancy Wilson.
Sara Shannon Armes avers that she, by law, should be included
as an heir of J.D. McCartt and therefore entitled to
one-fourth (1/4) of the distribution of assets passing to the
heirs of J.D. McCartt.
Sara Shannon Armes further avers that Joe McCartt, Susan
Collins, and Nancy Wilson have perpetrated a fraud on this
honorable Court by asserting that J.D. McCartt had only three
(3) heirs-at-law when each and every one of them knew that
J.D. McCartt had four (4) heirs-at-law.
PREMISES CONSIDERED, PETITIONER RESPECTFULLY REQUESTS
* * *
That upon a hearing in this cause, this Court determine that
Sara Armes is entitled to receive an equal share of the
distribution of assets passing to the heirs of J.D. McCartt
from the estate of Vida Mae McCartt.
Further that the Court award damages to Petitioner as a
result of the fraud of Joe McCartt, Susan Collins, and Nancy
McCartt I, at *2-*3. Attached to the complaint was a
copy of the December 8, 2004 final order of the Morgan County
Chancery Court in the matter of J.D. McCartt's estate,
This cause came to be heard ... upon the Petition for
Elective Share filed by [Armes], the Answer filed in behalf
of the estate [of J.D. McCartt, Sr.], the testimony of
witnesses, [and] the Parentage Testing Report from Molecular
Pathology Laboratory Network, Inc., a copy of which is
attached hereto and made a part hereof, and the record as a
whole from all of which the Court finds as follows:
Based on the proof introduced in this cause, the Court is of
the opinion that [Armes] is the daughter of the decedent,
The results of the DNA test referenced by the court's
order established a 99.9586% probability that Armes is the
daughter of J.D. McCartt, Sr.
McCartt I, at *3. In response to Ms. Armes'
complaint, the Decedent's grandchildren filed a Tennessee
Rule of Civil Procedure 12.02(6) motion to dismiss for
failure to state a claim. As grounds for their motion, the
grandchildren averred that:
The Complaint should be dismissed on the basis [of] Res
Judicata. The original litigation is a will contest and an In
Rem proceeding. A Final Order has been entered and it is a
conclusive adjudication upon all heirs; and Sara Shannon
Armes is bound[ ] by the ruling.
At best, any claim of Sara Shannon Armes is limited to the
next of kin of J.D. McCartt and has no impact, whatsoever,
and fails to state a claim as to any other heirs, other than
Joe McCartt, Susan Collins and Nancy Wilson; and it fails to
state a claim even as to those three heirs.
McCartt I, at *3. Betty Jane Newman and G.M. McCartt
also filed a motion to dismiss, arguing that "Armes'
lawsuit is in the nature of a lawsuit to contest the will; or
more specifically the probation of the will, " and
because "Armes did not join in the original lawsuit to
contest the will, (which she should have under the law), she
is bound by the ruling in the previous lawsuit, and her
current petition must fail, and must be dismissed."
Id. at *4.
trial court granted the respective motions to dismiss by
order of October 28, 2014. In the order, the court states
only that "the complaint is dismissed for failure to
state a cause of action upon which relief can be
granted." Ms. Armes appealed. Id. at *4. In
McCartt I, this Court vacated the trial court's
dismissal of Ms. Armes' complaint; specifically, we held
In this case, the record contains no indication of when Armes
became aware of the will contest or the settlement agreement.
Thus, in the current posture of the case, it is impossible to
say whether Armes had the opportunity to make any conscious
decision whether to "join the contestant, join the
proponent, or stand aloof." More importantly,
Petty observes that a settlement of a will contest
must be done "in good faith, " and we believe that
the allegations of the complaint raise a legitimate issue of
whether the settling heirs acted in good faith.
Armes' complaint includes a claim that her siblings
defrauded both her and the trial court by representing that
J.D. McCartt had only three surviving children and heirs, and
not four as Armes has alleged. Construing the complaint
liberally, presuming all of Armes' factual allegations to
be true and giving her the benefit of all reasonable
inferences, her complaint alleges, in effect, that the
settling heirs deliberately concealed Armes' existence
and status as J.D. McCartt's heir, in order to purposely
cut her out of the ...