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In re Estate of Kowalski

Court of Appeals of Tennessee, Nashville

April 23, 2018

IN RE ESTATE OF FRANCIS J. KOWALSKI

          Session December 6, 2017

          Appeal from the Circuit Court for Davidson County No. 14P1972 Randy Kennedy, Judge

         Thomas Kowalski, Michael Kowalski, John J. Kowalski, and Margaret Kowalski ("Plaintiffs") appeal the February 2, 2017 judgment of the Circuit Court for Davidson County ("the Trial Court") finding and holding, inter alia, that the holographic Last Will and Testament of Francis J. Kowalski ("the Will") contained a residuary clause such that Francis J. Kowalski ("Deceased") did not die partially intestate and that the Will granted a conditional life estate in real property located at 2820 Azalea Place[1] ("Azalea Place") in Nashville to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. We find and hold that the Will does not contain a residuary clause and that Deceased died partially intestate. We further find and hold that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. Given all this, we reverse the Trial Court's judgment as to whether the Will contained a residuary clause and modify the judgment to reflect that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed, in part; Modified, in part; Case Remanded

          E. Reynolds Davies, Jr. and John T. Reese, Nashville, Tennessee, for the appellants, Thomas Kowalski, Michael Kowalski, John J. Kowalski, and Margaret Kowalski.

          Thomas J. Drake, Jr., Nashville, Tennessee, for the appellee, Trevor Walker, Executor of the Estate of Francis J. Kowalski.

          D.MICHAEL SWINEY, C.J., delivered the opinion of the court, in which RICHARD H. DINKINS and JOHN W. MCCLARTY, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Deceased died on October 28, 2014, at the age of 63, unmarried and survived by neither children nor parents. Trevor Walker filed a petition seeking to have the Will, which was dated October 19, 2014, admitted to probate. Walker is not related to Deceased, but he was named as the executor and as a beneficiary in the Will. The Will also named three of Deceased's nephews, Michael Kowalski, Steven Kowalski, and Matthew Kowalski, and two of Deceased's nieces, Kristen Kowalski and Alexa Kowalski, among others, as beneficiaries. The Trial Court entered an order admitting the Will to probate and appointing Walker as the executor of Deceased's estate ("the Estate"). An Estate Inventory was filed valuing the Estate, which included several parcels of real property located in Nashville, Tennessee, at approximately $775, 000.

         Plaintiffs filed a complaint for declaratory judgment alleging that the Will did not dispose of all of Deceased's property interests as it did not contain a residuary clause, that Deceased had died partially intestate, and that they are entitled to inherit via intestate succession the portion of the Estate not disposed of by the Will. The Trial Court entered Agreed Judgments finding that Deceased's nephews and nieces named as beneficiaries in the Will had elected not to contest or challenge the relief sought by Plaintiffs and consented to entry of a judgment finding that the Will did not contain a residuary clause. Walker filed an objection to the agreed judgments asserting that he did not sign the agreed judgments and did not agree to the findings of fact and conclusions of law contained therein. Plaintiffs filed a response to Walker's objection alleging that the agreed judgments are limited to the interests stated therein and do not defeat any interest Walker may establish to the Estate.

         Walker filed a motion seeking approval of expenditures to preserve the real property at Azalea Place alleging that he had discovered insect damage and water damage. Plaintiffs opposed the motion to approve these expenditures alleging that Azalea Place had passed to them via intestate succession. They also alleged that they were 50% owners of Thrill Building Music, LLC and that Walker had been in possession and control of Azalea Place and had been using it to conduct the business of Thrill Building Music, LLC for 24 months without payment of rent or compensation. The Trial Court entered an order allowing the expenditure of Estate funds to preserve Azalea Place pending construction of the Will.

         Both Walker and Plaintiffs filed motions for summary judgment seeking construction of the Will. After a hearing on the motions for summary judgment, the Trial Court entered its order on February 2, 2017 finding and holding, inter alia, that the language contained in the Will is sufficient for the court to conclude that Deceased's intent was that all of his property was to be disposed of under the Will; that Deceased intended for his estate to be liquidated and disbursed under a category called moneys; that other than specific legacies or bequests, Deceased intended that the residuary of the Estate would be distributed in accordance with the second unnumbered paragraph in the Will; that the Will grants a conditional life estate in Azalea Place to Walker as long as Walker operates Thrill Building Music, LLC; and that Deceased's interest in Big Noodles, Thrill Building, Music, LLC, the Ameriprise Mutual Fund account, and the funds remaining in the Estate fall under the residuary clause contained in the Will. The order dismissed Plaintiffs' complaint, dismissed Walker's counterclaim to the extent that it sought a judgment finding that Walker received Azalea Place in fee simple; and found that the Will disposed of Deceased's entire estate.

         Walker filed a motion to alter or amend alleging that pursuant to the agreed orders Deceased's nephews and nieces had agreed that they did not have an interest in the Estate. The Trial Court denied the motion to alter or ...


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