Assigned on Briefs December 3, 2018
from the Chancery Court for McNairy County No. P1319 William
C. Cole, Chancellor
appeal concerns the trial court's summary judgment
dismissal of the petitioner's claim against the estate of
the decedent. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
E. Talbott and G.W. Sherrod, II, Henderson, Tennessee, for
the appellant, Jerry Edward Mitchell, Administrator of the
Estate of Jo Ellen Kerby.
Melissa G. Stewart-Leitschuh, Savannah, Tennessee, for the
appellee, Estate of Billy Joe Kerby.
W. McClarty, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S. and D. Michael Swiney,
W. McCLARTY, JUDGE.
Joe Kerby ("Decedent") and Jo Ellen Kerby
("Petitioner") were married in 1989. Decedent
executed a last will and testament on August 8, 2013, more
than two years prior to his death on January 15, 2016.
Pursuant to the terms of the will, Decedent bequeathed a life
estate to property and a house, along with other items, to
Petitioner. The remainder of his estate was left to his
daughters from a prior marriage, Kay and Theresa Kerby.
Decedent named Kay Kerby ("Executrix") as the
executrix of his estate. Executrix admitted the will to
probate on February 18, 2016, and letters testamentary were
issued on the same day. A notice of the court's issuance
of letters testamentary was published in the local paper for
two consecutive weeks, beginning on February 24, 2016.
November 4, 2016, Petitioner filed a petition for specific
property, year's support allowance, elective share, and
application for homestead. Petitioner conceded that she and
Decedent had entered into an antenuptial agreement that
specified the divestiture of Decedent's residence but was
vague as to the remaining financial assets of either party.
Petitioner claimed that she was unaware of the extent and
value of Decedent's property at the time of the execution
of the antenuptial agreement. Petitioner further claimed that
she did not receive notice of the probate action until May 3,
objected to Petitioner's request for relief and asserted
that her claims should be denied pursuant to the terms of the
antenuptial agreement. She further asserted that
Petitioner's application should be denied because her
claims against the estate were not made within nine months as
required by statute.
passed away during the pendency of the proceedings on
February 13, 2017. Executrix moved for summary judgment
dismissal of Petitioner's claims, alleging that dismissal
was warranted because Petitioner's claims were not filed
within nine months of Decedent's death as required by
statute. Executrix also filed a motion to dismiss
Petitioner's claims pursuant to the terms of the
antenuptial agreement, which provided, in pertinent part, as
[Petitioner] hereby releases, renounces and quitclaims all
interest in the real property and all right to participate in
the distribution of the personal property of [Decedent]
should she survive him, both as to property now owned by him
and property hereafter ...