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In re Estate of Kerby

Court of Appeals of Tennessee, Jackson

June 24, 2019

IN RE ESTATE OF BILLY JOE KERBY

          Assigned on Briefs December 3, 2018

          Appeal from the Chancery Court for McNairy County No. P1319 William C. Cole, Chancellor

         This appeal concerns the trial court's summary judgment dismissal of the petitioner's claim against the estate of the decedent. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          John 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.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S. and D. Michael Swiney, C.J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE.

         I. BACKGROUND

         Billy 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.

         On 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, 2016.

         Executrix 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.

         Petitioner passed away during the pendency of the proceedings on February 13, 2017.[1] 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 follows:

[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 ...

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