TCA § 32-4-104 — Issues — When and how made up — When triable

After the filing of the certificate of the contest and the original will, in the office of the clerk of the appropriate court for trial, pursuant to § 32-4-101(2) , an issue or issues shall be made up, under the direction of the court, to try the validity of the will. Code 1858, § 2177 (deriv. Acts 1835-1836, ch. 5, § 9); Shan., § 3909; Acts 1925, ch. 8, § 1; Code 1932, § 8107; T.C.A. (orig. ed.), § 32-405; Acts 2002, ch. 631, § 2. Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 366, 368. Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 68. Law Reviews. Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965). NOTES TO DECISIONS 1. Pleading. 2. —Form. 3. —Necessity in Circuit Court. 4. —Defenses and Judgment Under General Issue. 5. —Special Pleas. 6. Consolidation of Several Contests. 7. Trial. 8. —Proof Under General Issue. 9. —Directed Verdict. 10. —Waiver. 1. Pleading. 2. —Form. No particular form of pleading is required in making up the issue of devisavit vel non, for all that is required is that the party propounding the paper shall affirm it to be the testator's will, and the contesting party shall deny it. Ford v. Ford, 26 Tenn. 92, 1846 Tenn. LEXIS 68 (1846); Harrison v. Morton, 32 Tenn. 461, 1852 Tenn. LEXIS 97 (1852). The issues are made up in the office of the circuit court clerk under the court's direction. Bowman v. Helton, 7 Tenn. App. 325, — S.W.2d —, 1928 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1928). Original statement of issues to jury and the subsequent filing of a declaration and written pleas was a sufficient compliance with this section which simply delineates the practice fixing no hard and fast rule that must be strictly conformed to at the risk of fatal error. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 1968 Tenn. LEXIS 440 (1968). Trial court erred by interpreting the court's earlier opinion as conclusively deciding that the testator's third codicil had not been revoked, had been lost or destroyed, and that the contents were the same as the contents of the purported copy, and therefore the trial court erred by granting the widow summary judgment under the law of the case doctrine; rather, the court's prior opinion stated that nothing in its opinion prevented the testator's daughters from also contesting the will and all three codicils if that was their desire, and on remand the trial court was to require the daughters to state whether they were contesting the testator's will or any of the codicils, and if so, the basis for their contest. In re Estate of Boote, 265 S.W.3d 402, 2007 Tenn. App. LEXIS 818 (Tenn. Ct. App. Dec. 27, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 384 (Tenn. May 27, 2008). 3. —Necessity in Circuit Court. Contest in circuit court should not be upon the issues made by the petition and answer thereto filed in the probate court. Bowman v. Helton, 7 Tenn. App. 325, — S.W.2d —, 1928 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1928). In case involving presence of animus testandi in holographic will, the issues to be tried in the circuit court are not made by the petition and the answer thereto filed in the probate court, but are made up under the direction of the court after the case has reached the former tribunal. Smith v. Smith, 33 Tenn. App. 507, 232 S.W.2d 338, 1949 Tenn. App. LEXIS 133 (Tenn. Ct. App. 1949). 4. —Defenses and Judgment Under General Issue. Such general issue lets in all matters of defense, and under it the will may be sustained in part and set aside in part. Harrison v. Morton, 32 Tenn. 461, 1852 Tenn. LEXIS 97 (1852). 5. —Special Pleas. Where the contestant attacks the will only in part, he may do so by a special plea or pleas, if he wishes, with a view of saving costs, or for any other reason; but if he pleads the general issue, special pleas become unnecessary, and it is not error to strike them out. Harrison v. Morton, 32 Tenn. 461, 1852 Tenn. LEXIS 97 (1852). 6. Consolidation of Several Contests. Where several alleged wills and codicils of the same testator are offered and contested in the circuit court, it is not improper or erroneous for the trial judge to direct a consolidation of all the contests and to require proper issues to be formulated, so that it may be determined which was the last will and testament of the testator, or whether any of them was his will; and to this end, the trial judge may direct the removal of controversies in the probate court, by certiorari, to the circuit court. Walker v. Verble, 5 Tenn. Civ. App. (5 Higgins) 651 (1914). More than one will may be offered for probate in a will contest. Proceedings for probate of will are under English system in ecclesiastical courts. Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576, 1925 Tenn. LEXIS 117 (1926). Where two unprobated wills were certified to circuit court for contest and circuit judge within his discretion made primary issue depend on the validity or invalidity of the later instrument, permitting proponent of latter will to open and close was not improper. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964). Where two wills were offered for probate at substantially the same time and both were certified to the circuit court for contest, it was within the sound discretion of the circuit court as to how the issues were to be framed and matters of procedure in the presentation of the case were also largely in the discretion of the court. Williams v. Bridgeford, 53 Tenn. App. 381, 383 S.W.2d 770, 1964 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1964). 7. Trial. 8. —Proof Under General Issue. Under a plea of the general issue contestant could adduce any evidence tending to show that the paper was not a will of the decedent. Haley v. Ogilvie, 2 Tenn. App. 607, — S.W. —, 1926 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1926). 9. —Directed Verdict. The authority of the trial judge or the appellate court to direct a verdict is the same as it is in those cases within the purview of the constitutional provision. Cude v. Culberson, 30 Tenn. App. 628, 209 S.W.2d 506, 1947 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1947). 10. —Waiver. This section was not intended to supplant the general rule that by proceeding to trial voluntarily without objecting to the pleading by motion for judgment thereon or by default of for confessed judgment for lack of pleas a party is deemed to have waived failure to raise, form or join issue properly or at all. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 1968 Tenn. LEXIS 440 (1968). Where the parties have voluntarily and without objection tried the case as if certain matters were in issue, one party will not be permitted afterward to object that such matters were not properly put in issue by the pleadings, the doctrine of waiver or estoppel being applied. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 1968 Tenn. LEXIS 440 (1968). Where decedent's heirs did not file a will contest action, the appellate court would not disturb the decision of the probate court finding that the holographic documents submitted by the estate executor constituted the last will and testament of the decedent; the parties also did not dispute that the heirs would be entitled to a share in the real and personal property in the decedent's estate under the law of intestate succession. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).