Opinion

Estate of Robison v. Carter

  • 701 S.W.2d 218
  • 1985 Tenn. App. LEXIS 3419
Court
Court of Appeals of Tennessee
Filed
Aug 23, 1985
Status
Published
Author
Koch
On the bench
Koch, Lewis, Todd
Cited by
7 cases
Authority
More cited than 20.9%

The opinion

OPINION ON PETITION FOR REHEARING

KOCH, Judge.

This Court filed its opinion in this case on August 23, 1985. After this opinion was filed, the clerk of this Court received and filed a motion by the appellees requesting this Court to consider the post-judgment fact that the appellant, Loren Robison, died on August 13, 1985 and to dismiss this appeal on the basis of mootness. We have determined that this motion should be treated as a petition for rehearing in accordance with Tenn.R.App.P. 39. The appellee claims that this case is now moot because with the death of the appellant, there is no longer a dispute concerning who should take under the residuary clause of C.C. Robison’s will as his “closest living relatives.” While we agree that the death of the appellant is a post-judgment fact we can consider, we do not agree that the appellant’s death renders this case moot.

A will speaks at the time of the testator’s death. Merchants and Planters Bank v. Myers, 644 S.W.2d 683, 686 (Tenn.App.1982). Based upon this, we concluded in our earlier opinion that

the residuary clause can have no meaning other than that the testator desired that his residuary estate be distributed in equal shares to those persons who were his closest living blood relatives at the time of his death.

In re Estate of C.C. Robison, 701 S.W.2d at 222.

Two of C.C. Robison’s siblings, Loren Robi-son and Buna Carter, survived him. Thus, we determined that they took under the residuary clause of the will to the exclusion of the nieces and nephews of the deceased. Mr. Loren Robison’s death on August 13, 1985, does not change our holding in this regard. Just as Buna Carter’s 1 estate will receive her share, so should Loren Robi-son’s estate receive his share.

In accordance with Tenn.R.App.P. 19, we hereby direct counsel for the appellant to prepare and file with this Court a proper motion seeking to substitute Mr. Loren Ro-bison’s successor or representative as a party in this case.

Our opinion filed on August 23, 1985, is amended to delete the last sentence in its entirety and by substituting in lieu thereof the following:

Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial court with directions to enter an order distributing C.C. Robi-son’s residuary estate in equal shares to the estate of Loren Robison and to the estate of Buna Carter. 15

*224 The costs of this order are taxed to the Estate of C.C. Robison.

TODD, P.J. (M.S.), and LEWIS, J., concur.

. Buna Carter died after C.C. Robison died but before this appeal was perfected.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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