"When … the testator's intent is determined by extrinsic evidence, the trial court's findings of fact regarding that evidence are reviewed de novo with a presumption of correctness." In re Estate of Garrett, No. M1999-01282-COA-R3-CV, 2001 WL 1216994, at *5 (Tenn. Ct. App. Oct. 12, 2001), no appl. perm. appeal filed (citations omitted).
"The effect of valid delivery is to place the gifted property under the control and dominion of the donee." In re Estate of Garrett, No. M1999-01282-COA-R3-CV, 2001 WL 1216994, at *10 (Tenn. Ct. App. Oct. 12, 2001). In the context of real property, the delivery requirement is met by delivery of the deed.
The Will contained a latent ambiguity requiring the Trial Court to determine who qualified as a person or persons who took care of Deceased until her death. If a testator's intent is determined, in part, through extrinsic evidence, we review the trial court's findings of fact de novo with a presumption of correctness. In re: Estate of Luther Gaston Garrett, No. M1999-01282-COA-R3-CV, 2001 WL 1216994, at *5 (Tenn. Ct. App. Oct. 12, 2001), no appl. perm. appeal filed. In the case now before us the Trial Court found that while Mr. Lane did perform some services for Deceased and that those services were important to Deceased, Mr. Holt was the person that Deceased "relied really on . . . ."
We turn now to a consideration of whether the Trial Court erred in finding that the testatrix's intent was to devise the farm road as the road right-of-way. If a testatrix's intent is determined, in part, through extrinsic evidence, we review the trial court's findings of fact de novo with a presumption of correctness. In re: Estate of Luther Gaston Garrett, No. M1999-01282-COA-R3-CV, 2001 Tenn. App. LEXIS 764 (Tenn. Ct. App. Oct. 12, 2001), no appl. perm. appeal filed.We, however, need not look far in order to clarify and interpret the latent ambiguity in the Will as the Will itself provides direction.
We next consider whether the Trial Court erred in finding that Testator's intent was to devise only the 43 acre tract to Mr. Wolfe. If a testator's intent is determined, in part, through extrinsic evidence, we review the trial court's findings of fact de novo with a presumption of correctness. In re: Estate of Luther Gaston Garrett, No. M1999-01282-COA-R3-CV, 2001 Tenn. App. LEXIS 764 (Tenn. Ct. App. Oct. 12, 2001), no appl. perm. appeal filed. In its Memorandum Opinion, the Trial Court specifically found that Testator owned two parcels of real property in Hancock County, one containing 43 acres that adjoined Mr. Wolfe's property, and one containing 198 acres.
In Tennessee, a party claiming a gift has the burden of proving two essential elements: donative intent and delivery. In re Estate of Garrett, No. M1999-01282-COA-R3-CV, 2001 Tenn. App. LEXIS 764, at *28-29 (Tenn.Ct.App. Oct. 12, 2001) (citing In re Estate of Bligh, 30 S.W.3d 319, 321 (Tenn.Ct.App. 2000)). Delivery of a gift may be either actual or constructive. Atchley, 255 S.W. at 371.
However, when a trial court uses extrinsic evidence to elucidate the terms of a will, the trial court's findings of fact based on this evidence are entitled to Tenn.R.App.P. 13(d)'s presumption of correctness. In re Estate of Garrett, No. M1999-01282-COA-R3-CV, 2001 WL 1216994, *5 (Tenn.Ct.App. Oct. 12, 2001) (No Tenn.R.App.P. 11 application filed); Fisher v. Malmo, 650 S.W.2d 43, 46 (Tenn.Ct.App. 1983). B.
See e.g., In re Estate of Garrett, No. M1999-01282-COA-R3-CV (Tenn.Ct.App. Oct. 12, 2001); Walker v. Moore, 745 S.W.2d 292 (Tenn.Ct.App. 1987); Mercy v. Miller, 166 S.W.2d 628 (Tenn.Ct.App. 1942). In this situation there was adequate evidence to support the trial court's conclusion of both a gift and adverse possession.