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Warner v. Frazier

Court of Appeals of Tennessee. at Knoxville
Jul 25, 2002
No. E2001-02126-COA-R3-CV (Tenn. Ct. App. Jul. 25, 2002)

Opinion

No. E2001-02126-COA-R3-CV.

Filed July 25, 2002.

Appeal from the Probate Court for Cumberland County; No. 13203; Steven C. Douglas, Judge.

Affirmed; Cause Remanded.

C. Douglas Fields, Crossville, Tennessee, for the Appellants, Arlene Scudder; Patricia Flynn, Dorothy Owen, Nannie Mae Rice and Sylvia Cooke.

Joe M. Looney, Crossville, Tennessee, for the Appellee, Mary Lou Underwood. No briefs were filed by the other Appellees.

Houston M. Goddard, P.J., delivered the opinion of the court, in which D. Michael Swiney, J., joined. Charles D. Susano, Jr., filed a dissenting opinion.


In this appeal Vivian E. Warner, Administratrix, cum testamento annexo, seeks a declaration by the Court as to the proper construction of two clauses in Maude Frazier's will. We affirm.

OPINION

The parties Defendant are the brother and sister of the deceased, who are specifically named in the complaint, and her nieces and nephews, who are not specifically named, although the brief of the Administratrix recites that all her nieces and nephews were served.

No answers to the complaint were filed by any of the parties Defendant, although on the date of the hearing below — July 23, 2001 — counsel for the appealing Defendants filed a notice of appearance on their behalf.

The provisions of the will, which the Administratrix seeks to have construed are the following:

IV

I give and bequeath the furniture, furnishings and all other personal items belonging to me and used in and about the home to my heirs now designated; to wit, my brother, Dewey Frazier, my sisters, Maggie Olson and Mary Lou Underwood AND ALL of my nieces and nephews as one family class.

V

I give the C.D.'s savings accounts and checking account in any bank to my brother, Dewey Frazier, my two sisters, Maggie Olson and Mary Lou Underwood, AND all of my nieces and nephews, equally, share and share alike. HOWEVER in event that any item or items not be taken the executrix is authorized to dispose of same as she deems best including giving any of same to another or to herself.

The only witness to testify was the attorney who prepared Ms. Frazier's will who, according to the narrative statement of evidence, testified as pertinent the following:

Mr. Hendricks was asked by the Administratrix C.T.A. if he believed that Ms. Frazier intended to divide the property in Articles IV and V into three (3) shares and he did not have an immediate response.

The Court propounded the same question to Mr. Hendricks at which time he confirmed that he believed that was what she intended.

The Trial Court, apparently relying upon the attorney's testimony, found that as to both clauses it was Ms. Frazier's intent her brother, Dewey Frazier, receive one-third, her sisters, Maggie Olson and Mary Lou Underwood receive one-third (each receiving one-sixth), and her nieces and nephews share equally in the other third.

Five of the nieces appeal, contending that under a proper construction of the will the Testatrix intended for her brother, her two sisters, and her nieces and nephews to share equally in the bequests under Sections 4 and 5. They also contend that the Trial Court was in error in construing the will in accordance with the testimony of the attorney who prepared it.

At the outset, we observe that construction of a will is a question of law and comes to this Court without any presumption of correctness. We also note that the Appellants correctly set forth in their brief guidelines for interpreting wills in this State:

"The construction of a will is a question of law for the court. The cardinal rule in construction of all wills is that the court shall seek to discover the intention of the Testator and give effect to it unless it contravenes some rule of law or public policy. The testator's intention is to be ascertained from the particular words used in the will itself, from the context in which those words are used, and from the general scope and purposes of the will, read in the light of the surrounding and attending circumstances. In construing a will it is necessary to look to the entire will and the testator's intention must be determined from what he has written and not from what it is supposed he intended." Briggs v. Estate of Briggs , 950 S.W.2d 710, 712 (Tenn.Ct.App. 1997).

Turning to the issues on appeal, we agree with the Appellants, as to the second one, that what the attorney who prepared the will thought Ms. Frazier meant is not controlling absent any proof to support his thought, and for that reason we will disregard his testimony.

As to issue one, the Appellee's brief suggests there are three possible interpretations:

Whether or not the funds are to be divided into three shares with one share passing to the brother, Dewey Frazier, one share to sisters, Maggie Olson and Mary Lou Underwood and one share passing to the nieces and nephews.

Whether or not the funds are to be divided into four shares with one share each passing to the brother and two sisters and the fourth share divided among the nieces and nephews.

Whether or not the funds are to be divided equally among the brother, two sisters and all the nieces and nephews.

As to Section 4, we believe a proper construction thereof would be to treat the brother and two sisters as family and the nieces and nephews as "One Family Class," resulting in the second construction set out above.

Although Section 5 does not speak of a family class in regard to the nieces and nephews, we think such a construction is appropriate. We reach a conclusion as to both Sections, partially upon the ground that had it been the intent for all the Beneficiaries to share equally, as insisted by the Defendants, it would have been very simple for the bequests to have been to "be equally shared by my brother, Dewey Frazier, my sisters, Maggie Olson and Mary Lou Underwood, and my nieces and nephews."

Moreover, we think it significant that as to in Section IV, the capitalized words "AND ALL" between the naming of her siblings and her nieces and nephews served as notice that they would be treated differently in the distribution of her estate. We also note that she likewise, under Section V, capitalized the word "AND" between her siblings and the nieces and nephews, resulting in the same inference.

It is our view of the will that a more likely case could be made that it was the intent of the Testatrix that the second possible interpretation above noted would be appropriate. However, Mary Lou Underwood, the only Appellee filing a brief in this case, requests that "the decision of the Trial Court either be affirmed or modified to grant the Appellee a one-fourth interest under Article 5 of the Decedent's will."

In light of this request and because we are disinclined to reduce the interest in the estate the nieces and nephews would inherit — one-third versus one-fourth — and none of the Appellees made a serious objection to our affirming the Trial Court's judgment, we affirm the judgment of the Trial Court as rendered.

We do note that this concession only addresses Section V. However, we conclude in light of the fact that the language of both Sections are practically identical and the fact that counsel makes no insistence relative to Section IV, its omission in the concession regarding affirmance was inadvertent.

For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged against Arlene Scudder, Patricia Flynn, Dorothy Owen, Nannie Mae Rice, and Sylvia Cooke and their surety.


I cannot agree with the majority's decision to affirm the trial court's judgment. I believe the lower court misinterpreted Articles IV and V of Maude Frazier's will when it found that both provisions recite that Dewey Frazier would receive a one-third share of the bequest while his sisters — Maggie Olson and Mary Lou Underwood — would jointly receive a one-third share, and the testator's nieces and nephews would share a one-third portion.

As I read Article IV of the will, a more natural reading of the language is that there will be four shares: a share for Dewey Frazier; a share for Maggie Olson; a share for Mary Lou Underwood; and, finally, a share for "ALL of [Maude Frazier's] nieces and nephews as one family class." I find nothing in the language of Article IV to support the conclusion that Maude Frazier intended to give her brother a greater share of the Article IV bequest than that left to each of the testator's two sisters. The language of Article IV shows that the testator was aware of the "family class" concept. She used that language in referring to her nieces and nephews. If she had wanted Maggie Olson and Mary Lou Underwood to share as a "family class" — the class being her sisters — she could have said so. I think it is significant that she failed to "lump" the sisters together in a way that would indicate she wanted them to share in a portion of the bequest as opposed to each receiving a full share of the bequest equal to that of their male sibling.

As to Article V, I believe the language of that article — especially when compared to the language selected by the testator for the Article IV bequest — clearly indicates that the testator did not intend Article V to be divided into only four shares. As I read Article V, I believe it means that each individual falling within the language of that article, be they siblings of the testator or her nieces or nephews and whether they be identified specifically or in general terms, would be entitled to an equal share of the gift described in Article V. After naming these beneficiaries, the testator inserted a comma, to separate the beneficiaries — and all of them — from the language, "equally, share and share alike." I believe this latter language applies to all of the beneficiaries. Thus, each is entitled to an equal share. This is what the language "equally, share and share alike" means to me in the context of the total language of Article V. Had the testator intended for the effect of Article V to be the same as Article IV, she could have repeated the language "as one family class" in Article V following the reference to the nieces and nephews. She did not, choosing instead to use the language of "equally, share and share alike," which, because of the comma that precedes it, would grammatically apply to all those individuals alluded to before the concluding phrase. I find that the testator intended that the proportional distribution in Article V would be different from that of Article IV.

There is another reason why Articles IV and V should not be read as contemplating the same distribution, i.e., one-fourth to each of the testator's siblings and one-fourth to the nieces and nephews as a class. If this had been the testator's intent, the bequests in the two articles could have been and probably would have been merged into one single article. If the distribution of the property in Article V was to have been the same as that in Article IV, there would have been no need for two separate articles.

In reaching my judgment in this case, I agree with the majority's decision to disregard the testimony of the attorney who prepared the will as to what he thought the testator intended with respect to Articles IV and V. His "belief" is simply not admissible as relevant evidence. When this testimony is ignored, we are left only with the language of the will to guide us in the interpretation of that document.

While the majority opinion seems to agree with me with respect to Article IV, it does not agree that it should reverse the trial court's finding of three shares as opposed to four shares. Suffice it to say that I find nothing in the record or the briefs of the parties to support the majority's decision not to reverse the trial court as to the lower court's decision as to Article IV. As previously indicated, I would reverse the trial court on both articles.

I respectfully dissent.


Summaries of

Warner v. Frazier

Court of Appeals of Tennessee. at Knoxville
Jul 25, 2002
No. E2001-02126-COA-R3-CV (Tenn. Ct. App. Jul. 25, 2002)
Case details for

Warner v. Frazier

Case Details

Full title:VIVIAN E. WARNER, ADMINISTRATRIX C.T.A. ESTATE OF MAUDE FRAZIER v. DEWEY…

Court:Court of Appeals of Tennessee. at Knoxville

Date published: Jul 25, 2002

Citations

No. E2001-02126-COA-R3-CV (Tenn. Ct. App. Jul. 25, 2002)