                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                           September 20, 2004 Session

 FIRST TENNESSEE BANK, N.A., EXECUTOR, ESTATE OF GLENN P.
 WEBB, SR., and TRUSTEE OF THE RESIDUARY TRUST UNDER THE
   WILL OF GLENN P. WEBB, SR., F/B/O DEBORAH ANN WEBB, v.
 BARBARA WEBB STANFIELD, PAUL W. STANFIELD, JR., ALICIA M.
                       STANFIELD, et al.


                Direct Appeal from the Chancery Court for Hamilton County
                   No. 02-0797    Hon. W. Frank Brown, III., Chancellor



                No. E2003-02756-COA-R3-CV - FILED OCTOBER 13, 2004


The Chancellor construed a will and granted plaintiff summary judgment. Defendants insist the will
is ambiguous. On appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.


Steven F. Dobson, Chattanooga, Tennessee, for Appellants, Barbara Webb Stanfield, Paul W.
Stanfield, Jr., and Alicia M. Stanfield.

David E. Fowler and C. Eugene Shiles, Chattanooga, Tennessee, for Appellee, Patricia Webb.



                                            OPINION


               In this construction of a Will action, the Trial Court found no ambiguity and entered
judgment for petitioner. Barbara Webb Stanfield, Paul W. Stanfield, Jr., and Alicia M. Stanfield
have appealed the Chancellor’s ruling, insisting that decedent’s Will is ambiguous and the Trial
Court erred in refusing to consider extrinsic evidence to determine the testator’s intent.
           The Chancellor filed an excellent Memorandum Opinion, and we adopt from the
Memorandum Opinion as pertinent to our analysis on appeal:

                     Patricia Webb, who is one of the decedent’s four children, filed a Motion for
             Summary Judgment. Patricia Webb contended that the Last Will and Testament,
             properly read, provided that she alone should receive the property at issue. Other
             heirs disagreed and filed their positions.

             ...

                      “The construction of a will is a question of law for the court and will
             construction cases are uniquely suited to the summary judgment procedure because
             these cases generally involve legal issues only.” Presley v. Hanks, 782 S.W.2d 482,
             487 (Tenn. Ct. App. 1989). The cardinal rule for interpreting and construing a will
             is the ascertainment of the intent of the testator. Winningham v. Winningham, 966
             S.W.2d 48, 50 (Tenn. 1998). In most will construction cases, the testator’s intent is
             determined by referring to the written language of [sic] will itself, Wright v. Brandon,
             863 S.W.2d 400, 402 (Tenn. 1993); In re Tipler, 10 S.W.3d 244, 249 (Tenn. Ct. App.
             1998), and not from what it is supposed the testator intended. Briggs v. Estate of
             Briggs, 950 S.W.2d 710, 712 (Tenn. Ct. App. 1997).

                     Ordinarily, extrinsic evidence is not admissible for the purpose of showing
             intention of the testator, and such intention must be gathered only from the four
             corners of the will. Fariss v. Bry-Block Co., 346 S.W.2d 705, 705 (Tenn. 1961).
             Extrinsic evidence may be considered when the will contains a latent, rather than a
             patent, ambiguity. Holmes v. Roddy, 144 S.W.2d 788, 789 (Tenn. 1940); Estate of
             Burchfield v. First United Methodist Church of Sevierville, 933 S.W.2d 481, 482
             (Tenn. Ct. App. 1996). A latent ambiguity arises from an ambiguous state of external
             circumstances to which the words of the will refer. Estate of Burchfield, 933 S.W.2d
             at 482. It generally involves a question of identifying a person or subject mentioned
             in the will. Coble Sys., Inc. v. Gifford Co., 627 S.W.2d 359, 361 (Tenn. Ct. App.
             1981). . . . A patent ambiguity, on the other hand, stems from uncertainty in the
             language itself, In re Will of Bybee, 896 S.W.2d 792, 793 (Tenn. Ct. App. 1994), and
             is apparent on the face of the will. It involves an ambiguous term that cannot be
             clarified by considering extraneous facts. Estate of Burchfield, 933 S.W.2d at 482.

             ...

                    The basic facts of this case are not in dispute. Rebecca Webb, the decedent’s
             wife, predeceased him. The decedent had four children, all of whom are adults:
             Deborah Webb, Patricia Webb, Barbara Webb Stanfield and Glenn P. Webb, Jr.,
             (“Glenn”). All four children survived the decedent. Because his wife predeceased
             him, the entire residuary estate was placed in two trusts. The first trust consisted of


                                               -2-
              two thirds (2/3) of the residuary estate and was held for the use and benefit of
              Deborah Ann Webb by First Tennessee Bank, N.A., as trustee. The other one-third
              (1/3) of the residuary estate was to be held in trust by First Tennessee Bank, N.A.,
              trustee for the use and benefit of Patricia Marie Webb. . . . Both trusts were to be held
              pursuant to Item V of the decedent’s 1986 Will.

                      The trust for Deborah was to last for her lifetime. The decedent’s codicil
              provided that Patricia was to receive $1,000.00 per month from the trustee until she
              reached 40 years of age or the money was exhausted, whichever first occurred.
              Patricia attained age 40 on November 11, 2001, and her trust has now ended.

                      Deborah died on May 6, 2002. She was single and had no children. She also
              died without a will. The question developed as to the proper person(s) to take the
              balance left in Deborah’s trust. Due to conflicting positions among the heirs, First
              Tennessee Bank, N.A. filed the Complaint to construe the decedent’s will. All agree
              that the dispositive part of the decedent’s will is Item V(c), which reads as follows:

                               (c) Upon the death of either daughter of mine during the term of her
                      trust, the trust for such deceased daughter shall devolve upon and pass to her
                      living descendants, per stirpes, but if none, then in equal shares to my other
                      children then living and the living descendants, per stirpes, of any deceased
                      child of mine; provided, however, no share shall pass under this provision to
                      either my son, Glenn P. Webb, Jr., or my daughter, Barbara Webb Stanfield,
                      and provided further, that any share passing to a minor grandchild of mine
                      (including the children of either my aforesaid son, Glenn, or daughter,
                      Barbara, who may then be deceased) shall be subject to the contingent trust
                      provisions set forth in Paragraph (d) immediately below.

                      The record reflects that the three other children of the decedent are still alive.
              The surviving children are Patricia, Glenn, and Barbara. Further, Barbara has the
              following children: Paul W. Stanfield, Jr., and Alicia M. Stanfield. Glenn has the
              following children: Thomas Blake Webb, Tristin Tanner Webb, Rebecca Lynn
              Webb, Wendy Leigh Webb, Elizabeth Ann Webb, Glenn Patterson Webb, III, and
              Teddy Guider Lockerby. Thomas Blake Webb and Tristin Tanner Webb are minor
              children of Glenn P. Webb, Jr., and are represented herein by Charles Hill Anderson
              as their guardian ad litem. Patricia has no children or descendants.

               At this point, the Chancellor opined that the issue thus becomes whether the above
quoted item is ambiguous. The Chancellor’s Opinion then analyzed Item V(c) as follows:

                      A court must find the intention of the testator by giving the language used in
              the will the most easy, reasonable, and natural meaning, not a strained meaning by
              use of subtle or artificial rules of construction. National Bank of Commerce v.


                                                 -3-
Greenberg, 258 S.W.2d 765, 768 (Tenn. 1953); Whitfield v. Butler, 204 S.W.2d 537,
538 (Tenn. Ct. App. 1947). Using this principle, the court now analyzes Item V(c).
The phrase, “either daughter of mine during the term of her trust,” in the first
sentence of Item V(c) clearly refers to Deborah and Patricia as they are the only two
daughters who have a trust. The second clause of the first sentence says that the
deceased daughter’s trust shall “pass to her living decendants, per stirpes. . . .”
However, Deborah had no living descendants. So, we have to go further.

         The next clause (still in the first sentence) provides that the trust balance will
pass in equal shares to my other children then living and the living descendants, per
stirpes, of any deceased child of mine.” That clause, standing alone, indicates that
Deborah’s two-thirds share would be divided among the decedent’s three living
children - Patricia, Glenn and Barbara. However, the decedent then added a proviso
stating that “no share shall pass under this provision to either my son Glenn P. Webb,
Jr., or my daughter, Barbara Webb Stanfield. . . .” This proviso has the effect of
excluding Glenn and Barbara as beneficiaries. Their elimination leaves only Patricia
as a taker of Deborah’s two thirds. The final proviso of the paragraph says:

        [a]nd provided, further, that any share passing to a minor grandchild of mine
        (including the children of either my aforesaid son, Glenn, or daughter,
        Barbara, who may then be deceased) shall be subject to the contingent trust
        provisions set forth in Paragraph (d) immediately below.

        Herein lies the rub. Counsel for Patricia interprets the two provisos to mean
that the grandchildren of Glenn and Barbara can only take part of Deborah’s trust
estate if their respective parents (Glenn and/or Barbara) predecease Deborah.
Because both Glenn and Barbara are still alive, therefore, their children take no part
of Deborah’s trust estate and Patricia gets it all. On the other hand, counsel for the
other Defendants interpret the provision differently. The Defendants content that the
phrase “my other children” in the second clause refers to Glenn and Barbara alone.
Therefore, the phrase “my other children,” combined with the final proviso, is so
ambiguous that extrinsic evidence should be admissible to show the testator’s intent
regarding whether the children of Glenn and Barbara can take a share of Deborah’s
trust estate if Glenn and Barbara are still living.

        First, the court is of the opinion that Item V(c) is not ambiguous. Because the
will provision is not ambiguous, extrinsic evidence is not admissible to determine the
intention of the testator. (Citations omitted). Based upon a plain and natural reading
of Item V(c), the court construes the provision to mean that Glenn and/or Barbara had
to predecease Deborah in order for Glenn and/or Barbara’s children to inherit any
part of Deborah’s trust estate. This interpretation is further bolstered by the phrase,
“to my other children then living and the living descendants, per stirpes, of any
deceased child of mine,” also found in Item V(c). Therefore, because Glenn and


                                   -4-
               Barbara are still alive, their children take no part of Deborah’s trust estate under both
               of the clauses quoted above. Patricia Webb takes the entire trust estate because she
               is the only surviving child of the decedent who was not disinherited.

                The construction of a Will is a question of law, and the Court in construing the Will
determines the intent of the testator and will give it effect, unless it contravenes some law or public
policy. See, Third National Bank of Nashville, v. First American National Bank of Nashville, 596
S.W.2d 824, 828 (Tenn. 1980). The Chancellor correctly pointed out the obvious limitations which
is that before a grandchild can inherit, his or her parents must predecease the original trust
beneficiary. But appellants argue that the phrase “other children” is ambiguous and claim that there
are at least two other “plausible” interpretations of Item V(c). However, the Chancellor’s analysis
rebuts these arguments, and we likewise find this position to be without merit.

               Finally, appellants argue that the Chancellor should have allowed them to introduce
extrinsic evidence. But the Chancellor found the provision was not ambiguous and the courts will
not allow extrinsic evidence to be used to create an ambiguity. See, Ferris v. Bry-Block Co., 346
S.W.2d 705, 712 (Tenn. 1961). Moreover, appellants filed no affidavits on this issue pursuant to
Tenn. R. Civ. P. 56.

                For the foregoing reasons, we affirm the Judgment of the Chancellor and remand,
with the cost of the appeal assessed jointly to appellants Barbara Webb Stanfield, Paul W. Stanfield,
Jr., and Alicia M. Stanfield.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.




                                                 -5-
