                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  September 20, 2002 Session

                EDWARD HUTCHINSON, JAMES HUTCHINSON,
                        AND LEIGH HUTCHINSON
                                  V.
                  NANCY H. NEUMAN AND JAMES L. DAY, JR.


                      Appeal from the Chancery Court for Fayette County
                        No. 12284    Dewey C. Whitenton, Chancellor



                     No. W2001-02886-COA-R3-CV - Filed May 27, 2003


This is a will construction case. The husband devised a life estate in land to his wife, and at her
death, to his devisees. The husband devised other land in fee simple to his wife, and gave her the
rest and residue of his estate. The husband died in 1954 and the wife died in 1998. The
remaindermen under the husband’s will argued that certain real property was included in the wife’s
life estate and, thus, at her death, devolved to them. The beneficiaries of the wife’s will argued that
the real property in question was not included in the life estate or mentioned in the husband’s will,
and thus the land went to the wife in fee simple by operation of the residue clause in the husband’s
will and should now devolve to them. The trial court found that the husband intended to include the
land in question in the life estate to the wife. Therefore, the land devolved to the husband’s devisees.
The beneficiaries of the wife’s estate appeal. We affirm.

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

J. Payson Matthews, Somerville, Tennessee, and Arthur E. Neuman, Washington, DC, for appellants,
Nancy H. Neuman and James L. Day, Jr.

Thomas M. Minor, Somerville, Tennessee, for appellees Edward Hutchinson, James Hutchinson,
and Leigh Hutchinson.

                                              OPINION

        In 1926, Bailey K. Morrison (“Decedent”) purchased from J. T. Green approximately 138
acres of land (“J. T. Green tract”), situated in Fayette County, Tennessee. In 1945, the Decedent
entered into a land-exchange agreement with George Green, and through this came to own
approximately 25 acres of land (“George Green tract”). The J. T. Green tract was adjacent to and
immediately south of the George Green tract. The tracts were part of a larger parcel of land of over
2,323 acres owned by the Decedent. In 1952, the Decedent executed a will that devised a life estate
to his wife, Allien Day Morrison Nunn (“Wife”), in a number of parcels of the total 2,323 acres of
land. Under the Decedent’s will, at Wife’s death, the remainder would devolve to the Decedent’s
sister and his nieces. One parcel included in the Wife’s life estate was “the Buck Green Farm
composed of approximately 125 acres.” The Decedent’s will contained other devises and bequests
to Wife and to others. The residue of the Decedent’s estate was devised and bequeathed to Wife.
The Decedent died in 1954. Wife died over forty years later, in 1998.

         Thus, at the time of Wife’s death in 1998, the Decedent’s devisees, Edward Hutchinson,
James Hutchinson and Leigh Hutchinson (“Plaintiffs”), became the owners in fee simple of the real
property in which Wife was granted a life estate. All real property devised by the Decedent to Wife
in fee simple, or that passed to Wife through the residual clause in the Decedent’s will, were owned
outright by Wife at her death. This real property would pass pursuant to Wife’s will to the
beneficiaries under her will, Nancy H. Neuman and James L. Day, Jr. (“Defendants”).

         In 1999, the Plaintiff-Appellees filed a lawsuit against the Defendant-Appellants alleging,
inter alia, that the parties were unable to specifically designate ownership of every parcel of land
within the 2,323 acre tract owned by the Decedent at the time of his death. The lawsuit originally
sought injunctive relief to require the Defendants to lease their land.1 Pursuant to the complaint, a
survey of the overall tract was conducted. The survey combined the J. T. Green tract and the George
Green tract and called it the “Buck Green Farm.” The Defendants then supplemented their answer
to the complaint, asserting that the surveyors erred in combining the two tracts. They argued that
the 25 acre George Green tract was not part of the life estate in the “Buck Green Farm” granted to
Wife. The Defendants asked the trial court to determine ownership of the 25 acre George Green
tract.

        A hearing was held on August 4, 2000. The primary issue to be tried was construction of the
clause in the Decedent’s will devising a life estate to Wife in the “Buck Green farm composed of 125
acres.” It was undisputed that there was not a single parcel of land of 125 acres, and it was unclear
who “Buck Green” was.

        The Plaintiffs called as a witness Keith Morris (“Morris”), a licensed real estate broker who
had worked for the Plaintiffs as an agent and a manager of their property. Morris was familiar with
the Plaintiffs’ property. He noted that the Decedent, in his will, estimated the acreage of a number
of parcels of land. Morris compared the Decedent’s estimated acreage of seven of the parcels to the

         1
           The original complaint averred that the Defendants were unwilling to consent to leasing their portion of the
2,323 acres for farming purposes. Because rightful ownership of each parcel had not be en de termined, P laintiffs asserted
that Defendants’ refusal to lease their land prevented Plaintiffs from leasing their land. Therefore, Plaintiffs sought an
injunction ordering D efendants to lease all of their land suitable for farming. The Defendants denied that they were not
willing to lea se the land for farming.

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actual acreage of each parcel, and found that the Decedent’s estimates were approximately 15% to
18% more or less than the actual acreage.2 Morris noted that at least three of the parcels in which
Wife was devised a life estate were composed of more than one tract and one deed, and observed that
when the 138 acre J. T. Green tract was combined with the George Green tract, the total acreage was
161.43. Morris had researched deeds and did not find a “Buck Green” on any deed. Morris did not
know a J. T. Green, a George Green, or a Buck Green. At the hearing, the Plaintiffs also introduced
into evidence a 1945 survey color-coded to show the J. T. Green and the George Green tracts
combined.

       The Defendants called Herbert Walls (“Walls”) to testify. At the time of the hearing, Walls
was seventy-one years old, and had been a neighbor of the Decedent and his Wife for a number of
years. Walls said that he knew George Green, had heard of a Buck Green but did not know him, and
had never known a J. T. Green. Walls testified that the J. T. Green property was also known as the
Buck Green place. He indicated that, after the Decedent acquired the George Green tract in 1945,
he began farming the J. T. Green tract and the George Green tract together as if they were one tract.

        The Defendants also called William E. Dowdy (“Dowdy”), aged sixty-seven, who worked
for Wife on the farm from 1957 until 1970. Dowdy knew George Green and had never referred to
him as Buck Green, although he had heard the name Buck Green. Dowdy had no knowledge of
anyone named J. T. Green. Contrary to Walls’s testimony, Dowdy said that the George Green tract
was not being farmed at the time Dowdy began working for the Wife in the late 1950s, but rather that
it was pasture.

         The trial court ruled orally that the preponderance of the evidence indicated that it was the
Decedent’s intent that Wife be devised a life estate in the 25 acre George Green tract as part of the
Buck Green Farm, and that the Decedent did not intend for the 25 acre George Green tract to pass
to Wife as part of the residuary estate. Hence, the trial court held that the 25 acre George Green
tract, as well as the 138 acre J. T. Green tract, should pass to the Plaintiffs, the remaindermen under
the Decedent’s will.

        The trial, however, did not end at that point. Approximately one month after the trial court’s
ruling, the Wife’s relatives discovered a schedule of property that was appended to the Decedent’s

       2
           Decedent devised to Wife the following properties with estimated and actual acreage:

Pro perty                  Decedent’s Estimated Acreage                 Actual Acreage
Lipsky Farm                        290                                  272.32
Melton Farm                        150                                  103 .2
Mayo F arm                         500                                  558.45
Lamar Clay Farm                    350                                  385 .5
Stewart Farm                       500                                  450
Heathcock Farm                     150                                  127
J.E. Cowan Farm                     12                                   11.5




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estate tax return, filed after his death. The schedule reflected an explanation by the executor of the
Decedent’s estate as to which parcels of land Wife was devised a life estate and which she took in
fee. The Defendants moved to alter or amend judgment or for a new trial based on the newly
discovered evidence. The trial court granted the motion for new trial, setting aside the original
ruling.

        After a hearing, the trial judge ruled that the document was inadmissible hearsay. The trial
judge said that even if the document were not inadmissible hearsay, it would not alter his previous
ruling, since the document was prepared after the Decedent’s death by the executor of his estate and
did not indicate the Decedent’s intent. Thus, the trial court ruled once again that the property would
go to the Plaintiffs, the Decedent’s devisees. From this order, the Defendants now appeal.

       On appeal, the Defendants argue that the trial court erred in determining that the Decedent
intended to include the George Green Farm within the devise of the Buck Green Farm. The
Defendants also argue that the trial court erred in ruling that the newly discovered evidence was
inadmissible hearsay.

         Since this case was heard by the trial court sitting without a jury, the trial court’s findings of
fact are reviewed on the record with a presumption of correctness, unless the evidence preponderates
against them. See Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.
1995). Questions of law, however, are reviewed de novo with no presumption of correctness.
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001) (citation omitted).

         The Defendants first assert that it was not the Decedent’s intent that the 25 acre George
Green tract be included in the devise to Wife of a life estate in the “Buck Green Farm composed of
approximately 125 acres.” The Defendants assert that the will is not ambiguous, and that the Buck
Green Farm included in the Decedent’s will refers only to the 138 acre J. T. Green tract. In the
alternative, the Defendants contend that even if there is an ambiguity in the will, the language of the
will is still clear enough to determine the Decedent’s intent without resorting to extrinsic evidence
or rules of construction. The Defendants argue that there is no proof in the record that the Decedent
intended to include the George Green tract in the devise of the Buck Green Farm. They note that
none of the witnesses associated George Green with Buck Green, and therefore, the reference to the
Buck Green Farm obviously refers to the J. T. Green tract alone.

       In arguing that the decision of the trial court should be affirmed, the Plaintiffs rely on the
color-coded survey showing the two tracts combined; the fact that other individual properties devised
to Wife were comprised of more than one deed; and the fact that after the Decedent acquired the
George Green tract, he began to farm the J. T. Green tract and the George Green tract together. To




                                                   -4-
support the assertion that the tracts passed to Wife together because they were farmed together,
Plaintiffs cite an Iowa Supreme Court Case, Green v. Gisler, 48 N.W.2d 866 (Iowa 1951).3

        The purpose of a will construction suit is to ascertain and give effect to the intent of the
testator. Russell v. Russell, No. M2001-00926-COA-R3-CV, 2002 Tenn. App. LEXIS 584, at *6
(Tenn. Ct. App. Aug. 9, 2002) (citations omitted); see also Stickley v. Carmichael, 850 S.W.2d 127,
130 (Tenn. 1992). It is a general rule of will construction that the testator’s intent is to be determined
by referring to the will itself without looking outside the four corners of the document. Jacobsen
v. Flathe, No. 01A01-9511-CH-00510, 1997 Tenn. App. LEXIS 635, at *6 (Tenn. Ct. App. Sept.
17, 1997). When a latent ambiguity exists, however, extrinsic evidence may be considered. Stickley
v. Thomas, 850 S.W.2d at 132, Russell v. Russell, 2002 Tenn. App. LEXIS 584, at *21. A latent
ambiguity arises

         from an ambiguous state of external circumstances to which the words of the will
         refer. It generally involves a question of identifying a person or subject mentioned
         in the will. It stems from an uncertain reference in the document to things outside
         the will susceptible of explanation only by the development of facts elucidating what
         the testator was talking about.

 Jacobsen v. Flathe, 1997 Tenn. App. LEXIS 635, at *7 n.2. (citations omitted).4 Will construction
is generally a question of law. Russell v. Russell, 2002 Tenn. App. LEXIS 584, at *26. When


         3
           In Green, a portion of the testator’s property was devised to his brother, a portion to his sister, and a portion
was not specifically devised. The Supreme Court of Iowa affirmed the trial court’s ruling. The trial court had held that
one of the parcels not specifically devised to any devisee was properly granted to the sister because the land in question
was farmed with land that had been specifically granted to the sister in the will. Green v. Gisler, 48 N.W .2d at 869. The
Green court cited to American Jurisprudence in making its decision:

         One of the commonest problems arising in connection with devises of the kind in question is whether
         distinct parcels of land owned by the testator are to be included in the prope rty passing. The cases in
         general supp ort the conclusion tha t if such parcels were used by the testator [for farming purposes, or,
         at least] for purposes incidental to the operation o f a farm o r plantation, or if the testator in his lifetime
         customarily regarded such parcels as a single unit, they will, in the absence of any contrary intention,
         be regarded as passing [even though non-contiguous].

Id. at 868 (quoting 80 Am. Jur. W ills § 1245 ).

         4
             This Court has also stated that a latent ambiguity is found where :

         the equivocality of expression or obscurity of intention does not arise from the words themselves, but
         from the ambiguous state of extrinsic circumstances to which the words of the instrument refer, and
         which is suscep tible of explanation by the mere development of extraneous facts, without altering or
         adding to the written language, or requiring more to be understood thereby than will fairly comport
         with the ordinary or legal sense of the wo rds and phrases m ade use of.

Russell v. Russell, 2002 T enn. App. LEX IS 584, at *21-22 (citing Weatherhead v. Sewell, 28 Tenn. (9 Humph.) 272,
295 (Te nn. 18 48)). Converse ly, a paten t ambiguity “stems from uncertainty in the language of the w ill itself and is
apparent on the face of the will. It involves an ambiguous term that cannot be clarified by considering extraneous facts.”
Jacobsen v. Flathe, 199 7 T enn. A pp. L EX IS 63 5, at *7 (citations omitted ).



                                                               -5-
extrinsic evidence is admitted, however, questions of fact enter into the equation. See id. at *26-
27.Thus, the trial court must make witness credibility determinations. “[T]rial judges, unlike
appellate judges, have an opportunity to observe the manner and demeanor of the witness while they
are testifying,” and therefore, are better situated to evaluate the witnesses. Mitchell v. Archibald,
971 S.W.2d 25, 29 (Tenn. Ct. App. 1998) (citing Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.
Ct. App. 1991)). Hence, determinations of credibility are afforded great deference on appeal. Id.
(citations omitted).

        In the case at bar, Decedent devised “the Buck Green Farm composed of approximately 125
acres” to Wife for life. Decedent did not own any property transferred from Buck Green, although
he owned properties transferred from J.T Green and from George Green. Thus, a latent ambiguity
clearly existed, and the trial court properly admitted extrinsic evidence in order to determine the
Decedent’s intent.

        At the trial, there was no testimony indicating that “Buck” Green was either J. T. Green or
George Green. There was a 1945 survey color-coding the J. T. Green and George Green tracts
together, and some testimony indicating that the two tracts were farmed together. Considering all
of the evidence, and giving appropriate deference to the trial court’s determinations of credibility,
we cannot say that the evidence preponderates against the trial court’s holding that the Decedent
intended to devise to Wife a life estate in both the J. T. Green tract and the George Green tract, and
that the property would therefore pass to the Plaintiffs.

         The Defendants also argue that the trial court erred in excluding the newly discovered
evidence. We agree with the trial court that, even if the document were not inadmissible hearsay,
it reflects the understanding of the executor and not the intent of the Decedent, and therefore would
not affect the outcome of this case.

     The decision of the trial court is affirmed. Costs are taxed to the appellants, Nancy H.
Neuman and James L. Day, Jr., and their surety, for which execution may issue, if necessary.




                                                       ___________________________________
                                                       HOLLY KIRBY LILLARD, JUDGE




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