                IN THE COURT OF APPEALS OF TENNESSEE
                             AT MEMPHIS
                               February 24, 2010 Session

 IN RE: THE ESTATE OF MARY JANE MCLISTER ANDERSON OWEN,
                          Deceased

              Direct Appeal from the Chancery Court for Tipton County
                      No. P-2556    William C. Cole, Chancellor


                No. W2009-01531-COA-R3-CV - Filed March 29, 2010


This is a will construction case. The decedent died testate in July 2008. The personal
representative of the decedent’s estate filed this action to construe provisions of the
decedent’s will concerning the control of specifically devised farm property. The chancery
court determined that the decedent intended for the property to remain subject to the control
of her estate pending administration. Because the unambiguous language of the will
pointedly excludes specifically devised real property from the control of the personal
representative, we reverse and remand.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
                                  and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J. and
J. S TEVEN S TAFFORD, J., joined.

Duke Harris Brasfield, Covington, Tennessee, for the appellant, First United Methodist
Church of Covington, Tennessee.

Blanchard Everett Tual and Forest J. Dorkowski, Memphis, Tennessee, and J. Houston
Gordon, Covington, Tennessee, for the appellee, Estate of Mary Jane McLister Anderson
Owen.


                                        OPINION

       The subject of this appeal is the last will and testament of Mary Jane McLister
Anderson Owen, who died testate in July 2008. The relevant provisions of the decedent’s
will provide as follows:
                             ARTICLE III.
                          SPECIFIC BEQUESTS
....

       Section 3.5. Charitable Bequests. I hereby give and bequeath the
following devises and legacies to the following charities:

....

       G. My farm, consisting of four (4) separate tracts of property,
located in Districts 1 and 13 of Tipton County, Tennessee and consisting of
approximately four hundred and sixty-seven (467) acres, to the FIRST
UNITED METHODIST CHURCH, of Covington, Tennessee, to be used
or disposed of as a source of income as the Finance Committee and/or
Church Council of said Church may deem best to carry on God’s work as
the years go by. I have been leasing such farm to RICHARD KELLEY
for quite a few years and feel that he is one of the best, if not the best,
farmers in Tipton County. It would be my desire for the Church to give
RICHARD KELLEY the right of first refusal to lease or purchase such
farm. I hope the Church will honor this request.

....

       Section 3.6. Specific Bequest of Residence and Contents. I
hereby give, devise and bequeath my primary residence, located at 419 E.
Liberty Avenue, Covington, Tennessee, together with all contents not
otherwise bequeathed to MITCHUM REYNOLDS, if he shall survive me.

....

                          ARTICLE V.
                   GENERAL FIDUCIARY POWERS

....

        Section 5.4. Real Estate Subject to Administration. Except
where otherwise specifically devised in this Will, all interests in real
property that I may own at the time of my death and that shall pass under
this Will shall, during the pendency of the administration of my estate or the
earlier distribution or other disposition of such property, be owned by my

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       estate. My Personal Representative shall have full possession of and
       exercise full control over such property during such period. Until
       distribution or other disposition of any such property, my estate shall be
       entitled to all of the income therefrom and gains from the sale or other
       disposition thereof and shall discharge all of the responsibilities relating to
       ownership thereof, including, but not limited to, payment of any taxes with
       respect thereto and maintenance and repairs thereof. It is my intention that
       all interests in real property that pass under this Will shall become assets of
       my probate estate at my death and shall not pass by operation of any law
       directly to my heirs or devisees under this Will at my death, except such
       interests as may be otherwise specifically devised in this Will.

        In December 2008, the personal representative of the Estate of Mary Jane McLister
Anderson Owen (“the Estate”) petitioned to construe these provisions as they relate to the
right to control of and income from the farm property specifically devised to the appellant,
the First United Methodist Church of Covington, Tennessee (“the Church”). The chancery
court determined that the decedent intended for the property to remain subject to the control
of the personal representative pursuant to section 5.4. of the will and ruled accordingly. The
Church filed a motion to set aside the judgment or, in the alternative, to alter or amend the
judgment arguing that section 5.4. by its own language does not apply to real property that
is “otherwise specifically devised” in the will. The trial court denied the Church’s motion
and this appeal ensued.

        The sole issue on appeal is whether the chancery court erred when it determined that
real property specifically devised to the Church remained subject to the control and direction
of the personal representative during the administration of the decedent’s estate. The
construction of a will when there is no conflict as to any material fact is a question of law
that we review de novo. In re Estate of Vincent, 98 S.W.3d 146, 148 (Tenn. 2003) (citing
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)). The principal rule
of will construction is that courts must seek to ascertain and give effect to the intention of the
testator unless the resulting construction would contravene public policy. Martin v. Taylor,
521 S.W.2d 581, 584 (Tenn. 1975). In applying this rule, courts should determine the
testator’s intention from “what he has written and not from what it is supposed he intended.”
Id. (citing Burdick v. Gilpin, 325 S.W.2d 547, 551 (Tenn. 1959)). “That intention is to be
ascertained from the particular words used, from the context, and from the general scope and
purpose of the will, read in the light of the surrounding and attending circumstances.” Moore
v. Neely, 370 S.W.2d 537, 540 (Tenn. 1963) (citing Bell v. Shannon, 367 S.W.2d 761, 766
(Tenn. 1963); First Am. Nat’l Bank v. Cole, 364 S.W.2d 875, 877 (Tenn. 1963); Hoggatt v.
Clopton, 217 S.W. 657, 659 (Tenn. 1919)).



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       [I]f the intention of the testator can be gathered from within the four corners
       of the will itself, extrinsic evidence can not [sic] be used to create an ambiguity
       and to be used as a basis for a finding that is contrary to the intention to be
       gathered from within the four corners of the will.

Fariss v. Bry-Block Co., 346 S.W.2d 705, 707 (Tenn. 1961). “‘[N]o proof, however
conclusive in its nature, can be admitted with a view of setting up an intention not justified
by the language of the writing itself.’” In re Crowell, 154 S.W.3d 556, 559 (Tenn. Ct. App.
2004) (quoting Nichols v. Todd, 101 S.W.2d 486, 490 (Tenn. Ct. App. 1936)).

       The decedent’s intention, as expressed in the plain language of her will, is clear and
unambiguous as it concerns her desire to exclude specifically devised property from the
control of her estate. In Tennessee, “[t]he real property of a testate decedent vests
immediately upon death in the beneficiaries named in the will, unless the will contains a
specific provision directing the real property to be administered as part of the estate subject
to the control of the personal representative.” Tenn. Code Ann. § 31-2-103 (2007). The
decedent’s will contains a specific provision, section 5.4., directing that real property be
administered as part of her estate. That provision, however, expressly excludes from its
control any real property specifically devised in the will. In fact, the language excepting
specifically devised property from the control of the personal representative appears not
once, but twice in section 5.4. There is little question whether section 3.5.G. is a specific
devise of the decedent’s farm property, which the Estate has conceded. Consequently, it is
the opinion of this Court that the decedent did not intend for her farm property to remain
subject to the control of the personal representative.

       The Estate argues that such an interpretation is impermissible because it renders
section 5.4. superfluous. We agree that courts should give effect to every word or clause of
a will when possible and should reject no word or clause that can be reasonably reconciled
with the remainder of the will. Bell, 367 S.W.2d at 766 (citing McClure v. Keeling, 43
S.W.2d 383, 384 (Tenn. 1931); Am. Nat’l Bank & Trust Co. v. Mander, 253 S.W.2d 994, 997
(Tenn. Ct. App. 1952)). However, it is for this very reason we decline to adopt the position
of the Estate. We are unwilling to read section 5.4. in a way that would eliminate two
separate clauses excepting specifically devised property from the control of the personal
representative. Our interpretation does not render section 5.4. superfluous nor does it
disregard the provision; rather, it enforces the provision in its entirety. As interpreted,
section 5.4. accomplishes two important goals: (1) it eliminates any doubt as to whether the
decedent intended for specifically devised property to immediately vest in the beneficiaries
named in the will; (2) it provides a mechanism by which to administer any real property that
the decedent may have chosen not to include in a specific devise or that the decedent may
have acquired after the drafting of the will. The fact that a portion of section 5.4. remains

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dormant under the facts does not compel a contrary conclusion. Because the Estate’s
interpretation of section 5.4. would require this Court to cast aside two separate clauses
pertaining to the exclusion of specifically devised property, we reject its position.

       The plain language of section 5.4. establishes a clear intention that specifically
devised property be excluded from the control of the personal representative. The remaining
provisions of the will are consistent with this unequivocal expression of intent. Section
3.5.G., for example, provides the Church with authority to use or dispose of the farm property
as a source of income in the Church’s discretion. Section 3.5.G., consistent with the
exclusion of specifically devised property in section 5.4., also indicates that the authority to
offer Richard Kelley the right of first refusal to lease or purchase the farm belongs to the
Church. This is in contrast to the language of section 5.4. concerning real property not
specifically devised in the will, which provides the personal representative with full
possession and control of the such property pending administration. To the extent we read
section 3.5.G. as providing discretion to the Church to exercise control over the specifically
devised farm property, our construction is consistent with the decedent’s intention as
expressed in section 5.4.

       The Estate contends that a conflict exists between section 3.5.G. and section 5.4. such
that the latter provision should control. At times, courts employ auxiliary rules of
construction, which are subordinate to the principal rule, to aid the construction of wills.
Martin v. Taylor, 521 S.W.2d 581, 584 (Tenn. 1975) (citing Eckhardt v. Phillips, 137
S.W.2d 301, 304 (Tenn. 1940)). One such rule holds that a subsequent provision in a will
controls to the extent it conflicts with an earlier provision. Id. (citing Anderson v. Lucas, 204
S.W. 989, 992 (Tenn. 1918)). We disagree, however, that any conflict exists between the
aforementioned provisions. Even if a conflict existed, resolution of the alleged conflict
would not alter our decision because the plain language of section 5.4. excludes specifically
devised property from the control of the personal representative. It is the opinion of this
Court that the language of the decedent’s will, as found within the four corners of the
document, expresses an intention to exclude specifically devised property from the control
of her estate. We are bound to enforce the will as written.

                                          Conclusion

       For the foregoing reasons, we reverse the decision of the trial court and remand this
cause for further proceedings consistent with this opinion. Costs of this appeal are taxed to




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the appellee, the Estate of Mary Jane McLister Anderson Owen, for which execution may
issue if necessary.




                                               _________________________________
                                               DAVID R. FARMER, JUDGE




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