                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 8, 2012 Session

                     IN RE: PAULINE MARTIN, DECEASED

                 Appeal from the Chancery Court for Hancock County
                  No. 09-1065    Thomas R. Frierson, II, Chancellor


              No. E2011-02693-COA-R3-CV-FILED-JANUARY 10, 2013


Edith M. Ramsey and Mary E. Horton filed a petition seeking a declaratory judgment with
regard to the interpretation of the Last Will and Testament of Pauline Martin (“the Will”).
Specifically, Ms. Ramsey and Ms. Horton sought an order establishing the location and width
of a right-of-way granted in the Will. After a trial, the Trial Court entered its judgment on
October 11, 2011 finding and holding, inter alia, that the right-of-way referenced in the Will
was a farm road with a width of twelve feet as shown on an August 25, 2009 survey. Charles
E. Martin, another beneficiary under the Will, appeals to this Court. We find and hold that
the right-of-way referenced in the Will is not the farm road, but is what is referred to as the
Ramsey right-of-way as shown on the August 25, 2009 survey, and we reverse the Trial
Court’s judgment as to the location. We affirm the remainder of the Trial Court’s judgment.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
               Reversed, in part; Affirmed, in part; Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and J OHN W. M CC LARTY, J., joined.

David H. Stanifer and Lindsey C. Cadle, Tazewell, Tennessee, for the appellant, Charles
Edward Martin.

Floyd W. Rhea, Sneedville, Tennessee, for the appellees, Edith M. Ramsey and Mary E.
Horton.
                                         OPINION

                                        Background

               Pauline Martin died testate in January of 2009 seized of personal property and
real property located in Sneedville, Tennessee. The Will was admitted to probate and letters
testamentary were issued to Edith M. Ramsey and Mary E. Horton as co-executrixes of the
Estate of Pauline Martin. Ms. Ramsey and Ms. Horton then filed a Petition for Declaratory
Judgment alleging, in part, that a dispute had arisen among the beneficiaries under the Will
as to the right-of-way referenced in the Will.

              In pertinent part, the Will states:

       I do hereby give, and devise to EDITH M. RAMSEY and CHARLES
       EDWARD MARTIN the homeplace and being strip No. 1. I give, and devise
       to MARY E. HORTON, the middle strip and being strip No. 2. I give, and
       devise to BETTY A. BEELER and DENNIS E. MARTIN the property next
       to the Moore place, and being strip No. 3. It shall be understood that each strip
       has a road right-of-way, especially strip No. 3 which is behind the Mulberry
       Creek. Where Jerry Ramsey lives, that part belongs to him because he has a
       Warranty Deed for that we made him long ago.

              The case proceeded to trial without a jury. A survey prepared by Murrell
Weems and dated August 25, 2009 (“the Survey”) was introduced as an exhibit at trial. The
Survey depicts strips No. 1, 2, and 3 as devised in the Will and also shows the two alleged
right-of-ways which are known as the “farm road” and the “Ramsey right-of-way.” An
excerpt of the Survey has been reproduced as Exhibit A to this Opinion. For purposes of
clarity, we have added “Ramsey right-of-way” and “farm road” to Exhibit A.

              A November 7, 1985 Warranty Deed from Pauline Martin to Jerry D. Ramsey
and Deanna M. Ramsey (“Ramsey Deed”) also was introduced as an exhibit at trial. The
Ramsey Deed is the Warranty Deed which is referenced in the Will. In pertinent part, the
Ramsey Deed provides: “It is further understood that there is a twelve (12') foot right-of-way
from Mulberry Gap Road to the property owned and joining this property on the back side
belonging to Pauline Martin.” This language created the right-of-way known as the Ramsey
right-of-way.

                The Trial Court entered its Judgment on October 11, 2011 finding and holding,
inter alia, that the road right-of-way referenced in the Will is the farm road as shown on the



                                              -2-
Survey, and that the right-of-way has a width of twelve feet. Charles E. Martin appeals to
this Court.

                                              Discussion

              Although not stated exactly as such, Mr. Martin raises one issue on appeal:
whether the Trial Court erred in interpreting the Will by finding that the right-of-way was the
farm road rather than the Ramsey right-of-way.

               To begin, we note that the record on appeal does not contain a transcript of the
trial. The record instead contains a Statement of the Evidence 1 . The Statement of the
Evidence is extremely brief and not particularly helpful. Given our standard of review for
interpretation of a will, we, however, are able to address the issue raised on appeal despite
the paucity of the Statement of the Evidence.

              This Court discussed the standard of review to be applied in cases involving
the construction of a will in Horadam v. Stewart stating:

                The construction of a will is a question of law for the court; therefore,
        we review the trial court’s conclusions of law de novo affording them no
        presumption of correctness. In re Estate of Milam, 181 S.W.3d 344, 353
        (Tenn. Ct. App. 2005). In cases involving the construction of wills, the
        cardinal rule “is that the court shall seek to discover the intention of the
        testator, and will give effect to [that intent] unless it contravenes some rule of
        law or public policy.” Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn.
        1992) (quoting Bell v. Shannon, 212 Tenn. 28, 367 S.W.2d 761, 766 (Tenn.
        1963)); see also In re Crowell, 154 S.W.3d 556, 559 (Tenn. Ct. App. 2004);
        McBride v. Sumrow, 181 S.W.3d 666, 669 (Tenn. Ct. App. 2005).
        Furthermore, in will construction cases, we rely on the language of the
        instrument to determine the testator’s intent:

                       [T]he testator’s intention must be ascertained from “that
                which he has written” in the will, and not from what he “may be
                supposed to have intended to do,” and extrinsic evidence of the
                condition, situation and surroundings of the testator himself may


        1
         The Trial Court approved the Statement of the Evidence as modified by testimony set out in Ms.
Ramsey’s and Ms. Horton’s Objection to the Statement of the Evidence. When we refer to the Statement
of the Evidence in this Opinion, the reference encompasses the Statement of the Evidence as so modified and
approved by the Trial Court.

                                                   -3-
              be considered only as aids in the interpretation of the language
              used by the testator, and “the testator’s intention must ultimately
              be determined from the language of the instrument weighed in
              the light of the testator’s surroundings, and no 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 Cromwell, 154 S.W.3d at 559 (quoting Nichols v. Todd, 20 Tenn. App.
       564, 101 S.W.2d 486, 490 (Tenn. Ct. App. 1936)); see also Pritchard on Wills
       §§ 384, 387, 388, and 409 (2d. ed.). Our Supreme Court has said that when
       ascertaining the testator’s intent by construing the language used in a will, we
       must consider the entire will as a whole. In re Estate of Vincent, 98 S.W.3d
       146, 150 (Tenn. 2003).

Horadam v. Stewart, M2007-00046-COA-R3-CV, 2008 Tenn. App. LEXIS 601, at **13-15
(Tenn. Ct. App. Oct. 6, 2008), Rule 11 appl. denied April 27, 2009. Moreover, “[a] will
should be construed to give effect to every word and clause contained therein.” Presley v.
Hanks, 782 S.W.2d 482, 489 (Tenn. Ct. App. 1989) (citing Bell v. Shannon, 212 Tenn. 28,
367 S.W.2d 761 (1963)).

             We begin our analysis by noting that the Will contains a latent ambiguity.
While “[g]enerally, parol or extrinsic evidence may not be used to vary, contradict, or add
to unambiguous language used in a will,” such evidence may be used if the will contains a
latent ambiguity. Horadam, 2008 Tenn. App. LEXIS 601, at *15. As this Court explained
in Horadam:

               An ambiguity is “[a]n uncertainty of meaning or intention, as in a
       contractual term or statutory provision.”… Our courts have routinely held that
       a latent ambiguity exists when “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[.]”
       Moreover, a latent ambiguity is “susceptible 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 words and phrases made use of.”

              Simply defined, a latent ambiguity is “[a]n ambiguity that does not
       readily appear in the language of a document, but instead arises from a
       collateral matter when the document’s terms are applied or executed.” Latent

                                              -4-
       ambiguities most often arise in relation to the person and the thing identified
       in the document and “exist when the words of a written instrument are plain
       and intelligible, yet have capability of multiple meanings given extraneous
       facts.” For example, a latent ambiguity regarding the subject or thing would
       arise if a testator devises a parcel of his property “X” but has two parcels,
       “North X” and “South X.” Extrinsic evidence is then admissible to identify
       the property or person the testator intended to describe.

              Alternatively, a patent ambiguity exists when the ambiguity results from
       the language or wording in the instrument. A patent ambiguity is one that
       clearly appears on the face of a document, “[p]roduced by the uncertainty,
       contradictoriness, or deficiency of the language of an instrument, so that no
       discovery of facts, or proof of declarations, can restore the doubtful … sense
       without adding ideas which the actual words will not themselves sustain.”

Horadam, 2008 Tenn App. LEXIS 601, at **15-19 (citations omitted) (italics in original
omitted).

               The Will contains a latent ambiguity because it devises a road right-of-way and,
as shown on the Survey, there are two potential road right-of-ways. Thus, a latent ambiguity
arises not “from the words themselves, but from the ambiguous state of extrinsic
circumstances to which the words of the instrument refer[.]” Id. at *17. This ambiguity is
“susceptible 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 words and phrases made use of.” Id. (quoting
Burchfiel v. First United Methodist Church of Sevierville, 933 S.W.2d 481, 482 (Tenn. Ct.
App. 1996)). As such, we find that the Trial Court did not err in allowing parol evidence for
the explanation of this latent ambiguity.

               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. After talking about the road right-
of-way and “especially strip No. 3,” the Will references the Ramsey Deed in which the
testatrix years earlier had specifically granted a right-of-way, i.e., the Ramsey right-of-way.

                                              -5-
If we adopted the Trial Court’s interpretation, the language in the Will referring to the
Ramsey Deed would be rendered superfluous and, as “[a] will should be construed to give
effect to every word and clause contained therein,” such an interpretation cannot stand.
Presley, 782 S.W.2d at 489.

              Furthermore, under the Trial Court’s interpretation, strip No. 2 would be
granted not one, but two road right-of-ways. The Will clearly and specifically provides that
“each strip has a road right-of-way,” in the singular. Additionally, we note that nothing in
the Will compels the interpretation that strips No. 1, No. 2, and No. 3 must all share in the
same right-of-way. The Will simply provides that each strip shall have a right-of-way.

               When interpreting a will, it is not the job of the trial courts or of this Court to
determine the outcome that best suits the beneficiaries. Rather, we must discover the
intention of the testatrix from that which is written in the will while giving effect to every
word and clause within the will. Interpreting the Will in light of this standard leads to the
conclusion that the testatrix intended that the road right-of-way devised in the Will is the
Ramsey right-of-way. This interpretation of the Will results in each of the three strips having
a single road right-of-way. We, therefore, reverse that portion of the Trial Court’s judgment
holding that the location of the right-of-way is the farm road, and hold that the location of
the right-of-way is the Ramsey right-of-way as depicted on the Survey. We affirm the
remainder of the Trial Court’s judgment.

                                          Conclusion

               The judgment of the Trial Court holding that the location of the right-of-way
is the farm road is reversed. The location of the right-of-way is the Ramsey right-of-way as
depicted on the Survey. The judgment of the Trial Court is affirmed in all other respects, and
this cause is remanded to the Trial Court for collection of the costs below. The costs on
appeal are assessed against the appellees, Edith M. Ramsey and Mary E. Horton.




                                                    _________________________________
                                                    D. MICHAEL SWINEY, JUDGE
EXHIBIT A
