      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE


                                                 FILED
CHRISTOPHER JACOBSEN and            )           September 17, 1997
JEFFREY JACOBSEN,                   )
Beneficiaries of the Estate of      )           Cecil W. Crowson
Edna M. Nissen,                     )          Appellate Court Clerk
                                    )
      Plaintiffs/Appellees,         )   Williamson Chancery
                                    )   No. P-94-1236
VS.                                 )
                                    )   Appeal No.
RUTH FLATHE, in her capacity as     )   01A01-9511-CH-00510
Executrix of the Estate of          )
Edna M. Nissen and in her           )
Individual Capacity as a            )
Beneficiary of the Estate of        )
Edna M. Nissen,                     )
                                    )
      Defendant/Appellant.          )



APPEAL FROM THE CHANCERY COURT FOR WILLIAMSON COUNTY
                AT FRANKLIN, TENNESSEE

          THE HONORABLE HENRY DENMARK BELL, JUDGE


For the Plaintiff/Appellee:                  For the Defendant/Appellant:

M. Bradley Gilmore                           G. Thomas Nebel
Christina Norris                             John B. Carlson
Parker, Lawrence, Cantrell & Dean            Williams & Associates
Nashville, Tennessee                         Nashville, Tennessee




                  AFFIRMED AND REMANDED



                                        WILLIAM C. KOCH, JR., JUDGE
                                OPINION

      This appeal involves an intrafamily dispute over the meaning of an elderly
widow’s will. After the will was admitted to probate in the Chancery Court for
Williamson County, the sons of one of the legatees who had predeceased the
testator filed a petition for judicial construction asserting that they were entitled
to receive their mother’s share under the antilapse statute. The trial court granted
a summary judgment in the sons’ favor. On this appeal, the estate’s personal
representative, who is also a legatee, asserts that the will should be construed to
give her the predeceased legatee’s share. We have determined that the trial court
correctly decided that the gift to the deceased legatee did not lapse and, therefore,
affirm the summary judgment.


                                         I.


      Edna M. Nissen was a widowed homemaker who lived in Williamson
County after her husband’s death in the mid-1970's. At the age of ninety-five, she
retained a lawyer to prepare her will. The resulting will, which Ms. Nissen
executed on November 6, 1989, was a conventional two-and-a-half page
document directing in form language that her estate pay all her lawful debts, the
expenses of her last illness, and her funeral expenses, as well as any estate or
inheritance taxes. It lumped all her remaining real and personal property into her
remainder estate and divided this estate as follows:

             All the rest and residue of the property which I may
             own at the time of my death, including but not limited
             to all my tangible personal property including
             automobiles, clothing, jewelry, and other articles of
             personal use or ornament, and all other property, real
             personal and mixed, of whatever kind and character and
             wheresoever situated, all of which constitute my
             residuary estate, I devise and bequeath as follows:

             (a)    Six-sixteenths (6/16) thereof to be divided
                    equally among Patricia Laak, John Flathe, David
                    Flathe, Georgia Flathe Wilson, Chris Jacobsen
                    and Jeff Jacobsen, per capita.




                                        -2-
               (b)     Ten-sixteenths (10/16) thereof to be divided two-
                       thirds (b) to Ruth Flathe and one-third (a) to
                       Mary Jacobsen, per capita.

The will also named Ruth Flathe, one of Ms. Nissen’s nieces living in Williamson
County, as the personal representative of her estate.


       Mary Jacobsen, the legatee who received a 16/48 interest in the residuary
estate, was also Ms. Nissen’s niece. She apparently lived in Wisconsin, as did her
two sons, Jeffrey and Christopher Jacobsen, each of whom received a one-
sixteenth interest of the residuary estate. Ms. Jacobsen predeceased Ms. Nissen
on July 2, 1990.


       Ms. Nissen realized later that her original will had not provided for the
disposition of her interest in a testamentary trust created by her late husband.1
Rather than preparing a new will, Ms. Nissen remedied this omission by executing
a codicil to her will on July 27, 1990. The codicil distributed the corpus of Mr.
Nissen’s testamentary trust as follows:
               I specifically amend the SECOND paragraph of the
               above referenced Will dated the 6th day of November,
               1989, to exercise the power of appointment granted to
               me under the Will of my late husband William Nissen
               dated October 10, 1975, in favor of the following:

               (a)     Six-sixteenths (6/16) thereof to Patricia Laak,
                       John Flathe, David Flathe, Georgia Flathe
                       Wilson, Chris Jacobsen and Jeff Jacobsen, to be
                       divided equally among them per capita.

               (b)     Ten-sixteenths (10/16) thereof to be distributed
                       to Ruth Flathe.

The codicil also ratified and republished Ms. Nissen’s November 6, 1989 will and
stated that the will and codicil constituted Ms. Nissen’s last will and testament.
Ms. Jacobsen was not mentioned in the codicil because she had died three weeks
earlier.


       1
        Mr. Nissen’s testamentary trust provided that Ms. Nissen should receive the income
earned on the trust’s corpus during her lifetime and gave Ms. Nissen the power at her death to
dispose of the corpus of the trust “to such person or persons or [her estate] in such manner and
proportion as [she] shall appoint by a provision in her last will and testament referring to this
power and purporting to exercise [it].”

                                              -3-
      Ms. Nissen outlived the codicil by approximately three-and-a-half years.
She died of a stroke in February 1994 at the age of ninety-nine. In March 1994,
Ms. Flathe filed Ms. Jacobsen’s will for probate in the Chancery Court for
Williamson County. In February 1995, Christopher and Jeffrey Jacobsen, filed
a petition for construction of Ms. Nissen’s will, asserting that they were entitled
to their mother’s 10/48 share of the original residuary estate. Ms. Flathe
answered the petition by contending that Ms. Nissen had cut Ms. Jacobsen out of
her will and, therefore, that Ms. Jacobsen’s sons were only entitled to their
specific bequests.


      The Jacobsen brothers eventually brought the dispute to a head by moving
for a summary judgment. On July 21, 1995, the trial court granted the summary
judgment after finding that Ms. Nissen’s will and codicil did not contain a latent
ambiguity requiring the consideration of extrinsic evidence. The trial court held
as a matter of law that Ms. Nissen’s 1990 codicil did not alter the disposition of
the residuary estate made in the 1989 will and that the operation of Tenn. Code
Ann. § 32-3-105 (Supp. 1996) caused Ms. Jacobsen’s 16/48 interest in Ms.
Nissen’s residuary estate to pass to her sons. Ms. Flathe has appealed this
decision.


                                        II.


      This will construction dispute was decided by summary judgment.
Summary judgments are proper vehicles for deciding cases whose outcome hinges
on legal issues alone because there are no disputed facts. Byrd v. Hall, 847
S.W.2d 208, 210 (Tenn. 1993); Bellamy v. Federal Express Corp., 749 S.W.2d 31,
33 (Tenn. 1988); Foley v. St. Thomas Hosp., 906 S.W.2d 448, 452 (Tenn. Ct. App.
1995). They are accordingly uniquely suited to will construction cases because
these cases generally involve only legal issues surrounding the proper
interpretation of the language of the will itself. Presley v. Hanks, 782 S.W.2d 482,
487 (Tenn. Ct. App. 1989); Estate of Robison v. Carter, 701 S.W.2d 218, 220
(Tenn. Ct. App. 1985).




                                        -4-
       In most will construction cases, the testator’s intent is determined by
referring to the will itself. Wright v. Brandon, 863 S.W.2d 400, 402 (Tenn. 1993);
Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991);
Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990). Sometimes courts
will consider evidence beyond the four corners of the will when the will contains
a latent,2 as opposed to patent,3 ambiguity. Stickley v. Carmichael, 850 S.W.2d
127, 132 (Tenn. 1992); Estate of Burchfiel v. First United Methodist Church, 933
S.W.2d at 483.


           We need not concern ourselves here with the possible factual disputes
about circumstances beyond the four corners of the will itself since the present
dispute involves a patent ambiguity. Thus, like the trial court, we will ignore all
extraneous evidence4 and focus only on the language of the will itself. The pivotal
question in this case is whether the Jacobsen brothers have established, as a matter
of law, that they are entitled to the benefit of the antilapse statute.




                                              III.


       At common law, the property identified in a will to go to a legatee who
predeceased the testator went instead to some other person named in the will or

       2
         A latent ambiguity arises from an ambiguous state of external circumstances to which
the words of the will refer. Estate of Burchfiel v. First United Methodist Church, 933 S.W.2d
481, 482 (Tenn. Ct. App. 1996). 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, 362 (Tenn. Ct.
App. 1981). 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. See, e.g., Greer v. Anderson, 36 Tenn. App. 507, 509-16, 259 S.W.2d 550, 551-53
(1953).
       3
        A patent ambiguity stems from uncertainty in the language of the will itself, In re Will
of Bybee (Bybee v. Westrick), 896 S.W.2d 792, 793 (Tenn. Ct. App. 1994); Coble Sys., Inc. v.
Gifford Co., 627 S.W.2d at 362, and is apparent on the face of the will. See 4 William J. Bowe
& Douglas H. Parker, Page on the Law of Wills § 32.7 (rev. 3d ed. 1961) (“Page”). It involves
an ambiguous term, see Union Planters Corp. v. Harwell, 578 S.W.2d 87, 92 (Tenn. Ct. App.
1978), that cannot be clarified by considering extraneous facts.
       4
         For this reason, we must ignore the self-serving affidavits of Ms. Flathe and the lawyer
who prepared Ms. Nissen’s will and codicil concerning their versions of Ms. Nissen’s
testamentary intent. We must likewise ignore the affidavits of the Jacobsen brothers. Ms. Flathe
cannot create a genuine factual dispute to stave off a summary judgment motion involving a
patent ambiguity by presenting incompetent affidavits concerning Ms. Nissen’s testamentary
intent. See Skinner v. Moore, 940 S.W.2d 755, 758 (Tex. Ct. App. 1997).

                                              -5-
passed as intestate property. See Dixon v. Cooper, 88 Tenn. 177, 182, 12 S.W.
445, 446 (1889). The courts held in these circumstances that the legacy lapsed
because the deceased legatee no longer had the capacity or willingness to accept
the gift. Brice v. Horner, 38 S.W. 440, 442 (Tenn. Ch. App. 1896). As a result
of the common-law rule, the testamentary gift would not go to the heirs of the
deceased legatee thereby often frustrating the testator’s chosen distribution of the
property.


      Tennessee’s antilapse statute was enacted in 1858 to cure the lapsed legacy
problem by legally substituting related recipients for deceased recipients. David
R. Foster, Note, Testamentary Gifts of Future Interests: Is There an “Immediate”
Problem with the Tennessee Antilapse Statute?, 17 Mem. St. U. L. Rev. 263, 265-
66 (1987). Now codified at Tenn. Code Ann. § 32-3-105, the statute provides:
             Whenever the devisee or legatee or any member of a
             class to which an immediate devise or bequest is made,
             dies before the testator, or is dead at the making of the
             will, leaving issue which survives the testator, the issue
             shall take the estate or interest devised or bequeathed
             which the devisee or legatee or the member of the class,
             as the case may be, would have taken, had that person
             survived the testator, unless a different disposition
             thereof is made or required by the will.

When a legatee predeceases a testator, the statute saves a testamentary gift by
substituting the legatee’s heirs for the legatee. See, e.g., Weiss v. Broadway Nat’l
Bank, 204 Tenn. 563, 573-74, 322 S.W.2d 427, 431-32 (1959) (holding that the
son of a predeceased legatee took his father’s share “just as if [his name] had been
inserted in the will by the testatrix herself”). The courts give the antilapse statute
a liberal construction. Brundige v. Alexander, 547 S.W.2d 232, 234 (Tenn. 1976).




      The antilapse statute, by its own terms, will not govern the distribution of
a testamentary gift in cases where the testator expressly makes a different
disposition of property by will. To defeat the operation of the antilapse statute,
the will must contain plain and clear language indicating that the testator intended
a different disposition of his or her property should a named beneficiary die first.
Estate of Renner, 895 S.W.2d 180, 182 (Mo. Ct. App. 1995); Royston v. Watts,


                                         -6-
842 S.W.2d 876, 879 (Mo. Ct. App. 1992). Where a will does not clearly indicate
that the person who made it intended to disinherit a predeceased legatee in favor
of a surviving legatee, the antilapse statute works to save the deceased legatee’s
gift for his or her heirs. In re Will of Bybee (Bybee v. Westrick), 896 S.W.2d at
794.


                                       IV.


       Ms. Flathe advances three arguments to support her assertion that Ms.
Nissen’s will contains plain and clear language demonstrating her intent that her
bequest to Ms. Jacobsen would lapse if Ms. Jacobsen predeceased her. These
arguments hinge on (1) the use of the term “per capita” in Paragraph 2(b) of Ms.
Nissen’s will, (2) the fact that the Jacobsen brothers were already provided for
elsewhere in Ms. Nissen’s will, and (3) the fact that the codicil excluded any
mention of Ms. Jacobsen.


       Each of these arguments requires us construe the terms of Ms. Nissen’s will.
In doing so, we must be guided by our obligation to see to it that Ms. Nissen’s
desires and intentions are given effect. Wright v. Brandon, 863 S.W.2d at 402;
Martin v. Taylor, 521 S.W.2d 581, 584 (Tenn. 1975); Presley v. Hanks, 782
S.W.2d at 487. Since we are dealing here with a patent ambiguity, we must derive
Ms. Nissen’s intent from the four corners of her testamentary writings, Fariss v.
Bly-Block Co., 208 Tenn. 482, 487, 346 S.W.2d 705, 706 (1961), which include
both her will and the 1990 codicil to her will. Martin v. Taylor, 521 S.W.2d at
584; Fisher v. Malmo, 650 S.W.2d 43, 46 (Tenn. Ct. App. 1983).


       Because every word used by a testator in a will is presumed to have some
meaning, Daugherty v. Daugherty, 784 S.W.2d at 653; In re Estate of Jackson,
793 S.W.2d 259, 261 (Tenn. Ct. App. 1990), we must, if possible, give effect to
every provision, clause, term, or word used in the will. Bell v. Shannon, 212
Tenn. 28, 40, 367 S.W.2d 761, 766 (1963); Beuchert v. Sigman, 652 S.W.2d 347,
349 (Tenn. Ct. App. 1983). We must also give the technical words in the will
their technical meaning because Ms. Nissen’s will was drafted by a lawyer.



                                        -7-
Wright v. Brandon, 863 S.W.2d at 402; Daugherty v. Daugherty, 784 S.W.2d at
653.


                                             A.
                       THE USE OF THE TERM “PER CAPITA”


         Ms. Flathe first argues that the use of the term “per capita” in conjunction
with the bequest to Ms. Jacobsen clearly signifies that Ms. Nissen did not intend
for Ms. Jacobsen’s share of the estate to pass to her heirs if Ms. Jacobsen
predeceased Ms. Nissen. We disagree. The term “per capita” has no application
to specific bequests to named legatees. In the context of this particular will, it can
be given effect only if it is construed to relate to substitutional gifts to substitute
legatees in the event of the death of the primary legatee.


         The term “per capita” appears twice in Ms. Nissen’s will and once in her
1990 codicil. It first appears in Paragraph (a) of the residuary clause in
conjunction with the bequest of six-sixteenths of the residuary estate to six named
persons. The will directs that this six-sixteenths be divided “equally . . . per
capita.” This same usage appears in Paragraph (a) of the codicil. The term also
appears in Paragraph (b) pertaining to the gifts to Ms. Flathe and Ms. Jacobsen.
Paragraph (b) states: “Ten-sixteenths (10/16) thereof to be divided two-thirds (b)
to Ruth Flathe and one-third (a) to Mary Jacobsen, per capita.” This usage is not
repeated in the codicil because the codicil was prepared after Ms. Jacobsen’s
death.


         The terms “per capita” and “per stirpes” describe the mode of distributing
an estate rather than the designation of the persons who will share in the estate.
Wright v. Brandon, 863 S.W.2d at 403; see also In re Estate of Walter (Bolin v.
Walters), 519 N.E.2d 1270, 1273 (Ind. Ct. App. 1988); In re Estate of Winslow,
934 P.2d 1001, 1006 (Kan. Ct. App. 1997); In re Estate of Renner (Kirchner v.
Buschling), 895 S.W.2d 180, 182 (Mo. Ct. App. 1995). They relate to class gifts,5


         5
       A class gift is a gift to a group of persons who are not named, whose number may vary,
and who have one or more characteristics in common. Jennings v. Jennings, 165 Tenn. 295, 301,
                                                                                (continued...)

                                             -8-
and ordinarily have no application to named legatees who are primary takers
under a will. In re Estate of Walters (Bolin v. Walters), 519 N.E.2d at 1273; In re
Estate of Winslow, 934 P.2d at 1006; Evans v. Cass, 256 N.E.2d 738, 743 (Prob.
Ct. Cuyahoga County 1970).


       Thus, it is technically inappropriate to use either the term “per capita” or the
term “per stirpes” or a combination of the two terms to describe a specific bequest
to a named legatee. In circumstances where these terms have been used in
conjunction with a gift to named legatees who are primary beneficiaries, the courts
have consistently construed the terms to apply to the substitutional gift to the
substitute legatees in the event of the death of the primary legatee. In re Estate of
Luke, 184 N.W.2d 42, 45 (Iowa 1971); Johnson v. Swann, 126 A.2d 603, 606 (Md.
1956); In re Will of Griffin (Lowry v. Doss), 411 So. 2d 766, 769 (Miss. 1982); St.
Louis Union Trust Co. v. Greenough, 282 S.W.2d 474, 478 (Mo. 1955); see also
3 Restatement of Property § 300, cmt. f (1940).


       Based on these precedents, there are three reasons why the term “per capita”
cannot, as a matter of law, apply to Ms. Nissen’s bequest of ten-sixteenths of her
residuary estate to Ms. Flathe and Ms. Jacobsen. First, this gift is not to a class.
Second, the gift is to persons who are specifically named in the will as primary
legatees. Third, the will does not divide the ten-sixteenths interest equally
between Ms. Flathe and Ms. Nissen as the technically correct use of the term “per
capita” would require.6


       The trial court appears to have concluded, as we have, that the term “per
capita” cannot apply to Ms. Nissen’s bequest to Ms. Flathe and Ms. Jacobsen.



       5
          (...continued)
54 S.W.2d 961, 963 (1932); Page, §§ 35.1, at 488 & 35.4, at 495. A bequest is not to a class if
(1) it is given to a certain number of named persons, (2) the share each of these persons will
receive is certain, and (3) these shares do not depend on the number of persons in the class at
some future time. Page, § 35.2, at 493. For examples of the correct use of “per stirpes” and “per
capita,” see 4 Tennessee Legal and Business Forms §§ 28:252 & 28:253 (1994).
       6
        As used in a will, the term “per capita” connotes an equal division of the property among
the legatees, each receiving the same share as the others, without regard to the principle of
representation. Page, § 36.6, at 556; George W. Thompson, The Law of Wills § 317, at 477 (3d
ed. 1947).

                                              -9-
However, the trial court then disregarded the term as “meaningless surplusage.”
We find that this was error because the courts must endeavor to give effect to all
the terms in a will. This goal can be accomplished by holding that the term “per
capita” as it appears in Paragraph 2(b) of Ms. Nissen’s will applies to the
substitutional gift to the substitute legatees should either Ms. Flathe or Ms.
Jacobsen predecease Ms. Nissen. Thus, especially in the absence of any other
provision in the will dealing with lapsed gifts or predeceased legatees, the term
“per capita” relates to the manner in which the Jacobsen brothers should divide
their mother’s 16/48 share of Ms. Nissen’s residuary estate.7


                                               B.
              THE OTHER BEQUESTS TO THE JACOBSEN BROTHERS


       Ms. Flathe also insists that Ms. Nissen must not have intended for the
Jacobsen brothers to succeed to their mother’s interest because Ms. Nissen made
other provisions for them in her will. We find this argument unpersuasive. The
fact that a testator has made a specific bequest of a portion of her residuary estate
to an individual does not prevent that individual from succeeding to his or her
parent’s share of the estate by operation of law. In these circumstances, the
additional share simply becomes an additional gift to the named individual.




                                               C.
                              THE EFFECT OF THE CODICIL


       Ms. Flathe’s final assertion is that the omission of any mention of Ms.
Jacobsen in the 1990 codicil is evidence of Ms. Nissen’s desire to exclude the
Jacobsen brothers from succeeding to their mother’s interest in the residuary
estate. This argument is equally unpersuasive because it overlooks two important


       7
        The record contains no pleadings or proof that Ms. Jacobsen left any heirs other than
Jeffrey and Christopher Jacobsen or that she had any other children who were deceased.
However, the trial court’s memorandum makes an entirely unexplained reference to “any
deceased children of Ms. Jacobsen.” As far as the present record shows, the interests of the heirs
of Ms. Jacobsen’s deceased children were not before the trial court. Accordingly, we have not
addressed the rights of these persons, if they exist.

                                              -10-
matters of substance. First, the property dealt with in the codicil was different
from the property included in the will. Second, the codicil did not change any
portion of the will and, in fact, expressly reaffirmed the bequests in the will.


      We will not construe a codicil to alter the terms of a will any more than is
necessary to give effect to the codicil. Rogers v. Rodgers, 53 Tenn. (6 Heisk.)
489, 499 (1871); American Nat’l Bank & Trust Co. v. Mander, 36 Tenn. App. 220,
226, 253 S.W.2d 994, 997 (1952). It is evident from the face of the will and the
codicil that Ms. Nissen prepared the codicil to make a testamentary disposition of
property she had overlooked when she prepared her will, not to eliminate or
replace any other testamentary bequest she had already made.


      Ms. Flathe offers no textual basis for construing Ms. Nissen’s will to
provide that the survivor of Ms. Flathe and Ms. Jacobsen should receive the
other’s portion of the residuary estate. It is not our role to guess at a testator’s
intentions based on what the parties suppose the testator might have intended but
never put in writing. In re Walker, 849 S.W.2d 766, 768 (Tenn. 1993); Martin v.
Hale, 167 Tenn. 438, 442, 71 S.W.2d 211, 212 (1934). Thus, we decline to infer
that because Ms. Nissen dealt with the property covered by the codicil in one way,
she meant to deal with all her other property in the same way. The actual terms
of the will and codicil merely evince a decision to deal with different property
differently.




                                        V.


      We affirm the judgment and remand the case to the trial court for whatever
other proceedings may be required. We tax the costs of this appeal to Ruth Flathe,
as personal representative of Ms. Nissen’s estate, and her surety for which
execution, if necessary, may issue.



                                       -11-
                                     ____________________________
                                     WILLIAM C. KOCH, JR., JUDGE


CONCUR:

________________________________
HENRY F. TODD, P.J., M.S.


________________________________
SAMUEL L. LEWIS, JUDGE




                              -12-
