                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                October 18, 2016 Session

                  IN RE ESTATE OF SANDRA KAY CHRISTIAN

                Appeal from the Chancery Court for Hawkins County
                   No. 2012-PR-182 Douglas T. Jenkins, Judge


             No. E2015-02276-COA-R3-CV-FILED-FEBRUARY 24, 2017




In this case involving the Last Will and Testament of Sandra Kay Christian, we construe
a provision in her will in order to determine the interests of the parties with respect to real
property owned by her. The deceased passed away on November 15, 2012. Her will
contains a residuary clause. That clause devises two-fifths of the residue of her estate to
Phyllis Midgett, Ms. Christian‟s sister. The will contains a separate provision that
permits the deceased‟s nephews, John Reuben Christian, III and Ashley Paul Christian
(the Nephews), to purchase her residence. The will provides that, in the event the
Nephews elect to purchase the property, they will pay the deceased‟s niece, Regina
Christian Dykes (the Niece), an amount that would make her share of the estate equal to
theirs. The Nephews expressed their intent to purchase the residence. Ms. Midgett
brought this action seeking a declaration that she has a two-fifths interest in the residence
property. The trial court found the will provision at issue to be unambiguous.
Consequently, the court held that Midgett has no interest in the residence property. The
court directed Nephews to pay one-third of the value of the property to the Niece.
Midgett appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Phillip L. Boyd, Rogersville, Tennessee, for the appellant, Phyllis Midgett.

R. B. Baird, III, Rogersville, Tennessee, for the appellees, John Reuben Christian, III,
Ashley Paul Christian, and Regina Christian Dykes.
                                        OPINION

                                             I.

      Sandra Kay Christian executed a last will and testament on March 29, 2012. She
passed away on November 15, 2012, and her will was admitted to probate. Midgett filed
a complaint, asking the court to construe a provision in the will.

       This case focuses on Item III of the will:

              I give, devise, and bequeath all the rest, residue, and
              remainder of my property, of whatever kind or character, and
              wheresover situate, as follows:

                     (A) Two-fifths thereof         to     my   sister,
                     PHYLLIS MIDGETT;

                     (B) One-fifth thereof to JOHN REUBEN
                     CHRISTIAN, III;

                     (C) One-fifth thereof to ASHLEY PAUL
                     CHRISTIAN; and

                     (D) One-fifth thereof            to     REGINA
                     CHRISTIAN DYKES.

              I direct my Executrix to permit John Reuben Christian, III,
              and Ashley Paul Christian to purchase my residence property,
              if they so desire. In the event they do purchase my residence
              property, they shall pay such amount to Regina Christian
              Dykes as makes her share of my estate equal with them.

              In the event John Reuben Chrisitan, III, and Ashley Paul
              Christian do not desire to purchase my residence property,
              then such property shall be sold at the direction of my
              Executrix hereinafter named and the proceeds therefrom
              divided with the rest of my estate in the manner set forth
              above.

        In her complaint, Midgett asserted that Item III, containing the residuary clause,
entitles her to two-fifths of the residue of the estate and argued that the residuary estate
should include the residence property. Accordingly, she asked the court to interpret the
will to give her a two-fifths interest in the residence property.

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       The Nephews and Niece deny that Midgett is entitled to any share of the real
property. In their answer, they assert that the Nephews do desire to purchase the
residence property. They argued that, because the residence property will not be sold to a
third party, Midgett is not entitled to any share in the residence property under the
applicable provision of the will.

       The trial court found that, because the Nephews desire to purchase the residence
property, they shall pay one-third of the value of the property to the Niece. The court
dismissed Midgett‟s complaint and held that she has no interest in the residence property.
Midgett appeals.

                                             II.

      Midgett raises the following issues as quoted verbatim from her brief:

             Did the trial court commit reversible error by holding the
             second paragraph of Item III of the Last Will and Testament
             of Sandra Kay Christian, deceased, was unambiguous,
             controlled the disposition of the deceased‟s residence
             property, and contradicted and superseded the disposition of
             the subject estate as set forth in the residuary clause?

             Did the trial court commit reversible error by holding Midgett
             was not entitled to a two-fifths share of the residence property
             of Sandra Kay Christian, deceased, under the residuary clause
             of her Last Will and Testament if the property was purchased
             by John Reuben Christian, III and Ashley Paul Christian?

             Did the trial court commit reversible error by holding the
             second paragraph of Item III of the Last Will and Testament
             of Sandra Kay Christian, deceased, was unambiguous, and
             that said unambiguous paragraph devised to Defendants all
             interest in the subject residence property in the event John
             Reuben Christian, III and Ashley Paul Christian desired to
             purchase said property?

(Paragraph numbering in original omitted.)

                                             III.

      “The construction of a will is a question of law for the court.” McBride v.
Sumrow, 181 S.W.3d 666, 669 (Tenn. Ct. App. 2005). We review a trial court‟s
conclusions of law under a de novo standard with no presumption of correctness.

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Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). “The basic rule in construing a will is
that the court will seek to discover the intention of the testator, and will give effect to it
unless it contravenes some rule of law or public policy.” Third Nat. Bank of Nashville
v. First American Nat. Bank of Nashville, 596 S.W.2d 824, 828 (Tenn. 1980) (quoting
Bell v. Shannon, 367 S.W.2d 761, 766 (Tenn. 1963)); see also Strickley v. Carmichael,
850 S.W.2d 127, 131 (Tenn. 1992). “That intention is to be ascertained from the
particular words used, from the context and from the general scope and purpose of the
instrument.” Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990) (citations
omitted). Furthermore, the testator‟s “ „intent[] is to be gathered from the scope and
tenor of the whole will . . . .‟ ” In re Estate of Vincent, 98 S.W.3d 146, 150 (Tenn. 2003)
(quoting Podesta v. Podesta, 189 S.W.2d 413, 415 (Tenn. Ct. App. 1945) (citation
omitted)).

                                             IV.

        In the case before us, the trial court held that Midgett is not entitled to a share of
the residence property. The court‟s order states the following:

              [T]he court construes the II paragraph of item III of the Last
              Will & Testament of Sandra Kay Christian to be
              unambiguous. The Defendants John Reuben Christian and
              Ashley Paul Christian desire to purchase residence property
              in question.

              Thus, the Defendants John Reuben Christian and Ashley Paul
              Christian shall pay 1/3 of the value of property to Regina
              Christian Dykes and such amount to be agreed upon by the
              Defendants.

              That the Petition filed [by] Plaintiff Phyllis Midgett be
              dismissed and Plaintiff Phyllis Midgett has no interest in the
              real property in question.

In making its ruling, the court explained the following from the bench:

              [W]hatever goes into the residuary, the testator divided it up .
              . . — A, B, C, and D — and that standing alone looks to be a
              residuary clause. But then the testator went on to add a
              couple of paragraphs in there. . . . [I]t doesn‟t look all that
              ambiguous. She wanted to give John Reuben Christian and
              Ashley Paul Christian a right to purchase her residence
              property. But then the sentence that has created doubt in

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              everybody‟s mind is the next sentence in that same paragraph
              that says, “In the event they do purchase my residence
              property, they shall pay such amount to Regina Christian
              Dykes as makes her share of my estate equal with them.” . . .
              [John and Ashley] would just receive the residence property,
              and whatever the value of it is, they pay Regina a third of it.
              But then you‟ve got that next paragraph that says, “In the
              event John Reuben Christian and Ashley Paul Christian do
              not desire to purchase my residence property, then sell it at
              auction and divide the proceeds in the manner set forth
              above.” In that paragraph she clearly said if it‟s sold outside
              the family, it goes under that A, B, C, and D paragraph. . . .
              [T]he Court finds and rules that if John Reuben Christian and
              Ashly Paul Christian purchase the property, . . . Regina
              Christian Dykes receives a third of [an agreed upon] amount
              in cash. . . . And since John Reuben Christian and Ashley
              Paul Christian . . . desire to purchase the property, then Ms.
              Midgett would not be entitled to the 40 percent she would
              have gotten had it been sold outside the family.

The court noted that the will sets out who will receive the residuary and then qualifies it
by specifying that if the land stays in the family, the Nephews pay the Niece one-third of
its value. If it is sold outside the family, the proceeds go into the residuary.

       We find and hold that the evidence does not preponderate against the trial court‟s
interpretation of the will.

                                             V.

       As stated previously, the basic rule that guides us in construing a will is that we
“must seek to discover the intention of the testator.” Third Nat. Bank of Nashville, 596
S.W.2d at 828. “The testator‟s intent is to be determined from the particular words used
in the will itself, and not from what it is supposed the testator intended. . . . „Every word
used by a testator in a will is presumed to have some meaning.‟ ” In re Estate of Milam,
181 S.W.3d 344, 353-54 (Tenn. Ct. App. 2005) (quoting Third Nat’l Bank v. Stevens,
755 S.W.2d 459, 462 (Tenn. Ct. App. 1988)). “ „[I]t is necessary to look to the entire will
and codicil, if any, and not to isolated parts . . . .‟ ” Stickley v. Carmichael, 850 S.W.2d
127, 132 (Tenn. 1992) (quoting Martin v. Taylor, 521 S.W.2d 581, 584 (Tenn. 1975)).

       In this case, the testator‟s intent is clear from the language she used in the will.
We find that, looking at the entire will, it clearly states how the testator‟s estate is to be
distributed. There are four provisions in the will that affect the distribution of the estate:
(1) Item II makes a specific devise of “pictures, family memorabilia, and . . . household

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furniture and furnishings to Midgett; (2) Item III, paragraph one specifies how the residue
of the estate is to be distributed; (3) Item III, paragraph two gives the Nephews the right
to purchase the deceased‟s residence property and specifies how the proceeds are to be
divided if they purchase it; and (4) Item III, paragraph three directs the Executrix to sell
the testator‟s residence property and divide the proceeds with the rest of the estate if the
Nephews do not purchase it.

       Item III is the provision at issue. That provision begins with a residuary clause.
The will devises the “rest, residue, and remainder of [the deceased‟s] property” in
specified shares to Midgett, the Nephews, and the Niece. This language is clearly
intended to function as a residuary clause. “[T]he very purpose of a residuary clause is to
function as a dragnet for devising parts of a testator‟s estate not otherwise disposed of.”
In re Estate of McFarland, 167 S.W.3d 299, 307 (Tenn. 2005).

      With that purpose in mind, we construe the next paragraph of the will which is the
language at issue in this case. That paragraph reads as follows:

              I direct my Executrix to permit John Reuben Christian, III,
              and Ashley Paul Christian to purchase my residence property,
              if they so desire. In the event they do purchase my residence
              property, they shall pay such amount to Regina Christian
              Dykes as makes her share of my estate equal with them.

        Midgett asks us to construe this provision in conjunction with the residuary clause
to entitle her to a two-fifths share of the residence property. In essence, Midgett is asking
us to hold that the residence property is part of the residuary estate. The purpose of the
residuary clause, however, is “for devising parts of a testator‟s estate not otherwise
disposed of.” Id. (Emphasis added.) The provision at issue disposes of the residence
property by allowing the Nephews to purchase it and paying an equal share to the Niece.
Midgett‟s position would require us to construe that provision to entitle her to a share of
the estate that has otherwise been disposed of, which is clearly contrary to the intent of
the testator.

       Midgett argues that “[s]he believed if decedent did not want her to have a share of
the property she would have written it so that the property was theirs and nothing else to
be said.” We are not persuaded by her argument. Her interpretation ignores the plain
language the testator chose to use. She executed the will as written, and Midgett‟s beliefs
about how the testator would have written the will are not in accord with the document
we are reviewing. We are required to construe the language that the testator used, In re
Estate of Milam, 181 S.W.3d at 353, not to construe an alternative provision or what
Midgett supposes the testator intended.



                                            -6-
       It is clear from the language the testator used that Midgett is not entitled to any
share of the residence property in the event that John and Ashley desire to purchase the
property. The language directs the Executrix to permit John and Ashley to purchase the
residence property if they desire to do so. The testimony at trial indicates that John and
Ashley do wish to purchase the property. Because they wish to purchase the property,
the language is clear that the Nephews “shall pay such amount to Regina Christian Dykes
as makes her share of [the] estate equal with them.” The will unambiguously requires the
Nephews to pay the Niece for the property. The provision makes no mention of Midgett
under this scenario. Construing the particular words that the testator used, we must
presume that Midgett was intentionally excluded from a share in the residence property
under the facts of this case.

       “[C]ourts may not make a new will or bequest for a Testator but must construe
what the Testator has written and published.” In re Estate of Snapp, 233 S.W.3d 288,
293 (Tenn. Ct. App. 2007). If we construe the provision as Midgett requests, we would
be making a bequest for the testator that she did not make. The testator‟s intent is clear
from how she worded the provision. As written, there is an unambiguous intention for
the Nephews and the Niece to share the value of the residence property equally if it stays
in the family. We must presume that the absence of any language entitling Midgett to a
share indicates that the testator intentionally excluded her from a share of the property.
We refuse to rewrite the testator‟s will to give her a two-fifths interest in the residence
property. The residuary clause in the will gives Midgett a two-fifths share of the
residuary estate. Under the facts in this case, the residence property is not part of the
residuary estate but was specifically devised otherwise. Accordingly, Midgett has no
interest in the residence property.

        We hold, as a matter of law, that the evidenced does not preponderate against the
trial court‟s interpretation of the testator‟s will. We hold that Midgett is not entitled to a
share in the residence property because the Nephews desire to purchase the property.

                                             VI.

       The judgment of the trial court is affirmed. The costs on appeal are assessed to
the appellant, Phyllis Midgett. This case is remanded for enforcement of the trial court‟s
judgment and for collection of costs assessed below.



                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




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