                                                                                            07/25/2017
                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                        June 20, 2017 Session

                     IN RE ESTATE OF WANDA JOYCE WATKINS

                      Appeal from the Probate Court for Loudon County
                              No. 4455    Rex Alan Dale, Judge
                          ___________________________________

                                 No. E2016-02388-COA-R3-CV
                             ___________________________________

This appeal involves the interpretation and enforcement of a will executed by Wanda
Joyce Watkins (“the Decedent”).1 Specifically at issue is a provision bequeathing the
residue and remainder of the Decedent’s estate to her prior husband, Mr. John Vance
(“Mr. Vance”). Although Mr. Vance’s children (“the Vance children”) claimed
entitlement to the residuary estate by virtue of the anti-lapse statute codified at Tennessee
Code Annotated section 32-3-105, the executrix of the estate contended that such a
disposition was inconsistent with the Decedent’s intent. The trial court agreed with the
position of the executrix and rejected the Vance children’s claim to receive under the
will. The trial court also held that portions of the respective parties’ attorney’s fees
should be paid by the estate. Although we reverse the trial court’s decision regarding the
application of the anti-lapse statute, we affirm its order as it pertains to the assessment of
attorney’s fees.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Reversed in
                         Part, Affirmed in Part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR. and THOMAS R. FRIERSON, II, JJ., joined.

Ginger Wilson Buchanan, Cleveland, Tennessee, for the appellants, John Darrell Vance,
Nancy Ann Ferrara, Wendy Michelle Vance Knott, and William Landon Vance.

O.E. Schow, IV and Robert L. Vance, Knoxville, Tennessee, for the appellee, Kimberly
B. Jenkins.

Amy Bingham and Barry N. Blanton, Appellees.2
1
    At the time she executed the will, the Decedent’s name was listed as Wanda J. Vance.

2
    Appellees, Amy Binghman and Barry N. Blanton did not file a brief.
                                        OPINION

                          Background and Procedural History

       The Vance children, who are the Appellants in this matter, are the former
stepchildren of the Decedent. Their father, Mr. Vance, was the Decedent’s second
husband. In April 1991, the Decedent executed a will that provided for the disposition of
her estate. The will, which was prepared by counsel, contained the following residuary
provision which forms the basis of this dispute:

         FIFTH:      All the rest, residue and remainder of my estate, I

 give, devise and bequeath to my husband, JOHN M. VANCE.



      Mr. Vance died on July 14, 1996, predeceasing the Decedent. Notably, the
Decedent never revoked her 1991 will. She passed away after a bout with cancer on May
28, 2012. Following her death, her will was admitted to probate in the Probate Court for
Loudon County.

       The present controversy ensued when the Decedent’s daughter and executrix of
the estate, Kimberly B. Jenkins (“Ms. Jenkins”), filed a “Petition to Construe Will” on
November 12, 2013. On the same date, the Vance children filed a motion to intervene.
Specifically at issue in these filings was the disposition of the residuary estate, which the
will bequeathed to Mr. Vance. Of particular concern to Ms. Jenkins was the disposition
of a farm that the Decedent had inherited from her family. Ms. Jenkins maintained that,
although the anti-lapse statute codified at Tennessee Code Annotated section 32-3-105
might be construed to hold that the interest of Mr. Vance should pass to his issue, the
court should construe the will in favor of a finding that the Decedent intended all of her
real property to pass to her lineal descendants and not the lineal descendants of Mr.
Vance. In their motion to intervene, the Vance children asserted that the anti-lapse
statute governed the case and that they were “rightfully entitled to the assets directed to
pass to John M. Vance.”

        A hearing on the matter was held in May 2014. During the hearing, Ms. Jenkins
testified—over the objection of the Vance children’s counsel—to the relationship that
had existed between the Decedent and the Vance children. Ms. Jenkins stated that their
relationship had been a “very tense” one, and she testified that the Decedent had never
said anything when she executed her will to indicate that she wanted the Vance children
to receive a portion of her estate. The trial court took the case under advisement
following the hearing.



                                            -2-
        On October 24, 2014, the trial court entered an order holding that the anti-lapse
statute did not apply. Instead of holding that the Vance children were entitled to recover
under the will’s residuary provision, the trial court held that “the residuary estate of
Decedent passes to Decedent’s heirs by intestate succession.” In reaching this
conclusion, the trial court observed that the will made no reference to the Vance children.
Further, the trial court made note of the “tense” relationship that had existed between the
Vance children and the Decedent. In a later order entered on November 2, 2016, the trial
court held that a certain portion of Ms. Jenkins’s and the Vance children’s attorney’s fees
should be paid out of the estate. This appeal followed.3

                                           Issues Presented

The Vance children raise the following issues on appeal, restated slightly:

        1. The trial court erred in failing to apply the provisions of Tennessee Code
           Annotated section 32-3-105.

        2. The trial court erred in admitting parol evidence to determine the intent of the
           Decedent.

        3. The trial court erred in taxing the attorney’s fees of the executrix to the estate.

In her brief, Ms. Jenkins4 separately maintains that the trial court erred in awarding
attorney’s fees to the Vance children.5

                                        Standard of Review

        This case involves the construction of a will. When we are required to construe a
will, and there is no dispute in the evidence as to any material fact, the question on appeal
is one of law. In re Estate of McFarland, 167 S.W.3d 299, 302 (Tenn. 2005) (citation
omitted). A question of law is reviewed de novo, with no presumption of correctness.


3
 Following the filing of this appeal, the trial court entered amended orders restating its rulings from the
October 24, 2014 and November 2, 2016 orders in order to comply with Rule 58 of the Tennessee Rules
of Civil Procedure.
4
 Although Appellees Amy Bingham and Barry Blanton—who, like Ms. Jenkins, are children of the
Decedent—did not file briefs in this appeal, they did file a statement indicating that they “are in
agreement with the positions stated in the brief of [Ms. Jenkins].”
5
  Although Ms. Jenkins’s brief contains argument that she should be awarded attorney’s fees on appeal,
the request for such fees is not included in her “Issues Presented for Review.” As such, the matter is
waived. See Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011) (citation omitted) (“We
may consider an issue waived where it is argued in the brief but not designated as an issue.”)
                                                   -3-
See Estate of Burchfiel v. First United Methodist Church of Sevierville, 933 S.W.2d 481,
483 (Tenn. Ct. App. 1996) (citation omitted).


                                         Discussion

         “The intent of the testator is the most important factor in will construction cases.”
In re Tipler, 10 S.W.3d 244, 249 (Tenn. Ct. App. 1998). A court must give effect to a
testator’s intent unless it contravenes a rule of law or public policy. Id. (citation omitted).
“The testator’s intention is to be ascertained from the particular words used in the will
itself, from the context in which those words are used, and from the general scope and
purposes of the will, read in the light of the surrounding and attending circumstances.”
Fisher v. Malmo, 650 S.W.2d 43, 46 (Tenn. Ct. App. 1983) (citations omitted). If a
decedent’s will has been drafted by an attorney, a court should give its technical words
their technical meaning “unless the intention of the testator is clearly to the contrary.” Id.
(citation omitted).

        When necessary, parol evidence is admissible “both to place the Court in a
knowledge of the condition and circumstances surrounding the testator when he executed
his will, and to resolve uncertainties or ambiguities in the will as to the testator’s
intentions.” Treanor v. Treanor, 152 S.W.2d 1038, 1041 (Tenn. Ct. App. 1941) (citations
omitted). However, parol evidence is inadmissible “to add to, vary, or contradict the
language used in a will.” Id. (citations omitted); see also Clark v. Clark, 70 Tenn. 723,
725 (1879) (citation omitted) (“No principle of the law of wills . . . is more firmly
established, or sustained by a more continuous line of decisions from the earliest to the
latest times, than that parol evidence can not be admitted either to contradict, add to, or
explain a will, where there is no ambiguity on its face.”). “Where there is no ambiguity
there is no warrant for construction.” Moore v. Moore, 315 S.W.2d 526, 529 (Tenn.
1958) (citation omitted).

       In this case, the plain language of the will embraces the conclusion that the
Decedent intended to dispose of the entirety of her estate by will. Indeed, as we have
previously highlighted, the will’s fifth provision unambiguously provides as follows:
“All the rest, residue and remainder of my estate, I give, devise and bequeath to my
husband, JOHN M. VANCE.” From this language, it is not only clear that the Decedent
intended to dispose of the entirety of her estate, it is also clear that she intended Mr.
Vance to receive whatever remainder interest was not otherwise transferred through a
specific devise or bequest.

        Of course, the present controversy stems from the fact that Mr. Vance predeceased
the Decedent. How is the residuary estate to be disposed of in light of his death? That is
the ultimate question before this Court on appeal, and one on which we reach a different
conclusion than the trial court.
                                            -4-
      Unlike the trial court, we are of the opinion that the answer to this question is
governed by Tennessee Code Annotated section 32-3-105. In relevant part, that statute
provides as follows:

       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 that survives the testator, the issue
       shall take the estate or interest devised or bequeathed that 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.

Tenn. Code Ann. § 32-3-105(a). This statute, commonly known as the “anti-lapse”
statute, “works to save lapsed gifts for the representatives of the predeceased
beneficiary.” In re Estate of McFarland, 167 S.W.3d at 303 (citation omitted). It
functions “to further the presumed intent of the testator in the absence of any contrary
intent expressed through the will.” Id. (citation omitted). The statute is predicated upon
the presumption that “if the testator ‘thought enough’ of the beneficiary to make a gift to
her in the will, the testator would want the beneficiary’s issue to take the gift if the
beneficiary predeceased the testator.” In re Estate of Swift, No. W2012-00199-COA-R3-
CV, 2012 WL 5868894, at *5 (Tenn. Ct. App. Nov. 20, 2012) (citation omitted).

        Pursuant to its terms, the anti-lapse statute does not apply if “a different
disposition . . . is made or required by the will.” Tenn. Code Ann. § 32-3-105(a). Thus,
if the will in this case had specifically stated who would receive the residuary estate
should Mr. Vance predecease the Decedent, the anti-lapse statute would not be operative.
Moreover, a “different disposition” is implicated when the will imposes a survivorship
requirement on the named beneficiary. See In re Estate of Swift, 2012 WL 5868894, at
*4-7. For example, had the will stated that Mr. Vance would only receive the residuary
estate if he survived the Decedent, the anti-lapse statute would not apply.

        As it is, the will at issue does not place any conditions on Mr. Vance’s entitlement
to the residuary estate, nor does the will specify who is to receive the residuary estate in
the event that he predeceases the Decedent. Indeed, the disposition made with respect to
the residuary estate is absolute. As such, contrary to the trial court’s determination, we
are of the opinion that the will fails to provide for a “different disposition” under
Tennessee Code Annotated section 32-3-105. Considering this fact and taking heed that
Mr. Vance had surviving issue, the anti-lapse statute directs that they “take the estate or
interest devised or bequeathed that . . . . [Mr. Vance] would have taken, had [he] survived
the testator.” Tenn. Code Ann. § 32-3-105(a). We must therefore reverse the trial court
and specifically conclude that the Vance children are entitled to receive the Decedent’s
residuary estate under the will.

                                           -5-
        In closing, we note that both sides assert that the trial court erred in ordering that a
portion of the other side’s attorney’s fees be paid by the estate. Having reviewed the
record transmitted to us on appeal, we decline to disturb the trial court’s judgment on this
issue. Although Tennessee follows the American Rule which provides that “each litigant
must wage its own fight for justice with its own resources,” there are exceptions. In re
Estate of Greenamyre, 219 S.W.3d 877, 884 (Tenn. Ct. App. 2005) (citations omitted).
“Will construction cases represent a well-known exception to the American Rule.” Id. at
884-85. At times, litigation may be to the benefit of the estate, as well as its
beneficiaries, and courts can require a testator’s estate to pay the attorney’s fees of parties
named as defendants in will construction cases filed by executors. Id. at 885 (citations
omitted). Courts may shift the burden of paying attorney’s fees from the client to the
estate, however, only after they are satisfied that the purpose of the litigation was to
benefit the estate. Id. (citations omitted). The decisions pertaining to an award of
attorney’s fees are reviewed under an abuse of discretion standard. Id. As is relevant
herein, we note that “[d]eciding whether a party’s attorney’s fees should be paid by the
estate does not necessarily hinge on the success of the party’s claims.” Id. at 886
(citations omitted). “The controlling question is whether the entire estate benefitted from
the efforts of the party’s lawyer.” Id.

        In this case, it is apparent that the trial court found that both Ms. Jenkins’s and the
Vance children’s efforts benefitted the estate. It noted that Ms. Jenkins’s will
construction petition was necessary so that she could carry out her duties as executrix,
and although it noted that the Vance children had not prevailed, the trial court observed
that its holding provided a “clear benefit to the estate by judicial construction of the
effective distribution . . . under the residuary estate clause.”6 Thus, in the view of the trial
court, both sides had contributed to reaching a definitive resolution on the proper
construction of the will. In the previously-cited In re Estate of Greenamyre decision, this
Court affirmed a trial court’s decision to assess a beneficiary’s attorney’s fees against the
estate, despite the fact that the beneficiary’s substantive arguments related to the will
were not successful. We noted as follows:

       The trial court’s decision to require the estate to pay the fees of the four
       attorneys who participated in this case reflects its conclusions that the suit
       to construe Dr. Greenamyre’s will was appropriate, that the work of all the
       attorneys benefitted the estate, and therefore, that the estate should be
       required to pay all or a portion of the parties’ attorney’s fees.

       ****


6
  Although the amount of fees to be assessed against the estate was first outlined in the trial court’s
November 2, 2016 order, the trial court’s analysis regarding the parties’ right to receive reimbursement
from the estate was discussed in an order dated August 12, 2016.
                                                 -6-
       The controlling question is whether the entire estate benefitted from the
       efforts of the party’s lawyer. Dr. Stanger’s participation in the suit to
       construe Dr. Greenamyre’s will benefitted the estate even though she did
       not prevail. Her claims have now been definitively resolved, and her
       attorney aided materially in that resolution. Now that the questions
       regarding Dr. Greenamyre’s will have been laid to rest, Ms. Gibbons may
       distribute the assets and close the estate without further controversy or
       dispute.

Id. at 886.

        Here, we cannot conclude that it was an abuse of discretion to award attorney’s
fees in light of the trial court’s implicit finding that both sides benefited the estate by
contributing to a definitive resolution of interpretation. This remains so notwithstanding
our conclusion that the trial court’s ultimate construction of the will was flawed. Our
reversal of the trial court’s legal conclusion gives no occasion to disturb its
determinations regarding the contributions of the parties. Indeed, as we have noted, the
right to reimbursement from the estate does not always hinge on a party’s success. Id.
For these reasons, the trial court’s awards of attorney’s fees against the estate are
affirmed.

                                         Conclusion

       The trial court’s refusal to apply the anti-lapse statute was in error. The Vance
children are entitled to receive the Decedent’s residuary estate under the will. Despite
our reversal of the trial court on this issue, we affirm the trial court’s decision to assess a
portion of both sides’ attorney’s fees against the estate. Costs of this appeal are assessed
against the Appellees, Kimberly B. Jenkins, Amy Bingham, and Barry N. Blanton. This
case is remanded to the trial court for the collection of costs, enforcement of the
judgment, and for such further proceedings as may be necessary and are consistent with
this Opinion.


                                                   _________________________________
                                                   ARNOLD B. GOLDIN, JUDGE




                                             -7-
