             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                          FILED
                                                            August 2, 1999

BETTY NESMITH and                          )             Cecil Crowson, Jr.
CECIL NESMITH,                             )            Appellate Court Clerk
                                           )
      Plaintiffs/Appellees,                )
                                           )   Appeal No.
                                           )   01-A-01-9809-CH-00509
VS.                                        )
                                           )   Rutherford Chancery
                                           )   No. 96-CV-404
JOHN ALSUP, II and                         )
TERESA ALSUP,                              )
                                           )
      Defendants/Appellants.               )


   APPEALED FROM THE CHANCERY COURT OF RUTHERFORD COUNTY
                AT MURFREESBORO, TENNESSEE

          THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR




DARRELL L. SCARLETT
16 Public Square North
P. O. Box 884
Murfreesboro, Tennessee 37133-0884
       Attorney for Plaintiffs/Appellees

FREDERICK L. CONRAD, JR.
607 Market Street, Ninth Floor
P. O. Box 2466
Knoxville, Tennessee 37902
       Attorney for Defendants/Appellants




                           AFFIRMED AND REMANDED




                                               BEN H. CANTRELL,
                                               PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
COTTRELL, J.
                                 OPINION


              The plaintiff petitioned the court for a declaration that she was entitled

to a one-half interest in a farm that had been part of her father’s estate. Her brother

responded by claiming to be the sole owner under the provisions of their father’s will,

or in the alternative, under a theory of adverse possession. The trial court found that

the effect of the will was to divide the property equally between the siblings, and that

the brother failed to prove ownership by adverse possession. We affirm the trial court.



                                           I.



              John Alvis Alsup executed his Last Will and Testament on April 20,

1957. Item II of the will devised his 76 acre farm to his wife, Blanche Harrell Alsup,

as trustee for the maintenance, support and education of his minor son, John Alvis

Alsup II (hereinafter referred to as John Alsup). The trustee was given the right to sell

the farm, if necessary, to accomplish the purposes of the trust. Upon the completion

or termination of the son’s education, the residue of the trust was to be divided equally

between the testator’s wife, his son, and his adult daughter, Betty Mavity (now Betty

NeSmith).



              The testator died on May 3, 1957. John Alsup was ten or eleven years

old at the time. In 1968, he completed his education by graduating from Middle

Tennessee State University. As it turned out, his mother did not have to sell the farm

to finance his education. Mr. Alsup worked nights to pay his college expenses, and

attended classes during the day, and his mother supplemented his earnings by giving

him money from time to time.




                                          -2-
              While John Alsup was still attending MTSU, his mother retired from

teaching in the State of Tennessee, and moved to Dalton, Georgia, where her

daughter, Betty NeSmith was living. Thereafter, John Alsup took control of the farm.

He rented it out, collected the rents, and paid all the property taxes. He dealt with

local officials, and at one point he executed a warranty deed transferring 3/10 of an

acre to the City of Murfreesboro for an easement and right-of-way to change the

roadbed on Sulphur Springs Road. He also met with potential purchasers of the

property, including the school board, which was exploring the possibility of building a

high school on the land, and with a team of Texas developers who presented him with

a plan entitled “Alsup Farms -- a planned 76 acre Residential Sub-Division.”



              Blanche Harrell Alsup died on November 20, 1994, when she was over

90 years of age. Article IV of her will devised all her real property and all her personal

property (except for two bequests not relevant here) “to my two children, Betty Alsup

Mavity NeSmith and John A. Alsup II, in fee simple, share and share alike.”



              On March 27, 1996, Betty NeSmith filed a petition asking the court to

declare that upon the death of her mother, she had become the owner of an undivided

one-half interest in the farm property. She also asked the court to order that it be

partitioned in kind. John Alsup filed a response and counter-petition on June 4, 1996,

in which he contended that by virtue of his father’s will, the farm was his sole property.



              Ms. NeSmith subsequently filed a motion for partial summary judgment.

In his response, John Alsup asserted that even if the court upheld the plaintiff’s

interpretation of the will, his long stewardship of the land made him its owner by

adverse possession. The trial court granted the plaintiff’s motion for partial summary

judgment. The court found that Article II of the will of John Alvis Alsup had created

a tenancy in common between Blanche Harrell Alsup, Betty NeSmith and John Alsup,

and that John Alsup and Betty NeSmith now owned an undivided one-half interest in


                                          -3-
the property. John Alsup was permitted to develop proof on his claim of adverse

possession.



              Following another hearing, the court dismissed the claim of adverse

possession and ordered partition in kind of the real estate, with the appointment of a

jury of view to determine the division. After the jury of view divided the property into

two parcels, both parties requested possession of parcel #1. To resolve this problem,

the court ordered the Clerk and Master to conduct an auction by telephone between

the parties, with the highest bidder to pay the amount of his or her last bid to the other,

for the privilege of receiving the coveted parcel. The auction was conducted on July

13, 1998. Ms. NeSmith made the winning bid of $50,000 and title to parcel #1 was

vested in her. This appeal followed.



              Mr. Alsup asserts four arguments on appeal to support his position that

the trial court erred in partitioning the property. These arguments deal respectively

with the interpretation of the will, Mr. Alsup’s claim of adverse possession, and a claim

of title by prescription (which was not argued in the trial court). He also argues that

the Clerk and Master terminated the auction too soon, and that his rights were

prejudiced thereby. We will discuss each of these arguments in turn.



                                       II. The Will



              Article II of the Last Will and Testament of John Alvis Alsup reads in its

entirety:

                     I give and devise to my wife, Blanche Harrell Alsup, as
              trustee for my minor son, John Alvis Alsup II, my farm located
              in the 9th Civil District of Rutherford County, Tennessee,
              fronting on the Sulphur Springs Road about 3½ miles North
              west of Murfreesboro, Tennessee, and containing about 76
              acres. The terms and conditions of this trust are that this
              farm be held, managed, rented or sold by said Trustee or her
              successor, if any, for the maintenance, support and
              education of my said son, John Alvis Alsup II as herein
              provided. Said trustee is expressly authorized and directed

                                             -4-
              to hold or dispose of said farm according to her sole
              judgment and discretion with the view of accomplishing the
              purposes expressly herein; also, my trustee is authorized to
              reinvest the proceeds of sale from said farm if it should be
              sold, as she sees fit, subject to the provisions hereof as to the
              use of proceeds/ a limit or maximum of Fifteen thousand
              dollars is hereby fixed as the cost or expense of my said
              son’s maintenance support and education and this shall also
              include necessary living expenses of my wife. At such time
              as my said son’s education shall be completed, terminated by
              circumstances beyond my Trustees control, the residue of
              said trust fund shall be divided equally between my said son,
              my daughter Mrs. Betty Alsup Mavity (now of Hartford Conn.),
              and my wife, Blanche Harrell Alsup, if living; if not, then her
              share shall go to my said two children, share and share alike.




              John Alsup argues that since the first part of Article II placed the land in

trust for his benefit, he was therefore entitled to receive the corpus of the trust upon

its termination. He tries to explain away the provision for the division of the land after

the completion of his education by giving it a conditional meaning which we believe

is not supported by the text. He argues that the testator intended the residue of the

trust to be subject to division only if the land was sold prior to the completion of his

education.



              The cardinal rule to follow in construing a will is to ascertain and give

effect to the intention of the testator. Ashley v. Volz, 404 S.W.2d 239, 242 (Tenn.

1966); Martin v. Taylor, 521 S.W.2d 581, 584 (Tenn. 1975). To determine that

intention, the court will look to the instrument as a whole for guidance, gathering the

intention from the tenor and scope of the whole, and not from isolated parts.

Patterson v. Alexander, 509 S.W.2d 834, 835 (Tenn. 1974). Since every will is sui

generis, the use of other cases involving the intentions of testators will be of little

assistance. Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn. App. 1989).



              In the document before us, the testator clearly stated his intention that

his property be used for the maintenance, support and education of his minor son.

He set a definite limitation upon the duration of the trust created for that purpose,

                                          -5-
stating that it would end “At such time as my said son’s education shall be completed,

terminated by circumstances beyond my Trustees control,” and he gave clear

instructions for the division of the property after the termination of the trust.



              The appellant argues that every part of Article II which follows the

expression “if it should be sold” is modified by that expression, including the provision

for the division of the residue of the trust. We believe, however, that the quoted

expression refers only to the provisions found in the same sentence, which involve

reinvestment of the proceeds and the limitation on the amount that could be used for

John Alsup’s education. We acknowledge that the use of the term “the residue of said

trust funds” rather than “the residue of said trust” in the following sentence lends some

support to Mr. Alsup’s theory. However, the dominant and controlling intention of the

testator must govern, even if it is in conflict with some word, phrase, or expression

which might lead to a different conclusion. Davis v. Mitchell, 178 S.W.2d 889, 912

(Tenn. 1943).



              Mr. Alsup argues that his father had a sentimental attachment to the

land, and that he intended to pass the family farm on to his son. He claims that his

father knew that he was the only one likely to keep it intact as a working farm, rather

than selling it off for residential or other purposes. But we note that the will itself

contains no language supporting these assertions. The testator nowhere states that

he intended or hoped that his son would eventually become the sole owner of the

property, to the exclusion of his wife and his daughter, or that he in any way intended

to favor his son over his other heirs, once the son’s education was completed. In our

opinion, if the testator had intended such a result, he would not have expressed it as

obliquely as the defendant’s theory requires, but as clearly as he expressed his

intention to adequately fund his son’s education. We therefore find that the trial court

did not err in granting the plaintiff summary judgment on the will.




                                          -6-
                             III. Adverse Possession



             To prevail on a claim of adverse possession, the plaintiff must make out

his claim by clear and positive proof, with every presumption in favor of possession

in subordination to the title of the true owner. Harrison v. Beaty, 127 S.W.2d 946

(Tenn. 1939). A party intending to claim property by adverse possession must remain

in possession of the property for seven years under a claim of right. His possession

must also meet all the following requirements: it must be open, actual, continuous,

exclusive, adverse and notorious. Catlett v. Whaley, 731 S.W.2d 544, 546 (Tenn.

App. 1987). Also see 3 Am.Jur.2d Adverse Possession.



             The requirements that the possession be both exclusive and adverse

are particularly difficult to establish when a cotenancy is involved. Every cotenant

retains the right to enter into and occupy the common property, so the occupation of

the property by one cotenant is not generally regarded as adverse to the claim of

another. Nor is it generally considered to be exclusive, since possession by one is

regarded as possession by all, unless there is an actual ouster of one tenant by

another. Moore v. Cole, 289 S.W.2d 695 (Tenn. 1956).



             An ouster does not necessarily mean a physical expulsion of one party

by another, but it requires the party claiming adversely to perform some act that

makes it clear to his cotenant that she is being excluded from ownership. In the case

of Drewery v. Nelms, 132 Tenn. 254, 177 S.W. 946 (1915), our Supreme Court

explained the ouster requirement this way:

                     “This ouster by one tenant in common against his
             cotenant may occur, but it takes something more than an
             appropriation of the rents without an accounting. The mere
             silent, sole occupation by one of the entire property, though
             he be claiming the whole estate, and appropriating the whole
             rents, without an accounting to or claim by the others, without
             notice of his cotenant that his possession is adverse, and
             unaccompanied by some act which can amount to an
             exclusion and ouster of the cotenant, cannot be construed


                                          -7-
              into an adverse possession. This ouster and exclusion may
              be effected by taking possession and affording actual notice
              of a claim of sole ownership or other positive and unequivocal
              act that must by its nature put the other cotenants upon
              notice that they are excluded from the possession.”

132 Tenn. at 262, 177 S.W. at 948.



              This much is undisputed: that Mr. Alsup managed the property for well

over 20 years; that he did not live on the land (in fact he never lived on the land); that

he leased the farm out (one tenant, Thomas Becton, rented the land from him for 22

years); that he collected the rents and paid the taxes, without offering an accounting

to his mother or to his sister; that he negotiated with the City of Murfreesboro for an

easement to straighten a road; and that he represented himself as the sole owner

when he spoke to developers eager to buy the property.



              Some facts were in dispute, or were at least uncertain. For example,

Ms. NeSmith states that she asked her brother for an accounting several times (which

he denied). She testified on direct that he offered to buy her share of the land for

$100,000; he was not asked on rebuttal whether he had made such an offer. Mr.

Alsup testified that his sister asked him if she could attend the meeting with the

prospective developers of Alsup Farms; she testified that he invited her without being

asked. It is undisputed that she did not object to the fact that the documents

submitted by the developers all referred to him as the owner, and did not mention her.



              However, even if we resolved all the factual questions in such a way as

to be most favorable to Mr. Alsup’s theory, we still do not believe they would be

sufficient to establish an ouster under the standard enunciated in Nelms v. Drewery,

supra. Even though Mr. Becton, local officials, and prospective purchasers may all

have believed that Mr. Alsup was the sole owner of the property (and there is some

evidence to the contrary in regard to all three) there is no evidence that he ever




                                          -8-
performed the sort of unequivocal act to put his sister on sufficient notice that she was

being excluded, so that he could prevail on a theory of adverse possession.



                               IV. Title by Prescription



               As we mentioned above, the appellant did not raise the issue of title by

prescription at trial. The jurisdiction of the Court of Appeals is appellate only. Tenn.

Code Ann. § 16-4-108. Thus, we may not decide questions that were not brought up

in the court below. However, we believe that even if it were appropriate for us to

consider that issue, on the basis of the evidence in the record, we would have to find

that the appellant has failed to establish one of the necessary elements for

prescriptive title.



               These elements are (1) the prescriptive holder has been in exclusive

and uninterrupted possession of the land in question for more than 20 years, claiming

the same as his own without any accounting to his co-tenants or claim on their part

-- they being under no disability to assert their rights; and (2) the holder's occupancy

of the property in question was without the actual or implied permission of the other

co-tenants. See Livesay v. Keaton, 611 S.W.2d 581, 583 (Tenn. App. 1980).              If

either of these elements is not proven, the doctrine of title by prescription does not

apply.



                In the present case, Ms. NeSmith testified that she believed her brother

to be looking after the land on behalf of her mother, and that she was content to let

him do so. She herself was involved in looking after her mother’s other needs during

her declining years, and apparently regarded her brother’s efforts as part of a division

of labor naturally arising from practical necessity. Under these circumstances, it

would be hard not to conclude that Mr. Alsup had at least the implied permission of

both his sister and his mother to occupy the land in the manner in which he did.


                                          -9-
                                    V. The Auction



              The appellant argues that there was error in the handling of the

telephone auction, but does not state in what respect the Clerk and Master erred.

Summaries of the auction are set out in the Clerk and Master’s report, and in the

appellant’s objection to that report, which differ only in regard to their accounts of the

degree of assent Mr. Alsup’s attorney gave to the change in the ground rules and to

the closing of the auction.



              The original ground rules allowed each party thirty minutes to respond

to the opposing party’s bid. Ms. NeSmith’s attorney opened with a bid for $5,000 at

9:55 a.m. When Mr. Alsup’s attorney took twenty-seven minutes to increase the bid

to $5,100, Ms. NeSmith’s attorney took exception, and asked for a change in the

rules. After speaking to the Chancellor, the Clerk and Master limited the parties to ten

minutes for subsequent bids. The auction continued for the rest of the morning and

afternoon under the new rules, and was ended after 3:00 p.m. when Mr. Alsup’s

attorney called, and was told that the bidding was closed because he had exceeded

the ten minute time limit to respond to Ms. NeSmith’s bid of $50,000. Mr. Alsup’s

attorney does not deny that the limit was exceeded, but claims that he had trouble

getting through on the phone.



              The Chancellor ordered the plaintiff to deposit the sum of $50,000 with

the Court, so he apparently concurred with the Clerk and Master’s handling of the

auction, and with the result, notwithstanding the appellant’s objection.             The

concurrence of a trial court with the findings of its Clerk and Master was once thought

to be conclusive on appeal. Maddox v. Webb Construction, 562 S.W.2d 198 (Tenn.

1978). While the presumption of correctness is perhaps no longer quite so strong, we

believe such a concurrence should be affirmed so long as the trial court has not




                                          - 10 -
abused its discretion. We do not believe that such an abuse of discretion has

occurred in this case, and we therefore affirm the trial court.



              As a final issue, the appellee argues that she is entitled to damages for

frivolous appeal. Though we have found against the appellant on all issues, we do

not regard his appeal as frivolous, and we decline to award additional damages.



                                          VI.



              The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Rutherford County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.



                                          _________________________________
                                          BEN H. CANTRELL,
                                          PRESIDING JUDGE, M.S.


CONCUR:


_____________________________
WILLIAM C. KOCH, JR., JUDGE


_____________________________
PATRICIA J. COTTRELL, JUDGE




                                         - 11 -
             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE



BETTY NESMITH and                          )
CECIL NESMITH,                             )
                                           )
       Plaintiffs/Appellees,               )
                                           )      Appeal No.
                                           )      01-A-01-9809-CH-00509
VS.                                        )
                                           )      Rutherford Chancery
                                           )      No. 96-CV-404
JOHN ALSUP, II and                         )
TERESA ALSUP,                              )
                                           )      Affirmed and
       Defendants/Appellants.              )      Remanded


                                 JUDGMENT


              This cause came on to be heard upon the record on appeal from the

Chancery Court of Rutherford County, briefs and argument of counsel; upon

consideration whereof, this Court is of the opinion that in the decree of the Chancellor

there is no reversible error.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree is affirmed.           The cause is

remanded to the Chancery Court of Rutherford County for the enforcement of the

decree and for the collection of the costs accrued below.

              Costs of this appeal are taxed against John Alsup, II and wife, Teresa

Alsup,, Principals, and Ambrose, Wilson, Grimm & Durand, Surety, for which

execution may issue if necessary.



                                    _____________________________________
                                    BEN H. CANTRELL, PRESIDING JUDGE, M.S.


                                    _____________________________________
                                    WILLIAM C. KOCH, JR., JUDGE


                                    _____________________________________
                                    PATRICIA J. COTTRELL, JUDGE
