                        IN THE SUPREME COURT OF TENNESSEE
                                   AT KNOXVILLE
                                              May 3, 2005 Session

                IN RE ESTATE OF MERLE JEFFERS MCFARLAND

                 Appeal by permission from the Court of Appeals, Eastern Section
                              Chancery Court for Hawkins County
                      No. 3554    Hon. Thomas R. Frierson, II, Chancellor



                             No. E2003-01833-SC-R9-CV - Filed July 7, 2005




FRANK F. DROWOTA , III, C.J., dissenting.

       I respectfully dissent. The question in this case is whether, when a will includes a residuary
clause with two or more beneficiaries, a lapsed residuary gift is to be distributed among surviving
residuary beneficiaries or among the testator’s intestate heirs. The majority reaffirms Ford v. Ford,
31 Tenn. 431, 435 (1852), which holds that a lapsed residuary gift passes via intestate succession.
I would overrule Ford and hold that where the residue of a will is devised to two or more persons
and the share of one fails, that share passes to the other residuary devisees in proportion to their
residuary interests. See Unif. Probate Code § 2-606(b), 8 U.L.A. 427 (1998); see also Restatement
(Third) of Property: Wills & Other Donative Transfers § 5.5 cmt. o (1999).1 Consequently, in this
case I would distribute the lapsed residuary gifts proportionally among the surviving residuary
beneficiaries of the McFarland will rather than via the laws of intestate succession.

        I would adopt the modern “remain in the residue” rule for the following reasons. First, I
think that the modern rule would better approximate the average testator’s likely intent. See Corbett
v. Skaggs, 207 P. 819, 821 (Kan. 1922); In re Frolich Estate, 295 A.2d 448, 451–52 (N.H. 1972);
In re Gray’s Estate, 23 A. 205, 206 (Pa. 1892). To be sure, both the English “no residue of a residue”
rule and the modern rule involve a certain degree of arbitrariness because each rule is designed to
control distribution where a testator has failed to provide express direction. Yet in my view, given
the lack of express direction, it is reasonable to presume that by choosing to make a will which
includes a residuary clause, a testator would prefer lapsed residuary gifts to go to the remaining


         1
            As stated by the majority in footnote 5, the modern “remain in the residue rule” has been adopted, mostly by
statute, in an overwhelming majority of jurisdictions. At least four jurisdictions have adopted the modern rule via judicial
decision. See, e.g., Corbett v. Skaggs, 207 P. 819, 822 (Kan. 1922); In re Frolich Estate, 295 A.2d 448, 452 (N.H.
1972); Commerce Nat’l Bank of Toledo v. Browning, 107 N.E.2d 120, 126 (Ohio 1952); In re Slack Trust, 220 A.2d
472, 474 (Vt. 1966).
named residuary beneficiaries rather than to intestate heirs. As for this case, I think that slightly
enlarging the shares of named residuary beneficiaries would more likely match the testatrix’s intent
than would distributing the lapsed shares to persons whom she potentially did not even include in
her will.

         After all, the very purpose of a residuary clause is to function as a dragnet for devising parts
of a testator’s estate not otherwise disposed of. See Oliver v. Wells, 173 N.E. 676, 678 (N.Y. 1930)
(describing a residuary clause as manifesting the intent that “the gift shall be a dragnet that will cover
every interest not effectively disposed of otherwise”). In light of this purpose, in the absence of
express direction, it is entirely sensible to gather up lapsed residuary gifts and fold them back into
the shares of surviving residuary beneficiaries. See Corbett, 207 P. at 822 (“The reasons for allowing
lapsed specific legacies to fall into the residue apply with equal force in favor of allowing all the
residue to go to the surviving residuary legatees in case of the death of one of them, instead of
turning over a part of it to persons for whom other provision had been made, or who had not been
referred to in the will at all.”).

        Second, by devising lapsed residuary gifts, the modern rule would thus closely comport with
the established presumption against partial intestacy, which is itself aimed at reinforcing
testamentary intent. See Corbett, 207 P. at 822; see also In re Frolich Estate, 295 A.2d at 452; In re
Slack Trust, 220 A.2d 472, 472–74 (Vt. 1966). It is well settled in Tennessee that in construing
wills, courts are to strive to ascertain and to effectuate the testator’s intent, unless prohibited by law
or public policy. In re Estate of Vincent, 98 S.W.3d 146, 150 (Tenn. 2003); Williamson v.
Brownlow, 410 S.W.2d 878, 880 (Tenn. 1967). And as we explained in Williamson,

        [i]t is equally fixed in the jurisprudence of this State that it will be presumed that one
        who undertakes to make a will does not intend to die intestate as to any of his
        property; and, if possible, courts will construe a will so that it disposes of all the
        testator’s property if such can be done by any fair interpretation or allowable
        implications from the words used.

410 S.W.2d at 880–81; see also In re Walker, 849 S.W.2d 766, 768 (Tenn. 1993). A residuary clause
only “strengthens the presumption that the testator intended his entire estate to pass by his will.” In
re Frolich Estate, 295 A.2d at 452. Moreover, in my view such a presumption is especially
applicable to unskillfully drafted wills, such as the holograph in this case, which are to be liberally
construed, see Garner v. Becton, 212 S.W.2d 890, 891 (Tenn. 1948).

        Third, I do not think that overturning Ford by adopting the modern rule would violate the
principles of stare decisis. The recognition of the “no residue of a residue” rule in Ford, an 1852
decision, had never been reaffirmed by this Court. Further, only a single reported Tennessee Court
of Appeals decision has applied this holding of Ford. See Davis v. Anthony, 384 S.W.2d 60, 63
(Tenn. Ct. App. 1964). I firmly agree with the majority that “[i]t is our duty to observe the doctrine
of stare decisis as one of commanding importance giving as it does firmness and stability to
principles of law evidenced by judicial decisions.” Metro. Gov’t of Nashville & Davidson County


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v. Poe, 383 S.W.2d 265, 277 (Tenn. 1964). At the same time, however, the Court “should not close
its doors to the changing conditions, but should so fashion its opinions that the new truly grows out
of the old as the product of a changing environment.” Id.

        In conclusion, just as we have appropriately modernized other English common law doctrines
in the area of wills and estates, I think it appropriate now to update our rule concerning the
distribution of lapsed residuary gifts. According to In re Gray’s Estate, the “no residue of a residue”
rule reflects a “concession to the set policy of English law . . . to keep the devolution of property in
the regular channels, to the heirs and the next of kin, whenever it can be done.” 23 A. at 206. I
would adopt the “remain in the residue” rule as more consonant with our modern conceptions of
testamentary intent.

       I am authorized to state that Justice Holder joins with me in this dissenting opinion.




                                               ______________________________________
                                               FRANK F. DROWOTA, III, CHIEF JUSTICE




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