IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON

IN THE MATTER OF:                            )
THE LAST WILL AND TESTAMENT                  )
OF GLADYS G. TIPLER, Deceased                )
                                             )
MARSH E. TIPLER, Cameron Park,               )      Shelby Probate No. B-2498-1
California; LOUISE STEVENS, Forest Park,     )
Georgia; SAMMIE TIPLER, Rossville,           )
Tennessee, the issue of George Tipler; TWILA )
WILSON, Byhalia, Mississippi, the issue of   )
George Tipler; JOANN RUDNICK, McKinney, )
Texas; DEAN TIPLER, Pinole, California;      )
GLADYS COLIN, Thousand Oakes,                )
California; BOBBYE LABARREARE,               )
Collierville, Tennessee, Guardian of
CHRISTOPHER LABARREARE, a Minor, and )
the issue of Edwin LaBarreare; DIANE
                                             )

                                             )
                                                     FILED
LABARREARE DINGUS, Collierville,             )       December 17, 1998
Tennessee, the Issue of Edwin LaBarreare;    )
MICHAEL LABARREARE, Memphis,                 )       Cecil Crowson, Jr.
Tennessee, the Issue of Edwin LaBarreare;    )       Appellate C ourt Clerk
SUZANNE LABARREARE CRAWFORD, Bay, )
Arkansas, the issue of Edwin LaBarreare, )
                                             )
               Plaintiffs/Appellees,         )
                                             )
vs.                                          )
                                             )
GLORIA G. VAN MOOREGHEM, Long                )      Appeal No. 02A01-9707-PB-00173
Beach, California; CHARLES G. GAIA,          )
Lakewood, California; PATRICIA G.            )
GUSTAFSON, Lakewood, California; LOUISE )
G. ENSIGN, Long Beach, California; JANET )
TUFF SCOTT, Everett, Washington; JAMES )
EDWARD SCOTT, JR., Vista, California;        )
ROGER SCOTT, Tustin, California,             )
                                             )
               Defendants/Appellants.        )

       APPEAL FROM THE PROBATE COURT OF SHELBY COUNTY
                         AT MEMPHIS, TENNESSEE

       THE HONORABLE LEONARD D. PIEROTTI, JUDGE


For the Plaintiffs/Appellees:        For the Defendants/Appellants:
Charles G. Black                     Ernest G. Kelly, Jr.
Memphis, Tennessee              Memphis, Tennessee

                                      AFFIRMED

                                      HOLLY KIRBY LILLARD, JUDGE

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

ALAN E. HIGHERS, J.
                                             OPINION

       This is a will contest. The decedent executed a will, and later executed a holographic codicil

to the will. The holograph directed that, if her husband predeceased her, her property should be

distributed in accordance with his will. The decedent’s husband predeceased her. Enforcement of

the holographic codicil was challenged in court by the decedent’s heirs. The trial court applied the

doctrine of facts of independent significance and ordered the decedent’s assets be distributed in

accordance with her deceased husband’s will. We affirm.

       Mrs. Gladys S. Tipler (“Testatrix”) executed a formal will on April 2, 1982. This will left

the bulk of her estate to her husband, James Tipler (“Husband”), upon the contingency that he

survive her. The will did not address the distribution of the estate in the event that Husband

predeceased Testatrix. Two days later, Testatrix executed a holographic codicil to the formal will.

The codicil reads as follows:

       Should my husband predecesse [sic] me I hereby declair [sic] that his last Will and
       testament upon his death is our agreement here to four [sic] made between us in
       Section III of my Will. With the exception Mr. Tipler or myself can elect to make
       any changes as we desire depending upon which one predeceasest [sic] the other. If
       no changes are made by either of us this will be our last will and testament.

Thus, the codicil indicated that if Husband predeceased Testatrix, his last will and testament would

control the disposition of her estate. At the time the codicil was executed, Husband had not yet

executed a will. Husband died in 1990. His will, executed six months prior to his death, created a

trust for Testatrix, and directed that upon her death the property be distributed to his relatives.

Testatrix died in 1994.

       The beneficiaries under Husband’s will sought enforcement of Testatrix’s codicil in Shelby

County Probate Court. This action was challenged by Testatrix’ heirs, who would otherwise take

under the Tennessee intestacy statute. The Testratix’ heirs asserted that the holographic codicil

should not be enforced because it referred to a document not yet in existence, i.e. Husband’s will.

They argued that Tennessee law requires that for a holographic will to be enforceable, “all its

material provisions must be in the handwriting of the testator. . . .” Tenn. Code Ann. § 32-1-105

(1984). Since Testatrix’ holograph referred to Husband’s will, Testatrix’ heirs maintained that

material provisions were not in Testatrix’ handwriting.

       At the trial, the beneficiaries under Husband’s will introduced evidence regarding Testatrix’

intent. The testimony indicated that Testatrix was not close to her family. One witness stated that

Testatrix described her sisters as “greedy,” indicating that “if anything happened to her [Testatrix],”
her sisters would be like “a bunch of vultures” or “a bunch of barracudas. . . .” Evidence indicated

that Testatrix “thought of Mr. Tipler’s family as her family.” Witnesses testified that Testatrix loved

her husband dearly and frequently said, “whatever Tippy [Husband] wants is what I want.”

       After the bench trial, the trial court issued a Memorandum Opinion. The trial court found

that the issue of incorporation by reference was not applicable because Husband’s will was not in

existence at the time Testatrix’ codicil was written. The trial court then stated:

               The relevant inquiry is whether the doctrine of facts of independent
       significance applies in the case at bar. Tennessee recognizes the doctrine of
       independent significance. Smith v. Weitzel, 338 S.W.2d 628, 637 (Tenn. 1960) (“As
       to the proposition of independent significance. . . we call attention to Sec. 54.2 of
       Scott on Trusts).

               Scott on Trusts, 4th Edition, Section 54.2, page 9, states:

               Section 54.2: Where disposition is determined by facts of
               independent significance. There is another doctrine of the law of
               wills that is sometimes confused with the doctrine of incorporation by
               reference. Even though a disposition cannot be fully ascertained from
               the terms of the will, it is not invalid if it can be ascertained from the
               facts that have a significance apart from their effect upon the
               disposition in the will. Indeed, it is frequently necessary to resort to
               extrinsic evidence to identify the persons who are to take or the
               subject matter of the disposition.

       Therefore, under the doctrine of independent significance, a court may refer to
       extrinsic evidence to identify the persons who are to take under the will. In the case
       at bar, Mrs. Tipler left her residuary estate in Section III to her husband. However,
       in her holographic codicil, she stated, in her handwriting, that if her husband
       predeceased her, her residuary estate would pass according to their agreement as
       indicated in his will.

                                                ***

        A testator may [have] intended for his property to go the same persons who are
        named in another person’s will, and the gift of the testator’s property by his will can
        be upheld on the ground of independent significance. This doctrine of independent
        significance is an escape mechanism from the strict requirements of incorporation by
        reference. 2 Bowe-Parker: Page on Wills, Section 19.34, page 119.

                                                 ***

                In the case bar, Mrs. Tipler left her residuary estate to Mr. Tipler in her Last
        Will and Testament, on April 2, 1982. Like the Klein case, she modified that
        provision in her holographic codicil two days later in order to give Mr. Tipler the
        privilege of naming the persons who would take his part of her estate should he die
        first. The doctrine of independent significance is satisfied because Mr. Tipler’s will
        had an independent significance of distributing his estate and was not written with
        the intention of distributing Mrs. Tipler’s estate.




                                                   2
After noting that the testator’s intent controls in construing a will, the trial court then considered the

witnesses’ testimony to determine Testatrix’ intent. The trial court noted that testimony indicating

that Testatrix “did not like her family.” It found:

                This Court finds that the testimony of Ms. Meredith and Mr. May reveals the
        conditions, situations and surroundings of Mrs. Tipler when she used the term
        “agreement” in her holographic codicil. This Court further finds that although
        neither Ms. Meredith nor Mr. May testified as to an exact “agreement” between Mrs.
        Tipler and Mr. Tipler regarding their estates, the facts and circumstances reveal that
        Mrs. Tipler considered Mr. Tipler’s family her own and that she did not want her
        relatives to receive any portion of her estate.

The trial court then ordered that Testatrix’ residuary estate be distributed in accordance with

Husband’s will, concluding as follows:

                The Court finds and holds that Mrs. Tipler’s codicil contained all of the
        material provisions necessary to determine how her residuary estate would be
        distributed. Her estate is to be distributed according to an agreement which she
        identifies in her own handwriting. The identity of the beneficiaries agreed upon can
        be determined from the facts of independent significance contained in Mr. Tipler’s
        Will as well as from the testimony of Ms. Meredith and Mr. May. The Court further
        rules that Mrs. Tipler intended to dispose of her residuary estate to her husband; if
        her husband predeceased her, she intended to dispose of her estate to Mr. Tipler’s
        relatives in the manner in which Mr. Tipler distributed his estate in his will.
        Therefore, this Court further finds and so holds that Mrs. Tipler’s handwritten
        document dated on April 4, 1982 was a valid holographic codicil. This Court further
        finds and holds that the identity of the beneficiaries and the percentage of their shares
        under Mrs. Tipler’s estate are found in Article V of Mr. Tipler’s Last Will and
        Testament. This Court finds and holds hat this extrinsic evidence found in Mr.
        Tipler’s Will is incorporated into Mrs. Tipler’s will under the Tennessee recognized
        doctrine of independent significance.

Testatrix’ heirs, who would receive Testatrix’ residuary estate if the codicil were invalid, now appeal

the decision of the trial court.

        On appeal, the Appellants note that Tennessee Code Annotated § 32-1-105 requires that, for

a holographic will to be valid, “the signature and all its material provisions must be in the

handwriting of the testator. . . .” Tenn. Code Ann. § 32-1-105 (1984). The appellants argue that the

holograph in this case, which refers ambiguously to an “agreement” between Testatrix and her

husband, does not have “all its material provisions” in Testatrix’ handwriting since it attempts to

incorporate Husband’s will. They contend that the holographic codicil would not be valid if it

incorporated by reference a document already in existence, and argue that it would be error then to

conclude that the holographic codicil could validly incorporate a document not yet in existence when

the codicil was executed.




                                                    3
       The issue presented in this appeal is a question of law; therefore, the scope of review is de

novo with no presumption of correctness. See Tenn. R. App. P. 13(d); Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

       A number of cases from other jurisdictions involve facts somewhat similar to this case. See

Baxley v. Birmingham Trust Nat’l Bank, 334 So. 2d 848 (Ala. 1976); Rogers v. Walton, 39 A.2d

409 (Me. 1943); Leary v. Liberty Trust Co., 171 N.E. 828 (Mass. 1930); In re Piffard’s Estate, 18

N.E. 718 (N.Y. 1888). In Piffard’s Estate, a father’s will contained an absolute devise and bequest

to his daughter. In a later codicil, the testator provided that should the daughter predecease him, the

devise and bequest from his estate should be distributed according to the terms of her will. The

daughter predeceased the father. The daughter’s will was not written at the time of the codicil;

therefore, there was no incorporation by reference. The court found that the doctrine of facts of

independent significance applied and distributed the assets of the testator’s estate according to the

terms of the daughter’s will. The court of appeals stated that the testator’s will refers to the

daughter’s will, “not as transferring the property by an appointment, but to define and make certain

the persons to whom, and the proportions in which, the one-fifth should pass by the father’s will in

case of the death of the daughter in his lifetime.” In re Piffard’s Estate, 18 N.E 718, 719.

       In an Alabama case, the testator executed a codicil to her will that provided that in the event

her son predeceased her, a portion of her residuary estate would be distributed according to the terms

of her son’s will. First Nat’l Bank v. Klein, 234 So. 2d 42, 44 (Tenn. 1970). The appellate court

found that the devise “should be given effect under the doctrine of ‘facts of independent

significance,’ a doctrine recognized when the facts may not justify the application of the doctrine

of ‘incorporation by reference.’” Id. at 45-46. The court stated that the doctrine of facts of

independent significance was created to provide an “escape mechanism”device in order to give effect

to the intention of the testator, while preserving the integrity of the statute of wills. Id.

       However, in these cases, the court did not indicate that the codicils at issue were holographs.

Consequently, the facts are distinguishable from this case. In this case, we have a holographic

codicil which seeks to incorporate the distribution plan of another will, not in the handwriting of the

testator. Tennessee law provides that, to be valid, all the material provisions of a holographic will

must be in the handwriting of the testator. Tenn. Code Ann. § 32-1-105 (1984). Therefore, we must

determine whether the holographic codicil in this case contains all material provisions in Testatrix’


                                                   4
handwriting. Only then will the doctrine of facts of independent significance apply.

         The codicil in this case must be considered in light of two important common law principles

regarding will construction: the presumption against intestacy and the weight given to the testator’s

intent. The common law presumption against partial intestacy was codified in Tennessee Code

Annotated § 32-3-101 (1984).1 This presumption “is applicable when the words used, by any fair

interpretation, will embrace the property not otherwise devised, unless a contrary intention appears

from the context.” McDonald v. Ledford, 140 Tenn. 471, 475, 205 S.W. 312, 313 (1917) (citing

Oldam v. York, 99 Tenn. 68, 41 S.W. 333 (1897) (emphasis added). This rule operates to prevent

testamentary gifts from lapsing or failing through the incomplete drafting of the will.

         The intent of the testator is the most important factor in will construction cases. The court

must give effect to that intent unless it contravenes some rule of law or public policy. Third Nat'l

Bank v. First American Nat'l Bank, 596 S.W.2d 824, 828 (Tenn. 1980). “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.” Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn. App.

1989) (citing Moore v. Neely, 212 Tenn. 496, 502-03, 370 S.W.2d 537, 540 (1963); Fisher v.

Malmo, 650 S.W.2d 43 (Tenn. App. 1983)). Other than a small bequest to a niece, Testatrix did

not provide for her family members in her will. Testimony at trial established that Testatrix was not

on good terms with her family members and felt that her husband’s family was her family. Under

these circumstances, the evidence does not preponderate against the trial court’s finding that

Testatrix intended that her estate be distributed to her Husband’s family through his will and

according to his wishes. The evidence of Testatrix’s intent was properly considered by the trial

court.




         1
             Tennessee Code Annotated § 32-3-101 provides as follows:

         A will shall be construed, in reference to the real and personal estate comprised in it,
         to speak and take effect as if it had been executed immediately before the death of
         the testator, and shall convey all the real estate belonging to him, or in which he had
         any interest at his decease, unless a contrary intention appear by its words in context.

                                                    5
        In determining whether this codicil contained “all material provisions” in Testatrix’

handwriting, we must note that the identity of the beneficiaries is obviously an important item in a

will. In this case, the witnesses’ testimony in this case does not indicate that Testatrix wanted her

estate to be distributed to particular members of Husband’s family. Rather, it indicates that Testatrix

wanted her estate to be distributed to whomever Husband wished. Under these circumstances, a

holograph which bequeaths her estate to persons named as beneficiaries under Husband’s will would

contain all material provisions in Testatrix’ handwriting, and therefore would be valid, even though

the specific identity of the beneficiaries is contained in another document not in Testatrix’

handwriting.

        In sum, then, the doctrine of facts of independent significance is applicable in this case to

permit Testatrix’ codicil to refer to Husband’s will, provided the document is a valid holographic

codicil. To determine whether the holograph contains all material provisions in Testatrix’

handwriting, the trial court properly considered Testatrix’ intent. Evidence preponderates in favor

of the trial court’s finding that Testatrix was estranged from her family and wanted her estate to go

to Husband’s family. Since Testatrix wanted her estate to go to whomever Husband wished, the

codicil contained all material provisions in Testatrix’ handwriting, even though it stated only that

her estate should go to the beneficiaries under Husband’s will and did not specifically name

beneficiaries. Therefore, the trial court did not err in distributing Testatrix’ estate to the beneficiaries

under Husband’s will.

        For the above reasons, we affirm the decision of the trial court. Costs of appeal are assessed

against the Appellants, for which execution shall issue, if necessary.




                                         HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




                                                     6
