                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                        ASSIGNED ON BRIEFS December 9, 2008

     IN RE: ESTATE OF ELSIE STINCHFIELD BROWNLEE, ET AL. v.
                JACQUE BROWNLEE HUGHES, ET AL.

                 Direct Appeal from the Chancery Court for Sumner County
                         No. 2006P-181 Tom E. Gray, Chancellor



                    No. M2008-00686-COA-R3-CV - Filed January 21, 2009


This case involves the construction of a holographic will. Decedent died in 2006, and was survived
by her four children. Her will states that one of her sons is to “have” the “home place.” Two of the
other siblings, the Appellees, contest the trial court’s determination that the Decedent’s will transfers
fee simple title in the Decedent’s real property owned at the time of her death to her son. Finding
no error, we affirm.


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

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and DAVID R. FARMER , J., joined.

Betty Lou Taylor, Hartsville, TN, for Appellant

Sue Hynds Dunning, Gallatin, TN, for Appellee
Bruce N. Oldham, Gallatin, TN, for Appellee

                                              OPINION

Elsie Brownlee died on May 30, 2006, at the age of seventy-nine. She is survived by her four
children, Appellees James Brownlee and John P. Brownlee, Jr., and Appellants Judy Brownlee
White and Jacque Brownlee Hughes.

       On or about October 9, 1984, Ms. Brownlee signed a holographic will, which reads, in
relevant part as follows:

                My son, James E. Brownlee have the home place if he so desires. It
                can be appraised and the value of it determined. This can be deducted
               from his share of money or it can be sold if he doesn’t want to keep
               it and the money put in the estate to be divided equally.

       On or about October 7, 1991, Ms. Brownlee prepared a holographic codicil to her will. The
only mention of the home is the statement that, “[m]y personal property is all paid free and clear
except a small loan against the house at Farmers Bank.” On or about June 4, 2003, Ms. Brownlee
prepared a second holographic codicil, which reads, in pertinent part, as follows:

               Codicil to my will dated Oct. 9, 1984 and Oct. 7, 1991. Teresa Marie
               Brownlee [James Brownlee’s daughter] is to get all the furnishings,
               furniture in my house. Includes dishes, cookware and whatsoever she
               wants. She also gets the piano and organ.

        James Brownlee testified that, in 1980, Ms. Brownlee lived in a house on Old Fountain Head
Road in Portland, Tennessee. That house burned in 1981, and was subsequently rebuilt. At the time
she wrote the holographic will in 1984, Ms. Brownlee lived alone in the re-built house in Portland.
In early 1993, Ms. Brownlee sold the Old Fountain Head Road house, and purchased a new home
at 142 Phosphate Lane, in Gallatin, Tennessee. The Gallatin home was located next door to James
Brownlee. The testimony reveals that James Brownlee helped his mother with general maintenance
and yard work while she lived in Gallatin. Ms. Brownlee was able to live a relatively independent
life until March 2002, when she fell and broke her hip. After her fall, she moved in with her son,
James, and James’ daughter, Teresa Smith, moved into Ms. Brownlee’s house.

        After moving in with her son, Ms. Brownlee continued to pay her own bills, and conducted
most of her own affairs. James Brownlee testified that the only conversation he had with Ms.
Brownlee concerning her will was in 1991. On that occasion, James Brownlee was delivering some
clothes to his mother’s house and found her making changes to her will. Although he did not see
the actual document, Mr. Brownlee testified that his mother put the will in an envelope, showed him
where she was putting it, and told him that he was to get the house.

        Ms. Brownlee died on May 30, 2006. On June 13, 2006, Appellant Judy White filed a
petition for letters of administration in the Probate Court of Sumner County. Appellee James
Brownlee filed a response in opposition to the petition, alleging that Ms. Brownlee had executed a
holographic will and codicils, and requesting that those documents be admitted to probate. By Order
of July 11, 2006, the trial court found that Ms. Brownlee’s holographic will dated October 9, 1984,
the holographic codicil dated October 7, 1991, and a second holographic codicil dated June 4, 2003
should be admitted to probate.

        On September 21, 2006, James Brownlee and John Brownlee, Jr. filed a petition to construe
the will. The brothers specifically requested that the court determine whether the statement in the
will referencing the “home place” applied to the home in Gallatin that Ms. Brownlee owned at the
time of her death. The matter was heard on February 27, 2008. On March 7, 2008, the trial court



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entered its order finding, in relevant part, that Ms. Brownlee made a devise of the real property in
Gallatin to James Brownlee, if he accepted the devise.

       The Appellants raise two issues for review as stated in their brief:
             1. Was the trial court correct in ruling that it was the intent of the
             Testatrix to make a devise of her house to the Appellee, James E.
             Brownlee in fee simple and leave nothing to her remaining three
             children?

               2. Does the Testatrix’s will make a bequest of her house?

        The construction of a will is a question of law for the court; therefore, we review the trial
court's conclusions of law de novo upon the record with no presumption of correctness. In re Estate
of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App.2005). We also review the trial court’s findings of
fact de novo upon the record, but with a presumption of correctness. Tenn. R. App. P. 13(d). In
cases involving the construction of wills, the cardinal rule “is that the court shall seek to discover
the intention of the testator, and will give effect to [that intent] unless it contravenes some rule of
law or public policy.” Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn.1992) (quoting Bell v.
Shannon, 367 S.W.2d 761, 766 (Tenn.1963)); see also In re Crowell, 154 S.W.3d 556, 559 (Tenn.
Ct. App. 2004). In determining the intent of the maker, we rely first on the language of the
instrument:

               [T]he testator's intention must be ascertained from “that which he has
               written” in the will, and not from what he “may be supposed to have
               intended to do,” and extrinsic evidence of the condition, situation and
               surroundings of the testator himself may be considered only as aids
               in the interpretation of the language used by the testator, and “the
               testator's intention must ultimately be determined from the language
               of the instrument weighed in the light of the testator's surroundings,
               and no proof, however conclusive in its nature, can be admitted with
               a view of setting up an intention not justified by the language of the
               writing itself.

In re Cromwell, 154 S.W.3d at 559 (quoting Nichols v. Todd, 101 S.W.2d 486, 490 (Tenn. Ct.
App.1936)). Our Supreme Court has stated that, when ascertaining the testator's intent by construing
the language used in a will, we must consider the will as a whole. In re Estate of Vincent, 98
S.W.3d 146, 150 (Tenn. 2003). Moreover, Tenn. Code Ann. §32-3-101 provides:

               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 the testator, or in which the testator had any



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               interest at the testator's decease, unless a contrary intention appear by
               its words in context.

The enactment of this statute changed the common law rule that a will spoke as of the time of its
execution, and that property acquired by the testator after the execution of the will could not pass
thereby. See, e.g., Nichols v. Todd, 101 S.W.2d at 489.

        In their primary argument, Judy White and Jacque Hughes contend that Ms. Brownlee’s use
of the words “home place” in her October 9, 1984 will, was intended to refer only to the home in
Portland, Tennessee, where Ms. Brownlee raised her family. From our review, the record does not
support this conclusion. As used in devises of real property, the term “home” or “home place”
usually includes both a house and all land and appurtenances thereto:

                       The word "home" in a devise may have a broader significance
               than "house," since it includes not only the dwelling house, but the
               entire permanent residence estate, including all appurtenances
               customarily enjoyed by the testator during his or her lifetime, which
               tend to make the home a convenient and agreeable place of abode or
               domicil. The use of the word "home" in a will refers to a domicil or
               place where one intends to remain, as opposed to a summer house or
               other less permanent residence.

                       Contiguous or adjoining parcels of land owned by a testator
               may pass under a devise of a "home," where it appears from various
               circumstances that the several parcels were treated or regarded by the
               testator as a unit. Moreover, the fact that different parcels of land
               owned by a testator are not contiguous will not of itself prevent the
               passing of all of them under a single devise of a "home" or "home
               place" where each was used together and regarded by the testator only
               as a part of an entirety.

                       The word "home," or some close analogue, as used in a
               devise, is comprehensive enough to include a garage or other
               buildings on the premises used by the testator in connection with the
               occupancy of the dwelling house. Circumstances tending to show the
               intention of the testator in using such language may indicate that the
               devise of a "home," or "home place" includes farmland as well as a
               dwelling house located on such farm.

                       Whether a residence acquired by the testator after the
               execution of his will passes under a devise of "my home," or a close
               analogue, depends upon the proper construction of the will in the
               light of all its provisions, as well as the circumstances surrounding


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               the testator at and after execution of the will and any other factor
               which will aid in a determination of the testator's intention.

80 Am. Jur. 2d Wills § 1102 (2007) (footnotes omitted).

        The record indicates that, at the time Ms. Brownlee made her will in 1984, the original “home
place”–that is, the house where Ms. Brownlee raised her children–no longer existed because it had
burned in 1981. In 1984, Ms. Brownlee was living in the house that had been re-built on the original
land. It is clear, therefore, that Ms. Brownlee did not intend to pass only that house where her
children were raised as Appellants suggest. Under the circumstances, it appears that Ms. Brownlee’s
use of the term “home place” was meant to convey something more than just a house. As set out in
the American Jurisprudence section above, the term “home place” often denotes a larger devise,
including not only a dwelling place, but also additional lands, and appurtenances. That being said,
the question remains as to whether the Gallatin property, which was acquired after the execution of
the 1984 will, should pass under the 1984 devise of the “home place.” We conclude that it should.

         Tenn. Code Ann. §32-3-101, provides that a will should be construed to “speak and take
effect as if it had been executed immediately before the death of the testator.” Unless a contrary
intention is supported by the words of the conveyance, it shall be construed to convey all the real
estate belonging to the testator at the time of his or her death. Id. At the time of Ms. Brownlee’s
death, the only real property she owned was the Gallatin house next door to James Brownlee.
Concerning Ms. Brownlee’s intent to pass this house to Mr. Brownlee, the record indicates that,
between 1984 when she executed the holographic will and her death in 2006, Ms. Brownlee made
two codicils to her will ( October 7, 1991 and June 4, 2003, supra). In the June 4, 2003 holographic
codicil, Ms. Brownlee specifically states that it is a “codicil to my will dated Oct. 9, 1984 and Oct.
7, 1991.” The mention of the October 9, 1984 will indicates a ratification of the will. Moreover,
there is no indication in either of the two codicils that Ms. Brownlee intended to amend the operative
paragraph of the 1984 will, which devises the “home place” to Mr. Brownlee. The fact that Ms.
Brownlee had moved to the Gallatin house in 1993, some ten years prior to making her last codicil,
coupled with the fact that she did not include language in that last codicil to indicate a change in her
intent to leave her house to Mr. Brownlee, supports the trial court’s conclusion that the Gallatin
house passed to Mr. Brownlee under the 1984 will.

       In their secondary argument, Appellants contend that the language used by Ms. Brownlee in
her 1984 will is not operative to convey her real property to Mr. Brownlee because the disputed
paragraph allegedly contains no “granting clause.” In her will, Ms. Brownlee states: “My son,
James E. Brownlee have the home place if he so desires.” Because Ms. Brownlee does not use the
term “bequeath,” “devise,” or “give,” Appellants argue that the language is ineffective to make a
conveyance of real property. We disagree.

       Testamentary language must show some intent on the part of the testator to have the
instrument control the title of real or personal property after the testator’s death. See Jack W.
Robinson, Sr., et al., Pritchard on Wills and Administration of Estates §16 (6th ed., 2007). “[C]ourts


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are no more scrupulous with respect to the language that they allow to operate as testamentary than
they are with respect to the nature of the instruments that they allow so to operate.” Id. Although
the testator’s language must show intent, there is no mandate that a particular phrase be used, or
even that the language be put in direct or imperative terms; “wishes and requests may be deemed
sufficient.” Id. In fact, “where the intent of the testator is determined, the use of inept words or
errors in grammar and punctuation will not vary, change or alter that intent.” Mongle v. Summers,
592 S.W.2d 594, 596 (Tenn. Ct. App. 1979) (relying on Harry Phillips, Pritchard on the Law of
Wills and Administration of Estates §391 (3rd ed.1955); 95 C.J.S. Wills § 612 (1957); 80 Am. Jur.2d
Wills §1154).

        Turning to the language used by Ms. Brownlee, Black’s Law Dictionary (5th Ed. 1979)
indicates that the term “have” “imports ownership, and has been defined to mean ‘to keep,’ ‘to hold
in possession,’ ‘to own.’” In Nichols v. Todd, 101 S.W.2d at 487, this Court held that the following
language was sufficient to convey a life estate to the decedent’s husband:

               The following is my will, at my death I want my husband...to have all
               my property, both real estate and personal as long as he lives.


       In the more recent case of Smalling v. Donaghey, 943 S.W.2d 397 (Tenn. Ct. App. 1996),

we construed the following language used in a holographic will:

               I would like Deborah to have my home and property to maintain and
               keep with the hope that she may find the comfort and independence
               that has been denied me....

Id. at 399. In Smalling, we concluded that this language operated to vest all rights in the decedent’s
property in Deborah Smalling, in fee simple. Likewise, in the case at bar, we conclude that Ms.
Brownlee’s use of the word “have” indicates her intent to transfer title in the Gallatin property to her
son James.

        In the alternative, Appellants argue that the conveyance is a conditional devise rather than
a fee simple conveyance. Specifically, Appellants contend that, as a condition to his acceptance of
the devise, Mr. Brownlee should be required to have the property appraised and should have to pay
the appraised value into the estate, with the proceeds then divided equally between the four siblings.
This interpretation is not supported by the language of the will. The 1984 will states that the home
place “can be appraised and the value of it determined. This can be deducted from his share of
money or it can be sold if he doesn’t want to keep it and the money put in the estate to be divided
equally.” We interpret this language to show Ms. Brownlee’s intent that, if James Brownlee accepts
the devise, the appraised value of the property should be deducted from his share of the total estate.
However, we cannot go so far as to conclude that the language requires Mr. Brownlee to pay any



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money to the estate if he chooses to keep the property. By its plain language, the will only requires
money to be paid into the estate if Mr. Brownlee does not choose to keep the home, and it is sold.

       For the foregoing reasons, we affirm the order of the trial court. Costs of this appeal are
assessed one-half to Appellant Jacque Brownlee Hughes, and one-half to Appellant Judy Brownlee
White, and their respective sureties.

                                                      ___________________________________
                                                      J. STEVEN STAFFORD, J.




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