                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs May 15, 2002

  VIVIAN E. WARNER, ADMINISTRATRIX C.T.A. ESTATE OF MAUDE
               FRAZIER v. DEWEY FRAZIER, ET AL.

                    Appeal from the Probate Court for Cumberland County
                            No. 13202   Steven C. Douglas, Judge

                                        FILED JULY 25, 2002

                                   No. E2001-02126-COA-R3-CV




CHARLES D. SUSANO, JR., J., dissenting.


        I cannot agree with the majority’s decision to affirm the trial court’s judgment. I believe the
lower court misinterpreted Articles IV and V of Maude Frazier’s will when it found that both
provisions recite that Dewey Frazier would receive a one-third share of the bequest while his sisters
– Maggie Olson and Mary Lou Underwood – would jointly receive a one-third share, and the
testator’s nieces and nephews would share a one-third portion.

        As I read Article IV of the will, a more natural reading of the language is that there will be
four shares: a share for Dewey Frazier; a share for Maggie Olson; a share for Mary Lou Underwood;
and, finally, a share for “ALL of [Maude Frazier’s] nieces and nephews as one family class.” I find
nothing in the language of Article IV to support the conclusion that Maude Frazier intended to give
her brother a greater share of the Article IV bequest than that left to each of the testator’s two sisters.
The language of Article IV shows that the testator was aware of the “family class” concept. She
used that language in referring to her nieces and nephews. If she had wanted Maggie Olson and
Mary Lou Underwood to share as a “family class” – the class being her sisters – she could have said
so. I think it is significant that she failed to “lump” the sisters together in a way that would indicate
she wanted them to share in a portion of the bequest as opposed to each receiving a full share of the
bequest equal to that of their male sibling.

        As to Article V, I believe the language of that article – especially when compared to the
language selected by the testator for the Article IV bequest – clearly indicates that the testator did
not intend Article V to be divided into only four shares. As I read Article V, I believe it means that
each individual falling within the language of that article, be they siblings of the testator or her
nieces or nephews and whether they be identified specifically or in general terms, would be entitled
to an equal share of the gift described in Article V. After naming these beneficiaries, the testator
inserted a comma, to separate the beneficiaries – and all of them – from the language, “equally, share
and share alike.” I believe this latter language applies to all of the beneficiaries. Thus, each is
entitled to an equal share. This is what the language “equally, share and share alike” means to me
in the context of the total language of Article V. Had the testator intended for the effect of Article
V to be the same as Article IV, she could have repeated the language “as one family class” in Article
V following the reference to the nieces and nephews. She did not, choosing instead to use the
language of “equally, share and share alike,” which, because of the comma that precedes it, would
grammatically apply to all those individuals alluded to before the concluding phrase. I find that the
testator intended that the proportional distribution in Article V would be different from that of
Article IV.

        There is another reason why Articles IV and V should not be read as contemplating the same
distribution, i.e., one-fourth to each of the testator’s siblings and one-fourth to the nieces and
nephews as a class. If this had been the testator’s intent, the bequests in the two articles could have
been and probably would have been merged into one single article. If the distribution of the property
in Article V was to have been the same as that in Article IV, there would have been no need for two
separate articles.

        In reaching my judgment in this case, I agree with the majority’s decision to disregard the
testimony of the attorney who prepared the will as to what he thought the testator intended with
respect to Articles IV and V. His “belief” is simply not admissible as relevant evidence. When this
testimony is ignored, we are left only with the language of the will to guide us in the interpretation
of that document.

         While the majority opinion seems to agree with me with respect to Article IV, it does not
agree that it should reverse the trial court’s finding of three shares as opposed to four shares. Suffice
it to say that I find nothing in the record or the briefs of the parties to support the majority’s decision
not to reverse the trial court as to the lower court’s decision as to Article IV. As previously
indicated, I would reverse the trial court on both articles.

        I respectfully dissent.


                                                         _______________________________
                                                         CHARLES D. SUSANO, JR., JUDGE




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