                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    January 4, 2001 Session

      RUTHERFORD COUNTY v. MARTHA JORDAN WILSON, ET AL.

                     Appeal from the Circuit Court for Rutherford County
                               No. 42603     Don R. Ash, Judge



                   No. M2000-01382-COA-R3-CV - Filed February 28, 2002


This appeal involves a dispute over the interpretation of a grant of real property giving a life estate
to the grantor’s daughter with the remainder to go to the “heirs of her body” and, if at her death there
were none, to the grantor’s heirs at law. Rutherford County condemned a portion of the property,
and the parties dispute apportionment of the condemnation proceeds. The life tenant is still living;
therefore, her life estate has not terminated. However, the widow of the life tenant’s deceased son
claims that she has a one sixth (1/6) interest in the property because her husband owned a vested
transmissible interest in the remainder, which passed in part to his widow on his death by intestate
succession. The trial court found that Tennessee’s statute governing class gifts requires that the
son’s issue, living at the termination of the life estate, would take his share of the remainder.
Therefore, the widow would not be entitled to a portion of the remainder. The widow now appeals
to this court. For reasons discussed herein, we affirm the trial court’s determination that the widow
had no interest in the remainder.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Affirmed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and WILLIAM C. KOCH , JR., J., joined.

Andrée Sophia Blumstein, William L. Harbison, Nashville, Tennessee, for the appellant, Cathey
Baskin.

Larry K. Tolbert, Murfreesboro, Tennessee, for the appellees, Martha Jordan Wilson, Jane Maurice
Wilson and Diane Wilson McCord.

                                              OPINION

       This case originated from a condemnation action commenced by Rutherford County, in
which it sought to take a portion of property held by Martha Jordan Wilson through a life estate
granted to her by her father, Will Jordan. As part of that proceeding Rutherford County named
Martha Jordan Wilson, her daughter and her granddaughter. The widow of a deceased son of Martha
Wilson intervened claiming an interest in the property that was the subject of the condemnation
petition. She filed a cross-claim for declaratory judgment to ask the court to hold that she was
entitled to a one-sixth interest in the life estate property and entitled to a proportionate share of the
proceeds. The court denied this motion.

                                                I. Facts

       The parties agree on the facts of this case, and this appeal involves only an application of the
law to those facts, which are as follows. In 1942, Will Jordan conveyed by deed a life estate in
approximately 145 acres to his daughter Martha Wilson with the remainder to go to the heirs of
Martha Wilson’s body. Specifically, the deed provides:

        The interest herein conveyed to the said Martha Jordan Wilson is a life estate, in and
        to the foregoing described property, with the right to take immediate possession
        thereof, the remainder interest to go to the heirs of her body on her death, in
        accordance with the laws of descent and distribution; and should the said Martha
        Jordan Wilson have no children or representatives of children at her death, then the
        remainder interest shall go to my next of kin as provided by law.

       Martha Wilson is still living and is married to James A. Wilson, with whom she has had three
children. The first of those children is Jane M. Wilson, who is currently unmarried and has no
children. The second is William J. Wilson, who predeceased his parents and left no wife or children.
The third child is Kenneth D. Wilson, who also predeceased his parents leaving a widow, Cathey
Baskin, and a daughter, Diane Wilson McCord.

        The life estate property remained intact until Rutherford County selected a portion of the land
as the site for a new school building. Rutherford County named Martha Wilson, Jane Wilson and
Diane McCord in its condemnation proceeding. In anticipation of condemnation, the three women
executed a series of quit claim deeds, seemingly with the objective of conveying all right, title and
interest in the condemned portion of the life estate property to Jane Wilson, in exchange for her
interest in the portion of the life estate property not condemned. Later, in their respective answers
to the Petition for Condemnation both Martha Wilson and Diane McCord disclaimed any legal
interest in the tender amount, $450,000, and both asserted that the amount is exclusively owned by
Jane Wilson.

        Cathey Baskin, wife of the late Kenneth Wilson and mother of Diane McCord, was not
named in the condemnation proceedings, nor was she a party to the property transfers between
Martha Wilson, Jane Wilson and Diane McCord. Ms. Baskin intervened in the case, claiming that
she inherited, through intestate succession, a one sixth (1/6) interest in the property. The trial court
held that Ms. Baskin did not have an interest in the property because it determined the provisions
of Tenn. Code Ann. § 32-3-104 applied, and that pursuant to the case law interpreting this statute,
“a class takes a vested, transmissible interest in the remainder.” The court then held that:



                                                   2
        At the time of [Kenneth Wilson’s] death his interest transferred to the only heir of the
        body of Martha Jordan Wilson, Ms. Diane Wilson McCord. . . . According to T.C.A.
        § 32-3-104, this interest can only be passed to the ‘surviving issue’ of a class
        member. It is the court’s opinion that T.C.A. § 32-3-104 supersedes the estate law
        [intestate succession] thus, preventing the vested transmissible interest from entering
        into Kenneth Dwayne Wilson’s estate.

         Ms. Baskin appeals the trial court’s ruling. As the parties agreed, because there is no dispute
as to the facts that are relevant to the determination of this claim, this case presents purely a question
of law. Consequently, our review of the trial court’s determination of the question of law is de novo,
without any presumption of correctness as to the trial court’s decision. Tenn. R. App. P. 13(d);
Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999).

                                     II. Condemnation Proceeds

         This appeal involves a dispute over the proceeds from condemnation of real property subject
to a life estate which was involuntarily conveyed during the life tenancy.

        The well-established general rules of eminent domain seem to be that, when a piece
        of property is taken, in which the ownership is divided into several interests, as
        between the public and the owners, it is considered one estate; that the public right
        is exercised upon the land itself without regard to the subdivisions of interest; that
        the amount of the value of the land to which each one of the owners of the interests
        is entitled is no concern of the condemnor; that the various owners’ interests in the
        property are transferred to the fund, allowed as damages to compensate them for the
        injury to the land, which is substituted for the property taken . . . .

Moulton v. George, 208 Tenn. 586, 590, 348 S.W.2d 129, 130 (Tenn. 1961) (citation omitted).

       There is no dispute over the county’s authority to condemn the subject property or over the
amount paid in compensation for the land. The dispute involves the division of that compensation.
Thus, we must begin our analysis with the law regarding disposition of such proceeds. In Beech v.
Hibbett, No. M1997-00239-COA-R3-CV, 2000 WL 987828 (Tenn. Ct. App. July 19, 2000) (no
Tenn. R. App. P. 11 application filed), this court addressed the same question in the context of
condemnation of real property in which a life estate existed in the testator’s widow with the
remainder vested in his daughter. Upon full review of authority on the issue, this court concluded:

        Where the ownership of condemned realty is divided between a life tenant and one
        holding a vested remainder, the condemnation award should not be merely divided
        between the owners and paid out. Instead, the entire amount of the award should be
        made available to the life tenant on specific condition that he or she invest it whole.
        The life tenant is thereafter solely entitled to all the resulting investment income from
        the award until the life estate ends naturally or determines on condition, after which


                                                    3
         the full amount of the original award must be distributed to the holder of the
         remainder interest.

         By allocating the rights to condemnation proceeds in this way, the law attempts to
         achieve some consistency between the way it treats holders of property interests
         before and after their realty is, against their volition, changed into personalty.

Id. at *3 (citations omitted).

        The court’s reasoning was based upon the principles that: (1) a taking of fee by eminent
domain takes all the related property interests, and those interests cease to exist after the taking; (2)
the owners of interests in the condemned property are entitled to share ratably in the condemnation
proceeds to reimburse them for the value of their interests; (3) while the life tenant is entitled to
“use” of the property during the term of the life estate, such entitlement does not include the right
to encroach on the corpus or commit waste of the property to the detriment of the remaindermen;1
(4) when real property is converted to personalty, the life tenant’s right to “use” of the property is
the right to receive income produced by the property. Id. at * 2-3.

        Thus, the holding in Beech would require that the proceeds from the condemnation herein
be paid to the life tenant, Martha Wilson, for investment.2 She would be entitled to income earned
by that investment during her life. Upon the death of Martha Wilson and the concomitant
termination of her life estate, the proceeds from the condemnation would be divided among the
remaindermen. Unlike the Beech case, the case before us does not involve a grant of the remainder
to one named person.3 Instead, the grantor has conveyed the remainder to one of two classes of


         1
            Martha W ilson, as the life tenant, ca nnot injure or com mit waste to the real property to the detriment of the
interests of the remaindermen. A life tenant is subject to liability for “an unreasonable or improper use, abuse,
mismanagement, or omission of duty touching real estate . . . which results in its substantial injury,” Chapman Drug Co.
v. Chapman, 207 Tenn. 502, 510, 341 S.W .2d 392, 396 (1960) (quoting Thayer v. Shorey, 287 Mass. 76, 191 N.E. 435,
437, 94 A.L.R. 307), including lasting damage to the remainder or depreciatio n in its value. Thompson v. Thompson,
206 Tenn. 202, 21 4, 332 S.W .2d 221, 227 (1960); Barb er v. Westmoreland, 601 S.W.2d 712, 716 (Tenn. Ct. App.
1980). Thus, a life tenant has an obligation to preserve the value of the land for those with subsequent or remainder
interests, see R ESTATEMENT OF THE L AW OF P ROPERTY §138, at 450 (19 36), so that “the estate may revert to those having
an underlying interest, undeteriorated [by] any willful or negligent ac t.” 93 C.J.S. Wa ste §1, at 560 (1956). Obviously,
sale of a portion of the land would decrease the value of the remaindermen’s interests in the entire parcel. Where,
through cond emnation, an involuntary sale occ urs, the life tenant’s duty to preserve the value of the remaindermen’s
interest also applies to the proceeds from the condem nation of that portion of the land which was condemned , according
to the holding in Beech.

         2
           Becau se Martha Wilson h as qu itclaim ed her interest in the condem ned property, convey ing h er life estate
interest in that property to Jane Wilson, the duty to preserve the condemnation proceeds may, in fact, have been
transferred to Jane W ilson, along with the right to the income from investment of those proceeds during Martha
Wilson’s life.
         3
             The Beech case d ealt with an unq uestionab ly vested rema inder interest, wh ere the m ain issue in this case is
                                                                                                               (con tinued...)

                                                               4
persons. In situations involving alternative remainders or those to a class of heirs of the body,
ordinarily the question of who are the remaindermen entitled to take possession of the real property,
and the resulting proportionate share of each, would be left until the termination of the life estate.
Similarly, the question of the identity and number of persons entitled to share in the proceeds of the
condemned portion of the property would also be left until the termination of the life estate.

        Since, under Beech, a remaindermen’s rights in the proceeds do not ripen into possession
until the termination of the life estate, no potential remainderman has a present interest in the
proceeds which would entitle him or her to an immediate distribution of a share of the proceeds.
However, in addition to claiming an interest in the distribution of the proceeds, Ms. Baskin also
claims a portion of the remaining real property which is the subject of the remainder. Further, to the
extent she is entitled to part of the remainder, she has a present interest in requiring protection of the
condemnation proceeds during the life tenancy.4

                                                  III. Nature of Claim

        The essential question involves the nature of the interest held by members of the class, or of
either class, of potential remaindermen. Ms. Baskin argues that her husband had a vested
transmissible interest in one-third of the land; the other identified potential remaindermen appear to
be acting on the belief that they also have a vested interest that can be transferred or conveyed,
although it would appear that they define the scope of that interest as one-half each of the remainder.
Both these positions appear to rest on a presumption that the membership of the class of
remaindermen is determinable before the termination of the life estate. The difference in the size
of the portions each asserts she is entitled to is attributable to each party’s description of the class
of remaindermen.

       Cathey Baskin argues that she has a one-sixth interest in the life estate property, and the
proceeds therefrom. The language of the grant deeding the remainder interest to the “heirs of her
[Martha Wilson’s] body on her death,” would appear to preclude Ms. Baskin’s claim because that
term does not include a non-lineal descendant, such as a daughter-in-law. Absent language to the



         3
          (...continued)
the nature of the interest held by potential remaindermen. We think that distinction, however, does not change the
holdings regard ing the life tenan t’s use of inco me and d uty to pro tect the corpus for the eventual own ers.
         4
           Judicial economy is also served by our determination of the issues raised conc erning rights in the remainder.
The other know n potential rem ainde rmen have e ntered into conveyances apparently designed to combine the life estate
and remainder interests in portions of the land. While the parties are free to transfer whatever interests they hold, such
transfers would be ineffectual to deprive other remaindermen, whether that class includes Ms. Baskin or other unknown
parties, of their interests in the land retained or the p roceeds fro m the land co ndemned. Nor can the interests of W ill
Jord ans’s “next of kin” be adve rsely affected. See Manhattan Savings Bank & Trust Co. v. B edford, 161 Tenn. 187, 197-
99, 30 S.W .2d 227, 230 -31 (1930). In addition, to the extent the parties to the transfers believe they hold and can convey
greater interests than they do, outside parties may be affected and additional litigation generated if we fail to clarify those
interests.

                                                              5
contrary, “heirs of the body” means lineal descendants. Fehringer v. Fehringer, 222 Tenn. 585, 590,
439 S.W.2d 258, 260 (1969).

       It is settled law in Tennessee that in its primary sense, a remainder to the “heirs of his
       [life tenant’s] body” is a remainder to the life tenant’s lineal descendants. This was
       affirmed in Campbell v. Lewisburg & N.R. Co., 160 Tenn. 477, 26 S.W.2d 141
       [(1930)]; and Manhattan Savings Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30
       S.W.2d 227 [(1930)].

Fehringer, 222 Tenn. at 590, 439 S.W.2d at 260 (emphasis in original).

       The Supreme Court in Fehringer went on to quote the RESTATEMENT OF THE LAW OF
PROPERTY, FUTURE INTERESTS, which was relied upon in Spencer v. Stanton, 46 Tenn. App. 688,
333 S.W.2d 225 (1959), as the “clearest statement of the meaning of the words ‘heirs of the body:’”

        “When a limitation is in favor of the ‘heirs of the body’ of a designated person . . .
        then, unless a contrary intent of the conveyor is found from additional language or
        circumstances, the persons so described by the limitation as conveyees are the lineal
        descendants of the designated ancestor who under the applicable local law would
        succeed to the property if such ancestor died owning the property and intestate at the
        time when the group is to be ascertained. . . .”

Id. 222 Tenn. at 591, 439 S.W.2d at 260 (quoting Spencer, 46 Tenn. App. at 702, 333 S.W.2d at 231
(citation omitted)).

        The term “heirs of the body” is not the same as “heirs” and creates “a remainder altogether
different in its meaning and effect . . . .” Fehringer, 222 Tenn. at 590, 439 S.W.2d at 260. The term
“heirs of the body” and similar terms, such as “bodily heirs” or “bodily issue,” are not synonymous
with words such as “lawful heirs.” Third Nat’l Bank in Nashville v. Stevens, 755 S.W.2d 459, 464
(Tenn. Ct. App. 1988) (finding an adopted child is not “bodily issue” of the adoptive parent). While
heirs of the body must be “heirs,” use of the term limits the grant to those heirs who are “begotten
or borne by the person referred to.” Id. at 463. Ms. Baskin does not meet that requirement.

        Further, it is apparent from the language of the grant that the grantor intended that the deeded
property go to Martha Wilson’s lineal descendants. Courts, when analyzing deeds of conveyance,
as when interpreting a will, attempt to ascertain the intent of the parties in light of the circumstances
existing at the time. Doochin v. Rackley, 610 S.W.2d 715, 718 (Tenn. 1981). The overriding
purpose of any deed interpretation is the determination of the grantor’s intent at the time the
conveyance was made. Hall v. Hall, 604 S.W.2d 851, 853 (1980); Collins v. Smithson, 585 S.W.2d
598, 603 (Tenn. 1979). In Tennessee, courts favor the right of a possessor of property to dispose of
it “by clear and unequivocal meaning without unreasonable legislative or judicial interference or
alteration.” Stevens, 755 S.W.2d at 464. Thus, although courts have developed rules of construction
to aid them in interpreting a grant, such rules are just that, aids in determining the intent of the
grantor. The overriding purpose of all rules of construction is the ascertainment of the parties’

                                                   6
intent. Quarles v. Arthur, 33 Tenn. App. 291, 295, 231 S.W.2d 589, 591 (1950). It is clear that in
his first disposition of the remainder Will Jordan intended that the ownership of the land pass only
to those persons who were lineal descendants of his daughter Martha Wilson. In fact, the grantor
provided that if Martha Wilson had no lineal descendants at her death, “then the remainder interest
shall go to my next of kin as provided by law.” Thus, the grantor preferred that the land go to his
heirs rather than to heirs of Martha Wilson or her non-surviving issue if those heirs were not Martha
Wilson’s lineal descendants.

       Similarly, the class of persons who would take the remainder if no lineal descendants of
Martha Wilson exist at the time of her death, the grantor’s next of kin, does not include Ms. Baskin,
the widow of the grantor’s grandson. Absent contrary intentions of the grantor “the words ‘next of
kin’ must be given their ordinary meaning of relatives in blood. They will not ordinarily include the
widow of the testator. And the husband is not ‘next of kin’ to the wife within the ordinary meaning
of a will.” Frank v. Frank, 180 Tenn. 114, 177, 172 S.W.2d 804, 807 (Tenn. 1943) (citation
omitted). In Frank, the Tennessee Supreme Court held that the term “next of kin” “has not acquired
any meaning other than that of nearest blood relative.” Id.; see also Fariss v. Bry-Block Co., 208
Tenn. 482, 489-90, 346 S.W.2d 705, 707 (Tenn. 1961).

        The basis of Ms. Baskin’s claim, however, is not a direct grant to her in the deed. Instead,
she asserts that her husband, Kenneth Wilson, had a vested transmissible interest in the property at
the time of his death, which upon his death was passed to Ms. Baskin through intestate succession.
The foundation of Ms. Baskin’s argument is that the remaindermen of the grant were Martha
Wilson’s three children; that a remainder interest vested in each child during the life tenancy of
Martha Wilson; and that each of the three children had a vested, transmissible one-third interest in
the remainder.5 Accordingly, the argument continues, each of the three children could transfer his
or her interest, during life or by will or intestate succession upon death.

                                                   IV. The Grant Itself

        A remainder is a future interest created in a transferee which can become a present possessory
estate only on the expiration of the preceding estate. Jackson v. Jackson, 219 Tenn. 237, 242-43,
409 S.W.2d 172, 174-75 (1965); LEWIS M. SIMES & ALLEN F. SMITH, THE LAW OF FUTURE
INTERESTS § 64 (2d ed. 1956). The issue of whether an interest in a remainder is vested, and to what
extent it is vested, has been the subject of many cases, learned articles, and treatises. When
describing types of remainders, different authorities, including various courts, have used terms such
as contingent remainder, remainder subject to condition, remainder subject to condition precedent,
vested remainder subject to open, vested remainder subject to complete defeasance, indefeasibly




          5
           Ms. Baskin states that William Wilson, a son of Martha Wilson who predeceased her and left no children or
other heirs o f his bo dy, h ad a v ested one-third interest in the re ma inder and that, up on th e dea th of the life tenant, his
one -third interest would b ecome part of his estate.

                                                                7
vested remainders, and others.6 Although arguments could be made that the interests conveyed to
the remaindermen herein, including Ms. Baskin’s deceased husband, are properly classified as any
of several of the types of remainders listed above, regardless of the precise term of art to be applied,
it is the nature of the interest conveyed which is determinative.7

        As explained above, our task is to determine the intent of the grantor with regard to the
disposition of his property. The beginning point for that inquiry is, of course, the language used by
the grantor. The record herein provides few additional facts which could be considered
circumstances relevant to the grantor’s intent at the time he executed the deed. Because the grantor
referred to his daughter by her married name, we know that she was married at the time of the grant.
However, the record before us does not indicate whether she had any children at the time of the
grant.

        We begin by restating the grant. Commerce Union Bank v. Warren County, 707 S.W.2d 854,
858 (Tenn. 1986). The grant in the deed clearly gave a life estate to Martha Wilson. Upon her death,
the remainder will pass to either (1) the class of persons described as heirs of Martha Wilson’s body
or (2) the class of persons described as the next of kin of Will Jordan, the grantor. Which class of
persons will become owners of the fee is to be determined by the grantor’s clear criteria: whether,
at her death, Martha Wilson has any children or representatives of children, or in other words, heirs
of her body.

        We interpret this language as requiring the survival of at least one member of the class of
Martha Wilson’s bodily heirs to the date of her death for that class to take. The result is that the
determination of which class of potential remaindermen is to take the property cannot be made until
Martha Wilson’s death. Whether that provision is considered as creating alternative contingent
remainders, a remainder subject to defeasance, a remainder with a condition precedent, or a
limitation or gift over on failure of issue, the result is the same. The grantor made provision for
disposition of the remainder in either of two sets of circumstances: there are heirs of MarthaWilson’s
body alive at the time of her death or there are not. Which circumstance exists at that time will
determine which class of potential grantees is to receive the remainder.

       In Harris v. Bittikofer, 541 S.W.2d 372 (1976), the Supreme Court interpreted a will which
devised all of the testator’s property to the testator’s daughter, Nellie:

           to have and to hold the same during her natural life, and her bodily heirs, if any,
           forever; provided however, that in case daughter [Nellie] should die leaving no
           bodily issue, and her husband . . . should survive her, then all I have bequeathed to
           her, shall revert to my granddaughter [Jawana] or her heirs.

           6
           One treatise even acknowledges the existence of a “vested interest in a contingent remainder.” SIMES &
S MITH , supra, § 112.
           7
          R E S TA T EM E N T ( S E CO N D ) OF   THE   L AW   OF   P ROPERTY (Donative Transfers) (1989) has taken that approach,
generally eschew ing the older labels.

                                                                         8
Id. at 373 (emphasis in original).

        The court held that under this language the daughter took a life estate, with alternative
contingent remainders. The alternatives depended upon whether Nellie died without issue and
whether her husband survived her. At the time of the appeal, the life tenant, Nellie, was still alive.
In discussing the alternative contingent remainders, the Court explained that the first was to the life
tenant’s bodily heirs or issue if there were any at Nellie’s death. “This interest would ripen into a
present possessory interest in fee upon the culmination of the prior particular estate, by the death of
Nellie.” Id. at 384. If the life tenant, Nellie, were to die without issue and her husband survived her,
the remainder would vest in Jawana in fee simple. Id. at 385.8

        In addition, the Bittikofer court held that the time at which to determine whether Nellie Harris
had issue was at her death. Thus, entitlement to the remainder was to be determined at the
termination of the prior estate. Id. at 378-80. After reviewing various cases regarding limitations
on failure of issue, the court determined that where the disposition is preceded by a life estate, the
question of whether there is issue is to be answered at the death of the life tenant, unless otherwise
clearly indicated. Id. at 380. The court held that the testator in Bittikofer intended definite failure
of issue, i.e. at the death of the life tenant.

        The Supreme Court was called upon to visit the Harris v. Bittikofer situation again in an
appeal involving collection of fees of the guardian ad litem for the unborn heirs of Jawana Sue
Gupton.9 The Court described its earlier decision as a determination that the interest of the unborn
heirs was a remainder following a life estate, contingent upon: (1) Nellie Gupton Harris dying
without issue; (2) Nellie predeceasing her husband; and (3) their mother, Jawana, predeceasing them.
Id. at 814.

        Similarly, in Fehringer, the Tennessee Supreme Court held that a testamentary gift of a
remainder to the heirs of the body of the life tenant created a contingent remainder in such potential
heirs and that until the death of the life tenant those heirs were unascertainable. Fehringer, 222




         8
           Interestingly, there was no provision in the will that addressed distribution of the property in the event that
Nellie left no issue but was pre-deceased by her husb and. Therefore, this will created alternative contingent remainders
with the possibility of reverter in that the property would revert to the grantor if both contingent remainders failed.
         9
            The trial court had originally ordered the real prope rty which w as subject to N ellie Gupton’s life estate so ld
to pay the fees. Later, it set aside the sale and the lien on the property, and the Supreme Court affirmed that later action,
stating, “The lien and sale were void for several reasons; the most obvious is the principle that a contingent remainder
interest is not subject to execution and sale by a judgment creditor.” Bittikofer, 562 S.W .2d at 817. After reassessing
costs half to the life tenant and half against the interest of all contingent remaindermen, the court stated, “A lien will be
declared upon the remainder interest only, but its enforcement must await the vesting of those interests.” Id. at 818 .

                                                              9
Tenn. at 593, 439 S.W.2d at 261-62. The court held, after the death of the life tenant, that because
the life tenant died without leaving lineal descendants, the contingent remainder failed. Id.10

         Therefore, we conclude that the gift to the heirs of the body of Martha Wilson is conditioned
on there being at least one bodily heir or lineal descendant living at the time of her death. Otherwise,
the gift fails and the alternative disposition becomes effective. Consequently, the determination of
which class of potential remaindermen will become owners of the property cannot be made until the
death of the life tenant. For that and other reasons discussed below, the identity of the individual
members of the class who will take, the number who will take, and the resulting share of each cannot
be determined until the death of the life tenant.

        Although we have determined that the identity of which class of potential remaindermen will
take remains uncertain until the death of the life tenant, Ms. Baskin’s claim relates to her husband’s
membership in only one of those classes, the heirs of the body of Martha Wilson.11 Therefore, we
will examine the issues raised by the gift to that class, separate and apart from the issues raised by
the alternative grant to two different classes.

                                      V. Gift to a Class of Heirs of the Body

         A class gift is a gift to a group of persons who are not named, whose number may vary, and
who have one or more characteristics in common. Jennings v. Jennings, 165 Tenn. 295, 301, 54
S.W.2d 961, 963 (1932). Where the donor has indicated an intent to designate the recipients as a
group, rather than to designate as transferees the separate individuals who comprise the group, the
gift is one to a class. SIMES & SMITH, supra, § 612. Terms which describe the beneficiaries by the
membership in an identifiable group are class gift terms. RESTATEMENT (SECOND) OF THE LAW OF
PROPERTY (Donative Transfers) Part V Introductory Note.




         10
           The Court further held that because the remaind er was not effectually disposed of, it was part of the “rest,
residue, and remainder” of the father’s estate and passed according to the will’s disposition of the residuary estate.
Fehringer, 222 Tenn. at 593-94, 439 S.W.2d at 262. The court explained:

         by the very nature o f a contingent remainder there continued in the testator, at the very time of its
         creation, a distinct possibility that the contingent remainder would fail for lack of a class in which to
         vest, and because of this a reversionary interest exists which passes under the resid uary clause. T his
         possibility of reverter did not arise after death, but arose when the contingent remainder was created,
         and is an interest which passed under the residuary clause.

Id. This case does not involve a reversion because the grantor made an alternative d isposition of the remainder in case
of failure o f the first grant o n the co ndition of survivorship of an he ir of the body.

         11
              Jane W ilson and Diane Mc Cord base their interests on mem bership in the sam e class.

                                                            10
        In examining the conditional12 grant upon which Ms. Baskin’s claim is made, the grantor
gave the remainder interest to a defined group or class of people: the heirs of the body of the life
tenant. The grantor did not identify individual grantees but described a group of people who were
described by a characteristic: lineal descent from Martha Wilson.

        One of the issues raised by a class gift is identification of those persons falling within the
definition of the class.13 Ms. Baskin’s position rests in part on her interpretation of the deed as
making a gift of the remainder to Martha Wilson’s three children.14 We disagree with that
interpretation. While Martha Wilson’s children are certainly members of the class “heirs of her
body,” they are not the only members. The grant was not made only, or exclusively, to the children
either by name or description.

       A donor’s use of the terms “issue,” “descendants,” or the like to describe the beneficiaries
means a gift to a multigenerational class. RESTATEMENT (SECOND) OF THE LAW O F PROPERTY
(Donative Transfers) § 25.9.15 The term “heirs of the body” also connotes a gift to a
multigenerational class of lineal descendants. Id. § 25.9 at com. b. Absent language or
circumstances indicating a contrary intent, it is presumed the donor adopted these meanings.

        Tennessee courts have adopted presumptive meanings of technical terms such as “heirs of
the body.” As discussed above, a gift to the heirs of a life tenant’s body is a remainder to the life
tenant’s lineal descendants. Fehringer, 222 Tenn. at 590, 439 S.W.2d at 260. Absent circumstances
requiring a different interpretation, “heirs of the body” includes generations after children as well
as children. Campbell, 160 Tenn. at 477, 26 S.W.2d at 141. A similar multigenerational term,


         12
          Becau se we have determined that the grant to the heirs of the bo dy is con ditioned u pon survival of at least
one such heir until the d eath o f the life tenan t, we w ill refer to th e grant as co nditional.

         13
           A determination that a grant is a class gift raises the issues of: (1) who is a member of the gifted class; (2)
whether survival to the time of distribution is required in order to participate in the remainder; and (3) how each
mem ber’s share of the rem ainder is to be calculated . R EST A T E M E N T (S E C O N D ) OF THE L AW O F P ROPERTY (Donative
Transfers) §§ 25-30 (198 9).
         14
            A class of children canno t close until the death of the parent. Scales v. Scales, 564 S.W.2d 667, 672 (Tenn.
Ct. App. 1977). Martha Wilson is still alive and for purposes of legal application we assume that she can bear children
regardless of her age. The sam e is true of her d aug hter and g rand dau ghter. Karsch v. Atkins, 203 Tenn. 350, 353, 313
S.W.2d 253, 254 (1958) (holding that it is a “well recognized principle that in contemplation of law the possibility of
issue is never extinguished until death” ). Conseq uen tly, until the death of Martha Wilson, the number of remaindermen,
even under Ms. Baskin’s theory, cannot be ascertained. Even where a remainder interest vests, in su ch a situation it is
considered to be subject to open to let in other mem bers o f the class. Scales, 564 S.W .2d at 672. M s. Baskin’s theory
that Martha Wilson’s three children each took a one-third interest fails to take into account the possibility of additional
memb ers of the class.
         15
           “When the donor . . . describes the beneficiaries thereof as “issue” or “d escend ants” of a designated person,
the donor has used a class gift term that primarily refers to a succession of generations down from the designated person.
The term “child ren” prim arily refers to the first generation down from the designated person.” RESTATEMENT (S E C O N D)
OF THE L AW O F P ROPERTY (Donative Transfers) § 25.9 com. a.


                                                             11
“issue,” has been interpreted as including “all persons who have descended from a common ancestor,
and unless controlled by the context, means lineal descendants without regard to degree of proximity
or remoteness.” Burdick v. Gilpin, 205 Tenn. 94, 109, 325 S.W.2d 547, 554 (1959). Similarly, in
Patterson v. Alexander, 509 S.W.2d 834 (Tenn. 1974), the court examined the testator’s intent in the
use of the word “heirs:”

         In Tennessee, the established rule is that the word “children” refers only to
         immediate offspring. Since the testator chose a term other than “children” to
         delineate the class of prospective buyers,16 we assume he did so purposely and had
         in mind that definition of “heirs” which refers, not to “children” alone, but to the
         lineal descendants. The will does not suggest any contrary construction.

Id. at 835.

         The intent of the grantor controls the meaning of terms used, and where an intent contrary
to the legal definition is clear, it will be used. However, when “a technical word is applied to real
estate, it must be construed according to its strict legal meaning.” Scruggs v. Mayberry, 135 Tenn.
586, 602, 188 S.W. 207, 210 (1915). Where technical words are used in a will, they are presumed
to be used in a technical sense, and “before another meaning can be attached to them, that meaning
must clearly appear . . . .” Id. The same rule applies to deeds: unless the plain meaning of the
language used or other circumstances dictate the contrary, the technical meaning of terms used in
deeds will be applied. In re Estate of Wilson, 825 S.W.2d 100, 102 (Tenn. Ct. App. 1991).

       We find nothing in the language of the deed or other surrounding circumstances to indicate
that Will Jordan intended the phrase “heirs of her body” to mean only Martha Wilson’s children and
not other generations of descendants as well. To the contrary, the grantor’s language indicates an
understanding of the technical meaning of “heirs of the body” as well as an intent that generations
beyond children be included. The grant makes an alternative disposition “should the said Martha
Jordan Wilson have no children or representatives of children at her death.” The phrase
“representatives of children” refers to the principle that later generations take by representation the
share of a deceased parent.

        As discussed earlier, “heirs of the body” must be lineal descendants, but also must be the
intestate heirs of the person. The legal meaning of the word “heirs” is the class of persons upon
whom descent is cast by the statute of descent and distribution. Fisher v. Malmo, 650 S.W.2d 43,
46 (Tenn. Ct. App. 1983). The grantor reaffirmed his intention that this meaning attach by directing
that the remainder be distributed to the heirs of the body “in accordance with the laws of descent and
distribution.” In relevant part, the appropriate statute, Tenn. Code Ann. § 31-2-104, provides that
issue of the same degree of kinship take equally, but if of unequal degree, the more remote issue

         16
             The testator had u sed the term “children ” to refer to the d evisees, but cha nged terms to d escribe those persons
to whom the children could sell their property, and the court found this change of terms signified the testator’s intent
to disting uish b etween the tw o classes. W ill Jordan also me ntion ed M artha Jordan’s c hildre n or repre sentatives of
children, but in a way that is consistent with the multigenerational interpretation.

                                                              12
“take by representation.” Tenn. Code Ann. § 31-2-104(b)(1). The term “by representation” refers
to the principle by which the issue of a deceased person take or inherit the share of an estate which
their immediate ancestor would have taken or inherited if living. See BLACK ’S LAW DICTIONARY
1301 (6th ed. 1990); see also Barnes v. Redmond, 127 Tenn. 45, 51, 152 S.W. 1035, 1036 (1913).

        Therefore, we interpret the language used as indicating the grantor’s intent that more than
one generation of lineal descendants be included as potential remaindermen before the remainder
passes to his next of kin. Accordingly, we conclude that the conditional grant of the remainder
herein was to that class of persons who were the lineal descendants of Martha Wilson, the life tenant.
It was not a grant solely to her children.

                                    VI. Requirement of Survival

        Having determined that the conditional grant was to the class of “heirs of the body” of
Martha Wilson, we must still determine who, within that definition, would take a share of the
remainder if it passes to that class. Even persons who are within the primary meaning of the term
describing the class may be excluded from taking depending on when class membership is to be
determined and whether survival by an individual to the date of possession is a required condition
of taking.

       The basic problem is to determine the circumstances in which the owner of a future
       interest of any type will be required to survive, not the creation of his interest, but
       rather the date after its creation when his future interest is to become a present
       possessory interest. Stated in terms of legal consequences, the inquiry is whether or
       not the future interest is transmissible in his estate in the event of his death prior to
       the time when it is to become a present interest.

Herman L. Trautman, Class Gifts of Future Interests: When Is Survival Required?, 20 VAND . L.
REV . 1, 15 (1966).

         By the specific terms of the deed, the remainder interest is to “go to the heirs of her body on
her death.” Thus, the future interest in the remainder does not become possessory until the death of
the life tenant. The general rule is that a postponed gift to the “issue” or “heirs” of a living person
describes a group of persons who cannot be presently ascertained. See SIMES & SMITH, supra, §§
579, 732. Tennessee law is in accord. A living person has no heirs, and the membership of the
group “heirs of her body” cannot be determined until Martha Wilson’s death. Fisher, 650 S.W.2d
at 46 (interpreting term in will “heirs at law”). “A remainder to the heirs of the life tenant is
generally a contingent remainder, for, there being no heirs to a living person, until the termination
of the life estate, no one can claim as the heir of the life tenant.” Burton v. Kinney, 191 Tenn. 1, 6,
231 S.W.2d 356, 358 (1950) (quoting 23 R.C.L., Section 95, page 551); see also JACK W.
ROBINSON , SR. & JEFF MOBLEY , PRITCHARD ON THE LAW O F WILLS AND ADMINISTR ATION OF
ESTATES § 463 (1995). Thus, the general rule is that the identity of the members of the class of
remaindermen described as heirs cannot be ascertained until the death of the life tenant.


                                                  13
Consequently, the size of the class and the portion given to each class member cannot be ascertained
until that time.

        Applying this general rule to the case at hand, the identity of those “heirs of the body” of
Martha Wilson entitled to take a share of the remainder cannot be determined until her death. Thus,
no determination can be made prior to that event of the share to be taken by each heir of the body,
assuming that class takes the remainder. See PRITCHARD , supra, § 463. (Where the gift is of an
aggregate sum or entire thing to a body of persons of uncertain existence or indefinite number as a
unit, they take as a class, the share of each being dependent upon the ultimate number of persons
entitled to take.).

        The conclusions resulting from application of these general rules are the conclusions to be
reached herein because of the language of the deed. Under Tennessee law, both the use of the term
“heirs of the body” and the condition that such heirs of the body of the life tenant exist at the time
of her death have significance.17 The use of the term “heirs of the body” has legal consequences long
recognized in Tennessee, and absent clear intent to the contrary, those consequences will be applied.
The basic treatment of that term is established in the statute which abolished the Rule in Shelley’s
Case,18 Tenn. Code Ann. § 66-1-103:

         Where a remainder is limited to the heirs or to the heirs of the body of a person, to
         whom a life estate in the same premises is given, the persons who, on the termination




         17
            W e have previou sly discussed the significance of the condition of survival of at least one bodily heir as
creating alternative contingent remainders or a rem ainder sub ject to a cond ition. Fo r the presen t discussion, it is
significant because it is additional indicia of the requirement of individual survival to the life tenant’s death.
         18
           At com mon law, the R ule in Shelley’s Case operated to convert a transfer to A for life, “then to the heirs of
A” or “then to the heirs of A’s body” into a fee simple transfer to A.

         Under the Rule in Shelley’s Case, if a transfer of real property was made by an owne r in fee simple
         to a designated person for life and the same transfer also limited a remainder, either mediately or
         imme diately, to the heirs or to the heirs of the body of the designated person, and the estate for life and
         such remainder were both legal or both equitable, then the transfer created a remainder in the
         designated person and the words describing the heirs or the heirs of the body were words of limitation
         determining the type of such person’s estate in the remainder.

         The estate for life in the designated person and the remainder in the designated person that resulted
         from the operation of the Rule in Shelley’s Case merged unless there was an intervening estate.

R E S TA T EM E N T (S E C O N D) OF THE L AW O F P ROPERTY (Donative Transfers) § 30.1.

                                                             14
         of the life estate, are heirs or heirs of body of such tenant, shall take as purchasers,19
         by virtue of the remainder so limited to them.

Tenn. Code Ann. § 66-1-103 (emphasis added).

        Thus, under the statute, membership in the class is determined at the time of the death of life
tenant and survival to that time is required for an individual to take a share of the remainder. This
statute applies to deeds as well as wills. Butler v. Parker, 200 Tenn. 603, 611, 293 S.W.2d 174, 177
(1956). Our Supreme Court has recognized and discussed the effect of the statute abolishing the
Rule in Shelley’s Case. Bittikofer, 541 S.W.2d at 380-83. In this 1976 opinion, the Court quoted
with approval from Bedford, wherein it was determined that the statute had converted “heirs of the
body” from words of limitation to words of purchase describing the takers of the remainder.20
Bittikofer, 541 S.W.2d at 380-83 (quoting Bedford, 161 Tenn. at 195, 30 S.W.2d at 229).

         In Bedford the court analyzed a grant of half a farm to the testator’s son, Julian T. Bedford
for life “and at his death the remainder shall go to the heirs of his body.” Bedford, 161 Tenn. at 191,
30 S.W.2d at 228. The testator made an identical bequest of the other half of the farm to his other
son, and the court interpreted the bequest of the remainders to the heirs of the body of testators’s
sons as contingent remainders because the identity of the heirs of the body could not be determined
until the death of the life tenant.

        In addition, the Court in Bittikofer found the case of Butler v. Parker, significant to its
decision and adopted its holdings. In interpreting a grant to “Ralph Parker and at his death to his
bodily heirs,” the Butler court found the situation controlled by the statute abolishing the Rule in
Shelley’s Case and that the words conveyed a life estate to the grantee with a contingent remainder
to his heirs. Butler, 200 Tenn. at 610, 293 S.W.2d at 177. In a section quoted in Bittikofer, the
Butler court further explained:




         19
            Many opinions describe “heirs of the body” as either words of purchase or words of limitation. Although
the co rrect classification is no w largely contextual, Comm erce Union Bank v. Wa rren C oun ty, 707 S.W.2d 854, 859
(Tenn. 1986), the description used may be a result of whether the Rule in Shelley’s Case had been abolished at the time
of the grant. As a general statement, words of limitation mark or define the quantum of the estate; on the other hand,
words of purc hase designate th e take r of the estate. Bittikofer, 541 S .W.2d at 380 -83; Jack D. Jones, Future Interests -
Tennesse e Style, 54 T E N N . L. R EV . 413 , 419 (1987).

         20
            “The devise to Julian T. Bedford expressly limits his estate to the period of his life. If he is give n more, it
is by virtue of the words of the devise: ‘and at his death the remainder shall go to the heirs of his body.’ Before the
statute, these words were w ords of limitation or d escent, and d irected that the fee should ‘descend’ from the life tenant
to the heirs o f his bod y. Since the fee co uld not ‘descend’ from him who had it not, the words of descent or limitation
were held to vest the fee in him who w as, in form , only a life tenant. But the statute stripped these words of descent or
limitation of their previously possessed characteristic, when used in connection with the creation of a life estate, and
recreated them as words of purchase, no longer to convey the meaning of descent or inheritance.” Bedford, 161 T enn.
at 195, 30 S.W .2d at 229 .

                                                            15
         Clearly under this statutory provision the heirs or heirs of the body of the grantee
         which before would have only enlarged the life estate of the parent into a fee has the
         result of limiting the interest of the grantee in the property devised to a life estate
         with a contingent remainder in fee to those who at the death of the life tenant will
         answer the description of the heirs of his body.

Id. 200 Tenn. at 610, 293 S.W.2d at 177.

         The Bittikofer court applied the statute and the cases mentioned above and others to interpret
a devise to Nellie Gupton Harris ‘during her natural life, and her bodily heirs, if any, forever . . . .’
The court’s primary holding was that other provisions of the will created alternative contingent
remainders in two classes of possible remaindermen and that entitlement to the remainder could not
be determined until Nellie’s death, as discussed earlier in this opinion. Nonetheless, the Bittikofer
opinion is clear that the statute, now Tenn. Code Ann. § 66-1-103, applies to a grant of a remainder
to the class of heirs of the body of the life tenant. The statute and the Bittikofer opinion clearly state
that the remainder would belong to those persons who on the death of the life tenant actually are the
heirs of her body.

        In 1963 and again in 1969, our Supreme Court was called upon to determine the interests
conveyed by a will provision granting a tract of land to a testator’s two sons for life “and upon the
death of either of my sons their interest in the above described real property, I hereby give, devise
and bequeath unto the heirs of his body.” In both opinions the court held that the remainder to the
heirs of the body was contingent and the owner(s) of the remainder could not be ascertained until
the death of the life tenant. Fehringer v. Fehringer, 212 Tenn. 75, 367 S.W.2d 781 (1963);
Fehringer, 222 Tenn. at 587, 439 S.W.2d at 258.

        As these opinions demonstrate, our Supreme Court has consistently held that a remainder to
“heirs of the body” of the life tenant is contingent, at least as to any individual,21 and that the
determination of those persons who take the remainder cannot be made until the death of the life
tenant, requiring survival to that date. Thus, according to statute and case law, the remainder passes
to those persons who, on the termination of the life estate, actually are the heirs of the body.

         Tennessee is in accord with the general rule regarding a remainder to the heirs of the body
of the life tenant.

         If a gift is made to a class described as the “heirs” of a designated person, or by a
         similar class gift term, and a particular statute governing the intestate takers of
         property is to be used to determine the persons who come within the primary
         meaning of the class gift, in the absence of additional language or circumstances that
         indicate otherwise, such statute is applied as of the designated person’s death.


         21
            As we have previously determined, the gift herein to the class itself was also conditional, based upon the
requ irem ent that at least one m em ber o f the class surv ive the life tenant.

                                                         16
RESTATEMENT (SECOND) OF THE LAW O F PROPERTY (Donative Transfers) § 29.4.22

         Additionally,

         where a postponed gift is given to persons described as the “issue” or “heirs” of a
         living person, and it is decided that the description is used in its technical sense, then
         the words describe a group of persons who cannot be presently ascertained. The gift
         is therefore contingent, because in order to become an “heir” one must survive his
         ancestor. There is a requirement of survival, which is normally regarded as a
         condition precedent.

SIMES & SMITH, supra, §579.

         Finally, in an article dealing with rules of construction and donor intent in class gift
situations, especially the issue of when survival is required, Professor Trautman explained that the
question of who is included in a particular class of beneficiaries is answered by the donor. When
the donor’s intent regarding that issue, including survivorship to a particular event, is not clear,
courts apply rules of construction to determine that intent. Trautman, supra, 20 VAND . L. REV . at
11. In those situations, Professor Trautman posited that a requirement of survival may be
substantially indicated by the testator’s description of the class of intended beneficiaries.
Specifically with regard to gifts of a future interest to a class of heirs, next of kin, or similar terms,
Professor Trautman explains “The thought often intended to be communicated is that the property
should be divided at the end of the life estate among those persons who at that time are the nearest
blood relatives, or those blood relatives who would inherit under the laws of intestate succession if
the ancestor had died at the termination of the prior estate or at the future event.” Id. at 18. The
article summarizes “while class gifts of future interests to ‘children’, ‘grandchildren’, and the like
do not imply a requirement of survival to the date of distribution, class gifts of future interests to
‘heirs’, ‘next of kin’, and ‘issue’ seem strongly to suggest that the persons who take are required to
survive the designated ancestor.” Id. at 22.

       The grantor herein has made his intent abundantly clear. The appropriate rules of
construction support that intent, to the extent any construction is needed. Statutory and case law
support the result that is reached from simply following the language used by the grantor. Ms.
Baskin’s late husband was, after the grant and until his death, a potential remainderman because he
was a member of the class of Martha Wilson’s bodily heirs. He died before the termination of the

         22
              This conclusion is explained:

         A statute that prescribes the rules applicable to intestate takers of property operates by ascertaining
         the takers thereunder at the moment of the death of the person who died intestate. Such takers are the
         ‘heirs’ of such person. If the statute were to operate to ascertain the takers thereunder at a time prior
         to or subseq uent to the death o f the person who died intestate, the takers would not be the true ‘heirs’
         of such person but would be an artificial group.

R ESTATEMENT (S E C O N D) OF THE L AW O F P ROPERTY (Donative Tran sfers) § 29.4 com. a.

                                                            17
life estate; any interest he had in the remainder was extinguished at that time. Consequently, he had
no interest which could be transferred through his estate.

                                                  V. The Class Gift Statute

        The trial court determined that the statute applicable to class gifts answered the question of
whether Kenneth Wilson possessed an interest which was transmissible to his widow through his
estate. That statute provides:

             Where a bequest, devise, conveyance, transfer or gift is made to a class of persons
             subject to the fluctuation by increase or diminution of its number in consequence of
             future births or deaths, and the time or payment, distribution, vestiture or enjoyment
             is fixed at a subsequent period or on the happening of a future event, and any
             member of such class shall die before the arrival of such period or the happening of
             such event, and shall have issue surviving when such period arrives or such event
             happens, such issue shall take the share of the property which the member so dying
             would take if living, unless a clear intention to the contrary is manifested by the will,
             deed or other instrument.

Tenn. Code Ann. § 32-3-104 (1998).

        This statute, originally adopted in 1927, was a legislative response to judicial application of
Tennessee’s common law class gift doctrine. While the descriptions of the purposes and effects of
the statute are many and often irreconcilable, it is generally considered to have been intended to
relieve the harsh effect of the common law doctrine, at least in some instances, by allowing the
surviving issue of a class member who dies before the time the class would have come into
possession of the gift to take that class member’s share. The result required under the common law
doctrine was that the gift to a nonsurviving member of the class would lapse, depriving even his
children of any interest.23

        The word “‘issue’ . . . includes all persons who have descended from a common ancestor;
unless controlled by the context, it means lineal descendants.” ROBINSON & MOBLEY , supra, § 461.



             23
           The class doctrine first appeared as a judicially created rule of construction in Satterfield v. Mayes, 30 Tenn.
58 (1849). In that case the will beq ueathed property to M during her natu ral life and the rem ainder to M ’s daug hters.
The court established the rule which became the Tennessee Class Doctrine:

             The rule is well settled that, wh ere a beq uest is made to a class of persons, subject to fluctuation by
             increase or diminution of its number, in consequence of future births or death, and the time of
             payment or distribution of the fund is fixed at a subsequent period, or on the happ ening of a future
             event; the en tire intere st vests in such perso ns, on ly, as at that time , fall within the desc ription of
             person s, constituting such class.

Id. at 59.

                                                                 18
         The “issue of the decedent” are, unless otherwise limited, all the direct, lineal
         descendants of the deceased. Burdick v. Gilpin, 205 Tenn. 94, 109, 325 S.W.2d 547,
         554 (1959); Third National Bank in Nashville v. Noel, 183 Tenn. 349, 358, 192
         S.W.2d 825, 828 (1946); and White v. Kane, 178 Tenn. 469, 475, 159 S.W.2d 92, 94-
         95 (1942) (construction of the antilapse statute). The Tennessee Supreme Court has
         also noted that the term can be broad enough to cover descendants of every degree.
         Lea v. Lea, 145 Tenn. 693, 697, 237 S.W. 59, 60 (1922).

Carter v. Hutchison, 707 S.W.2d 533, 538 (Tenn. Ct. App. 1985).

       The statute would act in this situation to save Kenneth Wilson’s portion of the remainder if
any of his lineal descendants are alive at the termination of the life estate. That portion, however,
would pass to those surviving lineal descendants. Ms. Baskin is not a lineal descendant of her late
husband. We think the trial court correctly interpreted the statute.

         In Martindale v. Union Planters Nat’l Bank, No. 02A01-9502-CH-00030, 1996 WL 266650
(Tenn. Ct. App. May 21, 1996) (no Tenn. R. App. P. 11 application filed), this court applied the class
gift statute. The will in question created a trust for the benefit of the testator’s wife for her life, with
the trust estate to be distributed upon the death of his wife equally to his sister, Wilma Cox, and his
nephew, Carl Van Kenner, and:

         In the event my said sister or nephew shall predecease the date of distribution leaving
         children surviving, that share which would have gone to my sister or nephew had she
         or he survived, shall go to the children of said deceased children or nephew in equal
         portions . . . .

Martindale, 1996 WL 266650 at *4.

       This court determined that the testamentary gift to the children of the testator’s sister and
nephew was a gift to a class and, therefore, Tenn. Code Ann. § 32-3-104 applied. The court
described the statute:

         This statute modified the Tennessee class doctrine by providing that where a bequest
         is made to a class of persons that is subject to fluctuation by either increase or
         decrease of its number, and a class member dies before the time established for
         distribution, the issue of the deceased class member will take that member’s share
         unless a clear intention to the contrary is evinced by the language of the will.

Id. at * 3.24


         24
         W e note that Ms. Baskin’s theory that her husband had a one-third interest in the remainder presupposes that
William Wilson, Martha Wilson’s other son, also took a vested, transmissible one-third interest, even though he
                                                                                                         (con tinued...)

                                                          19
        The dispute in Martindale involved the disposition of the share given to Wilma Cox. Wilma
had three children, one of whom, Duane, predeceased the testator and left two children. When
Wilma died, before the life tenant, she was survived by Duane’s two siblings, who disputed that
Duane’s children had an interest in the gift. The court concluded that, pursuant to the statute, the
portion of the estate which would have gone to Wilma’s son Duane had he not predeceased the life
tenant went to his surviving children, unless a clear intent to the contrary was manifested by the will.
The court found no such clear contrary intent.

         A similar statute, but applicable to immediate rather than postponed gifts, Tenn. Code Ann.
§ 32-3-103(3) states that if a devisee or legatee, or member of such class, of an immediate gift dies
before the testator leaving issue surviving the testator, such issue shall take the share of the deceased
devisee, legatee, or class member, unless a different disposition is otherwise required by the will.
In White v. Kane, 178 Tenn. 469, 472-73, 159 S.W.2d 92, 95 (1942), the Supreme Court interpreted
this provision (then Code Section 8134) as intending to save an immediate gift to a person who
predeceased the testator or donor by directing that the deceased devisee’s interest would go to his
issue who survived the testator. “The primary purpose of these acts was to prevent this lapse of the
devise or legacy, and to save it to the representative of the deceased legatee.” Brundidge v.
Alexander, 547 S.W. 2d 232, 234 (Tenn. 1976) (quoting White, 178 Tenn. at 474, 159 S.W.2d at 94.)
This antilapse statute is in furtherance of the presumed intent of the testator, and under it “the issue
that survives a deceased devisee or legatee takes as the substituted legatee of the deceased ancestor
just as if their names had been inserted in the will by the testatrix itself.” Wiess v. Broadway Nat’l
Bank, 204 Tenn. 563, 573, 322 S.W.2d 427, 432 (1959); see also Brundidge, 547 S.W.2d at 233
(quoting passage with approval). The statute is intended to safeguard the interests of those who take
under a deceased legatee, not to benefit the deceased legatee. Id. This court has recognized that this
statute would not apply where the testator’s clear intent is that the gift be conditioned upon survival
to the death of the testator. In re Estate of Harper, No. M2000-00553-COA-R3-CV, 2000 WL
1100206, at * 3 (Aug. 8, 2000) (no Tenn. R. App. P. 11 application filed). Thus, judicial
interpretation of the similarly worded antilapse statute on immediate gifts is consistent with the
Martindale court’s interpretation of the class gift statute.

       In the case before us, of course, the result of application of the class gift statute, Tenn. Code
Ann. § 32-3-104 (1998), as interpreted as discussed above, is consistent with the language of the
grant and with this court’s application of the law to the grant.25 Although the grantor clearly
intended that takers of the remainder must survive to the termination of the life estate, he chose
language which solved the problem that the statute was designed to correct. By using a
multigenerational term and incorporating the law of intestate succession, the grantor protected the


         24
            (...continued)
predeceased the life tenant and left no surviving lineal descendants. The class gift statute does not operate to save
William’s interest because he had no surviving issue. T he ca ses usin g that statute to find vested interests in som e class
gifts, discussed later in this opin ion, w ould also ap pear not to app ly to W illiam’s interest.
         25
            W e need not address any issue which may be created by the grant’s use of heirs of the body and its reference
to the laws of descent and distribution and the statute’s use of the term issue.

                                                            20
interest of lineal descendants. The statute does not, however, support Ms. Baskin’s interest in the
property and dictates a contrary result.

                      VI. The Statute, the Class Doctrine, and Vested Interests

        Tennessee Code Annotated § 32-3-104 has been interpreted as having a greater effect than
our discussion above or its plain language would indicate. Although our courts have been less than
consistent in their assessment of its effect, a line of decisional authority developed that forms the
basis for Ms. Baskin’s claim that her husband possessed a vested, transmissible interest. We begin
with the first of the opinions in that line of authority.

        Harris v. France, 33 Tenn. App. 333, 232 S.W.2d 64 (1950) (cert. denied 1950), involved
a challenge to a testamentary trust which provided income to the children of testator’s named nieces
and nephews, with the trust to cease and the corpus to be distributed to those children when the
youngest reached the age of thirty. Because the case involved the Rule Against Perpetuities, the
court was required to determine when the children’s interests vested. It applied an exception to the
common law class doctrine available when the court can find “any slight indication” of an intent on
the part of the testator to create separate and severable interests rather than to vest the interest in the
class unit. Id. 33 Tenn. App. at 349, 232 S.W.2d at 71. The court found such intent to individualize
the gifts, and held therefore that although the devise was to a class the members took several
interests, each having a vested equitable interest which was transmissible. Id. 33 Tenn. App. at 353-
54, 232 S.W.2d at 73. The court did not apply the common law doctrine.

        The Harris court’s discussion of the common law class doctrine and the statute is important.
The court assumed that, absent some exception to the doctrine’s application, an individual’s interest
in a class gift would not vest until the time for distribution of the property. “Under this doctrine the
individuals composing the class have no estate prior to the period for distribution but only an
expectancy. The mere fact that the time of payment or distribution is postponed implies a condition
precedent of survivorship.” Id. 33 Tenn. App. at 345, 232 S.W.2d at 69 (citations omitted). The
court stated that because the doctrine as applied was contrary to the common law and the weight of
authority, and because it had been applied to defeat the intent of the testator many times, our courts
had become increasingly reluctant to apply it, doing so “only where it was impossible to discover
anything in the instrument justifying a refusal to do so.” Id. (citations omitted).

        In 1927 the legislature took cognizance of the situation and passed a statute
        embodying a rule of construction designed to avoid the defeat of the testator’s
        intention by the application of the class doctrine as it had theretofore been applied in
        Satterfield v. Mayes . . . and the cases which followed the rule there announced.

        Before the statute, the mere fact without more that the time of payment or
        distribution was postponed, required the conclusion that survivorship was by
        implication a condition precedent to the vesting of separate estates in the individual
        members of the class.


                                                    21
       The statute forbids such an implication and the fact that the time of distribution is
       postponed is reduced to a circumstance to be considered along with the other
       circumstances and provisions of the will in determining whether there is a clear
       manifestation of an intention that the entire interest vest in such persons only as fall
       within the description of the persons constituting the class at the time fixed for
       payment or distribution of the estate. In other words, by virtue of the statute, where
       applicable, the rule now is that notwithstanding that the time of payment or
       distribution of the estate is fixed at a subsequent period, or upon the happening of a
       future event, the individual members of the class will take vested transmissible
       interest unless the will, considered as a whole in light of all the circumstances,
       manifests a clear intention to the contrary.

Harris, 33 Tenn. App. at 347-48, 232 S.W.2d at 69-70 (citations omitted).

        Thus, according to the Harris court, the problem with the Tennessee Class Doctrine was that
it had come to be applied formulaically to all postponed gifts to a class regardless of the description
of the class or contrary grantor intent. Commentators generally agree with that description.

       If there is a justifiable criticism with regard to the class doctrine in Tennessee, it is
       that it came to be applied mechanically as a rule of law, and indeed, as a rule of
       property which could only be changed by the legislature. . . .

       The doctrine takes a definite position on all class gifts of future interests, recognizing
       no distinction between such class designations as “children,” “grandchildren,”
       “nephews and nieces,” and the like, which do not inherently suggest a requirement
       of survival, and such class designations as “heirs,” “next of kin,” “issue,” and the
       like, which seem to suggest inherently a requirement of surviving at least the
       designated ancestor of such groups. . . . In class gifts to children, grandchildren,
       nephews and nieces, the doctrine has been applied mechanically to disinherit
       successors of a deceased child without any effort to analyze the limitation and
       consider the probable intent of the donor. . . .

Trautman, supra, 20 VAND . L. REV at 23-24.

        Although Harris became the foundation for the later cases finding vested transmissible
interests, we note that one year after the Court of Appeals issued Harris, the Supreme Court decided
Denison v. Jowers, 192 Tenn. 356, 241 S.W.2d 427 (1951), in which it applied the common law
class doctrine because the will granted the remainder to testator’s siblings at the death of the life
tenant, finding the phrase “at her death” indicated the testator’s intent that the members of the class
should be determined at the life tenant’s death. Id. 192 Tenn. at 358, 241 S.W.2d at 428. The Court
recognized that the class doctrine “is often a hard rule” and that courts would seize even slight
grounds to find a devise to individuals rather than to the class in order to avoid application of the
rule. Finding no such language in the devise and feeling compelled to follow prior decisions, the
court applied the common law doctrine.

                                                  22
       The Court’s observation of the effect of the 1927 statute was that “the Legislature did no
more than enact a rule which this Court had eagerly followed without legislation.” Id. 192 Tenn. at
360, 241 S.W.2d at 428. This holding was later criticized by the Tennessee Supreme Court.26

        The next case in the line relied upon by Ms. Baskin is Karsch v. Atkins, 203 Tenn. 350, 313
S.W.2d 253 (1958), and indeed this case is the source of the language which is used in subsequent
opinions to apply the statute to create vested interests. The Karsch case was a tax case and the issue
was the correct exemption to the gift tax to be applied to a gift of money into a trust established for
the grantor’s daughter for life then for the benefit of the daughter’s children. At the time the gift was
made, there was only one such child, a Class B beneficiary; the grantor wanted the benefit of the
greater exemption available for Class A beneficiaries. The Court resorted, in part, to the class gift
statute and stated that by virtue of that statute:

          [T]he rule now is that notwithstanding that the time of payment or distribution of the
          estate is fixed at a subsequent period, or upon the happening of a future event, the
          individual members of the class will take vested transmissible interest unless the will,
          considered as a whole in light of all the circumstances, manifests a clear intention to
          the contrary. Thus it is that the remainder in the instant case is unquestionably vested
          so that it will descend to the donee’s children just as any other vested interest would.

                                                           ....

          This statute contains in its concluding sentence a recognition that a remainder to a
          class can be construed as contingent. It seems to us though from the language of this
          statute that an intention to make the remainder contingent must be more or less
          expressly stated. As we see it the rule should be, in view of this statute, that the
          estate will be treated as vested unless the contrary is expressly provided for in the
          will. This is what the statute says – and we must apply it as it reads.

Karsch, 203 Tenn. at 354-55, 313 S.W.2d at 255.

       Thus, from Denison in 1951 to Karsch in 1958, the Supreme Court apparently changed its
view of the class gift statute from accomplishing nothing different from what the courts had been
doing to effecting a new rule regarding vesting of interests which was to be applied almost
presumptively.

        In its opinion in Karsch, the Court did not address Harris and offered no explanation for its
conclusion regarding the statute. The basis for the court’s interpretation of the statute is unclear
because by its plain language the statute does not address vesting and does not provide for transfer
of a deceased class member’s interest during his lifetime by sale or gift or at his death by will. Such


          26
               See order on the Petition to Rehear in Wa lker v. App lebury, 218 Tenn. 91, 105-06, 400 S.W.2d 865, 870-71
(1965).

                                                            23
a transfer could defeat the interest of surviving issue, a result which appears contrary to the statute.27
A different interpretation of the statute was given in the next case to address the issue, Wilson v.
Smith, 47 Tenn. App. 194, 337 S.W.2d 456 (1960). Without referencing the Karsch decision, the
Wilson court stated:

         Our construction of this statute is that, without abolishing the class doctrine rule, it
         merely adds to membership in the class entitled to take, at the falling in of the life
         estate or happening of other future event specified, the then surviving issue of anyone
         who would have been a member of the class if he or she had survived until that time.

Wilson, 47 Tenn. App. at 206, 337 S.W.2d at 461.28

         In Wilson the testator devised his real property to his wife in life estate with the remainder
to be “equally divided between my brother and sisters, and the children of any deceased brother or
sister.” This court held that the common law “Class Doctrine,” as applied or described in a long line
of cases, including Harris and Denison, applied and that the interests of the members of the class,
as individuals, could not be definitely ascertained until the death of the life tenant. Those interests
were, therefore, contingent upon survival to the death of the life tenant. The court further held that
deeds, wills, and other attempted grants executed by various descendants of the testator’s siblings
were ineffectual because those descendants held no vested, transmissible interest which they could
convey.29

        The Supreme Court apparently was not impressed with the Wilson court’s interpretation of
the statute. In Moulton v. Dawson, 215 Tenn. 184, 384 S.W.2d 233 (1964), although the Court held
that the class gift statute did not apply because the will in question pre-dated its passage, it
nonetheless discussed prior interpretations of the statute, stating that Karsch and Harris clearly
enunciated the change in the law brought about by the statute. With regard to Wilson v. Smith, the

         27
            Professor Trautman suggests that the statute “introduces a ‘lapse’ concept into the problem of survival in an
effective gift of a future interest to a class, rather than stressing the transmissibility of the deceased class mem ber’s
interest. Suppose the will of the deceased class m em ber m ade a gift of his interest to someone other than his issue?”
Trautman, supra, 20 V A N D . L. R EV at 30-31.

         28
          W e note that the Wilson court’s construction is similar to that of the court in Martindale v. Union Planters
National Bank, 199 6 W L 2666 50, d iscusse d earlier.
         29
              Finding this conclusion a necessary consequence of the class doctrine statute, the court stated:

         In Nichols v. Guthrie, 109 Tenn. 535, 73 S.W.107; Rinks v. Gordon, 160 Tenn. 345, 24 S.W.2d 896,
         and Felts v. Felts, 188 Tenn. 404, 219 S.W.2d 903, attempted conveyances, by will or by deed, of
         those who w ould have inherited if they had survived the life tenant and qualified as members of the
         class were designa ted, w ere held ineffectual; and, in Hobson v. Hobson, 184 Tenn. 484, 201 S.W.2d
         659, such conveyance by one of the members of the class who did survive the life tenant, executed
         before the death of the life tenant, was held good, but solely on the principle of estoppel by deed.

Wilson, 47 T enn . App. at 20 3, 33 7 S.W .2d at 460 .

                                                            24
court noted that the Court of Appeals did not refer to the Karsch case which had preceded the Wilson
case by two years and that the Supreme Court had not reviewed Wilson since no petition for
certiorari was filed.30

         After comparing the language in grants involved in various other cases applying the common
law class doctrine, the court determined that application of the doctrine was appropriate in Moulton.
The will in Moulton gave the testator’s property to his wife for her life or widowhood, then to his
children and “if any children should die leaving children, then such child or children are to take the
share their parent would have taken if living.” Interesting for its application to the case before us,
the lawsuit in Moulton was initiated because of a dispute over the distribution of proceeds from a
condemnation. The testator’s two children alive at the initiation of the lawsuit sought a portion of
the proceeds to be shared with their mother, the life tenant, who was still alive. The trial court ruled
that the children held vested interests and divided the proceeds proportionately, apparently based on
the life tenant’s age and life expectancy, among the three parties. The Court of Appeals affirmed
the trial court’s holding that the remainder was vested based upon Harris and Karsch.

       Because the grant pre-dated the statute, the Supreme Court reversed and specifically applied
the common law doctrine, holding that “the remainder interest in this property is vested in ‘the
described class, as a class, and not individually in the persons composing such a class,’” Moulton,
215 Tenn. at 193, 384 S.W.2d at 237 (quoting Satterfield v. Mayes). Therefore, the devisees of the
remainder could not be determined until the death or remarriage of the life tenant, and the children
were not entitled to distribution of any of the condemnation proceeds at that time.

        Walker v. Applebury, decided a few years later has been cited by the appellant for the
proposition that Kenneth Wilson’s interest was both vested and transmissible and, consequently,
passed through his estate on his death intestate. In Walker, the testator granted her husband a life
estate in two pieces of real property with a remainder to a class described in various provisions of
the will as “the Applebury’s,” “the Applebury kin” or the “Applebury heirs.” The testatrix was a
member of the Applebury family, and the land in question had come to her through inheritance from
that family; hence her desire to return ownership of the land to her family.

        Among the “Applebury kin” that survived the testator was a cousin, Marvin Applebury, who
died prior to the death of the life tenant. Marvin Applebury’s widow and adopted son brought suit
to recover Marvin’s share of the devised property on the theory he had a vested interest which passed
through his estate to them. The suit was brought after the death of the life tenant.

        The Tennessee Supreme Court stated that the question before it was whether the devises were
controlled by the “Tennessee Class Doctrine” enunciated in Satterfield v. Mayes. The Court
described that doctrine as having long troubled the bench and bar of the state. The Court examined
the 1927 statute, beginning with its caption:


        30
          In a later decision, the Supreme Court stated that any discussion of the statute in Moulton was dictum.
Walker, 218 Tenn. at 105-06, 400 S.W.2d at 870.

                                                       25
         “An Act to so change what is known as ‘The Class Doctrine’ concerning property to
         be paid or distributed or divided among members of a fluctuating class at a future
         time or upon the happening of a future event, that the issue of any member of such
         class dying would take if living at such future time or at the happening of such future
         event.”

Walker, 218 Tenn. at 96, 400 S.W.2d at 867 (citation omitted).

        The Court found that the legislature had intended to make some changes in the class doctrine
as it had been applied by the courts, but that “just what changes” the statute accomplished was a
decision for the courts. The Court quoted from a number of articles and treatises criticizing the
common law doctrine and largely concluding that the statute abolished the doctrine, at least to the
extent that the doctrine was contrary to the majority rule, and established “the rules of judicial
construction generally applicable in Tennessee and in other common law jurisdictions.” Id. 218
Tenn. at 98, 400 S.W.2d at 869 (quoting Herman L. Trautman, Decedents, Estates, Trusts and
Future Interest - 1959 Survey, 12 VAND . L. REV . 1157, 1175 (1959)).

       Finding that the case was subject to the 1927 statute,31 the Court concluded that the case
would be decided by applying the following rule:

         That the class took a vested transmissible interest in this estate in remainder upon the
         death of the Testatrix unless, (1) the will taken as a whole, in light of all the
         circumstances, requires the remainder to remain contingent, and not vest during the
         life of the life tenant, in order to carry out the clear intention of the Testatrix, or (2)
         there is language in the will expressly providing the remainder not vest during the life
         of the life tenant.

Walker, 218 Tenn. at 101, 400 S.W.2d at 869.

        After examining the will, the Court found the testatrix’s intent was that the land return from
whence it came, to the Applebury family, and that furtherance of that intent did not require that the
remainder remain contingent during the life tenancy in order to carry out this clear intent. Therefore,
the court concluded that Marvin took a vested transmissible interest in the remainder upon the death
of the testatrix.




         31
             At least one comm entator has questioned the court’s holding that the statute applied, becau se the statute on
its face applies only where a deceased member of the class has issue surviving to the date of distribu tion. M arvin
Walker had no such issue surviving, and although he was survived by an adopted son, the court made it clear that it was
not d ecidin g the case o n the theory tha t the ad opted son qualified as issu e. Trautm an, supra, 20 V A N D . L. R EV at 30.
No netheless, the court in Walker based its new ru le of co nstruction on th e statute.

                                                              26
        A “forthright, strong and sometimes testy petition to rehear” was filed.32 In its response, the
Court found that the fact that the appellant, Marvin’s son, was adopted was irrelevant. “Royce
Marcus Applebury an adoptive son of Marvin Applebury, by virtue of T.C.A. sec. 36-126 would
inherit from his adoptive father and not the testatrix.” Id. 218 Tenn. at 103, 400 S.W.2d at 870.
Thus, the Court made it clear that Marvin had a vested interest which passed through his estate and
that his son’s interest came from his interest in his father’s estate, not from the original grant in the
will. This is, in essence, Ms. Baskin’s argument herein.

          The conclusion that Marvin held a vested interest transmissible through his estate was based
upon a determination that identification of those persons in the class of Applebury kin or heirs was
to be made at the death of the testatrix (“the class took . . . upon the death of the Testatrix”). The
Appelbury heirs were the testatrix’s heirs, not the life tenant’s.33 Thus, the result in Walker is not
inconsistent with our conclusions stated elsewhere regarding Tennessee law. It is well recognized
that there is a distinction between a remainder to the heirs of the grantor or testator as opposed to the
heirs of the life tenant. The grantor or testator has heirs upon his death. A gift to the heirs of a
named person is interpreted as an intent to have the property distributed as the law would distribute
it if the named person died intestate. While the normal time for applying the statute of descent and
distribution would be on the death of the named person, the grantor may indicate an intent to have
it applied (to determine the actual heirs) at an earlier or later time. SIMES & SMITH, supra, §§ 732


         32
           The petition had asked the court to reconsider its holding in light of a number of cases since 1927 applying
the doctrine as set out in Satterfield. After considering the listed cases individually, the court summarized them:

         The cases since the Act of 1927 have been looked at and discussed. In only one instance was the will
         probated after 1927 and that was in the case of Den ison v. Jow ers, supra. In that case the court states
         why a contingent remainder is created and then goes one step further to say that the statute did not
         do anything. T.C.A. sec. 32-305 recognizes, of course, that a testator may expressly create a
         contingent rem ainder by appropriate w ords. Since 1927 we h ave these imp ortan t cases: Jennings v.
         Jennings, supra, stating that the statu te is prospective; Den ison v. Jow ers, supra stating that the statute
         did not chan ge an ythin g; Karsch v. Atkins . . . a tax case which held the statute was applicable and
         vested transmissible interests were created; and Moulton v. Dawson . . . holding, by dictum, that the
         legislature did w hat it said it was going to do in 1927 and changed the class doctrine. This case stated
         that the class doctrin e was abolished and T.C.A . sec. 32 -305 w as applicab le for all wills probated after
         1927. This case, just as the comm entators and authors of law review articles, severely criticized the
         Denison case. The case at bar is in a logical sequen ce w ith all the above mentioned cases other than
         Den ison v. Jow ers, supra.

Walker, 218 Tenn. at 105-106, 400 S.W.2d at 871.


          33
            In the case b efore us, the class is the heirs of th e body o f the life tenan t. As ex plained ea rlier, the id entity
of heirs cannot be determined until the death of the person to whom they are heirs. Because the identity of the testatrix’s
heirs or kin could be determined as of her death in Wa lker, the share of each qualiftying member of the class could be
determined. Because the life tenant had died prior to the lawsuit, as the court stated, the land had been sold and the
amount Marvin wo uld h ave taken was not in dispu te in Walker. Until the death of the life tenant herein, the number
of mem bers of the class entitled to the remainder cannot be determined and, consequently, the size of each mem ber’s
share cann ot be determin ed.

                                                               27
-34; see also RESTATEMENT (SECOND) OF THE LAW OF PROPERTY (Donative transfers) § 29.4 (in the
absence of indication of different intent, the statute governing intestate succession is to be applied
as of the death of the person whose heirs are the named beneficiaries). The court in Walker applied
the general rule, using the death of the testatrix as the date upon which to identify her heirs.

         Tennessee courts have generally found that the time for determining who is an heir depends
upon the court’s interpretation of the testator’s or grantor’s intent. Burdick, 205 Tenn. at 94, 325
S.W.2d at 547 (construing language of a will as directing when the corpus of trust was to be divided,
on the death of the testator’s daughter Eleanor, and to whom it was to be divided, members of the
beneficiary class who were living at the termination of the trust); Rinks, 160 Tenn. at 345, 24 S.W.2d
at 896 (grant of life estate to sister and at her death to other brothers and sisters or their heirs who
may be living at the death of life tenant’s sister indicated intent that only those persons living at the
death of life tenant would share and that the determination of the persons by whom the remainder
estate should be enjoyed would be made as of that date); Forrest v. Porch, 100 Tenn. 391, 45 S.W.
676 (1898) (remainder, after life estate to wife, to testator’s heirs at law was contingent because
testator obviously intended the land to be divided at the death of his widow among such persons who
at that time were his heirs at law). Thus, the Walker court’s emphasis on the intent of the testatrix
is also consistent with established legal principles other than the common law class doctrine or the
statute.

         In Nicholson v. Nicholson, 496 S.W.2d 477 (Tenn. 1973), the Tennessee Supreme Court was
called upon to determine the rights of certain heirs of the testator who left stock in a life estate to his
wife, the remainder to go to two named individuals, Ms. Weems and Mr. Wright. The will provided
that if the named individuals predeceased the testator’s wife, the stock was to go to the testator’s
heirs at law. The two named individuals predeceased the life tenant. The children of the testator’s
nephew, George, brought the action. George was alive when the testator died and was at that time
one of his heirs at law. He later sold his interest in the stock to the company which had issued it.
George outlived Ms. Weems and Mr. Wright, but predeceased the life tenant. His children claimed
that his interest had not vested, that they were members of the class of heirs at law at the death of
the life tenant, and that George’s attempted assignment of his interest could not deprive them of
their interests.

        Stating that the question to be answered was “at what time the testator’s heirs are to be
determined,” Id. 496 S.W.2d at 478, the Court found “the testator wanted to give his stock to a
fluctuating class of heirs, the interest in the stock to vest in them at the death of the last
remainderman, Wright, and actual possession to follow the death of the life tenant, testator’s
widow.” Id. 496 S.W.2d at 480. Consequently, the court affirmed the trial court’s holding in favor
of the company who had purchased George’s stock. In effect, the Court ruled that George’s interest
vested at the time of the death of Mr. Wright and his conveyance to the company was valid.

       Again, this result is not inconsistent with our conclusions elsewhere in this opinion. The
condition precedent to the class of heirs at law taking the remainder was removed with the death of
Ms. Weems and Mr. Wright prior to the death of the life tenant. At that point, it was clear that the


                                                    28
class would get possession of the remainder at the end of the life tenancy. Further, as discussed
above, the fact that the remainder was to go to the testator’s heirs at law rather than the heirs of the
life tenant brings the case within the general rule that in such situations, the question to be answered,
as the court in Nicholson recognized, is at what point in time the heirs are to be ascertained. That
question is to be answered by the terms of the grant.

        The Nicholson court relied on the class gift statute and prior judicial interpretation of the
effect of the statute:

         Prior to the enactment of this statute, Tennessee courts supported the so-called
         “Tennessee Class Doctrine,” which held that remainder gifts to a fluctuating class of
         persons remained contingent until the time set in the will for distribution or payment
         of the gift. That doctrine has been significantly modified by T.C.A. § 32–305 [now
         32-3-104]. Tennessee case law since passage of the statute in 1929 [sic] has held that
         such a class takes a vested, transmissible interest in the remainder, unless the will
         unquestionably discloses testator’s intention that the interest remain contingent until
         the date of distribution. Harris v. France, 33 Tenn. App. 333, 232 S.W.2d 64 (1950);
         Karsch v. Atkins, 203 Tenn. App. 350, 313 S.W.2d 253 (1958); Walker v.
         Applebury, 218 Tenn. 91, 400 S.W.2d 865 (1965).

Nicholson, 496 S.W.2d at 479. The court adopted and applied the test established in Walker: the
interests are vested unless the grant, taken as a whole, required the remainder to remain contingent
during the life tenancy.

         George’s children argued that the language of the will that the stock “be distributed to my
heirs at law at the date of death of my said wife” indicated an intent that the stock vest only in those
persons who are his heirs at the death of his wife and that the interest remain contingent throughout
the life tenancy. The Court, however, found that the language only set the time for distribution, not
for vesting. In any event, the Court concluded that, at best, the language in the will implied two
different results with equal force and Tennessee law favored vested interests. Accordingly, the Court
found that George had a vested interest which he validly conveyed to the company. Again, however,
the intent of the testator was the determining factor, and the general presumption that the death of
the person whose heirs are the beneficiaries is the date defining the class was applied.

        Our review of these cases convinces us that we are not compelled by them to decide Kenneth
Wilson died possessed of a vested, transmissible interest in one-third of the remainder, even if the
alternative contingent remainder to Will Jordan’s next of kin did not exist.34 First, none of the cases

         34
            Despite the subtlety of our language herein, it may have become apparent that we have questions about the
reasoning behind the Suprem e Co urt’s in terpretation of the class gift statute first announced in Karsch. That
interpretation seems inconsistent with the language of the statute and with the Court’s interpretation of a similar
antilapse statute as discussed in Brundidge, 547 S.W.2d at 234, another 1976 opinion. The potential disparity between
the Karsch interpretation of the effect of the statute and th e lang uag e of the statute is made cle ar by Ms. Bask in’s claim
                                                                                                                 (con tinued...)

                                                              29
relied upon by Ms. Baskin involves a gift to heirs of the body of the life tenant. The classes in
Harris and Karsch are children. The classes in Walker and Nicholson are multigenerational classes,
but are the heirs of the testator or grantor, not the life tenant. Bittikofer, decided after Nicholson,
held that a postponed gift of a remainder to heirs of the body of the life tenant is contingent, and its
restatement of well-settled law has not been altered.

        Second, the Karsch through Nicholson line of cases establish a rule of construction which
can be overcome by the clear intent of the grantor. Otherwise, application of the court’s
interpretation of the statute as a rule of law rather than a rule of construction would lead to the same
problems caused by earlier application of the common law rule. It is well established in the law
generally, and in Tennessee particularly, that the intent of the grantor governs because the courts will
recognize the right of a individual to dispose of her property as she likes. In the case before us, the
intent of Will Jordan is that those persons who are his daughter’s bodily heirs alive at her death, if
any, will share ownership of the farm. This intent contravenes any rule of construction which would
vest interest in a member of the class who predeceases Martha Jordan.

        Even in the absence of the alternative contingent remainder to the grantor’s next-of kin, we
conclude that Kenneth Wilson would not at his death have had a vested interest in the remainder
which was transmissible through his estate. As a member of the class of heirs of the body of Martha
Wilson, his interest was contingent upon his survival to the termination of the life tenancy. Whether
his interest during his life was properly classified as a contingent remainder, remainder subject to
condition (of survival to end of life estate), or a remainder subject to complete defeasance (upon
death before end of life estate), the result is the same.

        This conclusion is supported by Tennessee law, which is consistent with the Restatement’s
resolution of the issue.

         If a gift is made to a class described as the “issue” or “descendants” of a designated
         person, or by a similar multigenerational class gift term, in the absence of additional
         language or circumstances that indicate otherwise, (1) A class member must survive



         34
           (...continued)
herein. If her d eceased h usband had a vested, tran smissible interest as she claims the Karsch line of cases m andates,
he could have so ld it to a third pa rty, thereby depriving his daughter or other issu e of any in terest. This result seems
entirely contrary to the language of the statute which saves the interest of a deceased class member, only if he has issue
surviving, and allows only the surviving issue to take that share. The requirement that the statute apply only if the
deceased class m em ber h ave issue su rviving w ould indicate that the question of whether the statute applies at all would
have to be made after the event triggering distribution.

         Nonetheless, we are aw are that any reservations we may have about the broad statements in Karsch and its
progeny are not a basis upon which we can refuse to follow these holdings by the Suprem e Court. We are w ell aware
that we are not at liberty to depart from precedent set by the Sup rem e Co urt. Estate of Sc hultz v. Mu nford, Inc., 605
S.W.2d 37, 39 (T enn . Ct. App. 1 983 ). We do no t do so, bu t find the con clusion u rged u pon us by M s. Baskin fro m tho se
cases inapplicable because o f the langu age of the gran t in the case before us.

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         to the date of distribution in order to share in the gift; and (2) such class member in
         order to share in the gift must have no living ancestor who is a class member.

RESTATEMENT (SECOND) OF THE LAW OF PROPERTY (Donative Transfers) §28.2.

                                                  VII. Conclusion

        Under the language of the deed, at the death of the life tenant, the remainder passes to one
of two classes. If, at that time, there are no lineal descendants of Martha Wilson alive to take, the
remainder passes to the grantor’s next of kin. If when the life tenant dies she leaves children or
representatives of children, the class of heirs of her body will take the remainder. Those individuals
meeting the definition of heirs of Martha Wilson’s body who are alive at that time will share in the
remainder according to the terms of the statute on descent and distribution. Until the termination
of the life estate, no potential member of either class has a vested, transmissible interest in any
specific portion of the remainder.

        With regard to the claims raised herein by Cathey Baskin, she is not entitled to inherit
directly under Will Jordan’s deed because she is neither an heir of Martha Jordan Wilson’s body nor
a next of kin of Will Jordan. Ms. Baskin cannot be an heir of Martha Jordan Wilson’s body because
she is not a lineal descendant. Ms. Baskin cannot be Will Jordan’s next of kin because she is not his
blood relative.

        Consequently, Cathey Baskin’s claim must necessarily be through her deceased husband,
Kenneth D. Wilson, who could have been an heir of Martha Jordan Wilson’s body. However,
Kenneth D. Wilson did not acquire a vested, transmissible interest in the property upon the grant by
Will Jordan for two reasons. First and foremost, Will Jordan could not have intended the interests
of the heirs of Martha Jordan Wilson’s body to be vested during her lifetime because he included
an alternative bequest should she die without surviving heirs of the body that is inconsistent with
vesting. Second, Kenneth D. Wilson was not an heir of Martha Jordan Wilson’s body because he
predeceased her. The heirs of Martha Jordan Wilson’s body include her multigenerational, lineal
descendants. The members of the class of heirs of Martha Jordan Wilson’s body cannot be
determined until her death, and a person must survive Martha Jordan Wilson to be an heir of her
body.

        Even though Kenneth D. Wilson predeceased his mother, Tenn. Code Ann. § 32-2-104
(1998) preserves his interest to his surviving issue, Diane Wilson McCord,35 but not to his widow.
While Diane Wilson McCord (Cathey Baskin’s daughter) may eventually qualify as a surviving
issue of Kenneth D. Wilson if she survives her grandmother, Cathey Baskin will never qualify as a
surviving issue of her late husband.


         35
           In addition to being h er father’s issue, D iane W ilson M cCord is a m ember of the grantee class of heirs of
Martha Wilson’s body . If she survives Martha Wilson, Diane Wilson McCord w ill take a portion of the remainder under
the terms of the grant itself.

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      Accordingly, we affirm the trial court’s determination that Ms. Baskin has no interest in the
remainder or in the proceeds from the condemnation. Costs are taxed to Ms. Cathey Baskin.



                                                     ___________________________________
                                                     PATRICIA J. COTTRELL, JUDGE




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