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

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

                      Appeal from the Probate Court for Cumberland County
                              No. 13203   Steven C. Douglas, Judge

                                            FILED JULY 25, 2002

                                      No. E2001-02126-COA-R3-CV


In this appeal Vivian E. Warner, Administratrix, cum testamento annexo, seeks a declaration by the
Court as to the proper construction of two clauses in Maude Frazier’s will. We affirm.


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

HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY , J.,
joined. CHARLES D. SUSANO, JR., filed a dissenting opinion.

C. Douglas Fields, Crossville, Tennessee, for the Appellants, Arlene Scudder; Patricia Flynn,
Dorothy Owen, Nannie Mae Rice and Sylvia Cooke

Joe M. Looney, Crossville, Tennessee, for the Appellee, Mary Lou Underwood. No briefs were filed
by the other Appellees

                                                    OPINION


        The parties Defendant are the brother and sister of the deceased, who are specifically named
in the complaint, and her nieces and nephews, who are not specifically named, although the brief of
the Administratrix recites that all her nieces and nephews were served.1




        1
                  No answers to the complaint were filed by any of the parties Defendant, although on the date of the
hearing below --July 23, 2001--cou nsel for the appealing Defend ants filed a notice of appearance on their behalf.
       The provisions of the will, which the Administratrix seeks to have construed are the
following:

                                                IV
                I give and bequeath the furniture, furnishings and all other personal items
         belonging to me and used in and about the home to my heirs now designated; to
         wit, my brother, Dewey Frazier, my sisters, Maggie Olson and Mary Lou
         Underwood AND ALL of my nieces and nephews as one family class.

                                                   V

                I give the C.D.’s savings accounts and checking account in any bank to my
         brother, Dewey Frazier, my two sisters, Maggie Olson and Mary Lou Underwood,
         AND all of my nieces and nephews, equally, share and share alike. HOWEVER
         in event that any item or items not be taken the executrix is authorized to dispose
         of same as she deems best including giving any of same to another or to herself.

        The only witness to testify was the attorney who prepared Ms. Frazier’s will who, according
to the narrative statement of evidence, testified as pertinent the following:

                 Mr. Hendricks was asked by the Administratrix C.T.A. if he believed that
         Ms. Frazier intended to divide the property in Articles IV and V into three (3)
         shares and he did not have an immediate response.

                The Court propounded the same question to Mr. Hendricks at which time
         he confirmed that he believed that was what she intended.

        The Trial Court, apparently relying upon the attorney’s testimony, found that as to both
clauses it was Ms. Frazier’s intent her brother, Dewey Frazier, receive one-third, her sisters, Maggie
Olson and Mary Lou Underwood receive one-third (each receiving one-sixth), and her nieces and
nephews share equally in the other third.

       Five of the nieces appeal, contending that under a proper construction of the will the Testatrix
intended for her brother, her two sisters, and her nieces and nephews to share equally in the bequests
under Sections 4 and 5. They also contend that the Trial Court was in error in construing the will
in accordance with the testimony of the attorney who prepared it.

         At the outset, we observe that construction of a will is a question of law and comes to this
Court without any presumption of correctness. We also note that the Appellants correctly set forth
in their brief guidelines for interpreting wills in this State:

                  “The construction of a will is a question of law for the court. The cardinal
         rule in construction of all wills is that the court shall seek to discover the intention

                                                   -2-
         of the Testator and give effect to it unless it contravenes some rule of law or
         public policy. The testator’s intention is to be ascertained from the particular
         words used in the will itself, from the context in which those words are used, and
         from the general scope and purposes of the will, read in the light of the
         surrounding and attending circumstances. In construing a will it is necessary to
         look to the entire will and the testator’s intention must be determined from what
         he has written and not from what it is supposed he intended.” Briggs v. Estate of
         Briggs, 950 SW2d 710, 712 (Tenn. Ct. App. 1997).

        Turning to the issues on appeal, we agree with the Appellants, as to the second one, that what
the attorney who prepared the will thought Ms. Frazier meant is not controlling absent any proof to
support his thought, and for that reason we will disregard his testimony.

       As to issue one, the Appellee’s brief suggests there are three possible interpretations:

         1.      Whether or not the funds are to be divided into three shares with one share
                 passing to the brother, Dewey Frazier, one share to sisters, Maggie Olson
                 and Mary Lou Underwood and one share passing to the nieces and
                 nephews.

         2.      Whether or not the funds are to be divided into four shares with one share
                 each passing to the brother and two sisters and the fourth share divided
                 among the nieces and nephews.

         3.      Whether or not the funds are to be divided equally among the brother, two
                 sisters and all the nieces and nephews.

        As to Section 4, we believe a proper construction thereof would be to treat the brother and
two sisters as family and the nieces and nephews as "One Family Class," resulting in the second
construction set out above.

        Although Section 5 does not speak of a family class in regard to the nieces and nephews, we
think such a construction is appropriate. We reach a conclusion as to both Sections, partially upon
the ground that had it been the intent for all the Beneficiaries to share equally, as insisted by the
Defendants, it would have been very simple for the bequests to have been to "be equally shared by
my brother, Dewey Frazier, my sisters, Maggie Olson and Mary Lou Underwood, and my nieces and
nephews.”

        Moreover, we think it significant that as to in Section IV, the capitalized words “AND ALL”
between the naming of her siblings and her nieces and nephews served as notice that they would be
treated differently in the distribution of her estate. We also note that she likewise, under Section V,
capitalized the word “AND” between her siblings and the nieces and nephews, resulting in the same
inference.

                                                 -3-
        It is our view of the will that a more likely case could be made that it was the intent of the
Testatrix that the second possible interpretation above noted would be appropriate. However, Mary
Lou Underwood, the only Appellee filing a brief in this case, requests that "the decision of the Trial
Court either be affirmed or modified to grant the Appellee a one-fourth interest under Article 5 of
the Decedent's will."

        In light of this request and because we are disinclined to reduce the interest in the estate the
nieces and nephews would inherit--one-third versus one-fourth--and none of the Appellees made a
serious objection to our affirming the Trial Court's judgment, we affirm the judgment of the Trial
Court as rendered.2

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against Arlene Scudder, Patricia Flynn,
Dorothy Owen, Nannie Mae Rice, and Sylvia Cooke and their surety.



                                                        _________________________________________
                                                        HOUSTON M. GODDARD, PRESIDING JUDGE




         2
                   W e do note that this co ncession only addresses S ection V. However, we conclude in light of the fact
that the language of both Sections are p ractically id entical and the fac t that counsel makes no in sistence relative to
Section IV , its om ission in the co ncession regarding affirmance was inadvertent.




                                                           -4-
