                   IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT KNOXVILLE
                                                           FILED
             _______________________________________________

RUTH ANN TRIPP IND. and
as next friend of SHARA                                    February 28, 1996
TRIPP and SHAWNA TRIPP,
                                                           Cecil Crowson, Jr.
      Plaintiff-Appellant,                                 Appellate C ourt Clerk
                                              Claiborne Chancery No. 10,210
Vs.                                           C.A. No. 03A01-9508-CH-00271

DAVID HURST TRIPP, PAMELA
ANN TRIPP AND MILDRED GOODMAN,

      Defendants-Appellees.
_________________________________________________________________________


                  FROM THE CLAIBORNE CHANCERY COURT

             THE HONORBALE FRANK V. WILLIAMS, CHANCELLOR




                       Clinton R. Anderson of Morristown
                                  For Appellant

                              Clarlie Allen of Oneida
                                   For Appellees




                             VACATED AND REMANDED




                                              W. FRANK CRAWFORD,
                                              PRESIDING JUDGE, W.S.


CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
         This is primarily a will contest suit brought by Ruth Ann Tripp, the widow of

Douglas Tripp, a deceased beneficiary under the will of Nelia Hurst, deceased.

Ms. Tripp brought suit in her own behalf and on behalf of the deceased

beneficiary's two minor grandchildren. The complaint seeks construction of the

Nelia Hurst will to determine ownership of certain real property described in the

complaint. The suit also seeks a determination of plaintiff's rights to a driveway

easement granted to her by deed. The defendants are David Hurst Tripp, a

brother of Douglas Tripp, and his wife, Pamela Ann Tripp, and Mildred

Goodman, the daughter of Nelia Hurst and the mother of David and Douglas

Tripp.

         Nelia Hurst died April 16, 1990, and her last will and testament dated

March 1, 1988, was admitted to probate by order entered April 24, 1990.

Although the will is handwritten, the signatures of two witnesses appear thereon,

and the will was probated as an attested will upon the testimony of one of the

attesting witnesses. The will, as pertinent to the inquiry before us, provides:

                I Nelia Hurst being of sound mind do hereby bequeath
                as follows to my grandsons Douglas Tripp and David
                Tripp I leave my land it is deeded already at my death
                to them also I leave a money certificate in the
                amount of twenty five thousand seven hundred and
                twenty dollars & forty one cts to be divided equally

A photocopy of the will is attached as an addendum to this opinion.

         Plaintiff asserts that the will devised all of Nelia Hurst's real property to her

two grandsons, David Tripp and Douglas Tripp, and that she and the minor

grandchildren are tenants in common with David Tripp. After a nonjury trial, the

chancellor entered the following order:

                This cause came to be heard on the 1st day of June,
                1995, before the Honorable Frank Williams, Chancellor,
                sitting by interchange, upon the plaintiff's motion to
                amend the Judgment, and the Counter-Claim of the

                                             2
      defendant Mildred Goodson, at which time, after
      argument of counsel, the Court found:

      That the result of the Court's ruling that there was a
      latent ambiguity in the Last Will and Testament of Nelia
      Hurst, and the reference to the unrecorded deeds
      found in the bank safety deposit box, was that as
      between the parties. David Tripp is the owner of the
      property.

      That the parties made an agreement concerning the
      right of way easements; that the agreement was valid;
      and, that the old right of way was extinguished by
      virtue of the deed granting a new right of way.

      That a stay should be granted pending appeal so that
      the status quo is not disturbed, and the plaintiffs' right
      to use the existing driveway is not interfered with.

      The defendant, Mildred Goodson, [sic] withdrew her
      claim concerning insurance proceeds, and the
      counter-claim should be dismissed.

      IT IS THEREFORE ORDERED:

      1. As between the parties, David Tripp is the owner of
      the real property described in the Complaint, by virtue
      of the Last Will and Testament of Nelia Hurst.

      2. That the original right of way contained in that
      deed from Nelia Hurst to Douglas Tripp dated June 27,
      1977 was extinguished by agreement of the parties in
      consideration of the new driveway easement.

      3. A stay is granted under TRCP 62 pending appeal,
      and the defendants may not interfere with the
      plaintiffs' use of the existing driveway. No bond is
      required.

      4. The Counter-Claim of Mildred Goodson [sic] is
      dismissed.

Plaintiff has appealed and presents five issues for review:

      1. Did the Trial Court err in considering extrinsic
      evidence in the construction of the Last Will of Nelia
      Hurst, when the parties, through their attorneys,
      agreed that the Will was not ambiguous?

      2. Did the Last Will of Nelia Hurst contain a latent
      ambiguity which allowed the introduction of extrinsic
      evidence in the construction of the Will?

                                  3
             3. Did the Trial Court err in incorporating into the Will,
             unrecorded deeds not described in the Will?

             4. What land did Nelia Hurst devise to her grandsons?

             5. Was that [sic] right of way granted in the deed from
             Nelia Hurst to Doug Tripp and wife Ruth Ann Tripp
             dated June 27, 1977, extinguished by agreement?

      Plaintiff's first issue asserts that the defendants' attorney, in his opening

statement, agreed that the will in question was unambiguous, and therefore, the

trial court erred in considering extrinsic evidence in the construction of the will.

Plaintiff argues that defendants should have been bound by the admission, and

for that reason not allowed to introduce extrinsic evidence. We disagree. Rule

803, Tenn.R.Evid., applies to the admissibility of admissions by parties and allows

the introduction of "a statement by a person authorized by the party to make a

statement concerning the subject . . . ." The rule concludes, "Statements

admissible under this exception are not conclusive."

      The Advisory Commission Comments state:

                The final sentence is intended to abolish the
             distinction between evidentiary and judicial
             admissions. Unless made conclusive by statute or
             another court rule, such as T.R.C.P. 36.02 on requests
             for admission, all party admissions are simply
             evidentiary, not binding, and are subject to being
             explained away by contradicting proof.

      In the case before us, we are dealing with oral assertions made by

counsel in open court, and it is apparent that counsel withdrew the earlier

statement. Therefore, defendants' counsel was free to argue and introduce

evidence that the will was ambiguous. This issue is without merit.

      The second issue for review is:

             2. Did the Last Will of Nelia Hurst contain a latent
             ambiguity which allowed the introduction of extrinsic
             evidence in the construction of the Will?

      Plaintiff asserts that there is no ambiguity, and that therefore, no

                                         4
extraneous evidence should have been considered by the court. However, in

forwarding this argument, plaintiff completely disregards the words "it is deeded

already" which appear to be words of description. In order to determine which

land is "deeded already" and therefore which land is devised by the will, the

description of the land must be ascertained from the deeds in question. Parole

evidence is admissible to explain a latent ambiguity in a will. Holmes v. Roddy,

176 Tenn. 624, 144 S.W.2d 788 (1940). In Roddy, the Court defined a latent

ambiguity as one:

             "[W]here the equivocality of expression, or obscurity of
             intention does not arise from the words themselves,
             but from the ambiguous state of extrinsic
             circumstances to which the words of the instrument
             refer, and which is susceptible of explanation by the
             mere development of extraneous facts, without
             altering or adding to the written language, or requiring
             more to be understood thereby than will fairly
             comport with the ordinary or legal sense of the words
             and phrases made use of."

      Id. at 789 (quoting Weatherhead v. Sewell, 28 Tenn. (9 Hum.) 272 (1848)).

The Court went on to say:

              This court has been rather liberal in the admission of
             parol evidence to fix the identity of a legatee or
             devisee under a will where the testator's designation
             of such legatee or devisee was obscure. (citations
             omitted).

               We see no reason why a more rigid rule should be
             applied with reference to the admission of parol
             evidence to identify the subject of a devise or legacy
             when the testator's language is obscure.

144 S.W.2d at 789.

      The language of the will, "it is deeded already at my death," is a term of

description which necessarily refers to extrinsic facts for ascertainment of the

description. It was proper for the trial court to consider the extrinsic evidence to

determine the description of the property involved. See M'Corry v. King's Heirs,


                                         5
22 Tenn. (3 Hum.) 266 (1842).

      We will consider Issues 3 and 4 together:

             3. Did the Trial Court err in incorporating into the Will,
             unrecorded deeds not described in the Will?

             4. What land did Nelia Hurst devise to her grandsons?

      It is conceded that at the time of Nelia Hurst's death she owned a 60 acre

tract of land, as described in the complaint. She also owned a 24 acre tract of

land, described in the complaint, less two home-place lots previously deeded

in fee simple in 1977 to David Tripp and wife, and Doug Tripp and wife,

respectively.

      The extraneous evidence considered by the court consisted of the above-

mentioned 1977 deeds and two deeds executed by Nelia Hurst in 1972. One of

the 1972 deeds conveyed an eight acre tract to David Tripp, and the other

deed conveyed an eight acre tract to Douglas Tripp. These eight acre tracts

were part of the 24 acre tract described in the complaint. Each deed reserved

a life estate to Nelia Hurst, and each deed conveyed to the grantee (David

Tripp in one instance and Douglas Tripp in the other), a life estate which would

ripen into a fee simple estate if the grantee left "bodily heirs." The deeds

provided that in the event a grantee did not leave bodily heirs, his interest would

revert to the other grandson. The deeds were placed in bank lock boxes and

were not discovered until after Nelia Hurst's death. The parties apparently

concede that the deeds were not delivered, and no one is making any claim

to the property by virtue of the deeds. The proof also established that Douglas

Tripp left no bodily heirs.

       The cardinal rule in construction of all wills is that the court shall seek to

discover the intention of the testator and give effect to that intention unless it

contravenes some rule of law or public policy. Presley v. Hanks, 782 S.W.2d 482,

                                         6
487 (Tenn. App. 1989). 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 light of the

surrounding circumstances. Id. Every will is sui generis and therefore references

to other cases involving the testator's intention are usually of little assistance in

construing and interpreting wills. Id. In determining a testator's intention, a court

must look to the entire will, and the testator's intention must be determined from

what he or she has written. Id. at 488.

      The trial court, in reaching its decision that David Tripp is the owner of the

land by virtue of Nelia Hurst's will, apparently incorporated the 1972 deeds into

the will in their entirety instead of as a mere descriptive device. From the

language used we do not think that this was the testatrix's intent.

      Prior to executing her will in 1988, Nelia Hurst executed the 1972 deeds

which would defeat the title of the grantees upon dying without "bodily heirs."

In 1977, however, the testatrix executed deeds to each of her grandsons and

their wives conveying in fee simple, property to be used as a homeplace. The

1977 deeds provide some evidence that the testatrix's intent that her land

descend only to bodily heirs had diminished or disappeared. In any event, in

1988 when the testatrix made her will, she specifically bequeathed the land

without any limitation or restriction. The term "it is deeded already at my death"

is a descriptive term calling for extrinsic evidence to determine what property

is devised and does not purport to limit the estate given to the grandsons. As

previously noted, the parties make no claim under the 1972 deeds, apparently

believing they were inoperative to convey the property because they were not

delivered.

      The testatrix specifically "bequeathed" to her grandsons the land that was


                                          7
described in the 1972 deeds which are the only deeds to the grandsons that

purport to "take effect" upon Nelia Hurst's death. She did not propose by the

language of her will to place limitations on this bequest.

      T.C.A. § 32-3-102 (1984) provides:

             32-3-102. Devise of land. - Every devise shall convey
             the entire estate of the testator in the lands, unless the
             contrary intent plainly appear from the words and
             context of the will.

      From a review of the will as a whole, it does not "plainly appear" that the

testatrix intended to convey less than fee simple title to the particular land

involved. Accordingly, we construe Nelia Hurst's will to devise to Doug Tripp in

fee simple the eight acre tract of land described in the 1972 deed to Doug Tripp

which was admitted into evidence in this case.

      The last issue for review, as stated in appellant's brief, is:

             5. Was that [sic] right of way granted in the deed from
             Nelia Hurst to Doug Tripp and wife Ruth Ann Tripp
             dated June 27, 1977, extinguished by agreement?

      The 1977 deed executed by Nelia Hurst to Doug Tripp and his wife

(plaintiff) included a right of way across Nelia Hurst's property to a public road.

Subsequent to Nelia Hurst's death, David Tripp executed to plaintiff a deed

enlarging the homeplace lot that Nelia Hurst had previously conveyed in the

1977 deed. The deed from David Tripp contained a new right of way across his

property to the public road. The deed makes no reference to the previously

granted right of way. Defendants assert that there was an agreement "to

extinguish the existing right of way," but the record contains no evidence to

support this assertion. From an examination of the record, we find that the

evidence preponderates against the trial court's finding that the previous

easement or right of way was extinguished by agreement.

      Accordingly, the judgment of the trial court is vacated, and the case is

                                          8
remanded to the trial court for entry of judgment that the Nelia Hurst will devises

to Doug Tripp1 in fee simple the eight acre tract of land described in the 1972

deed to Doug Tripp. Costs of the appeal are assessed against appellees.

                                        ____________________________________
                                        W. FRANK CRAWFORD,
                                        PRESIDING JUDGE, W.S.

CONCUR:


_________________________________
ALAN E. HIGHERS, JUDGE

________________________________
DAVID R. FARMER, JUDGE




      1
          Doug Tripp died May 19, 1991, subsequent to Nelia Hurst's death.

                                         9
