Donna Perdue v. Estate of Daniel Jackson ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 22, 2013 Session
DONNA PERDUE v. ESTATE OF DANIEL JACKSON, ET AL.
Direct Appeal from the Chancery Court for Hardeman County
No. 17349 Martha B. Brasfield, Chancellor
No. W2012-02710-COA-R3-CV - Filed June 12, 2013
The trial court granted summary judgment in this declaratory judgment action, finding that
the will at issue was unambiguous. Having determined that the will at issue contains a latent
ambiguity that must be resolved through the use of extrinsic evidence, we reverse the grant
of summary judgment and remand for further proceedings. Affirmed in part, reversed in part,
and remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; Reversed in Part; and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Terry Abernathy, Selmer, Tennessee, for the appellant, Donna Perdue.
Randy C. Camp, Jackson, Tennessee, for the appellees, Estate of Daniel Jackson, Deceased,
by and through its Administratrix, C.T.A. Connie Higgs and Connie Higgs, Individually.
OPINION
I. Background
Testator Daniel Jackson died in 2011 leaving a holographic will, which stated: “All
property and houses to be left to Connie Higgs - Phyllis daughter1 - Daniel Stepdaughter to
be divided as she sees fit among kids . . . .” The will further provided that all contents of the
house, with certain exceptions, were to go to Ms. Higgs. The will also provided that:
“Nothing is to be sold off or auction[ed;] what [Ms. Higgs and] Frankie [and] Boys don’t
1
It is undisputed that Phyllis was the wife of Mr. Jackson.
want to be given to Sue [and] Debra.2 Finally, the will stated that “[t]his was Phyllis[’]
wishes.” The holographic will was admitted to probate on March 23, 2011.
On June 30, 2011, Appellant Donna Perdue filed a claim against Mr. Jackson’s Estate
in the Hardeman County Chancery Court alleging that she was the biological child of Mr.
Jackson and asserting that she was entitled to unpaid child support. On July 15, 2011, Ms.
Perdue filed a separate complaint for a Declaratory Judgment against the Estate of Mr.
Jackson, and Connie Higgs, as Administratrix of Mr. Jackson’s estate and individually
(collectively, “Appellees”),3 seeking to have the will declared “too uncertain, too ambiguous,
and too vague to constitute a valid testamentary disposition and to therefore adjudicate
Daniel Jackson died intestate.” The Declaratory Judgment complaint is the action at issue in
this appeal. In Ms. Perdue’s Declaratory Judgment complaint, she asserted that the phrase
“among kids” is too vague to constitute an enforceable testamentary disposition because it
is patently unclear which kids Mr. Jackson is referring to. On January 9, 2012, the trial court
entered an order denying Ms. Perdue’s separate claim for child support and refusing to name
Mr. Jackson as Mr. Perdue’s legal father on the basis of the expiration of the statute of
limitations. Ms. Perdue filed a timely motion to alter or amend asserting that she was not
seeking to have Mr. Jackson named her legal father, but merely sought an adjudication that
Mr. Jackson was her biological father, based on DNA testing performed by Ms. Perdue, in
order to pursue her Declaratory Judgment claim. Subsequently on April 4, 2012, the trial
court entered an order in which the parties stipulated that Ms. Perdue was the biological
daughter of Mr. Jackson. The trial court, however, did not amend its ruling dismissing Ms.
Perdue’s claim for unpaid child support. The claim for unpaid child support is not at issue
on appeal.
On September 17, 2012, Appellees filed a Motion for Summary Judgment in the
Declaratory Judgment action, arguing that Ms. Perdue had no standing to seek declaratory
relief in this action and that the will was clear and unambiguous in that the term “kids”
referred to the children of Ms. Higgs. The trial court heard oral argument on the Motion for
Summary Judgment on October 3, 2012. The trial court made an oral ruling at the conclusion
of the argument. The trial court ruled that in order to find a patent ambiguity, the court could
not consider any parole evidence. According to the trial court, considering only the four
2
From the record, it appears that there is no conflict as to who Mr. Jackson is referring to in this
portion of the will.
3
Ms. Perdue’s complaint for a Declaratory Judgment also named Frankie Pittman, Hunter Pittman,
Nicholas Pittman, Ashley Higgs, and Allie Higgs as party-defendants. These defendants did not participate
in any meaningful way in the trial court proceedings and were voluntarily nonsuited from the case by order
of January 31, 2013. Accordingly, these defendants are not parties to this appeal, nor is discussion of them
necessary to resolve the issues presented in this case.
-2-
corners of the will, Mr. Jackson clearly and unambiguously intended the word “kids” to refer
to Connie Higgs’ children, not Mr. Jackson’s own children. Thus, the trial court concluded
that the portion of the holographic will at issue contained neither a patent, nor a latent
ambiguity and could be enforced without the need for extrinsic evidence. Specifically, the
trial court stated:
You look at the will and you know he meant someone.
There was a group of people he called kids. It’s plural. It’s not
singular . . . .
* * *
When you look at this will, there’s several things that
come out to you. Connie Higgs is Phyllis’ daughter and Mr.
Jackson’s stepdaughter. She is mentioned on several occasions.
We know that she in the first paragraph is Connie.
She sees fit among kids. The only person that he
mentions in that paragraph is Connie Higgs. He defines who she
is. He says exactly who she is.
It’s her kids. . . . . He wants what Phyllis wishes, he
wants it to go to Connie, she does as she sees fit among kids.
They’re her kids unless they’re not—unless she doesn’t have
kids plural, then we have a problem, but otherwise kids are
Connie’s children and that’s what I am going to rule.
I find I can look at the four corners of this will and tell
what he’s talking about because . . . he’s doing this for himself
and Phyllis. He says again he wants it to be Phyllis, he says who
Connie is, and the only person that paragraph that he’s talking
about is Connie. [H]e means Connie’s children. Connie’s kids.
Accordingly, the trial court granted Appellees’ Motion for Summary Judgment. The trial
court entered an order granting summary judgment in favor of Appellee on February 4, 2013.
The trial court entered additional orders on January 31, 2013 and February 4, 2013, disposing
of the remaining issues in the case. Ms. Perdue timely appealed.
II. Analysis
The sole issue presented in this case is whether the trial court erred in granting
Appellees’ Motion for Summary Judgment on the issue of the construction of Mr. Jackson’s
will. A trial court’s decision to grant a Motion for Summary Judgment presents a question
-3-
of law. Our review is therefore de novo with no presumption of correctness afforded to the
trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court
must make a fresh determination that the requirements of Rule 56 of the Tennessee Rules of
Civil Procedure have been satisfied. Abshure v. Methodist Healthcare–Memphis Hosps.,
325 S.W.3d 98, 103 (Tenn. 2010).
When a Motion for Summary Judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The Summary Judgment
Motion filed by Appellees is governed by the summary judgment standard contained in
Tennessee Code Annotated 20-16-101.4 Based on this statute, when the moving party is not
the party that has the burden at trial, the moving party may accomplish summary judgment
by either: (1) submitting “affirmative evidence that negates an essential element of the
nonmoving party's claim”; or (2) demonstrating “ to the court that the nonmoving party's
evidence is insufficient to establish an essential element of the nonmoving party's claim.”
Tenn. Code. Ann. 20-16-101.
The trial court in this case granted summary judgment after concluding that no patent
or latent ambiguity existed and that the holographic will unambiguously provided that Ms.
Higgs’ was to divide the property at issue among her own children. “The construction of a
will is a question of law for the court.” Briggs v. Briggs, 950 S.W.2d 710, 712 (Tenn. Ct.
App. 1997) (citing Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn. Ct. App. 1989)). “The
purpose of a suit to construe a will is to ascertain and give effect to the testator's intention.”
In re Estate of Eden, 99 S.W.3d 82, 87 (Tenn. Ct. App. 1995) (citations omitted). According
to this Court:
“It is the absolute right of the testator to direct the
disposition of his property and the Court's [sic] are limited to the
ascertainment and enforcement of his directions.” Daugherty v.
Daugherty, 784 S.W.2d 650, 653 (Tenn.1990) (citing Nat'l
Bank of Commerce v. Greenberg, 195 Tenn. 217, 258 S.W.2d
765 (1953); Third Nat'l Bank in Nashville v. Stevens, 755
S.W.2d 459, 462 (Tenn. Ct. App. 1988)). “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 it unless it
contravenes some rule of law or public policy.” Fisher v.
Malmo, 650 S.W.2d 43, 46 (Tenn. Ct. App. 1983); see also
4
Tennessee Code Annotated 20-16-101 applies to all actions filed on or after July 1, 2011. This case
was filed on July 15, 2011.
-4-
Briggs v. Briggs, 950 S.W.2d 710, 712 (Tenn. Ct. App. 1997);
Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn. Ct. App. 1989).
In seeking out the testator's intent, we have several rules of
construction to aid us in that effort. However, all rules of
construction are merely aids in ascertaining the intent of the
testator. Sands v. Fly, 200 Tenn. 414, 292 S.W.2d 706, 710
(1956).
In gleaning the testator's intent, we look to the entire will,
including any codicil. Stickley v. Carmichael, 850 S.W.2d 127,
132 (Tenn. 1992); Presley, 782 S.W.2d at 488. The testator's
intent is to be determined from the particular words used in the
will itself, Stickley, 850 S.W.2d at 132, and not from what it is
supposed the testator intended. Briggs, 950 S.W.2d at 712;
Presley, 782 S.W.2d at 488; Fisher, 650 S.W.2d at 46. “Where
the will to be construed was drafted by the testator himself who
was not versed in the law and without legal assistance the court
in arriving at the intention of the testator should construe the
language of the will with liberality to effectuate what appears to
be the testamentary purpose.” Davis v. Anthony, 53 Tenn.App.
495, 384 S.W.2d 60, 62 (1964) (citations omitted). We are also
guided by an additional principle of construction; when a
decedent undertakes to make a will, we must presume that the
decedent intended to die testate, and we must seek to construe
the will, where possible, as including all of the testator's
property at death. Davis, 384 S.W.2d at 62 (citations omitted).
In re Estate of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App. 2005). Because a testator’s
intent must be determined from the will itself, “[g]enerally, parol or extrinsic evidence may
not be used to vary, contradict, or add to unambiguous language used in a will.” Horadam
v. Stewart, No. M2007-00046-COA-R3-CV, 2008 WL 4491744, at *5 (Tenn. Ct. App. Oct.
6, 2008) (perm. app. denied April 27, 2009) (citing Stickley, 850 S.W.2d at 132). Parol
evidence is admissible, however, “to explain a latent ambiguity.” Horadam, 2008 WL
4491744, at *5 (citing Stickley, 850 S.W.2d at 132).
At the outset, we note that Mr. Jackson’s will was holographic, rather than attorney-
prepared. A holographic will is one in which “the signature and all [the will’s] material
provisions must be in the handwriting of the testator and the testator's handwriting must be
proved by two (2) witnesses.” Tenn. Code Ann. § 32-1-105. There is no dispute that Mr.
Jackson’s purported will presents a valid holographic will satisfying the requirements of
-5-
Tennessee Code Annotated Section 32-1-105. In construing a holographic will, the fact that
the it was prepared by the testator, rather than an attorney, must be considered:
In construing a will, the skill of the draftsperson must be
considered. While the rules of construction applicable are not to
be given a different effect because of the fact that the will was
prepared by a layperson, a will drawn by a layperson will be
construed as a layperson would construe it. Furthermore, wills
prepared by experienced attorney-draftspersons must be more
strictly construed than instruments created by laypersons, and a
greater latitude should be allowed in determining the testator's
intention than if the will had been drawn by an experienced
person. Thus, holographic wills drawn by unskilled drafters are
given a liberal construction.
96 C.J.S. Wills § 895 (footnotes omitted).
The narrow issue in this case is whether either a latent or patent ambiguity exists
regarding Mr. Jackson’s use of the word “kids.” Consequently, we begin with a discussion
of the differences between a latent and a patent ambiguity. This Court was recently faced
with a similar question regarding the ambiguity of a testamentary disposition in Hargis v.
Fuller, No. M2003-02691-COA-R3-CV, 2005 WL 292346 (Tenn. Ct. App. 2005). The Court
of Appeals explained:
Our supreme court has provided that a latent ambiguity
exists:
[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 or phrases
made use of.
Weatherhead v. Sewell, 28 Tenn. (9 Hum.) 272, 295
-6-
(Tenn.1848) (emphasis added); see also Teague, 114 S.W. at
488. In Weatherhead, our supreme court went on to explain
those instances when a latent ambiguity will be found to exist,
providing:
The instances most frequently chosen as examples
of a latent ambiguity are in relation to the person
and the thing: as if there be a devise to a person of
the same name, with another without any
specification appearing upon the face of the will
to designate the real object of the testator's
bounty,-this is a latent ambiguity as to the person.
If a testator devise his manor of S. to A.B., and
has two manors, North S. and South S. this is a
latent ambiguity as to the thing. As these
ambiguities are generated by facts, so they may be
removed by a further investigation of facts or
matter extrinsic . . . .
Weatherhead, 28 Tenn. (9 Hum.) at 296; see also In re Estate
of Burchfiel, 933 S.W.2d 481, 483 (Tenn. Ct. App. 1996). A
latent ambiguity is generally found to exist where the words of
a written instrument are plain and intelligible, yet have
capability of multiple meanings given extraneous facts. See 96
C.J.S. Wills § 893 (2001).
In turn, a patent ambiguity will be found to exist when
the ambiguity is:
[P]roduced by the uncertainty, contradictoriness,
or deficiency of the language of an instrument, so
that no discovery of facts, or proof of
declarations, can restore the doubtful or
smothered sense without adding ideas which the
actual words will not themselves sustain.
* * *
But if these ambiguities occur in the wording of
the will, producing a palpable uncertainty upon its
-7-
face, extrinsic evidence cannot remove the
difficulty, without putting new words into the
mouth of the testator; which in effect would be to
make a will for him.
Weatherhead, 28 Tenn. (9 Hum.) at 295–96 (emphasis added).
A patent ambiguity grows out of the inability, based on the
language selected by the testator, in identifying the person or
subject matter mentioned therein. In re Estate of Burchfiel, 933
S.W.2d at 483; see also Reid's Lessee v. Buford, 1 Tenn. (1
O vert.) 413 (T enn.1809); M au k v. Perry, N o.
E2001-00485-COA-R3-CV, 2001 Tenn.App. LEXIS 787, at *9,
2001 WL 1268494 (Tenn. Ct. App. Oct.22, 2001); 96 C.J.S.
Wills § 893 (2001).
Hargis, 2005 WL 292346, at *6–*7. Only if a latent ambiguity arises, parol evidence is
admissible to illuminate the testator’s intentions:
“Ordinarily, parol evidence is inadmissible to add to,
vary, or contradict the language used in a will.” Treanor v.
Treanor, 25 Tenn.App. 133, 152 S.W.2d 1038, 1041 (Tenn. Ct.
App. 1941); see also Stickley v. Carmichael, 850 S.W.2d 127,
132 (Tenn. 1992); Green v. Lanier, 61 Tenn.App. 487, 456
S.W.2d 345, 494 (Tenn. Ct. App. 1970). “Any other rule would
place it practically within the power of others to make a new
will for the testator, so as to meet the convenience and wishes of
those who might claim to take under it.” 2 Jack W. Robinson,
Sr., & Jeff Mobley, Pritchard on the Law of Wills and
Administration of Estates Embracing the Law and Practice in
Tennessee § 418, at 621–22 (5th ed. 1994); see also Teague v.
Sowder, 121 Tenn. 132, 114 S.W. 484, 488-89 (Tenn. 1908)
(“This rule does not rest upon their immateriality or want of
probative value, but upon the impolicy and danger of using such
declarations or statements.”). It has been well established by our
case law that, when construing a will, parol evidence may only
be introduced to explain a latent, not a patent, ambiguity in the
will. Holmes v. Roddy, 176 Tenn. 624, 144 S.W.2d 788, 789
(Tenn. 1940).
However, the rule that parol evidence may only be used
-8-
to explain a latent ambiguity will not forbid a court of this state
from referring to facts existing when the testator executed the
will. Gannaway v. Tarpley, 41 Tenn. (1 Coldwell) 571, 574
(Tenn. 1860). A court is not precluded from hearing parol
testimony “both to place the Court in a knowledge of the
condition and circumstances surrounding the testator when he
executed his will, and to resolve uncertainties or ambiguities in
the will as to the testator's intentions.” Treanor, 152 S.W.2d at
1041 (citations omitted); see also Green, 456 S.W.2d at 495–
96. For instance, the court may entertain parol testimony “as
shows the state of facts under which the wills were made, the
situation of the properties of the testators, the members of their
families and other relevant or cognate facts.” Cannon v. Ewin,
18 Tenn.App. 388, 77 S.W.2d 990, 992 (Tenn. Ct. App. 1934).
“Thus facts may be proved to show the state of the testator's
property, or such facts as were known to him that may have
influenced the disposition of his property in a particular way.”
Gannaway, 571 Tenn. (1 Coldwell) at 574.
Hargis, 2005 WL 292346, at *5; but see Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 61
(Tenn. 2006) (making no distinction between a patent and latent ambiguity: “when a
contractual provision is ambiguous, a court is permitted to use parol evidence”); 11 Williston
on Contracts § 33:43 (4th ed.) (noting that there “has been a significant decline in the
importance of the distinction between latent and patent ambiguities, and many courts now
agree that the earlier distinction is largely inappropriate and unnecessary”); Steven W.
Feldman, 21 Tennessee Practice Contract Law & Practice § 8:52 (2006) (arguing that “[t]he
modern (and more sensible) rule is that extrinsic evidence may clarify either a patent or a
latent ambiguity”).
Put more succinctly, a patent ambiguity occurs when “the meaning of the language
is, on its face, uncertain, doubtful, or obscure.” 96 C.J.S. Wills § 918; see also Jack W.
Robinson, Sr. et al., Pritchard on Wills and Administration of Estates Chapter 7 § 427 (7th
ed. 2009) (hereinafter Pritchard on Wills) (“A patent ambiguity . . . is produced by the
uncertainty, repugnancy, or deficiency of the language of the will itself, so that no discovery
of facts or proof . . . can remove that ambiguity without adding ideas which the words of the
will do not convey.”). As explained by this Court, a patent ambiguity exists when there is a
contradiction on the face of the agreement, such as when “two different prices for the same
goods appear in a contract of sale.” Horadam, 2008 WL 4491744, at *6. In such a case, “the
legal rules of intestate succession, which are certain, must prevail.” Pritchard on Wills § 418.
In contrast, a latent ambiguity occurs when “the language is open to more than one
-9-
interpretation when applied to the factual situation at issue.” 96 C.J.S. Wills § 918; see also
Pritchard on Wills Chapter 7 § 427 (“A latent ambiguity . . . is one 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 fairly comports with the
ordinary use of the words and phrases employed.”). In the case of a latent ambiguity, the trial
court may properly consider “evidence for such purpose of determining which of several
persons or things was intended . . . which, though clear on the face of the will, is rendered
uncertain of application by reason of the fact that there are several persons or things
answering the same name or description.” Pritchard on Wills Chapter 7 § 426 (noting that
latent ambiguity “grow[s] out of the difficulty of identifying the person or thing whose name
or description corresponds with the terms of the will”).
The trial court in this case concluded that Mr. Jackson’s will presented neither a patent
nor a latent ambiguity. The testamentary disposition in this case provides that the bulk of Mr.
Jackson’s estate is to go to “Connie Higgs . . . to be divided as she sees fit among kids.” At
trial, Ms. Perdue argued that the use of the word “kids” is so ambiguous as to create a patent
ambiguity. Ms. Higgs, in contrast, argued that the will as a whole manifested an intention that
the property should go to her and her offspring, and that consequently, the will
unambiguously provides that the term “kids” refers to her own children.
We first consider whether Mr. Jackson’s use of the word “kids” creates a patent
ambiguity. Ms. Perdue asserts that Mr. Jackson’s use of the word “kids” is so ambiguous that
it creates a patent ambiguity. Thus, Ms. Perdue argues that this specific devise is void and
that the property at issue should pass by intestate succession. See Pritchard on Wills Chapter
7 § 418 (noting that when a will is patently ambiguous, the property must pass by intestate
succession). After careful consideration, however, we must agree with the trial court that the
term “kids” is not patently ambiguous. First, we note that there is a presumption that a
testator who endeavors to create a will intended all his property to pass by the terms of that
will and not through the application of intestate succession. Milam, 181 S.W.3d at 353.
Indeed, the invalidation of a portion of a will due to uncertainty is an extreme remedy and
“it is very uncommon to hear the court declare a will, or any of its provisions, wholly
inoperative by reason of repugnancy or uncertainty.” 3A Horner Probate Prac. & Estates §
61:64. In addition, nothing in the will specifically contradicts this devise. See Horadam,
2008 WL 4491744, at *6 (noting that contradiction on the face of a contract creates a patent
ambiguity). Finally, the term “kids” is not uncertain or repugnant on its face. See Pritchard
on Wills Chapter 7 § 427. Webster’s New Compact Desk Dictionary and Style Guide defines
the term “kid” as simply “a child.” Webster’s New Compact Desk Dictionary and Style
Guide 267 (2002). While the term “child” may be considered a term of art, meaning
immediate offspring, see Pritchard on Wills Chapter 7 § 465, the term “kids” in this case
must be construed liberally in favor of the testator’s intent. See 96 C.J.S. Wills § 895. In
-10-
addition, because this will was not drafted by an attorney, the usual rule that “technical words
should be given their technical meaning” does not apply. See Fisher v. Malmo, 650 S.W.2d
43, 46 (Tenn. Ct. App. 1983) (qualifying that this rule only applies “in any case where a will
has been drafted by an attorney”).Thus, the term “kids” as used by Mr. Jackson, should be
given its usual and ordinary meaning. See Dick Broadcasting Co., Inc. of Tennessee v. Oak
Ridge FM, Inc., 395 S.W.3d 653, 659 (Tenn. 2013) (explaining that courts should consider
the “plain and ordinary meaning of the written words”). Because the term “kids” clearly
means children, the only question is which children Mr. Jackson intended to name in his will.
Thus, this is not an example of a patent ambiguity. The trial court’s finding that the will did
not present a patent ambiguity is, therefore, affirmed.
While we cannot agree that Mr. Jackson’s use of the word “kids” creates a patent
ambiguity that invalidates this entire clause of the will, we must conclude that the language
in the will creates a latent ambiguity as to what “kids” Mr. Jackson was referring. As
previously stated, a latent ambiguity exists when uncertainty arises in attempting to
administer the estate. See Pritchard on Wills Chapter 7 § 426. Although Mr. Jackson is clear
that Ms. Higgs is to divide the property among certain “kids,” the will is unclear as to what
children Mr. Jackson is referring. As argued by Appellees, Mr. Jackson could be referring
to Ms. Higgs’ own children. Although we conclude that this a reasonable interpretation of
the bequest, it is not the only interpretation. Mr. Jackson could also have been referring to
other “kids,” to whom he wanted to devise his property, including the children of other
named parties in the will or even his own children. This Court simply cannot infer, solely
from the language of the will, specifically which “kids” Mr. Jackson intended to name in his
will. Thus, this devise presents a latent ambiguity that can be cured through the consideration
of extrinsic evidence. Indeed, the situation presented in this case is highly analogous to an
example provided in Pritchard on Wills illustrating a classic latent ambiguity. According to
Pritchard on Wills:
A testator devised land to “the four boys”; it was held
that parol evidence that he had seven sons, three of whom were
adults living with him, and the testator’s declarations before, at
and after the execution of the will, were competent to show that
the devise was intended for the four minors.
Pritchard on Wills Chapter 7 § 428 (citing Bradley v. Rees, 113 Ill. 327, 1885 WL 8188, (Ill.
1885)). In this case, the specific devise at issue is to “kids,” rather than “boys.” However, the
practical effect of Mr. Jackson’s bequest is identical. The will clearly shows Mr. Jackson’s
intention to devise certain property to some “kids.” However, the will does not specifically
identify to which “kids” Mr. Jackson was referring. Pritchard on Wills explains the
appropriate action by the court in this situation: “In case the will points to the person [or
-11-
group] . . . intended, and there is more than one person [or group] . . . of like description,
evidence is received to remove the ambiguity and enable the court to reject one or more of
the persons . . . to which the description of the will applies, and to determine the person . .
. . the testator understood to be signified by the description in the will.” Pritchard on Wills
Chapter 7 § 426 (citing Lewis v. Darnell, 580 S.W.2d 572 (Tenn. App. Ct. 1978) (involving
a holographic will establishing a trust for a church; held that extrinsic evidence was
admissible to establish which church the testator intended to name in her will)). The trial
court’s ruling that the will contained no latent ambiguity is, therefore, in error.
Appellees argue, however, that the term “kids” cannot refer to Ms. Perdue because
there is no evidence in the record that Mr. Jackson knew that Ms. Perdue was his “kid” prior
to his death. Respectfully, evidence, or the lack thereof, of Mr. Jackson’s knowledge of Ms.
Perdue’s existence and relationship to him is exactly the kind of extrinsic evidence that is to
be considered by the court only after a finding that the will contains a latent ambiguity. See
Horadam, 2008 WL 4491744, at *5. Having now determined that a latent ambiguity exists,
both Appellees and Ms. Perdue are permitted, on remand, to submit evidence regarding the
extent of Mr. Jackson’s knowledge of Ms. Perdue,5 his involvement with Ms. Higgs’
children, evidence that Mr. Jackson referred to any children as “kids,” or any other evidence
relevant to this issue. The trial court, in granting summary judgment, limited its review to
only the four corners of Mr. Jackson’s will and declined to consider any extrinsic evidence
of this kind. Because the will contains a latent ambiguity, this limitation was in error. The
trial court’s grant of summary judgment in favor of Appellees on the issue of ambiguity is,
therefore, reversed.
We are cognizant that Appellees raise additional arguments on appeal regarding Ms.
Higgs’ authority to distribute the property at issue “as she sees fit.” Because of this language
and Ms. Higgs’ undisputed affidavit that she does not “see fit” to distribute any property to
Ms. Perdue, Appellees argue that Ms. Perdue has no standing to seek a declaratory judgment
in this case. From our review of the record, however, it appears that the trial court did not
consider or rely on these arguments in granting the Motion for Summary Judgment. Instead,
the grant of the Motion for Summary Judgment was based solely on the trial court’s
conclusion that the will was unambiguous. Because the trial court declined to address Ms.
Higgs’ arguments regarding the “as she sees fit” language contained in the will, we likewise
decline to address these arguments on appeal. See White v. Target Corp., No. W2010-02372-
COA-R3-CV, 2012 WL 6599814l, at *8 (Tenn. Ct. App. Dec. 18, 2012) (“Because the trial
court below apparently did not address these arguments . . . , we also decline to address them
5
At oral argument, counsel for Ms. Perdue stated that there was no evidence contained in the record
that Mr. Jackson was aware of Ms. Perdue’s existence during his lifetime. Accordingly, we believe that the
appropriate remedy is to allow the parties to further develop the evidence regarding this issue on remand.
-12-
on appeal.”). Our holding herein, however, should not be construed as foreclosing these
arguments on remand.
The judgment of the Hardeman County Chancery Court is affirmed in part, reversed
in part, and this cause is remanded to the trial court for all further proceedings as are
necessary and are consistent with this opinion. Costs of this appeal are taxed one-half to
Appellant Donna Perdue, and her surety, and one-half to Appellees Estate of Daniel Jackson
and Connie Higgs, as Administratrix of the Estate of Daniel Jackson and individually, for all
of which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
-13-