The Honorbale Frank v. Williams, Chancellor

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
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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?
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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
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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,
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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,
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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
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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
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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.
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