# FILED Feb. 21, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ IKIE BRIGGS, Appellan t, Shelby Probate No. A-5342 Vs. C.A. No. 02A01-9603-PB-00052 ESTATE OF ODESSA V. BRIGGS, Deceased. Appellee.

________________

___________________________________________________________ _ FROM THE PROBATE COURT OF SHELBY COUNTY THE HONORABLE LEONARD D. PIEROTTI, JUDGE

James D. C ausey of

Memphis For Appellant Robert L. Green; Neely, Green, Farga rson, Brooke & Su

mmers of M emphis For Appellee

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: DAVID R.FARMER,

JUDGE HOLLY KIRBY L ILLARD, JU DGE

This is a will construction case. Respondent, Ikie Briggs, appeals from the order of the probate court constru ing the L ast Will and Testament of Odessa V. Briggs in favor of the petitioner, Frances Duncan Briggs.2 Odessa V. Briggs d

i ed on Febr

uary 4, 1 980, and h

er hologr aphic will was admitted to probate on Februa

ry 26, 198 0. Her La st Will and Testame nt provide s as follow s: This is my last will & testament. I hereby revoke a ll former wills. At my death I

request that all my

just debts b e paid

out of m y estate. Everything I possess at the time of my death I bequeath as follows Cash: T o my grandsons Joe Briggs and Charles A. Briggs $3,000.00 each To my granddaughter Mrs. Karen Trainum $3,000.00. To Fisherville Baptist Church Cemetery endowment fund $1,0 00.00 fo r upkeep

of the Bri ggs family

graves. To Reid Cemetery fund $300.00. The Balance of Cash to be divided equally b etween

my sons Iki e Briggs a

nd Merle F. Briggs. All real estate (except for my 1⁄2 half Ha ys Crossing farm and all Pickwi ck prope

rty which they may sell and divide) I leave in trust to m y two sons (Mer le & Ikie) their lif

etime. At

their death to be divided equally between surviving heirs. They Mer le & Ikie ar e to colle ct, divide

and use all income

from ren ts, timber & etc. I hereby appoint Merle Br iggs my son, executo

r of my estate without the necessity of making bond or making any report or settle ment with th

e Courts. (signed) Odessa V . Briggs The real es tateinvolved consists of 13 separate properties. The prop erties a re valua ble becaus e of their inco me strea m from re

nts and be cause of

the value of the timb er. Afte

r their mother’s death, Merle and Ikie Briggs shared

all of the income, rents, expenses, and taxes on the properties equally and both worked on the properties. Merle B riggs die d on June 2 7, 1993 le aving his w ife Frances Dunc an Briggs, th e petitioner, and their

childre n. Merle Briggs’s will left his entire estate to his wife. Since the death of his brother, Ikie Briggs has taken the position tha

t he is the s ole life t

enant en titled to all of the proceeds from the properties, and that Franc es Briggs hasno rights in the prope rty until his death. Frances Briggs, on the other hand, asserts that Merle Briggs’s shar e passed to her by virtue of Merle’s will and that she stands in his place as a life tenant. The la nguage of the will that is in dispute states, “All real estate . . . I leave in trust to my two sons (Mer le & Ikie) their lifetime. At their death to be divided equally between surviving heirs.” On June 30, 1994, Frances Briggs filed a petition in the probate court entitled “Petition to Construe Provisions in Will and for Temporary Restraining Order.” The petition alleges that the concurrent lifeestate left to Merle Briggs, Jr. and Ikie Briggs is to be measured by their two lives, and that

the life estate will continue until the death of Ikie Briggs and then the properties1 The record does not indicate that the restraining orde r was followed by an injunction, although there is some indication that the parties made some agreement re garding the escrow of rental payments and proceeds from timber cutting. 3 will vest in their heirs. Frances Briggs also alleges that there is an immediate threat to her legal interest s that will r

esult in irrepa rable da mages because of

IkieBriggs’s activities on the land. The probate court issue d the temporary restraining order prohibiting Ikie Briggs from terminating or entering into any rental contracts or agree ments and restraining him from cutting or selling any timber from the subject land. 1 On August 18, 1994, Ikie Briggs responded to the petition and asserted that heis the sole remaining life tenant, and t hat he al one is ent

itled to all procee ds, rents , hunting r ights and i s entitled to cut and

sell the ti m ber. He avers that, upon his death, the property will be divided among his a

nd Merle Briggs’s s urviving h

eirs. After a bench trial, the probate court held in favo

r of Frances Brigg s. The pr obate court found that “this clause i s a clear, unmistakable and certain statement of Odessa V. Briggs’s intent to devise a

life esta te to her two

sons, Merle F. Br

iggs, Jr., and Ikie

Briggs, wh

ich life e state is to continue

until the de ath of Ik

ie Briggs, Merle

F. Briggs, Jr., having predeceased his brother.” The probate court further found that “the clea r, certain and unmistakable intent of Odessa V. Briggs was that each of her so ns was to sh are equ ally in the life esta te and tha t upon Mer

le F. Briggs, J r.’s death, his share was to pa ss to his he

irs at law or under the provi sions of hi s will until the death of Ikie Briggs, at which time, the lifeestate w ill termina te and all proper

ties will then be divided equally between their surviving heirs.” IkieBriggs appeals the ord er of the probate court and presents one issue for re view: whether the proba

te court erred i n its inter

pretatio n of the e state cr

eated by the Last W

ill a nd Testame nt of Ode ssa V. Bri ggs. The construction of a will is a question of law f or the co urt. Presley v. Hanks , 782 S.W.2d 482, 487 (Tenn. App. 1989). The cardinal rule in construction of all wil ls is that the court shall seek

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

some ruleof law or public policy. Third Nat'l B ank in Nashvi

lle v. Firs t American N

at'l Bank of Nashvi lle , 596 S.W.2d 824, 828 (Tenn. 1980). The testator 's intentio n is to be a scerta ined fro m the par

ticular w ords used

in the will4

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. P r esley , 782 S.W.2d at 487. In construing a will it is necessary to look to the entire will and the testator's intention must be de

termined from wha

t he has w

ritten an d not from

what it is suppose d he intended. Id

. at 488. A w ill should be construe d to give effect to every w ord and c lause contained therein. Id . at 489. IkieBr igg s claims that he is entitled to be the sole life tenant, including 100% of the proceeds from

the properties. Frances Briggs, on the other hand, argues that the clear intent of th e will was for the sons and their heirs to be treated equally. In this case , it seems clear that Odessa Briggs wanted t o treat her sons equally. She divided the balance of her cash between them equally. She allow ed them to sell and d

ivide her Hays Cros s ing far m and Pickwick properties. She wanted Merle and Ikie Briggs to collect and divide the income and rents from her property. It also appears that she wanted to trea t her sons’ heirs equally because she wanted the propert

ies to be d

ivided eq ually amo ng the sur

viving hei

rs at the t erminati o n of the life estate. Therefore, we must interpret the nature of the estate created by the will grounded in the knowledg e that Ode ssa Briggs intended equal tr eatment b etween

her sons a

nd their heirs. The trial court found that Odessa Briggs devised a life esta te inher properties to her two sons, Merle and Ikie Briggs. We agree. We belie ve that the langua

ge, “All r eal esta te . . . I leave in trust to my two sons (Merle & Ikie) their lifetime,” creates one life estate measure d by both lives. In its Memo

randum Opinion file d Septembe r 14, 1995 , the tria

l court su ccinctly characterized

the life e state in th

is case: “An estate to

A during lif

e and the

lives of B a

nd C, is cumulative, and will continue during the lives of all three.” Alexander v. Miller , 54 S.W . 65, 81 (Tenn. 1871). Odessa’s holograp hic will expr

essly st ated that the estate was not to be divided equally

between surviving heirs until “their death.” This Court c onstrues “their d

eath” to mean both

Merle’sand Ikie ’s. Therefore, the life estate is limited by the live s of both Me rle and Ikie and is now to remain intact until the death of Ikie. IkieBriggs argues that the clause, “At their death to be divided equally betwe en surviving heirs,” refers to the first poin

t in time when both

sons are deceas ed, whic h would ma ke the de ath of Ik

ie Briggs the time for the properties to be divided equally between the survivi ng h eirs. It is true that the surviving heirs cannot divide the properties equally between themselve s until the d

eath2 The life tenant could not sell the interest in fee simple absolute because he or she does not own the interest in fee simple. A tenant for life cannot dedic ate any interest in the fee. McKinney v. Duncan , 121 Tenn. 265, 274, 118 S.W. 683 (1908). A holder of a life estate can convey his interest in the land but cannot crea te a greater interest than which he owns. Collins v. He ld , 369 N.E.2d 641, 647 (Ind. Ct. App. 1977). 5 of Ikie Briggs because the l ife estate remained intact after Mer le Briggs’ death and does not terminat e until Ikie Briggs’s death. However, this division deals with the remainder. A question still remains about the status of Merle Briggs’s life estate of 1⁄2 interest in the property. Once again, th

e trial c ourt succ inctly sta ted the iss ue, “[W ]hether the entir e life es tate vests in Ikie upon Merle’s death, or whether Merle’ s life estate passes to his heirs un derthe provisions of Merle ’s will mea sured by t he life o f Ikie.”Ikie Brig gs argue s that an in terest in a life estate is not inheritable. He relies on Harwell v. Harwell , 151 Tenn. 587, 271 S.W. 353 (1924), where the Court, quoting from 21 C.J. 938, said: “A life estate is not an estate of inheritance, but is a freehold, whether for the tenant’s own life or for that of another person.” 151 Tenn. at 598. This reliance is misplaced. The question pertaining to a life e state

measured by the life of another was not before the Court; theref ore, the language relied upon is dicta. Frances Briggs argues that a life estate measured by two lives is an estate of inheritance and may be devised. We agree. In Alexander v. Joseph Miller’s He irs , 54 Tenn. 65 (1871), the Supreme C ourt s tated, “[A]n estate in land for the life of anothe r person is an estate of inheritance is such a sense as that it m ay be inherited by the heir.” 54 Tenn. at 83. Under Alexander , a

life esta te held by A for the lives of B a

nd C does no t end until

the death of B and C. The life

estate held by A c an be inhe rited by A ’s heirs a

nd held un

til the dea th of B and

C. The d eath of A does no t end the life estate because the life estate is not mea sured by A’s life. Theref ore, A’ s interes t is devisa ble until th

e death o f B and C. We believe

that Merl e Briggs c ould have sold his 1⁄2 share to any willing buyer, but that the buyer would have o nly had ri ghts in the life esta te until the

death of both Me

rle and I kie Briggs. 2 See United States v. 654.8 Acre s of Land , 102 F. Supp. 937, 941 (E.D. Tenn. 1952). Bec ause the life e state wa s measur ed by an a

dditional l

ife, Mer le Briggs’ s life est

ate wa s devisable. We also note that Odessa Briggs’s will does not provide for the surviving life tena

nt to take the interest of the deceased life tenant for the remaining term of the life estate. T.C.A. § 66-6

1-107 (19 93) provi des:

66-1-107. Survivorship in joi nt t enancy abolished . - In all estates, real and personal, held in joint tenancy, the part or share of any tenant dying shall not descend or go to the surviving tenant or tenants, but shall descend or be vested in the heirs, executo

rs, or administr

ators, r espectively, of the tenant so dying , in the same manner as estates held by tenancy in common. Withoutany expre ss provis ion in the will, there is no right of survivorship between the joint tenants, Ikie Brig gs and Mer le Briggs. We hold that Frances Briggs is entitled to Merle Briggs’s life estate until the death of Ikie Briggs, at which t

ime the pr

opertie s should

be divide d equally

among the surviving heirs. The life estate owned by Frances Briggs, a life estate per a utre vie (a life estate measured by the life of another) satisfies the intent of Odessa Briggs that the brother and the he irs share equally. The judgment of the trial court is affirmed. Costs of this appeal are assessed a gainst the appella nt.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ DAVID R.FARMER,

JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE