# FILED
September 17, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

CHRIST OPHE

R JACOB SEN an d ) JEFFREY JACOBSEN, ) Benefic iaries of

the Esta te of ) Edna M. Nissen, ) ) Plaintiff s/Appelle es, ) Williamson Chancery

) No. P- 94-1236 VS. ) ) Appeal N o. RUTH FLATHE, in her capacity as ) 01A01-9511- CH-00510 Executr ix of the E state of ) Edna M. Nissen and in her ) Individual C apacity a s a ) Benefic iary of the

Estate o f ) Edna M. Nissen, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CHANCERY COURT FOR WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE THE HONORABLE HENRY DENMARK BELL, JUDGE

For the Plaintiff/Appellee : For th e Defenda

nt /Appella nt : M. Bradley Gilmore G. Thomas Nebel Christina Norris John B. Ca rlson Parker, Lawrence, Cantrell & Dean Williams & Associates Nashville, Tennessee Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves an intrafamily dispute over the meaning of an elderly widow’s will. After the

will wa s admitted

to probate

in the Chance ry Court f

or Williams on County, the

sons of one of

the legate es who had predece ased the testator filed a petition for judicial construction asserting that they were entitled to receive thei r mother’s s hare under t he antilap se statut e. The trial court granted
asummary j udgment in th e sons’ fa vor. On t

his appeal, the estate ’s p e rsonal representative, who is alsoa legate e, asser ts that the will should be construed to give her the predeceased legatee’s share. We have d etermine d that the trial court correct ly decided that the giftto the dece ased lega tee did not

lapse and, therefore, affirm the summar

y judgment.

I.

Edna M. Nissen was a widowed home maker w ho lived in Wi lliamson County after her

husband’s de ath in the m id-1970's. At the ag e of

ninety-fi ve, she retained a lawye

r to prepa

re her w ill. The

resulting w ill, whic h Ms. Ni ssen executed on Novembe

r 6, 1989, was a co nventional t wo-and- a-half pa

ge document directing in form la nguage that

her esta te pay all her lawf

ul debts, the expenses of her l ast illness , and her funeral expenses, as well a s any estat e or inheritance taxes. It lumped all her remaining real and personal property into her remainde r estate and divided t

his estate as follow s:
All the rest and residue of t he prop erty which I may own at the time of my death, in cluding but not limited to all my tang ible perso n al property i ncluding automob iles , clothing, jewelry , and othe r articl es of p e rsonal use or ornament, and all other property, real personal and mixed, of whatever kind and character and where soeve r

situated, all of which constitute my residuar y estate, I devise a

nd bequeath

as follow s: (a) Six-sixte enths (6/16 ) th ereof to be divided equally among Patricia Laak, John Flathe, David Flathe, Georgia Flathe W i lson, Chris Jacobsen and Jeff Jacobsen, per capita.1 Mr. Nissen’stestamen tary trus t provide d that Ms. N issen should rece

ive the income earned onthe trust’s corpus du ring her lifetime a

nd gave M s. Nissen t

he power at her de ath to dispose of the corpus of

the trust “to such person or persons or [her estate] in such manner and proportion as [she] shall appoint by a provision in her last will and testament re ferri ng to this power and purporting to exercise [it].” -3-

(b) Ten-sixt

eenths (10/16) the

reof to be divided t

wothirds ( 

### b ) to Ruth Flath e and one- third ( 

### a ) to Mary Jacobsen, per capita.
The will also name d Ruth Flat he, one of Ms. Niss en’s niec es living in W illiamson County, as the person al represen tative of h er estate.
Mary Jacobsen, the legatee who received a 16/48 i nterest in the residuary estate, was also Ms. Nissen’s niece. She apparently lived in Wisconsin, as did her two sons, Jeffrey and Christopher Jacobsen, eachofwhom received a onesixteenth i nterest of

the residu ary estat

e. Ms. Jacobsen predeceased Ms. Nissen on July 2, 199 0.

Ms. N isse n realize d later tha t her origi nal will ha

d not provide d for the dispositi on of her inte

rest in a t estamenta

ry trust cr

eated by he

r late husb and. 1 Rather than prepa

ring a new

will, M s. Nissen remedie d this omissio n by executi ng acodicil to h er will o n July 2 7, 1990. The codicil distributed the corpus of Mr. Nissen’s testamen

tary trust as follow s: I specifical ly amend th e SECOND p arag raph of the above referenced Will

dated the 6 th day of

November, 1989, to exercise the power of appointment granted t

o me under the Will of my late husband William Nissen dated Oc tober 10, 1975, in fa vor of the f

ollowing: (a) S ix -sixteent

hs (6/16) the

reof to P atricia Laak, John Flathe, Dav id Flathe, Georgia Flathe Wilson, Chris Jacobsen and Jeff Jacobsen, to be divided equally among them per capita. (b) Ten-sixt

eenths (10/ 16) thereof to be distributed to Ruth Flathe. The codicilalso rati fied and r epublished M s. Nisse n’s Novem ber 6, 1989 will and stated that the wil l and codi cil const ituted Ms . N issen’s l ast will a nd testament. Ms. Jacobsen w as not ment ioned in the

codicil because she had died three weeks earlier.-4- Ms. Nissen outlived the cod icil by appr oximately t

hree-an d-a-half

years. She died of a stroke

in Februa

ry 1994 at th e age of ninety-nine. In Marc h 1994, Ms. Flathe f

iled Ms. Jacobsen’ s will for probate in

the Chanc ery Court

for Williams on County. In Februar y 1995, Chr

istopher a nd J effrey Jacobsen, filed
apetition fo r construc tion of Ms. Nissen’s will, asserting that they were entitled to their mother’s 10/48 share of the original residuary estate. Ms. Flathe answeredthe petition by c ontending tha t Ms. Nissen had cut Ms. J acobsen out of her will and , therefor

e, that M s. Jacobsen’s sons we re only ent

itled to the ir specific b equests.

The Jacobsen br

others eventually brou ght the dispute

to a head by

moving for asummary judgment. On July 21, 1995, the trial court granted the summary judgment after f inding that M s. Nisse n’s will a nd codicil di d not contain a latent ambiguityrequiringthe conside ration of extrinsic e vidence. The trial cour t held
as a matter of law that

Ms. Nissen’s 1990 codicil did not alter the dispositi on of the residuar

y estate m ade in the 1 989 wil l and that the ope ration of T enn. Code Ann. § 3 2-3-105 (S upp. 1996) c aused Ms. Jacobsen’ s 16/48 inter est in Ms. Nissen’s residua

ry estate to pass to he

r sons. Ms . Flathe

has appea

led this decision.

II.

This will const

ruction disp ute was de cided by su mmary judgment. Summa ry judgments a

re proper vehicles f or decidingcases w hose outcome hin ge s on legal issue s alone bec ause ther e are no d

isputed facts. Byrd v. Hall, 847 S.W.2 d 208, 210 (Tenn . 1993); Bellamy v. Federa l Express Co rp., 749 S.W. 2d 31, 33 (Tenn. 1988); Foley v. St. Thomas Hosp ., 906 S.W.2 d 448, 452 (T enn. Ct. App. 1995). Th ey are a

ccordingly

uniquely suit

ed to will constructi on cases be cause these cases gen erally inv olve only legal issues surrounding the proper interpretationof the lang uage of the will itself. Presley v. Hanks, 782 S.W. 2d 482, 48 7 (Tenn. Ct. App. 1989); Estate of R obison v. C arter, 701 S.W. 2d 218, 22 0 (Tenn. Ct. App. 1985).2 A latent ambiguity arises from anambiguous state of externalcircumstances to which

the words of the will refer. Estate of Burchfiel v. First United Methodist Church, 933 S.W.2d 481, 482 (Tenn. Ct. App. 1996). It generally involves a qu estion of identifying a person or subject mentioned in the will. Coble Sys., Inc. v. Gifford Co., 627 S.W.2d 359, 362 (Tenn. Ct. App. 1981). It

s tems from an u ncerta

in refe rence in the docu

ment to things outside

the will suscepti ble of expla

nation onl

y by the de

velopmen t of fac ts elu cidating w hat the testator was talking about. See, e.g., Greer v. Anderson, 36 Tenn. App. 507, 509-16, 259 S.W.2d 550, 551-53 (1953).

3 A patent ambiguity stems fromuncertainty in the language of the will itself, In re Will of Bybee (Bybee v. Westrick ), 896 S.W.2d 792, 793 (Tenn. C t. App. 1994 ); Coble Sys., Inc. v. Gifford Co., 627 S.W.2d at 362, andis apparent on the face of the will. See 4 William J. Bowe & Douglas H. Parke

r, Page o n the Law

of Wills § 32.7 (rev. 3d ed. 1961) (“Page”). It involves an ambiguous term, see Union Plan ters Corp. v. Harwell, 578 S.W.2d 87, 92 (Tenn. Ct. App. 1978), tha t cannot b e clarif

ied by con sidering

extrane ous fact s.
4 For this reason, we must ignore the self-serving affidavits of Ms. Flathe and the lawyer who prepar

ed Ms. Niss en’s will

and codicil conce

rning th eir ver sio ns of Ms. Nissen’s testamentary intent. We must lik ewise ignore the a

ffidavit s of the Jacobsen brothers. Ms. Flathe cannot create a genuine factual dispute to stave of f a summary judgment motion i nv olving a patent ambiguity by presenting incompetent affidavits concerning Ms. Nissen’s testamentar y intent. See Skinner v. Moore, 940 S.W.2d 755, 758 (Tex. Ct. App. 1997). -5- In m ost will construction cases, the testator’s intent is determi ned b y referr ing to the will itself. Wright v. Brandon, 863 S.W.2 d 400, 402 (Tenn. 1993); Cowden v. Sovran Ba nk/Centr al South , 816 S.W.2d 741, 744 (Tenn. 1991); Daugherty

v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990). Sometimes courts will consider evidence beyond the four corners of the wi ll when the will conta

ins
alatent, 2 as opposed topatent, 3 ambiguit y. Stickley v. Ca rmi chael, 850 S.W.2 d 127, 132 (Tenn . 1992); Estate of B urchfiel v . First U nited Met hodist Church, 933 S.W.2d at 483

.
We need not concern oursel ves h ere with the possible factual disputes about circumst ances beyo nd t he fou r corner s of the w ill itself since the p resent dispute involves a p atent amb iguity. T hus, like t he trial c ourt, we

will ignor

e all extraneou s evidence 4 and focus o nly on the la nguage of the will itself. The pivotal question in this case is whether the Jacobsen brothers have established, as a matter of law, that they are entitled to the benefit of the antilapse statute.

III.

Atcommon law , the prop erty ident ified in a will to go to a legatee who predeceased the testat

or went i nstead to some othe r person na

med in the w ill or-6-

passed as intest ate propert y. See Dixon v . Coo per, 88 Tenn. 177, 182, 12 S.W. 445, 446 (1889). The cour ts held in the se circum stances th at the leg acy lapsed because the decea sed legate e no longer had the ca pacity or w illingness to accept the gift. Brice v . Horner , 38 S.W. 440, 442 ( Tenn. C h. App. 1896). A s a result of the common-law rule, the testamentary gift would not go to the heirs of the deceased legatee thereby often frustrating the testator’s chosen distr ibution of the property.

Tennessee’s antilapse statute was enacted in 1858 to cure the lapsed legacy problem by legally s ubstituting related recipients for deceased recipien ts. Dav id R. Foster, Note, Testame ntary Gift s of FutureInterests: Is There an “Immediate” Problem with the T

ennessee AntilapseStatute?, 17 Mem. St. U. L. Rev . 263, 265- 66 (1987). Now codi fied at T enn. Code Ann. § 32- 3-105, the

statute pr

ovides: Whenever

the devisee or le gatee or any member of a class to which an immedi ate devise or bequest is made, dies before the testator, or is dead at the making of t

he will, leaving iss ue which s urvives the testator, the issue shall take the estate or interest devised or bequeathed which the devisee or legate e or the member of th e class, as the case may be, would have taken, had that pers o n survived the testat

or, unl ess adifferent disposition thereof i s made or r

equired by t

he will. When a legatee predecea ses a test ator, the statute sa

ves a testa

mentary gi ft by substituting the legatee’s heirs for th e legatee. See, e.g., Weiss v. Broadway Nat’l Bank, 204 Tenn. 563, 573-74 , 322 S .W.2d 42 7, 431-32 ( 1959) (holdi ng that the
son of a predeceased legatee took his father’s share “just as if [his name] had been inserted in the wil l by the testatri x herself ”). Th e courts give

the antila pse statute
aliberal con structio n. Brundige v . Alex ander, 547 S.W. 2d 232, 234 (Tenn. 1976).

The antilaps e statute, b y its own terms, will not gove rn the distr

ibutionof
atestamen

tary gift in cases where th e testator expressly makes a di fferent di sposition of property by will. To defeat the operation of the antilapse statute, the will must

contain plain and clear language indicating that the testator intended
adifferent disposition

of his or her property should a named beneficiary die first

. Estate of Renner , 895 S.W.2d 180, 182 (M o. Ct. App. 1995); Royston v . Watts ,-7-

842 S.W.2 d 876, 879 (Mo. Ct. App. 1992). Where a will does not clear

ly indicate thatthe person

who made

it intended

to disinher

it a predeceased legatee in favor of asurviving legatee, the antilapse statute works to save the deceased legatee’s giftfor his or h er heirs. In re Will of Bybee(Bybeev. Wes tric k) , 896 S. W.2d at 794.

IV.

Ms. Flathe advances thr ee arguments to suppor

t her asse

rtion that M s. Nissen’s will conta

ins plain an d clear language demonstrating her intent that her bequest to Ms. Jaco bsen would lapse if Ms. Ja cobsen pre decease d her. T hese arguments hinge on (1) the use of the term “per capita” in Paragraph 2(b) of Ms. Nissen’s wi ll, (2) the fact that the Ja

cobsen brot

hers wer e already provided f

or else where in Ms. Niss en’s will , and (3) the fact that the c odicil exc luded any mention of Ms. Jacob sen.

Each of these a

rguments r

equires us construe t

he terms o f Ms. Nissen’s w ill. In doing so, w e must be gu ided by our ob l igation t o see to it that Ms. Nissen’s desir es and inte ntions a re given effe ct. Wright v. Brandon, 863 S.W. 2d at 402; Martin v. Tayl

or, 521 S.W. 2d 5 81, 584 (Tenn. 1975); Presley v. Hank s, 782 S.W.2 d at 487. Since we are dealing he

re with a patent am

biguity, w e must der

ive Ms. Nissen’s intent fr

omthe four corners of her testa mentary writ ings, Fariss v. Bly-B lock Co. , 208 Tenn. 482, 487, 3 46 S.W. 2d 705, 706 ( 1961), wh ich include both her will and the 1990 codicil t o her will. Martin v. Tay lor , 5 21 S.W.2d at 584; Fisher v. Malmo , 650 S.W.2d 43, 46 (Tenn. Ct. A pp. 1983).

Because every wo rd used by a

testator in a will i s presumed

to havesome meaning, Daughert

y v. Daughert

y, 784 S.W.2 d a t 653; In re Est ate of Jack

son, 793 S.W. 2d 259, 261 ( Tenn. C t. App. 1990), w e must, if possible , give ef fect to every provision, claus e, term, or word used in the will

. Bell v. Shannon, 212 Tenn. 28, 40, 367 S.W.2d 761, 766 (1963); Beucher t v. Sigman, 652 S.W. 2d 347, 349 (Tenn. Ct. App. 1983). We must also give the technical word s in the wi ll their technica l meaning be cause Ms. Nissen’s will w as d rafted by a lawyer.5 A class gift is a gift to a group of persons who are not named, whose number may va ry, andwho have one or more characte ristics in common. Jennings v. Jennings, 165 Tenn. 295, 301, (continued...) -8- Wright v. Brandon, 863 S.W. 2d at 402; Daugherty v. Daughert

y, 784 S.W.2d at 653.

A.

T HE U SE OF THE T ERM “P ER C APITA ”

Ms. Flathe first argues that the use of the ter m “per ca pita” in co njunction withthe bequest

to Ms. Jac obsen clea

rly signifi es that Ms. Nissen did not intend for M s. Jacobsen’s share

of the est ate to pass to her heir s if Ms. J a cobse n predeceased Ms. Nissen. We disagree. T he term“per ca

pita” has n o applicati on to specific b equests t o named leg atees. In the cont ext of this p articula

r will, it can be given eff

ect only if

it is constr

ued to rela

te to substitutiona

l gifts to sub stitute legatees in the event of the death of the primary legatee.

The term “pe

r capita” appears t

wice in Ms. Niss e n’s will and once in her 1990 codicil. It first

appears i n Paragraph (a) of the residu a ry clause

in conjunction

with the be quest of six -sixteent hs of theresiduar

y estate to six named perso ns. The will direc ts that th is six-si xteenths be divid ed “equall y . . . pe r capita. ” This sa

me usage a

ppears in P aragrap h (a) of the codicil. The ter

m also appears in Paragraph (b) pertaining to the gifts to Ms. Flathe a nd Ms. Jac obsen. Paragra ph (b) state s: “Ten- sixteenths ( 10/16) ther eof to be di vided two- thirds ( 

### b ) to Ruth Flath e and one- third ( 

### a ) to Mary J acobsen, per capit a.” This usage is not repeated in the codic il because t he codicil was prepared after Ms. Jacobsen’s death.

The terms “pe

r capita” and “per s tirpes” de scribethe mode of distributin g an estate rather than the designation of the persons who will share in the estate. Wri ght v. Brand on, 863 S.W. 2d at 403; see also In re Est ate of Walt

er (Bolin v . Walters), 519 N.E .2d1270, 1273 ( Ind. Ct. App. 1988); In re Estate of Winslow, 934 P.2d 1001, 1006 (Kan. Ct. App. 1997); In re Estate of Renner (Kirchner v. Buschling), 895 S.W. 2d 180, 182(Mo. Ct. App. 1995). T hey relat e to class gifts, 55 (...continued)

54 S.W.2d 961, 963 (1932); Page, §§ 35.1, at 4 88 & 35.4, a t 495. A bequest

is not to a c lass if (1) i t is given to a cer

tain numbe

r of named persons , (2) the share e ach of th

ese per sons will receiveis certa

in, and (3 ) these s hares do n ot depend on the number of persons in the class at somefuture time. Page, § 35.2, at 493. For examples of the correct use of “pe r stirpes” and

“per capita,” see 4 Tennessee Legal and Business Forms §§ 28:252 & 28:253 (1994).

6 As used in a will, the term “per capita” connotes an equal division of the property among the legatees, each receivi ng the sam e share as the others, without regard to the principle of representation. Page, § 36.6, at 556; George W. Thompson, The Law of Wills § 317, at 477 (3d ed. 1947). -9- and ordinaril y have no app licatio n to na med legatees who are primary takers undera will. In re Estateof Walters (Bolinv. Walters), 519 N.E .2d at 1273; In re Estate of Winslow, 934 P.2d at 1006; Evans v. Cass, 256 N.E .2d 738, 74 3 (Prob. Ct. Cuyahoga County 1970).
Thus, it is technically inappropriate to use either the term “per capita” or the term“per stir

pes” or a combinatio n of the tw o terms todescribe a specif ic bequest to a named legatee. In ci rc umstances where t hese term s have bee n used in conjunction

with a gift to named legatees who are primary b eneficia ries, the courts have consistently construed the terms to apply to the substitutiona l gift to the substitute legatees in the even

tof the dea

th of the primary legatee. In re Est ate of Luke, 184 N.W .2d 42, 45 ( Iowa 1971) ; Johnson v. Swann, 126 A.2d 60 3, 606 (Md. 1956); In re Will

of Griffin (Lowry v. Doss), 411 So. 2d 766, 769 ( Miss. 1982) ; St. Louis Union Trust

Co. v. Gre enough, 282 S.W.2d 474, 478 (Mo. 1955); see also 3 Restateme nt of Prope rty § 300 , cmt. f (1940)

.
Based on these precedents, there are threereasons why the term “per capita” cannot, as a matter of law, apply to Ms. Nissen’s bequest of ten-sixteenths of her residuar y estate toMs. Flat

he and Ms. Jacobsen. First, t his gift is no t to a clas s. Second, the gift is to persons who are specifically named in the wil l as primary legate es. Thir d, the wi ll does not di vide the te n-sixteent hs interes t equally between Ms. Flathe a

nd Ms. Ni ssen as the

technically correct use of the term “per capita” would require. 6

The trial co urt appears to have concluded, as we have, that the term “per capita” cannot apply to Ms. Niss en’s beque st to Ms. F lathe and M s. Jacobsen.7 The record contains no pleadings or pro of that Ms. Jacobsen left any heirs other than

Jeffrey and Christ

opher Ja cobsen o r that she

had any other chi ld ren who were deceased. However, the trial court ’s memorandum makes an entirely unexplained refe rence to “any deceased childre n of Ms. Jacobsen.” As far as the present re cord shows, the interests of theheirs of Ms. Jacobsen’s deceas ed childr en were not befor e the tria l court. Accordingly, we have not addressed the rights of these persons, if they exist. -10- However, the trial court then disregarded the term as “meaningl ess surpl usage.” We find that t

his was er ror beca use the cour

ts must endeavor to give eff

ect to all the terms in a

will. T his goal ca

n be accomplished by holding that the term “per capita” as it appea

rs in Par agraph 2 (b) of

Ms. Niss en’s will

applies to t

he substitutional gift to th e substi tute legat ees shoul d either Ms . F lathe or Ms. J acobsen predecease Ms. Nissen. Thus, especially in the absence of any othe r provision in the wil l dealing w ith lapsed g ifts or pred eceased legatees, the term “per capi ta” rela

tes to the m anner in which the Ja cobsen brot

hers should d

ivide their mother’s 16/48 share of Ms. Nissen’s residuary estate. 7

B. T HE O THER B EQUESTS TO THE J ACOBSEN B ROTHERS

Ms. Flathe also insists that Ms. N issen must not have int

ended for the Jacobsen brothers t

o succeed to their mo ther’s int erest bec ause Ms. Nissen made other provi sions for

them in her

will. We find this a

rgument unpersuasi ve. The fact that a tes tator has m ade a spec ific beque stof a porti on of her resi duary esta

te to an individua

l does not pr

event that indi vidual f

rom succeeding to his or her p arent’s share of the estate by o peration of law. In thes e circumsta nces, th e additional s hare simp ly becomes an additiona l gift to the

named indiv idual.

C. T HE E FFECT OF THE C ODICIL

Ms. Flathe’s final assertion is that the omi ssion of any mention

of Ms. Jacobsen in the 199 0 codicil is eviden ce of Ms. Ni ssen’s desi re to excl ude the Jacobsen brothers from succeed i ng to their mother’s interest in the residuary estate. This arg ument is eq ually unper suasive bec ause it ove rlooks two impor

tant-11-

matters of substanc e. Firs t, the pr operty dealt wit

h in the codi cil was di fferent from the proper

ty included i n the will. Second, the codici l di d no t change a ny portion of t

he will a nd, in fac t, expre ssly reaf firmed th e bequests in the will

.
We will not

construe a

codicil to a

lter the t erms of a will any more than is necessary to give effe ct to the co dicil. R ogers v. Rodge rs , 53 Tenn. (6 Heis k.) 489, 499 (1871); Americ an Nat’l B ank & Trust Co. v. Mander , 36 Tenn. App. 220, 226, 253 S. W.2d 994, 997 (1952). It is evident from the face of the wi ll and the codicilthat Ms. N

issen prepa

red the co dicil to make atestamen tary disposi tion of propertyshe had over

looked whe n she prepa

red her will , not to eli minate or replace any other test amentary be quest sh e had alread y made.

Ms. Flathe offers no textual basis for c onstru ing Ms. Nissen’s w ill to providethat the surv ivor of Ms. Fl athe and Ms . Jacobsen should rec eive the other’s portion of t

he residua

ry estate . It is not

our role to gue ss at a tes t ator’s intentions based on w hat the par ties suppose

the testat or might have intended but
neverput in writ ing. In re Walk er, 849 S.W. 2d 766, 768 (T enn. 1993) ; Martin v. Hale, 167 Tenn. 438, 442, 7 1 S.W.2d 211, 212 (1934). Thus, we decline to infer thatbecause M s. Nisse n dealt wi th the prope rty cover ed by the co dicil in one

way, she meant to de al with

all her ot her prope rty inthe same way. The actual terms of the will a

nd codicil m

erely evi nce a dec ision to dea l with dif ferent pr operty differe ntly.

V.

We affirm

the judgmen

t and rema

nd the case to the trial court for whatever otherproceedi ngs may be r equired. We tax the costs of this appeal to Ruth Flathe,
as personal representative of Ms. Nissen ’s estate, and her surety for which execution, if necessary, may issue.-12- _________________ _____ __ ____ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ SAMUEL L. LEWIS, JUDGE