IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 4, 2018 Session

IN RE ESTATE OF MARY RUTH DAVIS HUDSON

Appeal from the Chancery Court for Knox County

No. 77688-2 Clarence E. Pridemore, Jr., Chancellor

No. E2018-00583-COA-R3-CV

In this estate proceeding, the appellants, three of the five adult children of the decedent, 

appeal the probate court’s interpretation of the decedent’s last will and testament as 

demonstrating the decedent’s intent to have her real property administered as part of her 

estate by her personal representative. Having determined that the probate court’s order 

was premature due to ongoing proceedings in the decedent’s conservatorship case, we 

vacate the probate court’s order interpreting the last will and testament. We remand for 

further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Vacated; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Marilyn L. Hudson, Knoxville, Tennessee, Pro Se and for co-appellants, Stephen D. 

Hudson and Lou Ann Hudson.

Steven K. Bowling, Knoxville, Tennessee, for the appellee, Steven K. Bowling, 

Administrator C.T.A. for the Estate of Mary Ruth Davis Hudson.

Harry E. Hudson, Jr., Stockton, California, Pro Se appellee.

1

 

1 Upon an unopposed motion filed by appellee Carol S. Hudson, represented by Keith H. Burroughs and 

Rameen J. Nasrollahi of Knoxville, Tennessee, this Court granted permission for Carol S. Hudson to be 

dismissed as a party in an order entered on December 6, 2018. 

02/04/2019
2

OPINION

I. Factual and Procedural Background

The decedent, Mary Ruth Davis Hudson (“Decedent”), died on May 2, 2016, at 

the age of ninety-two. At the time of her death, Decedent had five living adult children, 

who were all named as beneficiaries in her last will and testament (“the Will”), which had 

been executed on May 7, 2014. Decedent’s eldest child, Harry E. Hudson, Jr. (“Harry 

Hudson”), was named as personal representative in the Will and filed a petition to 

probate the Will in the Probate Division of the Knox County Chancery Court (“probate

court”) on May 18, 2016. In the petition, Harry Hudson stated, inter alia, that “Article 

Five of decedent’s Will requires that the decedent’s real estate be handled as property 

subject to decedent’s Will.” Decedent’s real property consisted of a home and residential 

lot located at 4601 Millertown Pike in Knoxville (“the Property”). The appellants in the 

instant action are three of Decedent’s children: Marilyn L. Hudson (“Marilyn Hudson”), 

Stephen D. Hudson (“Stephen Hudson”), and Lou Ann Hudson (collectively, 

“Appellants”). Acting through then-counsel Andrea C. Anderson and Marshall H. 

Peterson, Appellants filed a response to the petition, objecting to the appointment of 

Harry Hudson as personal representative, nominating Marilyn Hudson as personal 

representative, and asserting, inter alia, that “[t]he Will does not specifically subject the 

real property to the Executor’s control pursuant to Tenn. Code Ann. Section § 31-2-103.” 

 

At the time of the probate petition’s filing, Decedent’s children were embroiled in 

a dispute over Decedent’s conservatorship, particularly with regard to the final 

accounting and payment of attorney’s fees. See In re Conservatorship of Hudson, No. 

E2017-00810-COA-R3-CV, 2018 WL 3814850 (Tenn. Ct. App. Aug. 10, 2018). As 

noted in this Court’s opinion concerning the conservatorship, Harry Hudson resides in 

Stockton, California, and is an attorney practicing law in California while Marilyn 

Hudson is an attorney practicing law in Tennessee. See id. at *1. During the 

conservatorship proceedings, Decedent’s youngest child, Carol S. Hudson (“Carol 

Hudson”), had joined with Harry Hudson in opposing the original petition to establish a 

conservatorship, which had been filed by Appellants. Id. The Knox County Chancery 

Court (“conservatorship court”) established the conservatorship, appointing Lou Ann 

Hudson as the conservator over Decedent’s person and, eventually, the East Tennessee 

Human Resources Agency (“ETHRA”) as the conservator over Decedent’s finances. Id. 

Following Decedent’s death, the conservatorship court entered an order 

transferring Appellants’ outstanding motions for attorney’s fees to the probate court and 

closing the conservatorship without making findings of fact concerning Appellants’ 

objections to the final accounting. Id. Upon Appellants’ appeal of the conservatorship 

court’s judgment, this Court vacated the judgment and remanded to the conservatorship 
3

court “for entry of findings of fact and conclusions of law concerning the petitioners’ 

objections to the final accounting and concerning whether the attorney’s fees requested in 

the petitioners’ counsel’s pending attorney’s fee motions were incurred in relation to the 

conservatorship and, if so, whether reasonable attorney’s fees should be granted upon 

each of these motions.” Id. This Court also directed the conservatorship court to enter an 

order on remand to grant Appellants’ request that ETHRA “present a detailed explanation 

of the basis for its representative’s claim for fees and expenses for the conservatorship 

court’s consideration . . . .” Id. During oral argument in this appeal in the probate action, 

the parties clarified that the conservatorship proceedings were still pending on remand.

Meanwhile, in the instant action, the probate court entered an agreed order on 

September 13, 2016, admitting the Will to probate and appointing attorney Steven K. 

Bowling as administrator, C.T.A. (“Administrator”).2 The probate court also admitted a 

holographic “Property List,” executed by the Decedent as a codicil and setting forth 

Decedent’s desired distribution of specific items of personal property. The codicil was 

accompanied by three affidavits attesting to the authenticity of Decedent’s handwriting, 

executed respectively by Harry Hudson, Stephen Hudson, and Carol Hudson. The 

authenticity of the Will and codicil is not in dispute.

Upon Appellants’ motion, the probate court entered an order on December 9, 

2016, substituting Marilyn Hudson in place of Mr. Peterson to represent herself pro se

and as counsel for Stephen Hudson and Lou Ann Hudson. Following various claims filed 

against Decedent’s estate (“the Estate”), including several concerning attorney’s fees 

purportedly incurred in relation to the conservatorship, Administrator filed a “Motion for 

Disposition of Real Property” on May 22, 2017. In his motion, Administrator stated that 

the Property had been recently valued by a real estate agent at $122,500.00, although the 

appraised value had been increased to $162,700.00. Administrator noted that considering 

the claims outstanding against the Estate, it was “entirely possible” that the Estate would 

become insolvent. Administrator requested that upon interpretation of Article V of the 

Will, the probate court either allow the sale of the Property or the conveyance of title to 

the Property jointly to Decedent’s beneficiaries.

 

2 As this Court has explained:

“C.T.A.” is an acronym for cum testamento annexo, meaning “with the will annexed.” 

See In re Estate of Hendrickson, No. M2008-01332-COA-R9-CV, 2009 WL 499495, at 

*2 n.2 (Tenn. Ct. App. Feb. 25, 2009) (citation omitted). An Administrator C.T.A. is 

appointed by a court “when the testator has named no executor, or the executors named 

refuse, are incompetent to act, or have died before performing their duties.” Black’s Law 

Dictionary 49 (8th ed. 2004).

In re Estate of Link, No. M2016-02202-COA-R3-CV, 2017 WL 4457591, at *1 n.1 (Tenn. Ct. App. Oct. 

5, 2017).
4

While Administrator in his motion for disposition focused on the construction of 

Article V of the Will, the clerk and master in his report and the parties on appeal have

also emphasized the construction of Articles Two, Four, and Seven. In relevant part, the 

Will provides:

ARTICLE TWO

I direct that all my just debts, taxes, and expenses of the 

administration of my estate be paid without unnecessary delay by my

Personal Representative hereinafter named and appointed out of the residue 

of my estate. However, payment shall be authorized only for those debts 

which are valid and enforceable and not subject to any defense, substantive 

or procedural. It shall not be necessary to file any claims therefore nor to 

have them allowed by any Court. In the event that my residuary estate is 

insufficient to pay such debts, expenses, costs and taxes, I direct that the 

amount in excess of my residuary estate shall be paid from assets in the 

order provided by law.

* * *

ARTICLE FOUR

Notwithstanding anything contained herein to the contrary, certain 

specific articles of personal property shall be distributed in accordance with 

the provisions of a certain list written entirely in my handwriting and signed 

by me which is attached hereto and is incorporated herein by reference, and 

I direct that my Personal Representative distribute these items in 

accordance with my handwritten request.

ARTICLE FIVE

I direct that all my remaining assets are to be liquidated, and I give, 

devise, and bequeath all the remaining property that I may own at the time 

of my death whether real, personal, mixed, tangible, and intangible of 

whatsoever nature and wherever situated including all property that I may 

acquire or become entitled to after the execution of this Will to my 

children, HARRY E. HUDSON, JR., MARILYN L. HUDSON, STEPHEN 

D. HUDSON, LOU ANN HUDSON, and CAROL S. HUDSON, in equal 

shares. If any of them should die before me, then I give his or her share to 

the survivors of them in equal shares. 
5

* * *

ARTICLE SEVEN

I confer upon my Personal Representative full power to do any act, 

matter, or thing that I might or could do if living and acting on my own 

behalf and exercise any and all powers of such fiduciary enumerated in 

Tennessee Code Annotated as amended to the date of my death. . . .

As noted in the clerk and master’s report, the codicil “sets forth thirty (30) individually 

numbered specific paragraphs, all written in the decedent’s hand and signed by her on 

June 12, 2014, itemizing the distributions of personal property to be made to specifically 

named family members.”

 

Following a hearing conducted on July 13, 2017, the trial court entered an agreed 

order on August 4, 2017, inter alia, setting the motion for disposition of the Property for 

hearing on August 21, 2017, and memorializing an agreed deadline for written objections 

to the motion of July 31, 2017. In a response filed on July 31, 2017, Appellants 

requested that the trial court deny the motion insofar as Administrator sought authority to 

liquidate the Property and grant the motion insofar as Administrator sought to convey 

title of the Property to Decedent’s children. Relying on Tennessee Code Annotated § 31-

2-103, Appellants argued that “the real property immediately vested in the named 

beneficiaries in equal shares and that the Will did not grant authority to the Administrator 

to sell said property.” Appellants also asserted that any statement as to potential 

insolvency of the Estate was premature. 

Acting through her individual counsel, Keith H. Burroughs, Carol Hudson also 

filed a response to Administrator’s motion on July 31, 2017. Harry Hudson then filed a 

pro se response to the motion on August 15, 2017. In contrast to Appellants, both Carol 

Hudson and Harry Hudson argued in favor of interpreting the Will as providing for the 

liquidation of the Property under Administrator’s authority. 

Clerk and Master Howard G. Hogan conducted the hearing on August 21, 2017, 

with Administrator, Appellants, and Carol Hudson and her counsel appearing. Harry 

Hudson did not appear. On August 31, 2017, the clerk and master submitted a “Master’s 

Report,” concluding that “the language and phrases in the will and codicil demonstrate 

that the decedent intended that her residence be administered as part of her estate subject 

to the personal representative’s control and that she did not intend the title to her 

residence to vest immediately in her children.” Specifically in response to Appellants’ 
6

argument that Decedent’s real property vested in her beneficiaries at the time of her 

death, the clerk and master stated:

The Clerk and Master has considered the argument and authority from 

[Appellants] who assert and argue that title vested in them at death by the 

words in Article Five which provide “I give, devise and bequeath all the 

remaining property that I may own at the time of my death whether real, 

personal, mixed, tangible, and intangible of whatsoever nature and 

wherever situated including all property that I may acquire or become 

entitled to after the execution of this will to my children . . . in equal 

shares.” However, such construction totally disregards the beginning 

preceding phrase “I direct that all my remaining assets are to be liquidated” 

and fails to take into consideration all of the other Articles of the will or the 

codicil. Respectfully, the decedent’s entire will must be considered and the 

entire testamentary scheme and dominant purpose of the decedent 

expressed in Article Two, Article Four, Article Six, Article Seven and the 

codicil is to distribute the tangible personal property as directed and then to 

“liquidate” the remainder to reduce it to cash and divide the estate into five

(5) equal shares after paying the claims and debts of the estate.

In his report, the clerk and master recommended that the trial court enter an order 

providing:

(1) That Article Five of the decedent’s will shall be construed and 

interpreted as follows:

I hereby direct that after distribution of my tangible 

personal property under the above Article Four and the 

handwritten list, my personal representative shall sell 

and liquidate all of the rest and remainder of my

property, including my residence and any other real, 

personal, mixed, tangible, and intangible property of 

whatsoever nature and wheresoever situated, including 

any property that I may acquire or become entitled to 

after the execution of this will, and for the purpose of 

reducing my remaining estate to liquid form, I 

specifically direct that any real property be 

administered as part of my probate estate subject to the 

control of the personal representative for the purposes 

of administration as authorized by T.C.A. § 31-2-103 

and that my personal representative shall have such 
7

power of sale as I have as the absolute owner would 

have, including the right to sell, mortgage, lease or 

otherwise convey any interest in real estate without the 

signature, consent or approval of any heir, legatee, 

beneficiary, court or other person as set out in T.C.A. § 

35-50-110 as hereinafter incorporated and after 

liquidating all assets and after paying all the claims, 

debts and expenses in my estate as provided in Article 

Two, my personal representative is directed to divide 

the remaining amounts into five (5) equal shares for 

distribution to my children, [Harry] E. Hudson, Jr., 

Marilyn L. Hudson, Stephen D. Hudson, Lou Ann 

Hudson and Carol S. Hudson, and if any of my

children should die before me, then I give his or her 

share to the survivors of them in equal shares.

(2) That the Administrator CTA, Attorney Steven K. Bowling, is hereby 

authorized and directed to complete this administration under the 

above construed article; and 

(3) that all other matters are reserved.

On September 26, 2017, Appellants filed an objection to the Master’s Report, 

reiterating their argument that Decedent’s real property had vested in her beneficiaries at 

the time of her death. Carol Hudson filed a challenge to the timeliness of Appellants’

objection. Following a hearing on the objection and challenge, conducted by the probate 

court chancellor on January 22, 2018, the probate court dismissed Appellants’ objection 

as untimely, pursuant to Tennessee Rule of Civil Procedure 53.04(2) and Rule 19 of the 

Local Rules of Practice for Knox County Chancery Court, in an order entered on March 

2, 2018. See Tenn. R. Civ. P. 53.04(2) (“Within ten (10) days after being served with 

notice of the filing of the [master’s] report, any party may serve written objections thereto 

upon the other parties.”). 

The probate court subsequently entered an “Order of Confirmation” on March 21, 

2018, nunc pro tunc to January 22, 2018. Upon “independent review of the Master’s 

Report” and finding that “no timely exceptions or objections [had] been filed,” the 

probate court approved and confirmed the Master’s Report. The probate court adopted 

the interpretation of Article Five of the Will as recommended in the Master’s Report and 

“authorized and directed” Administrator “to complete this administration under” Article 

Five as constructed in the order. Appellants filed a notice of appeal on April 2, 2018, 

timely to the date of entry of the confirmation order. Administrator subsequently filed in 
8

the probate court, inter alia, a “Notice of Insolvency and Proposed Plan of Distribution”

on May 29, 2018. Appellants responded by filing an objection to the notice of 

insolvency, asserting that the notice was premature because the Estate was not insolvent, 

the conservatorship had not been resolved following remand from this Court, and the 

instant appeal was pending. 

II. Issue Presented

Appellants present one issue on appeal, which we have restated slightly as 

follows:

Whether the probate court erred by construing the language of the Will as 

conferring authority on Administrator to sell Decedent’s real property.

III. Standard of Review

We review a non-jury case de novo upon the record with a presumption of 

correctness as to the findings of fact unless the preponderance of the evidence is 

otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 

2000). We review questions of law, including those of statutory construction, de novo

with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate 

Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224 

S.W.3d 675, 678 (Tenn. Ct. App. 2006). Likewise, construction of a will is a matter of 

law, for which we review the trial court’s conclusions de novo with no presumption of 

correctness. In re Estate of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App. 2005), perm. 

app. denied (Tenn. Oct 3, 2005); In re Estate of Schubert, No. E2014-01754-COA-R3-

CV, 2015 WL 4272192, at *4 (Tenn. Ct. App. July 15, 2015) (citing Horadam v. Stewart, 

No. M2007-00046-COA-R3-CV, 2008 WL 4491744, at *5 (Tenn. Ct. App. Oct. 6, 

2008)). 

IV. Effect of Unresolved Conservatorship

Appellants’ sole issue raised on appeal is whether the probate court erred by 

construing the language of the Will as conferring authority on Administrator to sell 

Decedent’s real property. However, upon careful review, we determine the dispositive 

issue to be whether the pending conservatorship proceedings render the probate court’s 

construction of the Will as it pertains to the Property to be premature, particularly 

considering the notice of insolvency filed by Administrator. Because a decision from this 

Court on such a premature judgment would run the risk of being advisory in nature, we 

will address the effect of the unresolved conservatorship as a threshold matter. See Tenn. 

R. App. P. 13(b); Thomas v. Shelby Cty., 416 S.W.3d 389, 393 (Tenn. Ct. App. 2011), 
9

perm. app. denied (Tenn. Dec. 13, 2011) (“It is well-settled that the role of the court is to 

adjudicate and settle legal rights, not to give abstract or advisory opinions.”).

In support of their argument that upon Decedent’s death, the Property vested 

immediately in the beneficiaries of Decedent’s Will and does not therefore come under 

the authority of Administrator, Appellants rely on Tennessee Code Annotated § 31-2-103 

(2015), which provides as pertinent to testate decedents:

The real property of a testate decedent vests immediately upon death in the 

beneficiaries named in the will, unless the will contains a specific provision 

directing the real property to be administered as part of the estate subject to 

the control of the personal representative. Upon qualifying, the personal 

representative shall be vested with the personal property of the decedent for 

the purpose of first paying administration expenses, taxes, and funeral 

expenses and then for the payment of all other debts or obligations of the 

decedent as provided in § 30-2-317. If the decedent’s personal property is 

insufficient for the discharge or payment of a decedent’s obligations, the 

personal representative may utilize the decedent’s real property in 

accordance with title 30, chapter 2, part 4. After payment of debts and 

charges against the estate, the personal representative shall distribute the 

personal property . . . of a testate decedent to the distributees as prescribed 

in the decedent’s will.

(Emphasis added.) Tennessee Code Annotated § 30-2-401 (2015) provides in relevant 

part that “[t]he probate court shall have concurrent jurisdiction with the chancery and 

circuit courts to sell real estate of decedents and for distribution or partition . . . .” 

As Appellants have acknowledged, under the facts of this case and pursuant to 

Tennessee Code Annotated § 31-2-103, if the Estate in this action is insolvent, 

Administrator may utilize the Property to discharge or pay the debts of the Estate. As our 

Supreme Court has explained:

In Tennessee, title to real property owned by a testate decedent at the 

time of death vests immediately in the devisees named in the will unless the 

will specifically directs that the property be part of the estate under the 

control of the executor. Tenn. Code Ann. § 31-2-103 (2007); see also 2 

[Jack W. Robinson, Sr., et al.,] Pritchard [on the Law of Wills and 

Administration of Estates] § 634, at 146 [(6th ed. 2007)]. However, the fact 

that the title to the real property vests immediately does not necessarily 

mean that the real property cannot be subject to the probate proceeding in 

some circumstances.
10

Tennessee recognizes the distinction between interests in real 

property that pass “by right of survivorship” and those that pass by “devise 

or descent.” Real property jointly owned by a decedent with others with a 

right of survivorship and real property owned by the entirety are not part of 

the probate estate administered by the decedent’s personal representative in 

the probate proceeding. 2 Pritchard 6th § 630, at 142. On the other hand, 

interests in real property that pass by devise or descent can be reached by 

the decedent’s personal representative to pay the decedent’s or the estate’s 

debts if the decedent’s personal property is insufficient to pay these debts. 

Tenn. Code Ann. § 31-2-103; Tenn. Code Ann. § 30-2-401 (2007); In re 

Estate of Vincent, 98 S.W.3d 146, 149 (Tenn. 2003); 2 Pritchard 6th § 801, 

at 405.

In re Estate of Trigg, 368 S.W.3d 483, 501-02 (Tenn. 2012) (emphasis added).

In the case at bar, Appellants appeal the probate court’s decision rendered upon 

Administrator’s May 2017 motion for disposition of the Property. In this motion, 

Administrator stated that it was “entirely possible” that the Estate would become 

insolvent. Administrator also noted in this motion that the conservatorship action was at 

that time pending on appeal and remained unresolved with no funds transferred from the 

conservatorship to the Estate. In an interim accounting filed a few days before the May 

2017 motion, Administrator indicated a balance in the Estate account in the amount of 

$44,073.37, and noted that several claims against the Estate were still pending. 

In their objection to the motion for disposition of the Property, Appellants asserted

that any statement made by Administrator as to the potential insolvency of the Estate was 

premature in part because of the unresolved conservatorship action. Appellants 

maintained that funds from the conservatorship would eventually add to the solvency of 

the Estate. At this point in the proceedings, the clerk and master conducted the August 

2017 hearing on Administrator’s motion for disposition and entered findings interpreting 

the disposition of the Property according to the Will, which the probate court chancellor 

ultimately confirmed. In relation to the Property’s distribution, the probate court did not 

address, either in the Master’s Report or the chancellor’s order of confirmation, the effect 

of the unresolved conservatorship action or of Administrator’s notice that the Estate was 

in danger of insolvency. 

Subsequently, in filing a notice of insolvency and proposed distribution plan, 

Administrator stated that the conservatorship action still remained pending and that the 

Estate had “received no funds from the Conservator.” In the notice and attached interim 

accounting, Administrator indicated a cash balance in the Estate of $1,817.82 and set 
11

forth a plan of distribution following the sale of the Property. Administrator proposed 

that funds from the sale of the Property would go to pay a total of $9,000.15 in estimated 

administrative costs; $1,864.15 in property tax and state and federal income tax; 

$12,329.00 to unsecured creditors (claims already approved or final); and $34,484.70 to 

attorney’s fee claims still pending from the conservatorship action. According to 

Administrator in this notice, the estimated administrative expenses, claims, and 

obligations added to a total amount of $57,678.00. Administrator further proposed that 

remaining cash from the sale of the Property would be distributed in equal shares to the 

beneficiaries. In Administrator’s initial motion for disposition of the Property, he had 

stated that the Property had been recently valued by a real estate agent at $122,500.00

while the appraised value was $162,700.00.

In their reply brief on appeal, Appellants point out that they filed an objection to 

Administrator’s notice of insolvency as premature and as in error because Appellants 

believed that once the conservatorship was resolved, the Estate would be solvent without 

any need for the Administrator to sell the Property to pay the Estate’s debts. See Tenn. 

Code Ann. § 31-2-103; In re Estate of Trigg, 368 S.W.3d at 502. The problem for 

resolution of the instant appeal is that, as Appellants correctly note, “[i]n light of the 

inability of the probate court to ascertain the funds in the probate estate, it must first 

know the amount of funds in the conservatorship.” Appellants have made this statement 

in support of their assertion that Administrator’s notice of insolvency was premature. 

However, given that Administrator also notified the probate court of the pressing danger 

of insolvency in the May 2017 motion for disposition and given that the conservatorship 

remained unresolved both at that time and at the time of this appeal, we determine that 

the probate court’s order of confirmation and the underlying Master’s Report were 

premature. 

Until the probate court is able to determine whether the Estate is solvent and 

thereby whether the Administrator will need to reach the Property in order to pay the 

debts of the Estate, see Tenn. Code Ann. § 31-2-103, it would be premature to order 

either the sale of the Property by Administrator or the vesting of title in the Property to 

the beneficiaries. The conservatorship must be resolved first with any funds remaining in 

the conservatorship transferred to the Estate before the claims against the Estate may be 

resolved and the disposition of the Property determined. See In re Conservatorship of 

Hudson, 2018 WL 3814850, at *11 (“If [on remand] the conservatorship court finds that 

Petitioners’ requested fees or a portion of those fees are warranted within the 

conservatorship proceedings, the conservatorship court should enter a corresponding 

money judgment or judgments, which may be pursued further by Petitioners or their 

counsel in probate court if sufficient funds are no longer available from the 

conservatorship.” (citing as an example In re Blessing, No. 01A01-9712-CH-00691, 1998 

WL 862480, at *12 (Tenn. Ct. App. Dec. 14, 1998))).
12

Administrator requests that this Court affirm the probate court’s interpretation of 

the Will and grant of his motion to dispose of the Property by liquidating it and 

distributing the proceeds. Appellants request that this Court reverse the probate court’s 

interpretation of the Will to determine that the Property vested in the beneficiaries at the 

time of the Decedent’s death and should not be within Administrator’s authority to 

liquidate barring a finding that the Estate is insolvent. Upon a thorough review of the 

record and applicable authorities, we determine that because of the pending resolution of 

Decedent’s conservatorship and Administrator’s notice to the probate court that the 

Estate may be insolvent once the conservatorship is resolved, any decision from this 

Court concerning the construction of the Will would be advisory at this time. We 

therefore make no determination regarding the specific issue raised by Appellants. See 

Thomas, 416 S.W.3d at 393 (“[T]he role of the court is to adjudicate and settle legal 

rights, not to give abstract or advisory opinions.”). However, having determined that the 

probate court’s order authorizing Administrator to liquidate the Property was premature 

pending resolution of the conservatorship, we vacate the probate court’s order confirming 

the Master’s Report and remand to the probate court for further proceedings.

V. Attorney’s Fees on Appeal

In the conclusion sections of their respective briefs, Appellants and Administrator 

have each respectively requested an award of attorney’s fees on appeal. However, 

neither Appellants nor Administrator included attorney’s fees on appeal as an issue 

presented to this Court. “‘Courts have consistently held that issues must be included in 

the Statement of Issues Presented for Review required by Tennessee Rules of Appellate 

Procedure 27(a)(4)’ in order to be properly before this Court.” Gibson v. Bikas, 556 

S.W.3d 796, 810 (Tenn. Ct. App. 2018) (quoting In re Estate of Burke, No. M2012-

01735-COA-R3-CV, 2013 WL 2258045, at *6 (Tenn. Ct. App. May 21, 2013)). We note 

that this Court’s decision regarding whether to award attorney’s fees on appeal is a 

discretionary one. Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003), perm. 

app. denied (Tenn. Jan. 26, 2004). Because the issue is not properly before this Court on 

appeal, we cannot consider either request for attorney’s fees on appeal. See, e.g., Gibson, 

556 S.W.3d at 810. 

VI. Conclusion

For the reasons stated above, we vacate, in its entirety, the probate court’s March 

2018 order confirming the clerk and master’s report. We remand for further proceedings 

consistent with this opinion as the conservatorship action comes to a close. Costs on 

appeal are taxed to the Estate of Mary Ruth Davis Hudson, with the appellee, Steven K. 
13

Bowling, in his capacity as Administrator C.T.A. of Decedent’s Estate, instructed to 

remit payment of said costs.

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE