# FILED Nov. 15, 19 95 Cecil Crow son, Jr. Appellate Court Clerk 

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

IN THE MATTER OF: ESTATE O F JIM EDEN, D eceased ) ) GEORGIA BRADLEY, ) ) Plaintiff /Appella nt, )

) Trousdale Chancery ) No. 295 VS. ) ) Appeal N o. ) 01-A-01- 9501-CH- 00005 BETTY LE

WIS, ) AGNE S HENDSLE Y, and ) BERTI E CARVER, Executors, ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CHANCERY COURT FOR TROUSDALE COUNTY

AT HARTSVILLE, TENNESSEE THE HONORABLE BOBBY CAPERS, JUDGE

For the Plaint iff/Appe llant : For the Defenda nts/Appellees : Thom as A. T

ravaglini A. Russell Bro wn Madison, Tennessee Lafayette, Tennessee



## AFFIRMED AND REMANDED

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

## O P I N I O N

This appeal ar

ises from a dispute ov er a wil l in which a 93-ye ar-old

man left his estate to three of his four sur viving daug hters . The da ughter whowas not named in her fa ther’s w ill challe ng ed the validity of the will after her sisters propounded it for probate in the Chancer y Cour t for Tr ousdale County. The cha ncery co urt transf

erred the case to the

Circuit C ourt for T

rousdale C ounty where ajury found in favor of the will. T he daughter who contested the will has appealed. We have determ ined that no reversible e rror wa s comm itted in the circuit cou rt proce eding and, therefor e, aff irm t he circui t court’ s judgm

ent and remand the case to the chancer y court for furth er probate p roceeding s.
I.

Jim Eden was a lifelong resident of Trousdale County. H e an d his wife lived in and around Ha

rtsville and raise d twelve

children. Mr. Eden’s wif e died in 1981, and Mr. Ede n outlived m ost of his children - seven of whom had died by the mid-1980's. Mr. Eden lived alone afte r his wife’s death and was largelyselfsufficie nt. He took

mea ls regular ly wi th one of his daughters who lived next door and sought assistance occ asionally from two other

daughters, one of whom lived in Macon Coun ty and the oth er in Davids on Count y. He did his own b anking, conducte d his oth er busine ss, and was a wel l-known fi gure aroun d Hartsvil le.

Mr. Eden had prepared several different wills over the y ears. In 1986 when he was eighty-six years old, he r equested a lawyer in Hartsville to prepare a will thatleft his e ntire esta

te to Betty Eden Lew is, Agnes Hendsley, and Bertie Carver, the three surviving children who had been of mo st assistan ce to him and his wife
overthe year s. On O ctober 30, 1986, Mr. Eden exe cuted a sim ple, one- page will stating: Af

ter th e paym

ent of all debts and legal obligations of my e st ate , it is my wis h t hat my daughters, Betty

Eden Le wis, A gnes Sykes, and B ertie1 The transfer to circuit court was unnecessary

since Tenn. Code Ann. § 32-4-109 (Supp. 1995) gave th

e chanc ery

court co ncurre

nt jurisdiction with

the circuit court to conduct the devisav it vel non proceeding. Neither party has taken issue with thedecision to transfer the case, and it did not materially affe ct the outcome of the proceeding.

-3- Eden Carver, have an d use for th e remainder of their lives all the property, personal, real and m ixed, owned by me at m

y death, with the power

to se ll, mortgage, use or c on su me suc h property for their needs in their sole and abs olu te d isc reti on. This pro per ty sha ll be divided equally between the parties mentioned above. The wil l didnot mention Mr. Eden’ s only su rviving son, Jay

Eden, who lived in Clay County

and who w as gravely ill or his oldest su

rviving daug hter, G eor gi a Bradley , who had

been living in North C arolina si nce 1952.

Mr. Eden maintained cor dial rela tions with a

ll his childr

en during the last years of his life

. Hi s only su rviving son di ed in 1988. He also sa w less of Ms. Bradley than his other daughters because she lived over five hundred miles away, but Ms. Bradley talked

with him by telephone and visited him periodically. Mr. Eden finally

gave up dri ving his autom obile follo wing an automobil e accide nt in the mid-1980's. His fam

ily beg an to notice

a deteri oration in his me ntal acuit y by the summ er of 1989. He was hospitaliz ed in September 1989 and was later placed in a nursing home i n Lebanon. He died o n May 8 , 1992, a t the age of ninety-three. He left behin d a n esta te worth a pproxim ately

$150,000, including $130 ,500 in cash.

Mr. Eden wa s survive d by four daughters. Mses. L ewis, H endsley , and Carver filed a petition in the

Chancer y Cour t for Tr ousdale Cou nty to probate their fathe r’s will. M s. Bradl ey con tested the will on the grounds that her father lacked testamentary

capacity and that he

“unint entionally

forgot to in clude her

in the distrib ution.” The cha

ncery court tra nsferre d the case

to the Circuit Co urt for Trousdale

County for a j ury tr

ial in acc ordance w ith T enn. Code Ann. §§ 32- 4- 101. 1 Followinga trial i n June 1994, a jury upheld the va lidity of Mr. E den’s w ill, and on August 8, 1994, the circuit court entered a judgment, stating that Mr. Eden
was “of s ound min d and dispos ing me mory at the tim

e he exec uted his wi ll on-4-

October 30, 1986” a

nd rem anding the case to the chan cery court to co mplet

e the probate p roceeding s.
II.

C ONTEST D ISTINGUISHED F ROM C ONSTRUCTION

Willcontests di ffer fr

om will const

ructions. The twotypes of procee dings have different purposes and, accordingly, different rules of evidence and procedure. Will contests involve factual questions which are submit ted to a jur y, whilewill const

ructions inv olve m atters of law for the court. It is thus impor tant for trial cour ts to determine initially whether a particular controversy involves issues o f contest o r construc tion or b oth.

A will conte st is a proc eeding brou ght for the purpose of having a w ill declared voidbecause t

he testato r lacked t

he requisi te mental capacity to make a will or because t he will was pr ocured by und ue influen ce or fraud. Stacks v

. Saunders , 812 S.W .2d 587, 590-9 1 (Tenn. Ct. App. 1990); Muse v. Sluder , 600 S.W. 2d 237, 240 ( Tenn. Ct. Ap p. 1980). Itis an in rem procee ding, Lillard v. Tolliver , 154 Tenn. 304, 323, 2 85 S.W . 576, 581- 82 (1926); Rogers v. Russell , 733 S.W. 2d 79, 84 (T enn. Ct. App. 1986) , that is i ntended to test only th e external validity of thewill. Stacks v. Saunders , 812 S.W .2d at 590; Rogers v. Russell , 733 S.W. 2d at 84. All persons c laimi ng an inter est in a w ill ma

y beco me pa

rties to the proceedin g, and the dec ision in a w ill cont est is conclusiv e upon all th e world. Petty v . Call , 599 S.W.2d 791 , 793 (Tenn. 1 980).

The purpose of asuit

to construe

a will is to ascertain and give effect to the test ator’s intentio n. Williams v. Est ate of Williams , 865 S.W.2d 3, 5 (Tenn. 1993); Warrick v. Wr ight , 884 S.W .2d126, 128 (T enn. Ct. App. 1994); Presley v. Hanks , 78 2 S.W. 2d 482, 487 ( Tenn. C t. App. 1989). Co nstruction s uits recog nize th e te stato r’s right to dir

ect the dis position of hi s or her pr operty and thus, l imit a courtto ascer

taining a nd enforcing the testat or’s directio ns. Daugherty v. Daugherty , 784 S.W.2d 650 , 653 (Tenn. 1 990).-5- Trial courts shoul d decide c ontest and constr

uctionissues separately when they are pre sented i n t he s ame case. T he better procedure

is to first submit the contest to a jury who will decide the factual issues aff ecting the validity of the will. If th e jury decides against the will, then the case is at an end, and the tria l courtshould enter judgment acc ordingl y. If the jury decides in

favor of the will, then the trial court itself should decide the i ssue s of construction since they are questio ns of law. Presley v. Hanks , 782 S.W.2d at 48 7.

In this ca se, Ms. Bradley challenge d her fat

her’s w ill on the ba sis of hi s mental capacity to m ake a will and on his fa ilure to name her speci fically

in the will. Accordi ngly, her suit pr esented bot

h questio ns of contest

and of constructi on. The issue of Mr. Eden’ s testam entary capacity presents a

basic issue of contest. The next issue, how ever, pr esents an i ssue of

construction insofar as Ms. Bradley

asserts that the w ill is void as a ma tter of la w for fa iling to disinher

it her expressly

or b y necessary

implication. We w ill therefore review the jury verdict on capacity first an d then di scuss th e constru ction qu estion.

III. C ONTEST OVER V ALIDITY OF THE W ILL Ms. Bradley has raised several issues with regar d to her will conte st. She asserts t hat t he trial c ourt should ha ve exclude d two witn esses’ testim ony regardin g their conversations with Mr. Eden about his will. She also challenges the denial of h er reque sted jur y instr uctions. F

inally , she asse

rts that the

re was n o materialevidence to support the jury ’s verd

ict. We will address each of these issues in turn af

ter descr ibing the basic procedure

to be follow ed on a will co ntest.

A. P ROCEDURE ON A W ILL C ONTEST

The questi on prese nted in a will contest proceeding is whether the paper offeredfor proba

te is or is n ot th e t estator’s va lid will. Green v. Higdon , 891 S.W. 2d 220, 222 (T enn. Ct. App. 1994); Carver v. Anthony , 35 Tenn . App. 3 06,-6-

312-13, 245 S.W .2d422, 425 (19 51). The proceeding originated in the chancery practice of

sending the case to a court of law to try the questio n of the val idity of the will. Green v. Higdon , 891 S.W .2d at 222. The form of action i s sui gener

is and regulated entirely by statut e. Jones v. Wither spoon , 182 Tenn. 498, 503 -04, 187 S.W. 2d 788, 790 ( 1945); Arnett v. Weeks , 27 Tenn. (8 Hum.) 547, 549 (1847); Cude v. C ulberson , 30 Tenn. App. 6 28, 637, 20 9 S.W.2d 506, 51 1 (1947).

When a contest is presented, the pr obate cour

t should cer

tify t he will a nd contest to the cir

cuit court for tria l, Tenn. Code Ann. § 3 2-4-101; G reen v. Higdon , 870 S.W .2d 513, 52 0 (Tenn. Ct. App. 1993), unless the c ontestant e lects to have the contest tried in the pro bate court pursuant to Tenn. Cod e Ann. § 32-4- 109. Once the contest has been set f or trial, Tenn. C ode Ann. § 32-4-104 (1989) requires the partie s to form ulate the issues to be

tried “under the

direction of the court.” The gene

ral issue i n a contest

proceedi ng is “ Did he make a wi ll or not.” Green v. Higdon , 891 S.W.2d at 22 2.
The propon ents of the

will have the initial burden of p roving that the will
was duly ex ecuted. See In re Estate of Elam , 738 S.W.2d 169, 171 (Tenn. 1987). This may be accom plished using the testim

ony of l iving witne sses and by showing thatthe will compli es with all fo rmalities of law. See In re Est ate of King , 760 S.W. 2d 208, 210 ( Tenn. 19 88 ). P roo f of du e ex ecu ti on make s o ut a pr ima facie
case of the wi ll’s val idit y be cause it gi ves rise toa presum ption that the

testator
was capable of makin g a will. Curry v. Bridges , 45 Te nn. App. 395, 407, 3 25 S.W. 2d 87, 92 (1959 ); Needham v . Doyle , 39 Tenn . App. 597, 622, 2 86 S.W .2d 601, 612 (1955). Accordingly , the burden of proof then shifts to the conte stant to prove the will is inval i d for some reason

. Green v. Higdon , 870 S.W .2d at 520; Taliaferro v. Green , 622 S.W.2d 829 , 835 (Tenn. Ct . App. 1981).

I n this case, the will was introduced by Ms. Bradley, the contestan t, wh o proceeded to present

her witnesses first. Once Ms. Bradley finished he

r case- inchief, the will’ s propon ents pr esented their case- in-chief , includingthe proof establishin g the due execution of the will. While this order of proof may ha ve been somewhat unorthod ox, we donot find it to be rever sible err or becaus e it did2 Tenn. Code Ann. § 24- 1-203 pro vides tha t “[i]In actions o r proceedings by or

agains t executor s, administr

ators, or guard ians, in wh

ich judgments may

be rende red for or aga inst them, neither party shall be a

llowed to testify ag ainst the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite pa rty.”

-7- not affect the outcom

e of the proce eding and be cause Ms. Bradley has not asserted tha tthe will was not duly executed in accordance with the require d lega l formalities.

B.

A DMISSIBLE E VIDENCE I N C ONTEST P ROCEEDINGS

Ms. Bradley objected to the testimony of Ms. Carver and Mr. Eddie Taylor about conversat

ions be twe en each of

these indiv iduals and Mr. Ede n. The substance of these c onversatio ns perta ined to Mr. E den’s reasons f or devising his estate in t he manner in which he did.

Ms. Bradley

asserts t hat Ms. Carver’ s testimony was inadm issible under Tenn. Code Ann. § 24-1-20 3 (1 980), the s o-called “dead man’s st atute.” 2 The question of whethe

r the “ dead m an’s s tatute” b ars adm ission of te stimony as to transact ions with or st atem

ents by the testa tor in a will contest proceeding was answeredin the negative over a century ago. The Tennesse e Suprem

e Court he ld that devise es, lega

tees, he irs, and d

istributee s, are com

petent wi tnesses toprove the declara

tions or statem

ents of the testat or in a will co ntest pro ceeding. Beadles
v. Alexander , 68 Tenn . 604, 607 ( 1877); see also D avis v . Davis , 74 Tenn . 543, 544 (1880); Orr v. C

ox , 71 Tenn

. 617, 619 (18 79); Patterson v. Mitc hell , 9 Tenn. App. 662, 66 5 (1929).

For the dea d man’ s st atu te t o ap ply, t he p roc eed ing must be b y o r aga inst the executor i n her capaci ty as such. Newark I ns. Co. v. Seyfe rt , 54 Tenn . App. 459, 479, 392 S. W.2d 33 6, 345-46 (1964). The statute, therefor e, does not

apply to a will co ntest proc eeding bec ause it is a proceedi ng in rem, n ot an actio n “by
or against [an] executor as such." In re Est ate of Roll ins , Madison L aw No. 3, slip op. at3, 14 T.A .M. 8-1 1 (Tenn. Ct. App. Jan. 12, 1989) (NoTenn. R . App. P . 11-8-

applicati on filed). Thus, the statute doe s not

bar Ms. Car ver’s t estimony re garding her father’s st atements abou t his will.

Our inquiry cannot end with the

finding tha

t Ms. Car ver was acompetent witness. We m

ust stilldetermine whether Mr. Eden’s statements themselves are admissible. If

they are, th e trial c ourt proper ly over ruled Ms. Bradley ’s obje ctions to the tes timony of both Ms . Carver and Mr. Taylor.

Testim ony regardin g a te stator’s oral declarations concerning his or her intent is suspicious and cannot be received as an aid to const ruction of a will. See Marshall v. Marsh all , 25 Tenn . App. 309, 315, 1 56 S.W. 2d 449, 453 ( 1941). T his is because such tes ti mo ny can be easily falsifie d and becau se the testator is no longeravailable

to give his or

her versi on of thematter. Bowerman v. Bur ris , 138 Tenn. 220, 22 2-23, 197 S.W. 490, 490 (19 17).

A testator’s intent and motives are not atissue in a w ill contest proceedi ng. A contest ca

lls into quest

ion the test ator’s men tal capac ity to execute a w ill and according ly requires the trier of fact t o determ ine whether the te st ator

knew the natural objects of his or her bounty and comprehended the extent of his or her property and the manner of i ts distribut io n. Goodall v. Crawford , 611 S.W .2d 602, 605-06 (Ten n. Ct. App. 1980) ; McCormack v. Riley , 576 S.W .2d 358, 36 0 (Tenn. Ct. App. 1978). It also requires the tr

ier of fa ct to decide wheth er th e testator was capable of knowing and understanding the effects and consequences of his or her action s. In re Est

ate of Elam , 738 S.W .2d at 171; American Trust & Banking Co . v. Williams , 32 Tenn. App. 5 92, 602, 22 5 S.W.2d 79, 83 (1 948).

The testator’ s conversa

tions and dec larations , togethe r with anyparticular fact from which the conditi on of the te stator’ s mind a t the tim e of m aking the w ill may be inferred, ar e competent on the issue of testamentary capaci ty. Cude v. Culberson , 30 Tenn. App. at 643-44, 209 S.W. 2d at 514; Melody v. Ham blin , 21 Tenn. App. 687, 69 5, 115 S.W.2d 23 7, 242 (19 37). Furt hermore, pro of of the
reason for making a particular disposition is rel evant to sh ow that the testator-9-

knew the force and conseque nces of his act. In re Estateof Elam , 738 S.W .2dat 172.

Thus a testator ’s statements regardin g his persona l and fam ily re lations and the pecuniary condition of his children are admis sible in a w ill contest proceedi ng to rebut a c laim that the ex clusion of a par tic ula r hei r in dic ates a ment al i nfi rmity. Kirkpatrick v. Je nkins , 96 Tenn . 85, 90, 33 S.W. 819, 821 (1896); see also In re Estate of Parsley , 864 S.W .2d36, 39 (Tenn. Ct. App. 1988). Although an instruction

to the jury lim

iting the use of such testimony to the question of mental capacity would have

been prope

r, we f ind no e rror in the

trial cour

t’s fai lure to give such an instru ction when none was req uested.

We have reviewed the port ions of Ms. Car ver’s t estimony obj ected to by Ms. Bradley. They relate to Mr. Eden’s Novem ber 1986 statem

ents rega rding his relations hips with his li ving children andthe financ ial situati ons of his daughter, Georgia Bradley, and his son, Jay Eden. Althoughthis testim ony coul d not have been considered in a

will construct

ion case, it was pr

operly admit ted in this w ill contest proceedi ng for

the pu rpos e of de monstr atin g Mr. Ed en’s menta l capacit y around th e time he executed his will.

We have also revie wed the po rtions of Mr. Tay lor’s te stimony to which M s. Bradle y o bjecte d as inadm issible hea

rsay. Mr. Ta

ylor w as the attorney who drafted Mr. Eden’s will, and his testim ony concerned

his conver sations wi th Mr. Eden regarding the manner in which the will was to be wri tt en. Mr. Tay lor testified that he ask

ed Mr. E den a seri es of quest ions to dete

rmine if he had t

he requisite mental capaci ty to make a will. Mr . Taylor’ s testimony regarding Mr. Eden ’s d esires to l eave his e state to Ms es. Car ver, L ewis, a

nd Hendsley and to leaveMs. Bradleyout of his w ill was th us offere d for

the purpose of showing that Mr. Eden knew the natural objects of his bounty , com prehended

the m anner of

his property distributio n, and unde

rstood the c onsequence s of his actions. Thus, thi s testim ony was properly admitted

. See Hickey v. Beeler , 180 Tenn. 31, 38- 39, 171 S.W. 2d 277, 279- 80 (1943); In re Est ate of Elam , 738 S.W.2d at 17 2.-10- C. T HE S PECIAL J URY I NSTRUCTIONS

Ms. Bradley a

lso takes iss ue with the jury instructi ons. She contends that the trial cour

t erred b y ref

using to give t

he two spe cia l instructions tha t she requeste d. While w e do not find th e special req uests to be incorrect as a matter of law , we find that the trial court correctly informed the jury

concern ing th e contest i ssues th ey were called upo n to decid e.
Willcontests are often ti mes su rrou nde d by c onf usi on a nd u nce rtai nty. Hager v. Hager , 13 Tenn. App. 23, 27 (1930). The only proper source of legal principles to guidethe jury ’s delib erations i s the trial co urt’s instr uctions

. State
ex rel. Myers v. Brown , 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961). Even though we give t

he trial cou rts leew ay w ith regar d to the substa

nce of the ir instruction s, Mitchell

v. Smit h , 779 S.W.2d 384 , 390 (Tenn. Ct

. App. 19 89); Thomasv. Ham lin , 56 Tenn . App. 1 3 , 37, 4 04 S.W .2d 569, 57 9-80 (1964) , the instruction s must still be substantially accurate state ments of the law applicabl e to the issues t

he jury must decide. Street v. Calvert , 541 S.W .2d 576, 58 4 (Tenn. 1976).

Determ

ining the proper scope and substan ce of ju ry instructions requires considerin g the parties’ theories, the evidencein the rec ord, and t he law a pplicable thereto. Solomon v. First Am . Nat'l Bank , 774 S.W .2d 935, 94 0 (Tenn. Ct. App. 1989). Instructi ons giv en shoul d not be in consist ent or conf using, Betty v. M etropolitanGov’t , 835 S.W .2d 1, 10 ( Tenn. C t. App. 1992), and should f airl y definethe legal issues in volved. See Smith v. Parker , 213 Tenn. 147, 156 , 373 S.W. 2d 205, 209 (19 63); Grissom v. Metropolitan Gov’t , 817 S.W .2d 679, 68 5 (Tenn. Ct. App. 1991). Instructions that correct ly sta te the law but have no ba sis in the facts of the case are improper. See Betty v. Metropolitan Gov’t , 835 S.W. 2d at 9; Langford v. Arnold , 707 S.W.2d 521 , 523 (Tenn. Ct . App. 1985).

The specificinstructio ns requeste d by Ms. Bradley concerned the proper
manner in which todisinherit

an heir. The quest

ion of whether an heir

has been-11-

disinherite d, however , is a ques tion of const ruction of the will, see McDonald

v. Ledford , 140 Tenn. 47 1, 477-78, 205 S.W. 312, 314 (19 18), whi ch is a ques tion of law for the c ourt. Presley v. Hanks , 782 S.W .2dat 487. The jury in this case
was properly

presente d only w ith the issue of ca pacity to make a will an d not with any issues of wi ll const ruction.

There is an additional reason for rejecting Ms. Bradley ’s proposed instruction s. While a

jury could deci de that an u njust disposition r

eflects alack of testamentary capacit y, Rolen v. Rolen , 62 Tenn

. App. 164, 170-71 , 460 S.W .2d 355, 358 (1970); A merican Tru st & Banking Co. v. Williams , 32 Tenn. App. at 606-07, 22 5 S. W.2d at 8 5, s uch a di sp os it io n i s o nl y on e ci rcu ms tanc e to be considered alon g with all th e oth er evi dence tend ing t o refl ect on the te stat or’s mental capacity. Haley v. Ogil vie , 2 Tenn. App. 607, 614 (1926). The requested instru ct ions would have

been m isleading to the jur

y since they di d not focus on the relations hip betwe en Mr. E den’s dis positions and h is tes tamen tary c apa cit y.
D. T HE W EIGHT OF THE E VIDENCE

M s. Bradley ’s fina

l argum ent regar ding the wi ll contest r

elates toth e evidentiary support for the jury’s verdict. The same standard of review applies to juryverdicts i n will cont est proce edings that applies in o ther jur y tria ls. Acco rdi ngl y, we will

review the recor

d to determ

ine wheth e r itcontains a ny materialevidence to support the verdict of t he ju ry. Tenn. R . App. P . 13(d); Scott v. Atkins , 44 Tenn. App. 3 53, 374, 31 4 S.W.2d 52, 61-6 2 (1957).

The will’s proponents p resented several witnesse s who testi fied rega rding Mr. Eden’ s mental state a round the ti me of

executi ng the will. These witnesses included one of Mr. Eden’s daughters, the att orn ey who drafted the will, a paralegal who witne ssed the sig ning of the w ill, and a bank teller who assisted Mr. Eden on severa

l o ccasio ns regard

ing his lockbo x and the renewal of his certificates of deposit. Each of these wit

ness es te stified to their personal observatio ns regard ing M r. Eden ’s competency and his ability to manage h is own-12-

affairs in 1 986 . The ir t est imon y revealed a m an who mowed his own lawn, a s well as his d augh ter’s and a neigh bor’s la wns, ten ded his own garden, drove his own car, and di d his own b anking.

In addition to t

hese witn esses, th e proponent s presente d the deposit ion testim ony of D r. Jack W. Carey , Jr., who had been Mr. E den’s family physician since 197 9. Dr. Car ey te st ifi ed t hat bes id es g ene ral symp to ms of “old age,” Mr. Eden had exhibite d no me ntal problems bef ore be co ming ill in 19 89. He described the 1989 cha

nge in Mr. Eden’ s behavior as seem ingly due to a conditi on of “sudden on set” such as a stroke.

Testators are not rendered incapable of making a will by mere phy sical weakness or d isease, o ld age, blunt perception, or failing mind and memory, as long as their m

ind is suffi ciently

sound to enab le them

to kno w and underst and what they aredoing. American Trust & Banking Co. v. Williams , 32 Tenn . App. at602, 225 S. W.2d a

t 83-84. The ju

ry in this case had before it material evidence to support its f

inding that Mr. Ede n’s m in d was suffi ciently

sound in 1986 to enablehim toknow and understand what he wa s doing when he executed

his will.

IV. C ONSTRUCTION OF TH E W ILL

The circuit court in this case had concurrent jurisdiction with the chancery courtto construe

the will a nd should have

done so after

the jury found in fa

vor of the will in the

contest proceedi ng. Even

thoughthe trial

court did no t construe

the will as it should h ave, we

will dec ide the questio n here ra ther than r

eman d the case for further time- consum

ing and costly proc eedings. Since con struing a w ill involv es questi ons of law, Presley v. Hanks , 782 S.W.2d at 487, our review will be de novo on t

he recor d without a

ny pre sumpti on of corr

ectness.

A.-13- Ms. Bradley ’s fir st argum ent is that a wi ll that fail s to nam e an heir is void
as a matter of law. In this regard, she arg ues that h er fathe r’s wi ll should be declared void for fa

ilin g to eve n menti on he r as a s urvi ving daug hter. We disagree.

The power to disinherit is part of the power of testam

entary disposition. Bradford v. Leake , 124 Tenn. 312, 322, 1 37 S.W . 96, 98 ( 1911); In re Est ate of Jackson , 793 S.W .2d 259, 261-62 (T enn. Ct. App. 1990). In order to disinherit an heir, a testator

must pr epare a will that disinherits the heir by express w ords or

by necessary implication. McDonald v. Ledf ord , 140 Tenn. at 477 , 205 S .W. at 314. The wil l must a

lso dispose of

all of the testator’ s property

because a

ny prop erty not devised w ill pass to a

ll heirs under the la

ws of de scent. Bradford v. Leake , 124 Tenn. a

t 321-22, 13 7 S.W . at 98; Nichols v. Todd , 20 Tenn . App. 5 64, 571, 101 S.W.2d 486 , 490 (193 6).

A testator has absolute

po wer to ma ke any

division of hi s or her pr

operty regardle ss of how ca

pricious or

apparent ly unna tural su ch d ivision may appear. Burns v. Allen , 93 Tenn. 149, 152, 2 3 S.W . 111, 112 ( 1893); Bowerman v. Burr is , 138 Tenn. a

t 223-24, 19 7 S.W . at 491. Accordingly a testator’s fa ilure to provide for a li vin g ch ild in h is o r her will is o rdi nar ily e qu ivalent to a disinherit ance of that chil d. Burns v. Allen , 93 Tenn. at 15 2, 23 S.W. at 112.

Th is general rule has be en altere d by sta tute for c hildren bor

n after t he execution of awill. Y et, even

in thesecases, a court m ay sti ll find that

the child has been dis inherited by unavoidable inferenc e when the

child is not

mentioned in the will a

nd the testat orleaves all h is propert y to someone else. Reeves v. Hager , 101 Tenn. 711, 716, 50 S.W. 760, 761 (1 899) . Thus, the Tennessee Sup reme Court has held that a testator effecti vely di sinherits b oth his existi ng and after-born children by ex ecuting a w ill leavinghis entire estate to his widow without reference to any

of his child ren. Fleming

v. Phoe nix Trust C

o. , 162 Tenn. 511, 516 , 39 S.W.2d 277, 2 78 (1931 ).3 The lawyer w ho prepared Mr. Eden’s will testified that he knew of no requirement that a testator expressly disinherit an heir in his or her will. While this may be technic ally

correct, the better practice is to include language in the will demonstrating that the omission of an heir was a deliberate part of the testamentary act. 3 Jack W. Robinson & Jeff Mobley, Pritchard on the Law of Wills and Administration of Estates § 1016 (5th ed. 1994).
-14- Mr. Eden’ s will on it s face doe s not mention Ms. B radley but passes his entire est ate t o Ms es. L ewis , Hen dsl ey, and Car ver. Ba sed upon the f oregoing authorities perm

itting the di sinherita

nce of a c hild without

namin g the child

on the face of the wi ll, we decline to f ind that Mr . Eden’ s will is vo id as a m atter of law. 3

B.

Ms. Bradley also asserts that even if Mr. Eden’s will is not void as a matter of law for failing to disinher

it her expl icitly , it still m ust fail be cause of t

he lack of competent evidence that Mr. Eden inten ded t o dis inhe rit he r. Ms. Br adley’s argum ent fails to recogniz e, howe ver, tha t a testat or’s int ention m ust be gathered from the face of the wi ll itself. Fariss v. Bry-B lock Co. , 208 Tenn. 482, 487, 346 S.W. 2d 705, 707 (19 61); Bowerman v. Bur ris , 138 Tenn. a t 225 , 197 S .W. at 491. Unless a will is suspicious on its face, this court must enter judgm ent accordin g to the intention expres sed in the f our corne rs of the w ill.

A will providin g for a n une qual divi sion of pro perty amon g a tes tato r’s children is no t inh erent ly susp icio us. Alt houg h a par ent’s natural a ffection for his
or her childr

en mig ht prom

pt an equal

testam entary divisionamong t hem, the Tennessee Sup reme Court has recognized that parents might favor one child over another. See Bowe rman v. B urris , 138 Tenn. at 223, 197 S.W. at 491. There fore, the fa ct that one

or mo re childr

en are dis inherited without bei ng mentioned in a will does not prov ide a basis for a ttacking a will. Bowerman v. Burr is , 138 Tenn. at223-24, 197 S.W. at 491; Reeves v. Hager , 101 Tenn. at 716- 17, 50 S. W. at 761.

Extrinsicevi den ce c ann ot be u sed to var y th e un ambi gu ou s te rms of thewill
as written. See Warrick

v. Wr ight , 884 S.W.2d at

128. M r. Eden ’s will wa s not suspicious on its face even though it failed to mention Ms. Bradley or her brotherwho was l iving when t he will was written. By

leaving his entire e state to Ms es. Lewis, Hendsley , and Car ver, Mr . Eden di sinherite d Ms. Bra dley, her brothe

r, and any other heirs by necessary implicatio n.
V.

We affirm the j ury verdict in favor of Mr. Eden’s will. We als o conclude thatthe will i s not void bec ause it fa iled to spec ifically

menti on Ms. Br adley

and thatth e will e ffectively disinherits Ms. Bradley by unavoidable inference. In addition, we re mand t

he case tothe Chanc ery C ourt for T rousdale C ounty f

or further proceedi ngs and tax t

he costs of

this appeal to Georgia Bradley for which executio n, if necessa ry, may issue.

___ __________

_________________

___ _ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_________________ SAMUEL L. LEWIS, JUDGE

_________________

_________________ BEN H. CANTRELL, JUDGE