# FILED May 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) DON E. GORDON and PHIL T. ) Weakley County Chancery Court GORDON, CO-ADMINISTRATORS ) No. 14869 WITH WILL ANNEXED OF THE ) ESTATE OF JAMES W. MARCUM , ) DECEASED and DON E. GOR DON ) and PHIL T. GORDON, ) EXECUTORS OF THE ESTATE OF ) NELL WRIGHT MARCUM, ) DECEASED, ) ) Plaintiffs/Appelle

es. )

) VS. ) C.A. No. 02A01-9709-CH-00218 ) GEORGETOWN UNIVE RSITY , )

) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Chancery Court of Weakley County at Dresden. Honorable William Michael Maloan, Chancellor

Lee M. Greer , GREER & GREER, Paris, Tennessee Attorney fo

r Defendant/App

ellant. H. Max Speight , Dresden, Tennessee Attorney fo

r Plaintiffs/Appe

llees.

OPINION FIL

ED: REVERSED AND REMAN DED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)1 The appellees’ suit was brought pursuant to the provisions of T.C.A. § 29-14-105, which

states as here pe

rtinent: Fiduciary powers and

duties. -- Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, cr editor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent may have a de claration of rights or legal relations in respect thereto:

. . . . (3) To determine any question arising in the administration of the estate or trust, including q

uestions of constr

uction of wills and o

ther writings.
2 The record establishes that Ms. Marcum died subsequently. I n answering the appellee’s complaint, Georgetown asserted the affirmative defense that all necessary parties were not before the court inasmuch as Ms. Marcum’s estate was still under administration. It was asserted that Ms. Marcum and Georgetown were the only potential bene ficiaries under the will. Therefore, Georgetown sought to join the co-executors of that estate, Don Gordon and Phil Gordon. A consent order was entered to include the co-executors as additional parties. It was f urther ordered that the

original compla

int be treated as

having been join

ed in by them. This is a will construction case. The testator, James W. Marcum, died June 22, 1995,
a resident of Weakley County. His will, executed on July 16, 1984, was admitted to probate upon his death. This appeal stems f rom a complaint 1 filed by the appellees, Don E. Gordon and Phil T. Gordon, co-administrator s with will annexed of the e

state of James Marcum, in the chancery court seeking a declaratory judgment as to the proper in

terpretation of t

he will and the proper disposition of t he deceden t’s estate. Specifically, the appellees sought a determination as to whether the appellant,Georgetown University (Georgetown) , is a beneficiary under the will’s r

esiduary c

lause or whether, as they believe, the decedent died partially

intestate and that consequently his mother, Nell Wright Marc

um, his only heir

at law at the time

of h is d eat h, i s th e tr ue b enef ici ary. 2 After a hearing, the trial court entered an order finding that the bequest to Georgetown was contingent upon Ms. Marcum predeceasing her son and, since she did not, the gift lapsed. Georgetown has appealed from this decision. For the reasons expressed below, we reverse.

The will of the dec

eased disposes of

his property

as follows:

THIRD: All real property wherever situated, which I may own at the time of my death; together with the buildings and s truct ures thereon and all rights and easements appurtenant thereto, I give and devise to my mother, NELL W RIGHT MARCUM, if she survives me. In the event my mother does not survive me, I hereby make the following direct bequests, all to be made in loving

memory of my

late mother, NELL

WRIGHT MARCUM:* $10,000 to the Cle arv iew School for Retarde d Children, Scarbrough, New York; * $10,000 to the Nati onal Council forthe Retarded , Washington, D.C.; * $10,0 00 to St. Mary’s Church, Scarbrough, Ne w York; * $10,00 0 to the Sharon Met hodist Church, Sharon, Tennessee. * After

t he ab ove direct bequests, and after paying all my estate’s expenses, I give, devise and beque ath all the rest, residue an

d remainder of my

property an d estate to Ge or getown Univers

ity, . . . to be h

eld in Trust by the aforesaid University for the Edmund A. Walsh School of Foreign Service. It is my intention that a specific Trust be established in m y na me benefitting said school, my alma mater. . . .

. . . . This Trust

bequest is made on the specific condition that said Georg etow n University guarantees that beginning ninety (90) days after my death, or as soon thereafter as leg ally possible, and each ninety (90) days th

ereafter, tha

t said Trust

shallpay $3,750 f

rom its annual income

to my father, JAMES O. MARCUM, of Shiloh Road, Corinth, Mississippi. On the death of my father , the aforesaid payment to him or his estate shall immediately terminate. . . . In the event the aforesaid

School of Foreign Service is unwilling to accept the bequest or unable

or unwilling to mak

e the aforesaid

quarterly payments of $3,750 each, then I give, devise and bequeath my entire residual estate t

o WILBUR EL

LIS/CONNE

LL BROS.

COMPANY PROFIT SHARING PLAN, . . . San Franc isco, California.
The parties ente

red into the follow

ing stipulations:

The Decedent was a single man who had no issue. The Decedent’s father, James O. Marcum predeceased the Decedent. The Decedent’s mo ther, N ell Wright Marcum, survived the Decedent, but has since died. Nell Wright Marcum was the Decedent’s sole intestate heir. The Decedent was a resident of New York at the time of the execution of his Will. The Deceden t’s Willwas prepared by Donal M. Walsh, Jr., . . . . Mr. W alsh was personally acquainted with the Decedent before the preparation of the Will. Mr. Walsh interviewed the Decedent and c

orresponded with

the Director of Planned

giving at Georgetown Un

iversity co

ncerning the De

cedent b efore the Will was prepared. The Deced e nt was an alumnus of Georgetown’s School of Foreign Service. The bequests in the Decedent’s Will to Clearview School for Retarde d Children, National Council for the Retarded, St. Mary’s Church and Sharon Metho d ist Church were all contingent on the Decedent’s mother

predeceasing

Decedent. The Decedent’s mother survived the Decedent, and, therefore, these bequests failed. . . . The p rovision in Trust fo r Georgetown U

niversity a

lsoprov ide d a lifetime income interest in 50% of the Trust for the Decedent’s father

James O . Marcum. Since James O. Marcum predeceased

the Decedent, the interest of James O. Marcum lapsed .

. . . The Decedent’s gross estate for Federal Estate tax purposes as originally

filed was $797,941 .71. Of this amount, those assets passing to Nell were: real estate devised to Nell valued at $475,000; a jointly owned bank account and a jointly owned mutual fund which went to Nell by right of survivorship valued at $50, 302. 12; and an IRA which went

to Nell as death payee valued at $100,404.89. Based upon gross estate va luations, the assets passing to Nell by virtue of the Decede nt’ s death totaled $62 5,707.01. Based

upon gross estat

e valuations,the remainder

of the estate, wh

ich is the portion in disput e in this cause, totaled $172,234.80, less allowable expenses, taxes and deductions that may be properly cha rgeable to such funds.

After consideration of

the foregoing

stipulations,the deposition of Mr. Walsh, the briefs and arg

uments of counsel,

the trial court he

ld as follows:

The issue is whether the residuary gift to G eorge town is conditional on Nell Marcum predeceasing the testator. If the g ift is conditional,the testator would die intestate as to his residuary estate.

. . . . Th e Court finds the L

ast Will and

Testamen

t of James W. Marcum is sufficiently clear and unambiguous. The residuary gift to Georgetown

University w

ould only take

effect “in the e

vent my mother does not survive me.” As Nell Wright Marcum survived her son , the gift to G eorg eto wn U niv ers ity f ail s. T he re sid uary claus e clearly states: “After the above direct bequests, and after paying al l my estate expenses, I give, devise and bequeath all the rest, residue andremainder of my

property a

nd estate to

Georg etown University

. . . .” The direct bequests are only to take effect if his mot he r pr edecease

d him and are made “

in loving memory

of my late mother.” Any other construction c ould be in violation of the clear language of t

he will. Therefore, it is the judgment of the Court that the bequest to the defen dant, Georgeto wn University

, was contingen

t on Nell Wright Marcum predeceasing

her son, James W. Marcum, and since Nell Wright Marcum survived her son, the gift lapsed.

The sole issue on appeal as stated by the appellant is whether “the trial court err[ed] in holding that the decedent intended the residuary bequest to Georg etown to take effect only if the decedent’s mother (Nell)

pr edeceased the decedent, resulting in a partial intestacy.” Georgetown argues that a

reading of

the will as a whole clearly evidences the decedent’s intent that Ge orgetown receivehis entire residuary estate, in all events. It is contended tha t any other reading would rendera

partial intestacy as to the residuary estate, a result hi ghly disfavored under Tennessee law. Georgetown

contends that the decedent’s mother only received all of his real prope rty. It is asserted that the bequest to Georgetown was not simply another charitable beque st buta clear expressionof how the testator

intended to dispose

of the remainder

of his estate once

the direct beque

sts (either to his mother or the other four charities) wer

e made. Georg

etown points

to the fact that under the appellees’ interpretation of the will the decedent intended to make no provision for his father in the event his mother survived him. Georgetown argues that

certainly the decedent would have wanted to provide for

his father, which

was done under th

e residuary

clause, even if h

is mother predeceased him. Georgetown points to the fact that the bequest to it has no language con ditionin g it on the decedent’s mother’s prior death. Georgetown

questions that if the

decedent intend

ed his mother to receivehis entire estate

if she survi ved him, then why not merely s

tate such and why

the specific mention of real estate to

her. It is fur

ther asserted th

at since the will wa

s pro fes sio nal ly d rawn, it obviously has a residuary clause operating in favor of Georgetown. If the

residuary clause has no effect, then the will’s dra

fting would almost

certainly constitute malpractice. Finally, Georgetown contends tha t th e in ter pret ati on s ugge ste d by t he ap pel lee s is str ain ed an d hi nges sol ely up on the phrase “after the above direct

bequests” which is merely superfluous and heavily outweighed by the presumption aga

inst intestacy

and the surroundi

ng circumstanc

es.

Con vers ely, the appellees assert that, since the decedent’s mother survived him, the residuary clause containing the bequest to Georgetown does not come into play because it is begun with the words “after the above direct bequests,” which were to be made only if the decedent ’ s mother predeceased h

im. Appellees con

tend that the beque

st to Georgetow n was a conditional bequest not unlike the four conditional b equests immediately

preceding it un

der the terms of th

e will andthat since the decedent’s m other did not prede

cease him,the bequest to Georgetown fails as do the other four charitable be que sts. Appellees ass ert that conseque

ntly the dec

edent died partia

lly intestate and that his

mother, as his

sole intestate hei

r, was entitled to h

is personal prope

rty as well. The appellees assert that James Marcum i ntended his mother to be his sole beneficiary unless she predeceased

him. They note that if the dec edent die d partially i ntestate, his mothe

r was still his exclusive heir under the intestate laws.

Our review of the tri

a l court’ s decision is de novo with no presumption o f correctness.Burchfiel

v. First United Methodist Church , 933 S.W.2d 481, 483 (Tenn. App. 1996); Rule 13(d) T.R.A.P. The cardinal ru le inthe co nstruction of wills is to ascertain the intent of the testator. Goodwin v. Nave , 912 S.W.2d 719, 721 (T enn. App. 1995). I

n doing so it is

necessary to look

to the entire will and determine the testator’s intention from what he has written and

not from what it is supposed he intended. Presley v. Hanks , 782 S.W.2d 482, 488 (Tenn. App. 1989). Every word usedby the testa

tor is presumed to h

ave some meaning. Daugherty v. Daughe rty , 784 S.W.2d 650, 653 (Tenn. 1990). Parol evidence is generally inadmissible to add to, vary or cont radict langu age usedin the will, althoug

h it is admissible to expla

in a latent ambiguity. Stickley v. Carmichael , 850 S.W.2d 127, 132 (Tenn. 1992). “[E]xtrinsic evidence of the condition, situatio n and surrou ndings of the testator himself

may be considered only as aids in the interpr etation of the language used by the testator, . . . .” In re Walker , 849 S.W.2d 766, 768 (Tenn. 1993 )(quoting Nichols v. Todd , 101 S.W.2d 486, 490 (Tenn. App. 1936)).

Appellant correctly cites the general rule in this state disfavoring intestacy where one has undertaken to make a will. As held by our state supreme court in Ledbetter v. Ledbetter , 216 S.W.2d 718, 720 (Tenn. 1949), “[t]he law presumes that one who undertakes to make a will do e s not intend to die intestate; ‘and the courts will placesuch a constructi on upon the instrume

nt as to embraceall the testator’ s property, if the words used,

by any fair interpreta

tio n or al lowable implication will embrace it.’ ” Ledbetter , 216 S.W.2d at 720 (quo ting Pritchard on Wills , § 386)). We hold that the decedent’s will may be fairly construed so as to avoid a part ial intestacy and thereforeconclude that the testator intended the bequest to Georgetown to be unconditional and not dependant upon whether his mother predeceased him.

We reach this determination based upon the following: we first note, as the appellant points out, that the four direct bequests comprised of $10,000 each are all separated by semi-colons withexception

of the las t which en

ds with a pe

riod. The next bequest, which is

to Georgetown,

is notpreceded by

a se mi-co lon and addresses the residuary of the testator’s estate. Black’s Law Dic tionary d efines a residua ry clause a

s that “[c]lause in wi

ll by which tha

t part of propert

y is disposed of which remains after satisfying bequests and devi

ses. Any par

t of the will

which disposes of property not expressly disposed of by other provisions of the will.” Included within the residuary clause is the provision pertaining to the testator’s father, indicating a clear intent that his father betaken care of from the funds designated to Georgetown. I f the will is to be construedas suggested by the appellees, then

the testator died p

artially int

estate with his

entire estate going to his mother andabsolutely no

provision for his father. Mr. Walsh, the drafter of the will, stated in his deposition that the decedent “was far more concerned about providing for his father than he was for his mother with the exception of making sure his mother had the house.”

Mr. Walsh also

testified that the testator

maintained a joint c

hecking accou

nt with his
mo therand that his mother was the beneficiar

y of certa

in life insurance

he held through h

is employer. It was Mr. Walsh’s understanding that, when he and the decedent discussed the latter’ s estate, the testator’s real estate was comprised of his home on Albany Post Road where his mother also resided. He further stated that the value of the home, less the mortgage, wa s “prob abl y” $40,000.

Bas edupon the foregoing, we conclude that the testator intend ed his mother to receiv

e all his real prope

rty if she did

not predecease

him and if she did, the four direct bequests, totalling $40,000, we re t o be made in her me mory. I n addition, the test

ator intended Ge

orgetown as a beneficiary

under his will

in all events. Any

other interpreta

tion would render

the residuary

clause inoperative. We do not believe the testator intended the residuary clause of his will to take effect only on the condition tha

t his mother survive

d him. Mo reover, we do not believe the testator intendedthat provision be made for his father only in the event tha t his mother prede ceased him. We further find mer

it in the appellant’ s argument that, if the testator inte

nded his mother to acquire his entire es t ate if she survived him, then the testator could have simply stated so. Instead, the testator chose to

distinguish betwe

en his real prope

rty and per

sonalty whic

h we find signific

ant.

It results that the jud

gment of the tria

l court is reverse

d and this cause

remanded thereto for further proceedings. Costs are assessed against the appellees, for which execution may iss ue i f nec ess ary.

____________________________________ FARMER

, J.______________________________

HIGHERS, J. (Conc

urs)

______________________________ LILL ARD, J. (Concurs)