# FILED
August 2, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

BETTY NESMITH and ) CECIL NESMITH, ) ) Plaintiffs/Appellees, ) ) Appeal No. ) 01-A-01-9809-CH-00509 VS. ) ) Rutherford Chancery ) No. 96-CV-404 JOHN ALSUP, II and ) TERESA ALSUP, ) ) Defendants/Appellants. )
APPEALED FROM THE CHAN CERY COUR T OF RUTHERF

ORD COUNTY AT MURFREESBORO, TENNESSEE THE HONORABLE ROBERT E. COR LEW, III, CHANCELLOR

DARRELL L. SCARLETT 16 Public Square North P. O. Box 884 Murfreesboro, Tennessee 37133-0884 Attorney for Plaintiffs/Appellees FREDERICK L. CONRAD, JR. 607 Market Street, Ninth Floor P. O. Box 2466 Knoxville, Tennessee 37902 Attorney for Defendants/Appellants

AFFIRMED AND REMAN DED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. COTTRELL, J.- 2 - 

## O P I N I O N

The plaintiff petitioned the court for a declaration that she

was entitled to a one-half interest in a farm that had been pa rt of her father’s estate. Her brother responded by claiming to be the sole owner under the provisions

of their father’s will,
or in the alternative, under a theory of adverse posse ssion. The trial court found that the effect of the will was to divide the property

equally between the siblings, and that the brother failed to prove ownership by adverse possession. We affirm the trial court.

I.

Joh n Alvis Alsup executed his Last Will and Testamen t on Apri l 20 , 1957. Item II of the will dev ised his 76 acre farm to his wife, Blanche Harr ell Alsup,
as trustee for the maintenance, suppor t and education of his minor son, J ohn Alvis Alsup II (hereinafter referred to as John Alsup). The trustee was given the right to sell the farm, if necessary, to accomplish the purposes of thetrust. Upon the completion
or termination of the son’s education, the residue of the trust was to be divided equally between the testator’s wife, his son, and his adul t daughter, Betty

Mavity (now Betty NeSmith).

The testator died on May 3, 1957. John Alsup was ten or eleven years old at the time. In 1968, he completed hi s e ducation by graduating from Middle Tennessee State University . As it turned out, his mother did not have to

sell the farm to finance his education. Mr. Alsup worked nights to pay his college expenses, and attended classes during the day, and his mother supplemented his e arnings by giv

ing him money from time to time.- 3 - While John Alsup was still attending MT SU, his mother retired from teaching in the Sta te of Tennessee, and moved to Dalton, Ge orgia, where her daughter, Betty NeSmith was living. Thereafter, John Alsup took contro l of the farm. He rented it out, collected the rents, and paid all the propert y tax es. He dealt with local officials, and at

one point he executed a war ranty deed transferring 3/10 of an
acre to the City of Mu rfreesboro for an easement and right-of-w ay to change the roadbed on Sulphur Springs Road. He also met with potent ial purchasers of the property, including the school boar d, which was exp loring the possibili ty ofbuilding a high school on the land, and with a team of Texas developers w ho presented him with a plan entitled “Alsup Farms -- a planned 76 acre Residential Sub-Division.”

Blanche Harrell Alsup died on N ovember 20, 1994, when she was ov er 90 years of age. Article IV of her w ill devised all her

real property and

all her personal property (except f or two bequests not relevant here) “to my two c

hildren, Betty Alsup Mavity NeSmith and J ohn A. Alsup II, in fee simple, s hare and share alike.”

On March 27, 1996, Betty NeS mith filed a petition asking the court to declare that upon the death of her mother, she had become the ow ner of an undivided one-half interest in the farm property. She also asked th e court to o rder that it be partitioned in kind. John Alsup filed a response and counter-petition on June 4, 1996, in which he contended that by virtue of his father’s will, the f arm was his sole prop erty.

Ms. NeSmith subsequently filed a motion for partial summary judgment

. In his response, John Alsup ass erted that even if the court upheld the plaintiff ’s interpretat ion of the will, his long s tewardship of the land made him its owner by adverse possession. The trial cour t granted the plaintiff’s motion for partial summary judgment. The court foun d that Article II of the wi ll of John Alvis Alsup h ad created
a tenancy in common between Blanche Harrell Alsup, Betty

NeSmith and John Alsup, and that John Alsup and Betty N eSmith now owned an undivided one-half interest in- 4 -

the property. John Alsup w as per mitted to develop proof on his claim of adverse possession.
Followinganother hearing, the court dismissed the claim of adverse possession and ordered partitionin kind of the real estate, with t he appoi ntment of a juryof view to determine the di vision. After the jury

of view divided the

property into two parcels, both parties re quested possessionof parce l #1. To re solve this probl em, the court ordered theClerk and Master to cond uct an auction by telephone betw een the parties, with the hig hest bidder to pay the amount of his or her

last bid to the other, for the privilege of rec

eiving the coveted

parcel. The auction was conducted on July 13, 1998. Ms. NeSmit h made the winnin g b id of $50,000 and title to parcel #1 w as vested in her. This appeal followed.

Mr. Alsup asserts four arguments on appeal to support his position that the trial cou rt erred i n partitioning the property. These arguments deal respectively with the interpretation of the wi ll, Mr. Alsup’s cl aim of adverse possession, and a claim of title by prescription (which was not argued in the trial court). He also argues that the Clerk and Master t erminated the auction too soon, and that his rights were prejudiced thereby. We will di scuss each of these arguments i n turn.

II. The Will

Article II of the Last Will and Testament of John Alvis Alsup reads in its entirety: I give and devise to my wi fe, Blanche Harrell Alsup,as trustee for my minor son, John Alvis Alsup II, my farm located in the 9th Ci vi l Distr ict of Rutherford County, Tenness ee, fronting on the Sulphur Springs R oad about31⁄2 miles North west of Murfreesboro, Tennessee, and contai ning about 76 acres. The te rms and co nditions of this trust are that this farm be held, managed, rented or sold by said Trustee or her successor, if any, for the maintenance, support and education of my said son, John Alv is Alsup II as herein provided. Said trustee is expr essly authorized and di re cted- 5 - to hold o r d ispose of said farm according to her sole judgmen t and discretion with the view of accomplishin g the purposes expressly

herein; also, my trust

ee is authorizedto reinvest the proce eds of s ale from said farm if it should be sold, as she sees fit, subject to the pr ovisions hereof as to the use of proceeds/ a limit or max imum of Fifteen thousand dollars is here by fix

ed as the

cost or expense of m y sa id son’s maintenance support and education and this shall also include necessary

living expenses of my

wife. At su ch time as my said son’s education shall be completed, terminated by circums tanc es beyond my Trustees contro l, the residue of said trust fund shall be divided eq ually betw een my said son, my daughter Mrs. Betty

Alsup Mavity (now of Hartford Conn.), and my wife, Bla nc he Harrell Alsup, if li ving; if not, then her share shall go to

my said two children, share and share alike.

John Alsup argues that since the firs t part ofArticle II placed the land in trust for his benefit, he was therefore entitled t o receive the corpus of the trust upon its termination. He tries to explain away the provision for the div ision of the land after the completion of his educa tion by givin g it a condi tional m eaning whi ch we belie ve is not supported by the text. He arg ues that the testator intended the residue of the trust to be su bject to division only if the land was sold prior to the completion of his education.

Th e cardinal rule to follow in construing a wi ll is to ascertain and giv e effect to the intention of the testator. Ashley v. Volz , 404 S.W.2d 239, 24 2 (Tenn

. 1966); Martin v. Taylor , 521 S.W.2d 581, 584 (Ten n. 1975). To determine that intention, the court will look to the instrument as

a whole for guidance, gathering the intention from the tenor and scope of the whol e, and no t from isolated parts. Patterso n

v. Alexander

, 509 S.W.2d 834, 83 5 (Tenn. 1974). Since every will is s u i generis , the use of other cases invol ving the intentions

of testator s will be of little assistance. Presley v. Hanks , 782 S.W.2d 482, 48 7 (Tenn. App. 1989).

In the document before us, the testator clearly stated his i ntention that his property be used for t he main tenance, support and education of his minor son. He set a definite li mitation upon the duration of the trus t created for that purpose,- 6 -

stating that it would end “At s uch time as my said son’s education shall be completed, terminated by circum stances bey ond my Trustees control,” and he gave clear instructions for the div

ision of the property after the termination of the trust.

The appellant arg ues that every part of Arti cle II which follow s the expression “if it should be sold” is modified by

that expression, includin g the provision forthe divis ion of the residue of the trust. We believe, how ever, that the quoted expression refers only to the provisi on s found in the sam e senten ce, which in volve reinvestment

of the proceeds and thelimitation on the amount that coul d be used for John Alsup’s education. We acknowledge that the use of the term “the residue of said trust funds” rather than “the resi due of said trust” in the follow ing sentence len ds some support to Mr. Alsup’s theory. However, the dominant and controlling intention of the testator must govern, even if it is in conflict with some word, phrase, or e xpression which might lead to a different conclus ion. D avis v. Mitc hell, 178 S.W.2d 889, 912 (Tenn. 1943).

Mr. Alsup argu es that his fa ther had a sentimental att achme n t to the land, and that he intended to pass the family farm on to his son. He claims that his father knew that he was the onl y one likely to

keep it intact as a worki ng farm, rather t han selling it off for residenti al or other purposes. But w e note that the will itsel f contains no language supporting these assertions. The testator nowhere states that he in tended o r hoped th at his son would even tually bec ome the s ole own er of th e property, to the exclusion of his wife and his daughter, or that he i n any way intended to favor his son over his other heirs, once the son’s education was completed. In our opinion, if the testator had intended such a result, he woul d not have expressed it as obliquelyas the defendan t’s theory requires, but as clearly as he expressed his intention to adequately fund his son’s education. We therefore find that the trial court did not err in granting the plaintiff summary judgment on the will.- 7 - III. Adverse Possession

To prevail on a claim of adverse possession, the plaintiff must make out his claim by clear and posi tive proof, with e

very presumption in favor of pos session in subordination to the title o f the true owner. Harriso n v. Beaty , 127 S.W.2d 946 (Tenn. 1939). A party

intending to

claim property by adverse possession must remain in possession of the property for seven years under a c laim ofright. His possession must also meet all the followi ng requiremen ts: it must be open, actual, continuous, exclusive, adverse and notorious. Catlet t v. Whaley

, 731 S.W.2d 544, 546 (Tenn. App. 1987). Also see

3 Am.Jur.2d Adverse Possession.

The requirements that the possession be both exclusive and adverse
are particularly difficult to establish when a cot en ancy is involv

ed. Every cotenant retains the right to enter into and occupy the common property , so the occupation of t he property

by one cotenant is not gene rally regarded as adverse to the claim of another. Nor is it generally considere d to be exclusive, since possession by one is regarded as possession by all,unless there is an actual ouster of one tenant by another. Moore v. Cole , 289 S.W.2d 695 (Te nn. 1956).

An ouster

does not necessarily mean a phy sical expulsion of one part y byano ther, but it requires the party claiming adversely

to perform some act that makes it clear to his cotenant that she is being excluded from ownership. In the case of Drewery v . Nelms , 132 Tenn. 254, 177 S.W . 946 (1915), our Supreme Co ur t explaine d the ous ter requir ement th is way:

“This ouster by one tenan t in common against his cotenant ma y occur, but it takes s omething more than an appropriation of the rents without an accounting. The mere silent, sole occupation by one of the entire property, t hough he be claiming the whole estate, and appropriating the whole rents, without an accounting t o or claim by the others, w

ithout notice of his cotenant that his possess ion is adverse, and unaccompanied by some act which can amount to an exc lu sion and ouster of the cotenant, cannot be co nstrued- 8 - into an adverse possession. This ouster and exclusion may be effected by taking possessi on and affording actual notice of a claim of sole ownership or other positive and unequiv

ocal act that must by its nature put the other c otenants upon notice that they are ex

cluded from the possession.” 132 Tenn. at 262, 177 S.W. at 948.

This much is undisputed: that Mr. Alsup managed the property for well
over 20 years; that he did not l ive on the land (in fact he never li ved on the land); that he leased the farm out (one tenant, Thomas Becton, rented the land from him for 22 years); that he collected the rents and paid the taxes, w ithoutoffering an accounting to his mother or to his si ster; that he negotiated w ith the City of Murfreesbor o for an easement to s traig hten a road; and that he represented himself as the sole owner when he sp oke to de velopers e ager to bu y the prope rty.

Some facts were in dispute, or were at least uncertai n. For example, Ms. NeSmith states that she asked h er brother for an accounting several times (which he denied) . She tes

tified o n direc

t that he off er ed to buy her share of the land for $100,000; he was n ot asked on rebuttal whether he had made such an of fer. Mr. Alsup testified that his sister asked him if sh e could attend the meeting with the prospect ive developers of Alsup Farms;she testified that he invitedher without being ask ed. It is undisputed that she did not objec t to the fact that the documents submitted by the developers all referred to him as the owner, and did notmention her.
However, even if we resolved all the factual questions in such a way as to be most favorable to Mr. Al sup’ s th eory, we still do not believe they w ould be sufficientto establish an ouster under the standard enunciated in Nelms v. Drewery , supra. Even though Mr. Becton, local officials, and prospective purc hasers m ay all have believed that Mr. Als up was the sol e owner of th e property (and there i s some evidence to the contrary in regard to all three ) t here is no evidence that he ever- 9 -

performed the sort of

unequivocal act to put his sister on sufficient notice th at she was being excluded, so that he could prevail on a theor y of adverse possession.
IV. Title by Prescription

As we mentioned above, the appellant did not r aise the issue of

title by prescription at trial. The jurisdic tion of the Court of

Appeals is appellate only

. Tenn. Code Ann. § 16-4-108. Thus, we may not decide questions that were not brought

up in the court below. How ever, we believ

e that even if it were ap p ropriate for us to consider that issue, on the basis of the ev idence in therecord, we would have to find tha t the ap pellant has failed to establis h one of the necessary elements for prescriptive titl e.

These elements are (1) the prescriptive holder has bee n in exclus ive and uninterrupted possession of the land in question for more than 20 y ears, claiming the same as hi s own without any accounting to his co-tenants or claim on their part

-- they being under no

disability to asser

t their rights; and (

2) the holder's occupancy of the property in question was without the actua l or implied permission of the other co-tenants. See Li vesay v. Keaton , 611 S.W.2d 581, 583 (Tenn. App. 1980). If either of these elements is not proven , the doctrine o f title by prescripti on does not apply.

In the present case, Ms. NeSmith testified that she believed her brother to be looking after the land on behal f of her mother, and that she was cont ent to let him do so. She herself was involved in looki ng after her mother’s other needs during her declining years, and apparently regarded her brother’s efforts as part of a div ision of labor naturally arising from practical necessity. Un d er these circumstances, it would be hard not to conclude that Mr. Alsup had at least the impli ed permission of both his sister and his mother to occupy the land in the manner in which he did.- 10 - V. The Auction

The appellant argues that there was error in the ha n dling of the telephone auction, but does not state in w hat respect theClerk and Master erred. Summaries of the auction are set out in the C lerk and Master’s repor t, and in the appellant’s objection to that report, which differ only in regard to their acc ounts of the degree of assent Mr. Als up’s attorney gave to the change in the ground rules and to the closing of the auction.

The original ground ru les allowed each party thirty minutes

to respond to the opposing party’s bid. Ms. NeSmith’s attor ney opened with a bid for $5,000 at 9:55 a.m. When Mr. Alsup’s attorney took twenty-seven minutes to increase the bid to $5,100, Ms. NeSmith’s attorney took exception, and aske d fora change in the rules. After speaking to the Chancel lor, the Clerk and Mast er limited the parties to

ten minutes for subsequent bids. The auction continued for the rest of the morningand afternoon under the new ru les, and was ended after 3:00 p.m. when Mr. Alsup’s attorney called, and was told that the bidding was clos

ed because he had exceeded the ten minute time limit to resp ond to Ms. NeS mit h’s bid of $50,000. Mr. Alsup’s attorney does not deny that the limit was exceeded, but claims that he had trouble getting through on the ph one.

The Chancellor ordered the plaintiff to deposit the sum of $50,000 with the Court, so he apparently concurred with the Clerk and Master’s handling of the auction, and with the result, not withstanding the appell ant’s objection. The
concurrence of a trial court with the findings of its Clerk and Master was once thoug ht to be conclusive on appeal. Maddox v. Webb Construction, 562 S.W.2d 198 (Tenn. 1978). While the presumption of correctness is perhaps no longer

quite so st rong, we believe suc h a con currence should be affirmed so long as the trial court has not- 11 -

abu sed its discretion. We do not believe that suc h an abuse of discretion has occurred in this case, and we therefore affirm the trial court.

As a final issue, the

appellee argues that she i s entitled to damages for fri volous ap peal. Though we have found against the appellant on all i ssues, we do not regard his appeal as frivolous, and we decline to award additional damages.

VI.

The judgment of the t rial co urt is a ffi rmed. Rema nd this cause to the ChanceryCourt of Rutherford County for further proceedings consisten t with this opinion. Tax the costs on appeal to the appellant.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE

### IN THE COURT OF APPEALS OF TENN ESSEE AT NASHVILLE

BETTY NESMITH and ) CECIL NESMITH, ) ) Plaintiffs/Appellees, ) ) Appeal No. ) 01-A-01-9809-CH-00509 VS. ) ) Rutherford Chancery ) No. 96-CV-404 JOHN ALSUP, II and ) TERESA ALSUP, ) ) Affirmed and Defendants/Appellants. ) Remanded



### J U D G M E N T

This cause c ame on to be heard upon the record on ap peal from the ChanceryCourt of Rutherford County, b r iefs and argument of counsel; upon consideration whereof, this Court is of the opinion that in the decree of the Chancellor there is no reversible error.

In accordance withthe opinion of the Court filed herein, it is, therefore, ordered and d ecreed by this Court that the decree is affirmed. The cause is remanded to the Chancery Court o f Rutherford County for the enforcement o f the decree a nd for th e collect ion of th e costs ac crued be low.

Costs of this appeal are tax ed against John Alsup, II and wife, Teresa Alsup,, Principals, and Ambrose, Wil son, Grimm & Durand, Surety, for which executio n may issue if neces sary.

_____________________________________ BEN H. CANTRELL, PRESIDIN G JUDGE, M.S.

_____________________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________________ PATRICIA J. COTTRELL, JUDGE