07/25/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 20, 2017 Session

IN RE ESTATE OF WANDA JOYCE WATKINS

Appeal from the Probate Court for Loudon County

No. 4455 Rex Alan Dale, Judge

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No. E2016-02388-COA-R3-CV

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This appeal involves the interpretation and enforcement of a will executed by Wanda 

Joyce Watkins (“the Decedent”).1 Specifically at issue is a provision bequeathing the 

residue and remainder of the Decedent’s estate to her prior husband, Mr. John Vance 

(“Mr. Vance”). Although Mr. Vance’s children (“the Vance children”) claimed 

entitlement to the residuary estate by virtue of the anti-lapse statute codified at Tennessee 

Code Annotated section 32-3-105, the executrix of the estate contended that such a 

disposition was inconsistent with the Decedent’s intent. The trial court agreed with the 

position of the executrix and rejected the Vance children’s claim to receive under the 

will. The trial court also held that portions of the respective parties’ attorney’s fees 

should be paid by the estate. Although we reverse the trial court’s decision regarding the 

application of the anti-lapse statute, we affirm its order as it pertains to the assessment of 

attorney’s fees.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Reversed in 

Part, Affirmed in Part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which CHARLES D. SUSANO,

JR. and THOMAS R. FRIERSON, II, JJ., joined.

Ginger Wilson Buchanan, Cleveland, Tennessee, for the appellants, John Darrell Vance, 

Nancy Ann Ferrara, Wendy Michelle Vance Knott, and William Landon Vance.

O.E. Schow, IV and Robert L. Vance, Knoxville, Tennessee, for the appellee, Kimberly 

B. Jenkins.

Amy Bingham and Barry N. Blanton, Appellees.2

 

1 At the time she executed the will, the Decedent’s name was listed as Wanda J. Vance. 

2 Appellees, Amy Binghman and Barry N. Blanton did not file a brief.
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OPINION

Background and Procedural History

The Vance children, who are the Appellants in this matter, are the former 

stepchildren of the Decedent. Their father, Mr. Vance, was the Decedent’s second 

husband. In April 1991, the Decedent executed a will that provided for the disposition of 

her estate. The will, which was prepared by counsel, contained the following residuary 

provision which forms the basis of this dispute:

Mr. Vance died on July 14, 1996, predeceasing the Decedent. Notably, the 

Decedent never revoked her 1991 will. She passed away after a bout with cancer on May 

28, 2012. Following her death, her will was admitted to probate in the Probate Court for 

Loudon County.

The present controversy ensued when the Decedent’s daughter and executrix of 

the estate, Kimberly B. Jenkins (“Ms. Jenkins”), filed a “Petition to Construe Will” on 

November 12, 2013. On the same date, the Vance children filed a motion to intervene. 

Specifically at issue in these filings was the disposition of the residuary estate, which the 

will bequeathed to Mr. Vance. Of particular concern to Ms. Jenkins was the disposition 

of a farm that the Decedent had inherited from her family. Ms. Jenkins maintained that, 

although the anti-lapse statute codified at Tennessee Code Annotated section 32-3-105 

might be construed to hold that the interest of Mr. Vance should pass to his issue, the 

court should construe the will in favor of a finding that the Decedent intended all of her 

real property to pass to her lineal descendants and not the lineal descendants of Mr. 

Vance. In their motion to intervene, the Vance children asserted that the anti-lapse 

statute governed the case and that they were “rightfully entitled to the assets directed to

pass to John M. Vance.” 

A hearing on the matter was held in May 2014. During the hearing, Ms. Jenkins 

testified—over the objection of the Vance children’s counsel—to the relationship that 

had existed between the Decedent and the Vance children. Ms. Jenkins stated that their 

relationship had been a “very tense” one, and she testified that the Decedent had never 

said anything when she executed her will to indicate that she wanted the Vance children 

to receive a portion of her estate. The trial court took the case under advisement 

following the hearing. 

FIFTH: All the rest, residue and remainder of my estate, I

give, devise and bequeath to my husband, JOHN M. VANCE.
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On October 24, 2014, the trial court entered an order holding that the anti-lapse 

statute did not apply. Instead of holding that the Vance children were entitled to recover 

under the will’s residuary provision, the trial court held that “the residuary estate of 

Decedent passes to Decedent’s heirs by intestate succession.” In reaching this 

conclusion, the trial court observed that the will made no reference to the Vance children. 

Further, the trial court made note of the “tense” relationship that had existed between the 

Vance children and the Decedent. In a later order entered on November 2, 2016, the trial 

court held that a certain portion of Ms. Jenkins’s and the Vance children’s attorney’s fees 

should be paid out of the estate. This appeal followed.3

Issues Presented

The Vance children raise the following issues on appeal, restated slightly:

1. The trial court erred in failing to apply the provisions of Tennessee Code 

Annotated section 32-3-105.

2. The trial court erred in admitting parol evidence to determine the intent of the 

Decedent.

3. The trial court erred in taxing the attorney’s fees of the executrix to the estate.

In her brief, Ms. Jenkins4separately maintains that the trial court erred in awarding 

attorney’s fees to the Vance children.5

Standard of Review

This case involves the construction of a will. When we are required to construe a 

will, and there is no dispute in the evidence as to any material fact, the question on appeal 

is one of law. In re Estate of McFarland, 167 S.W.3d 299, 302 (Tenn. 2005) (citation 

omitted). A question of law is reviewed de novo, with no presumption of correctness. 

 

3

Following the filing of this appeal, the trial court entered amended orders restating its rulings from the 

October 24, 2014 and November 2, 2016 orders in order to comply with Rule 58 of the Tennessee Rules 

of Civil Procedure.

4Although Appellees Amy Bingham and Barry Blanton—who, like Ms. Jenkins, are children of the 

Decedent—did not file briefs in this appeal, they did file a statement indicating that they “are in 

agreement with the positions stated in the brief of [Ms. Jenkins].”

5 Although Ms. Jenkins’s brief contains argument that she should be awarded attorney’s fees on appeal, 

the request for such fees is not included in her “Issues Presented for Review.” As such, the matter is 

waived. See Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011) (citation omitted) (“We 

may consider an issue waived where it is argued in the brief but not designated as an issue.”)
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See Estate of Burchfiel v. First United Methodist Church of Sevierville, 933 S.W.2d 481, 

483 (Tenn. Ct. App. 1996) (citation omitted). 

Discussion

“The intent of the testator is the most important factor in will construction cases.” 

In re Tipler, 10 S.W.3d 244, 249 (Tenn. Ct. App. 1998). A court must give effect to a 

testator’s intent unless it contravenes a rule of law or public policy. Id. (citation omitted). 

“The testator’s intention is to be ascertained from the particular words used in the will 

itself, from the context in which those words are used, and from the general scope and 

purposes of the will, read in the light of the surrounding and attending circumstances.” 

Fisher v. Malmo, 650 S.W.2d 43, 46 (Tenn. Ct. App. 1983) (citations omitted). If a 

decedent’s will has been drafted by an attorney, a court should give its technical words 

their technical meaning “unless the intention of the testator is clearly to the contrary.” Id.

(citation omitted).

When necessary, parol evidence is admissible “both to place the Court in a 

knowledge of the condition and circumstances surrounding the testator when he executed 

his will, and to resolve uncertainties or ambiguities in the will as to the testator’s 

intentions.” Treanor v. Treanor, 152 S.W.2d 1038, 1041 (Tenn. Ct. App. 1941) (citations 

omitted). However, parol evidence is inadmissible “to add to, vary, or contradict the 

language used in a will.” Id. (citations omitted); see also Clark v. Clark, 70 Tenn. 723, 

725 (1879) (citation omitted) (“No principle of the law of wills . . . is more firmly 

established, or sustained by a more continuous line of decisions from the earliest to the 

latest times, than that parol evidence can not be admitted either to contradict, add to, or 

explain a will, where there is no ambiguity on its face.”). “Where there is no ambiguity 

there is no warrant for construction.” Moore v. Moore, 315 S.W.2d 526, 529 (Tenn. 

1958) (citation omitted).

In this case, the plain language of the will embraces the conclusion that the 

Decedent intended to dispose of the entirety of her estate by will. Indeed, as we have 

previously highlighted, the will’s fifth provision unambiguously provides as follows: 

“All the rest, residue and remainder of my estate, I give, devise and bequeath to my

husband, JOHN M. VANCE.” From this language, it is not only clear that the Decedent 

intended to dispose of the entirety of her estate, it is also clear that she intended Mr. 

Vance to receive whatever remainder interest was not otherwise transferred through a 

specific devise or bequest. 

Of course, the present controversy stems from the fact that Mr. Vance predeceased 

the Decedent. How is the residuary estate to be disposed of in light of his death? That is 

the ultimate question before this Court on appeal, and one on which we reach a different

conclusion than the trial court.
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Unlike the trial court, we are of the opinion that the answer to this question is 

governed by Tennessee Code Annotated section 32-3-105. In relevant part, that statute 

provides as follows:

Whenever the devisee or legatee or any member of a class to which an 

immediate devise or bequest is made, dies before the testator, or is dead at 

the making of the will, leaving issue that survives the testator, the issue 

shall take the estate or interest devised or bequeathed that the devisee or 

legatee or the member of the class, as the case may be, would have taken, 

had that person survived the testator, unless a different disposition thereof 

is made or required by the will.

Tenn. Code Ann. § 32-3-105(a). This statute, commonly known as the “anti-lapse” 

statute, “works to save lapsed gifts for the representatives of the predeceased 

beneficiary.” In re Estate of McFarland, 167 S.W.3d at 303 (citation omitted). It 

functions “to further the presumed intent of the testator in the absence of any contrary 

intent expressed through the will.” Id. (citation omitted). The statute is predicated upon 

the presumption that “if the testator ‘thought enough’ of the beneficiary to make a gift to 

her in the will, the testator would want the beneficiary’s issue to take the gift if the 

beneficiary predeceased the testator.” In re Estate of Swift, No. W2012-00199-COA-R3-

CV, 2012 WL 5868894, at *5 (Tenn. Ct. App. Nov. 20, 2012) (citation omitted). 

Pursuant to its terms, the anti-lapse statute does not apply if “a different 

disposition . . . is made or required by the will.” Tenn. Code Ann. § 32-3-105(a). Thus, 

if the will in this case had specifically stated who would receive the residuary estate 

should Mr. Vance predecease the Decedent, the anti-lapse statute would not be operative. 

Moreover, a “different disposition” is implicated when the will imposes a survivorship 

requirement on the named beneficiary. See In re Estate of Swift, 2012 WL 5868894, at 

*4-7. For example, had the will stated that Mr. Vance would only receive the residuary 

estate if he survived the Decedent, the anti-lapse statute would not apply.

As it is, the will at issue does not place any conditions on Mr. Vance’s entitlement 

to the residuary estate, nor does the will specify who is to receive the residuary estate in 

the event that he predeceases the Decedent. Indeed, the disposition made with respect to 

the residuary estate is absolute. As such, contrary to the trial court’s determination, we 

are of the opinion that the will fails to provide for a “different disposition” under 

Tennessee Code Annotated section 32-3-105. Considering this fact and taking heed that 

Mr. Vance had surviving issue, the anti-lapse statute directs that they “take the estate or 

interest devised or bequeathed that . . . . [Mr. Vance] would have taken, had [he] survived 

the testator.” Tenn. Code Ann. § 32-3-105(a). We must therefore reverse the trial court 

and specifically conclude that the Vance children are entitled to receive the Decedent’s 

residuary estate under the will.
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In closing, we note that both sides assert that the trial court erred in ordering that a 

portion of the other side’s attorney’s fees be paid by the estate. Having reviewed the 

record transmitted to us on appeal, we decline to disturb the trial court’s judgment on this 

issue. Although Tennessee follows the American Rule which provides that “each litigant 

must wage its own fight for justice with its own resources,” there are exceptions. In re 

Estate of Greenamyre, 219 S.W.3d 877, 884 (Tenn. Ct. App. 2005) (citations omitted). 

“Will construction cases represent a well-known exception to the American Rule.” Id. at 

884-85. At times, litigation may be to the benefit of the estate, as well as its 

beneficiaries, and courts can require a testator’s estate to pay the attorney’s fees of parties 

named as defendants in will construction cases filed by executors. Id. at 885 (citations 

omitted). Courts may shift the burden of paying attorney’s fees from the client to the 

estate, however, only after they are satisfied that the purpose of the litigation was to 

benefit the estate. Id. (citations omitted). The decisions pertaining to an award of 

attorney’s fees are reviewed under an abuse of discretion standard. Id. As is relevant 

herein, we note that “[d]eciding whether a party’s attorney’s fees should be paid by the 

estate does not necessarily hinge on the success of the party’s claims.” Id. at 886 

(citations omitted). “The controlling question is whether the entire estate benefitted from 

the efforts of the party’s lawyer.” Id. 

In this case, it is apparent that the trial court found that both Ms. Jenkins’s and the 

Vance children’s efforts benefitted the estate. It noted that Ms. Jenkins’s will 

construction petition was necessary so that she could carry out her duties as executrix, 

and although it noted that the Vance children had not prevailed, the trial court observed 

that its holding provided a “clear benefit to the estate by judicial construction of the 

effective distribution . . . under the residuary estate clause.”6Thus, in the view of the trial 

court, both sides had contributed to reaching a definitive resolution on the proper 

construction of the will. In the previously-cited In re Estate of Greenamyre decision, this 

Court affirmed a trial court’s decision to assess a beneficiary’s attorney’s fees against the 

estate, despite the fact that the beneficiary’s substantive arguments related to the will 

were not successful. We noted as follows:

The trial court’s decision to require the estate to pay the fees of the four 

attorneys who participated in this case reflects its conclusions that the suit 

to construe Dr. Greenamyre’s will was appropriate, that the work of all the 

attorneys benefitted the estate, and therefore, that the estate should be 

required to pay all or a portion of the parties’ attorney’s fees.

* * * *

 

6 Although the amount of fees to be assessed against the estate was first outlined in the trial court’s 

November 2, 2016 order, the trial court’s analysis regarding the parties’ right to receive reimbursement 

from the estate was discussed in an order dated August 12, 2016. 
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The controlling question is whether the entire estate benefitted from the 

efforts of the party’s lawyer. Dr. Stanger’s participation in the suit to 

construe Dr. Greenamyre’s will benefitted the estate even though she did 

not prevail. Her claims have now been definitively resolved, and her 

attorney aided materially in that resolution. Now that the questions 

regarding Dr. Greenamyre’s will have been laid to rest, Ms. Gibbons may 

distribute the assets and close the estate without further controversy or 

dispute.

Id. at 886.

Here, we cannot conclude that it was an abuse of discretion to award attorney’s 

fees in light of the trial court’s implicit finding that both sides benefited the estate by 

contributing to a definitive resolution of interpretation. This remains so notwithstanding 

our conclusion that the trial court’s ultimate construction of the will was flawed. Our 

reversal of the trial court’s legal conclusion gives no occasion to disturb its 

determinations regarding the contributions of the parties. Indeed, as we have noted, the 

right to reimbursement from the estate does not always hinge on a party’s success. Id. 

For these reasons, the trial court’s awards of attorney’s fees against the estate are 

affirmed. 

Conclusion

The trial court’s refusal to apply the anti-lapse statute was in error. The Vance 

children are entitled to receive the Decedent’s residuary estate under the will. Despite 

our reversal of the trial court on this issue, we affirm the trial court’s decision to assess a 

portion of both sides’ attorney’s fees against the estate. Costs of this appeal are assessed 

against the Appellees, Kimberly B. Jenkins, Amy Bingham, and Barry N. Blanton. This 

case is remanded to the trial court for the collection of costs, enforcement of the 

judgment, and for such further proceedings as may be necessary and are consistent with 

this Opinion. 

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ARNOLD B. GOLDIN, JUDGE