IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 15, 2002

VIVIAN E. WARNER, ADMINISTRATRIX C.T.A. ESTATE OF MAUDE

FRAZIER v. DEWEY FRAZIER, ET AL.

Appeal from the Probate Court for Cumberland County

No. 13202 Steven C. Douglas, Judge

FILED JULY 25, 2002

No. E2001-02126-COA-R3-CV 

CHARLES D. SUSANO, JR., J., dissenting.

I cannot agree with the majority’s decision to affirm the trial court’s judgment. I believe the

lower court misinterpreted Articles IV and V of Maude Frazier’s will when it found that both

provisions recite that Dewey Frazier would receive a one-third share of the bequest while his sisters

– Maggie Olson and Mary Lou Underwood – would jointly receive a one-third share, and the

testator’s nieces and nephews would share a one-third portion.

As I read Article IV of the will, a more natural reading of the language is that there will be

four shares: a share for Dewey Frazier; a share for Maggie Olson; a share for Mary Lou Underwood;

and, finally, a share for “ALL of [Maude Frazier’s] nieces and nephews as one family class.” I find

nothing in the language of Article IV to support the conclusion that Maude Frazier intended to give

her brother a greater share of the Article IV bequest than that left to each of the testator’s two sisters.

The language of Article IV shows that the testator was aware of the “family class” concept. She

used that language in referring to her nieces and nephews. If she had wanted Maggie Olson and

Mary Lou Underwood to share as a “family class” – the class being her sisters – she could have said

so. I think it is significant that she failed to “lump” the sisters together in a way that would indicate

she wanted them to share in a portion of the bequest as opposed to each receiving a full share of the

bequest equal to that of their male sibling.

As to Article V, I believe the language of that article – especially when compared to the

language selected by the testator for the Article IV bequest – clearly indicates that the testator did

not intend Article V to be divided into only four shares. As I read Article V, I believe it means that

each individual falling within the language of that article, be they siblings of the testator or her

nieces or nephews and whether they be identified specifically or in general terms, would be entitled
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to an equal share of the gift described in Article V. After naming these beneficiaries, the testator

inserted a comma, to separate the beneficiaries – and all of them – from the language, “equally, share

and share alike.” I believe this latter language applies to all of the beneficiaries. Thus, each is

entitled to an equal share. This is what the language “equally, share and share alike” means to me

in the context of the total language of Article V. Had the testator intended for the effect of Article

V to be the same as Article IV, she could have repeated the language “as one family class” in Article

V following the reference to the nieces and nephews. She did not, choosing instead to use the

language of “equally, share and share alike,” which, because of the comma that precedes it, would

grammatically apply to all those individuals alluded to before the concluding phrase. I find that the

testator intended that the proportional distribution in Article V would be different from that of

Article IV.

There is another reason why Articles IV and V should not be read as contemplating the same

distribution, i.e., one-fourth to each of the testator’s siblings and one-fourth to the nieces and

nephews as a class. If this had been the testator’s intent, the bequests in the two articles could have

been and probably would have been merged into one single article. If the distribution of the property

in Article V was to have been the same as that in Article IV, there would have been no need for two

separate articles.

In reaching my judgment in this case, I agree with the majority’s decision to disregard the

testimony of the attorney who prepared the will as to what he thought the testator intended with

respect to Articles IV and V. His “belief” is simply not admissible as relevant evidence. When this

testimony is ignored, we are left only with the language of the will to guide us in the interpretation

of that document.

While the majority opinion seems to agree with me with respect to Article IV, it does not

agree that it should reverse the trial court’s finding of three shares as opposed to four shares. Suffice

it to say that I find nothing in the record or the briefs of the parties to support the majority’s decision

not to reverse the trial court as to the lower court’s decision as to Article IV. As previously

indicated, I would reverse the trial court on both articles.

I respectfully dissent.

_______________________________

CHARLES D. SUSANO, JR., JUDGE