### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M ay 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

C HARLES D. S USANO , J R ., J., dissenting.

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

ted Artic les IV an d V of Mau de Frazi er’s wil l when it found tha t both provisions recite that Dewey Frazier would receive a one-third share of the bequest while his sisters

–Maggie O lson and Ma ry Lou Und

erwood – would jointly recei ve 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 natura l reading of the language

is that there will be four shares: a share for Dewey Fra zier; a share for Maggie Olson; a share for Mary Lou Underwood; and, finally, a share for “ALL of [Maude Fra zier’s] nieces and nephews as one family class.” I find nothing in the lan guage 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 te stator’s two sister s. The language of Article IV shows that the testator wa s a ware of the “family class” conce pt. She used that language in referring to her nieces a nd nephews. If she had wanted Maggie Olson an d Mary Lou Underwood to shareas a “family class” – the clas s being he

r sisters – she cou ld have sa id
so. I think it

is signific ant that sh

e failed to “lump” the sister s togethe r in a way that would

indicate she wantedthem to share in a portion of the bequest as opposed to each receiving a full shar e of the bequest equal to that of their male sibling.

As to Article V, I believe the l anguage of that article – especially when c ompared to the language selected by the testator for the Article IV bequest – clearly indicates that the testa tor did notintend Article V to be divided into only four shares. As I read Article V, I believe it means that each individual falling within the langua g e of that article, be they siblings of the testator or her nieces or nephews and whether they be identified spec ifically or in general terms, would be entitled-2-

to an equal share of the gift described in Article V . After naming these beneficiaries, the testator inserted a comma, to separ ate the b enefic iaries – a

nd all of th

em – from the language, “equally, share and share a li ke.” I be

lieve this latter la

nguage a pplies to a

ll of the be

neficia ries. Thu s, each i s entitled to an equal share. This is whatthe langu age “eq ually, sha re and sh are alik

e” mean s to me in the conte

xt of the to tal langu age of A rticle V . Had the

testator intended for the e ffect o f Article V to be the same as Article IV, she could have repeate d the language “as one fami ly class” in Article V following the reference to the nieces and nephews. She did not, choosing instead to use the language of

“equall y, share and shar e alike, ” which, because

of the co mma

that pre cedes it , would grammati callyapply toall those individuals alluded to before the concluding phrase. I find that the testator intended that the proportiona l d istribution in Article V would be different from that of Article IV.

There is another reason

why Articles IV and V should not be r ead as c ontempla

ting the sa me dist ribution, i. e. , one-fourth to each of the testator’s siblings and one-fourth to the niec es and nephews as a

class. If this had

been the testator ’s intent, the beque sts in the two articles could have been and prob ably woul d have be en merge d into one s inglearticle. If the distribution of the propert y in Article V was to have been the same as that in Article IV, there would

have been no need for two separa te artic les.

In reaching my judgment in this case, I agree with the majority’s decision to disregard the testimony of the attorney who prepared t he will as to what he

thought the

testator intended with respect to Articles IV and V. His “belief” is simply not admissible

as rele vant evid

ence. W hen this testimony is ignored, we are left only with the language of the will to guide us in the interpretation of that do cument.
While the majo rity opi nion seems to agree with me with respect to Article IV, it does not agree that it should rever se the tri al court ’s finding of three shares a s opposed

to four shares. Suffice it to say tha t I find nothing in the record or the briefs of the parties to support the majority’s de cision notto reverse the trial court as to t he lower court ’s decis ion as to Ar ticle IV . As previously indicate d, I would

revers e the tria

l court on both artic les. I respe ctfully di ssent.

_______________________________ CHARLES D. SUSANO, JR., JUDGE