### FILED June 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

IN RE: ) SULLIVAN CHANCERY ESTATE OF ) (No. P-95-8140) FRANCIS M. LOGWOOD, ) DECEASED ) NO. 03A01-9902-P B-00042 ) ) HON. RICHARD E. LADD ) CHANCELLOR ) ) AFFIRMED Joel A. Conkin, K

ingsport, for the A

ppellant. Shelburne Ferguson, Jr., Kingsport, for the Appellee. 

### O P I N IO N

INMAN, Senio

r Judge I The testator, Fr

ancis M. Logwood,

died November

14, 1995. The

issue in this case is the proper i

nterpretation of a

holograph ic codicilto his will. The codicil reads: 3-10-93 I write this addition t

o my will on this day, of

my personal belongings Grandfather

Logwood’s gold pocket watch, in my top left ha nd drawer of chest of drawe

rs in front bedroo

m, sh all go to Ji mmy Broome of Gr

eenville, SC or th

e great grandchildA ll of my m

odel railroads are

to go to my bro

ther-in-law Dou

gl a s Nelson, Sr. All bank cars etc. are a

lso to be Douglas Nelson, Sr. -My new Buick if in good condition shall be given to Douglas Nelson, Sr. All cameras, s

lides, movies and VCR tapes are to go to my daughter Sharon - This includes albums and projectors All furniture in the house shall be given to the Ne lson family that came from the old home place - Sharon shall have sa

y so of all others

- The will shall be followed thru by Sh aron w ith the help of Douglas Nelson, Sr. I write this will so t

hat my personal belongings go to those I wish to have them. I’ m in sound mind and good health as I w

rite this. Francis M. Logwood (Signature) March 10, 19932 Will of Personal

Belongings March 10, 1993 II The executrix

and widow, Wa

yne Rule Logw

ood, proposed to distri

bute the netestate to herself pursuant to the p rovisio ns of the will. Th e daughter of the testator from his f

i rst marriage, Sharon L. Jones, objected to such proposed distribution

for the reason that the language “Sharon shall have say so of all other personal belongings” gave her a gen er al power of appointm ent over all of the testator’s perso

nal property not o

therwise specifi

cally devised by

the codicil. The Chancellor, sitti

ng in Probate, held that the codicil was not ambiguou s, and that it was the intent of the testator thatSharon L. Jones would have decisionmaking power only as to tangible, personal property such as that mentioned in the codic il, whi ch excluded cash, corporate stock, and bonds. The experienced Chancellor explaine

d: THE COURT: Thesecases are always difficult where there is a death of one spouse and the remar riage o f the su rvivin g spou se, and especi ally diffic ult when the property can be

traced to the dece

ased’s spouse’s

side of the family and goes to the new spouse. The c hildren feel like th

ey have some inherent r

ight to get the property thei r parents had. Under the law, ther e’ s no inherent right for that. I think it’ s all too easy for children with that thought to ove rlook that -- the comfort a new spouse may give to t heir parent. In a ny event, I fe

el there’s no ambiguity

here; but, as Ms. Jones sai d , Mr. Logwood ch anged his mind a lot. I don’t have any

doubt that he told her and his son-in-law thatthis stock that had belonged to Betty Logwood would com

e to her, but he didn’t do that, and I do n’t t

hink there’s any

ambiguity here. The codicil clea

rly is just t

o take car e of tangible, personal proper ty. Looking at the entir e -- both instrum

ents and all of the surroundingcircumstances, I don’t feel l ike there’s any

doubt in that. I’m not saying it’s fair for the present Ms. Logwood to get stock and mon ey that came thr

ough Betty Logw

ood. That’s not th

e pur pos e here today. The purpose is to interpret the intent of Mr. Frances Logwood, and I think his intent was clear -- that

the things that me

ant the most to him -- tangible, per sonal prop erty -- that h ad some int rinsic value to the family would go back to the family; wher eas , those that really ha

d no intrinsic value --

money -- he

felt like should go to his spouse, to see t

hat she was taken care of the rest of her life. S o I f ind that the codicil only applies to the tangible, personal property -- the furniture,

clothes, autom

obile, trains. It

did not apply3 to any bank accounts, stocks, bonds or other in tangible, personal proper ty.

III Ms. Jones appeals, and p

resents for revie

w the issue of

whether the “power of appoin tment” wa s limite d to tan gible p ersona l prope rty, and the additional issue of whether she was entit led to recover her atto rney’s fees from the estate. Our review of the findings of fact made by the trial Court is de novo upon the record of the trial Court, accompaniedby a presumption of the correctness of the finding, unless

the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Tenn. 1996). IV Before his ma rriageto Wayne Rule Logwood, the testa

tor was marr

ied to Bettye Nelson Logwood for over forty y

ears, with whom

he had his on ly c hild, Sharon Logw ood Jones. Ms. Bett ye Nelson Logw

ood, who died on Janua

ry 26, 1991, owned, among other items, shares of AT&T, BellSouth, and Po toma c Electric Company stock, which she had inheri te d from her mother, Mary I nman Nelson. This stock was be queath ed to Fr ancis Lo gwood b y his wife , Bettye Nelson Logwood. The testator marr

ied Wayn e Lockard Rule on D ecember 18,

1992, and on thatday they exe

cuted an Antenuptial

Agreement w

hich provided that “

each party recognizes thatthe otherhas obligations towar d his and/or her fam

ily that should be protected by means of this Agreemen t . . .” Specif

ically, the A

greement protected the individual assets o wned by each pa

rty prior to the marriage fr om any claims of elective share , homestead, curtesy, and y

ear’s support by

the surviving spouse. It also provided that the testator was t

o provide a trus t fu nded by his probate estate for the benefit of Wayne Rule Logwo od for her life wi th the4

remaining

principal and

accumul ated income to pass to Sharon Logwood Jones outright and free of

trust. The testator did not set up such a trust in his Will; rather, his typewritten Last Will and Testam

ent left all of

his property both r

eal and personal, tangible

and intangible, to Wayne Rule Logwood outright, su

bject to the codici

l which he wrote about a month later. The codicil refers t

o spe cific items of personal property: “Grandfather Logwood’s gold pocket watch, all ban k cars, my new Bui ck, all came

ra, slides, movies and VCR tapes, a lbums and proje

ctors, all furniture in the home that came from the old home place.” We a

gree with the Chanc

ellor, under fam

iliar rules of construction

to ascertain the int

ent of the testator, that the

codicil only appli

ed to tangible personal property

as described in the

codicil, and that th

e testator did not intend to incl ude int angibl e prope rty. The meaning of the w

ords “Sharon

shall have

say so of all othe

rs” should be ascertained from the conte xtof the codicil which will ensure that the disposition of the testator’s a

ssets will be according to his volition. Moore v. Neely, 370 S.W.2d 537 (Tenn. 1963). In Lee v. Hale, 562 S.W.2d 190 (T enn. 1978), the Supr

eme Court held that the phrase “any other of my personal possessions which may be left” had reference to ite

ms of tangible pe

rsonal property , and not to cash in ban ks, following the gener

ally accepted

rule that where t

he testator used wor

ds in a certain sense, th

e Court should do likew

ise. 80 Am.J

ur. Wills, 1156. The appellant argu

es that, in context,

the words “Sha

ron shall have say

so of all others” should be read as “Sharon shall have say so of all other personal belongings,” because “others” refers to the phrase “personal belongings,” which encompasses int

angible property

such as cash, citin

g Travis v. Randolph, 172 Tenn. 396 (Tenn.1938). We agre e with the appellee

that both the will and

the5

codicil should be studied to ascertain intent, which impels the conclusion that the testator intende

d to bequeath certai

n family it

ems to other fa

mily m embers.

V The Chancellor disallowed attorney fees to the appellant, who argues that ‘a prospective be

neficiary shoul

d be awarded her a

ttorney fees w

hen a suit for construction inures t

o the benefit of an e state, citing Leaver v. McBride, 506 S.W.2d 141 (T

enn. 1974). This case is not apposite, b ecause the will (i

n Leaver) “had to be construed” and “the testatrix’s true intent was established.” Moreover, the bene

ficiaries who cla

imed their atto

rney fees we

re impleaded b

y the Executor, unli

ke the appellant in the

case at Bar, w

ho instituted this litigation. We are unable to fathom any benefit accruing to the Logwood estate as a result of the f iling of the o bjectio ns to th e final distri butio n of ass ets by a beneficiary c

laiming mor

e than the will and c

odicil bequeathed her

. The Chancellor held tha

t the codicil was not

ambiguous. W

e agree. He al so held, by implicat

ion, that the grounds st

ated in the objecti

on would have defeat

ed the testator’s intentio n, and that the litig ation did not ben efit the estate. See, In re Eppinger’s Estate, 336 S.W.2d 28 (Tenn. 1960). We agree. The judgment

is affirmed a

t the costs of the appe

llant.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:

_______________________________ Herschel P. Fr

anks, Judge6

_______________________________ Charles D. Susa

no, Jr., Judge