IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 10, 2015 Session

IN RE: ESTATE OF MARTHA B. SCHUBERT

 Appeal from the Chancery Court for Knox County

No. 65462-1 John F. Weaver, Chancellor

No. E2014-01754-COA-R3-CV-FILED-JULY 15, 2015

This case involves the construction of the Last Will and Testament of Martha B. Schubert 

(“the Will”). The Chancery Court for Knox County (“the Trial Court”) found and held 

that Martha B. Schubert (“Deceased”) intended the real property described in the second 

paragraph of Article IV of the Will to be the two parcels of real property owned by 

Deceased located on Cherokee Boulevard and that these properties vested immediately in 

John Schubert upon Deceased‟s death. John Schubert appeals raising issues regarding 

whether the Trial Court erred in finding and holding that the second paragraph of Article 

IV of the Will referred to the two properties on Cherokee Boulevard and that these 

properties vested in John Schubert immediately upon Deceased‟s death. We find and 

hold that the Trial Court did not err in finding and holding that it was Deceased‟s intent 

that the second paragraph of Article IV of the Will describe the two Cherokee Boulevard 

properties. We find and hold, however, that these properties did not vest in John 

Schubert immediately upon Deceased‟s death because the Will also contains specific 

language which, pursuant to Tenn. Code Ann. § 31-2-103, directed that the real property 

be administered as part of Deceased‟s estate. We, therefore, affirm, in part, and reverse, 

in part. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed, in part; Reversed, in part; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.

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

John A. Lucas and Lane E. McCarty, Knoxville, Tennessee, for the appellant, John 

Clinton Schubert.

Thomas N. McAdams and Margo J. Maxwell, Knoxville, Tennessee, for the appellee, 

Morgan Alexander Schubert, Jr.
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James S. Tipton and Mack A. Gentry, Knoxville, Tennessee, for the appellee, Richard L. 

Hollow, Executor of the Estate of Martha B. Schubert.

OPINION

Background

Deceased died in August of 2006.

1 The Will was admitted to probate and Richard 

L. Hollow was appointed as the Personal Representative of Deceased‟s estate. Mr. 

Hollow filed a petition seeking construction of certain portions of the Will. John C. 

Schubert (“John Schubert”) and Morgan Alexander Schubert, Jr. (“Alex Schubert”) each 

filed a response to Mr. Hollow‟s petition. 

The Will provides, in pertinent part:

I declare that my husband, Morgan Alexander Schubert, is deceased, 

and that I have two children, namely, Morgan Alexander Schubert, Jr. and 

John Clinton Schubert.

* * *

IV.

DISTRIBUTION OF ESTATE

All of the residue of my property, real, person and mixed, of 

whatsoever kind and wheresoever situated, I give, devise and bequeath as 

follows:

50% to my son, Morgan Alexander Schubert, Jr.

50% to my son, John Clinton Schubert.

It is my specific will and request that all real estate which I own or 

may own at the date of my death located on Cherokee Boulevard and 

running to Wilani Drive to the rear, including the Dan Mayo property, be 

given to my son, John Clinton Schubert, as part of his share of my estate.

* * *

 

1

The Certificate of Death in the record on appeal shows Deceased‟s name as “Martha Ann Schubert.” 

Deceased‟s Last Will and Testament, however, states that her name is “MARTHA B. SCHUBERT,” and 

Deceased executed the will as “Martha B. Schubert.” The case now before us is styled “In re: Estate of 

Martha B. Schubert.”
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V.

DIVISION OF ESTATE

The Testatrix recognizes and by this instrument declares that she is 

aware that a substantial portion of her estate may include real estate and 

other assets which cannot be divided as easily as cash, stocks, bonds or 

securities. In recognition of this fact, it is the will of the Testatrix that her 

estate, including real estate, be divided between her heirs as hereinabove set 

forth. It is her will and wish that her heirs agree as to the division of the 

assets of her estate. It shall be the duty of the Executor to ensure that an 

equitable division has taken place and, to that end, the Executor is granted 

the authority to cause appraisals and other evaluations of estate assets to 

take place to ensure, insofar as possible, the equitable division herein 

requested. The Executor is also granted the express authority, in addition to 

other authorities given to him by this instrument and by law, to exercise, in 

his discretion, veto power of any plan of distribution if, in his sole 

discretion, it appears to be not in conformity with the wishes of the 

Testatrix as set forth in this document. If, in the sole discretion of the 

Executor, it appears that the ability of the heirs to fairly and equitable [sic]

divide the estate assets by agreement does not exist or has been lost, then 

the Executor, in his sole discretion, shall order the assets of the estate 

liquidated in an orderly fashion and the proceeds distributed in accordance 

with the wishes of the Testatrix as expressed in this document.

The Trial Court referred the case to the Clerk and Master, who held a hearing and 

heard evidence in January of 2013. Richard L. Hollow testified that he is an attorney 

who is married to Deceased‟s sister. Mr. Hollow prepared the Will.

At the time of her death Deceased owned two lots of real property fronting on 

Cherokee Boulevard (“Cherokee Lots”) in Knoxville, Tennessee, one of which was 

referred to as the Dan Mayo property.

2

 The other of the Cherokee Lots contained 

Deceased‟s house. Deceased‟s residence was located at 1951 Cherokee Boulevard and 

the Dan Mayo property was located at 1965 Cherokee Boulevard. Deceased did not own 

any other property that either fronted on Cherokee Boulevard or had a Cherokee 

Boulevard address.

Deceased also had owned at one time prior to making the Will three lots 

contiguous to the Cherokee Lots, which extended from the boundaries of the Cherokee 

 

2 A rough diagram is attached to this Opinion showing where the various parcels of real property owned 

by Deceased are located in relation to one another.
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Lots all the way to Wilani Drive (“Wilani Lots”). The three Wilani Lots are the only lots 

Deceased owned on Wilani Drive. Mr. Hollow was not aware at the time Deceased 

executed the Will that Deceased previously had conveyed the Wilani Lots to John 

Schubert.

Mr. Hollow testified that he had a conversation with John Schubert after 

Deceased‟s death about the Cherokee Lots, and stated:

I had spoken to Mr. John Schubert, who was concerned at that point, if I 

remember correctly, about the title to the property. He wanted to be 

assured that the property would be his.

I assured him at that time that as far as I was concerned there was 

never a question in my mind but that property was his. That was the intent 

of his mother from the day we first discussed her property, that that was to 

be John‟s property. 

But I did qualify that by saying, and this was before the inheritance 

tax had been paid, I did qualify that by saying that there was the possibility 

that if for some unforeseen reason assets of the estate available to pay the 

tax were insufficient, the government could reach that property.

The estate taxes were paid after Mr. Hollow and John Schubert had that conversation.

Mr. Hollow testified that in his opinion the Cherokee Lots are the real properties 

described in the second paragraph of Article IV of the Will. Mr. Hollow testified that he 

believes that the Cherokee Lots vested in John Schubert immediately upon the death of 

Deceased pursuant to statute. Despite this belief Mr. Hollow had two personal 

representative deeds for the Cherokee Lots prepared in May of 2008 deeding the 

properties to John Schubert. Mr. Hollow had these personal representative deeds 

prepared at John Schubert‟s request. Mr. Hollow testified that those deeds were tendered 

to John Schubert, but were not accepted and were not recorded. When asked why they 

were not recorded, Mr. Hollow stated: “It was my impression based upon information 

that we had exchanged during the meetings that we held during a period of the 

administration of the estate that the property vested in [John Schubert] at the date of 

death.”

After the hearing, the Clerk and Master filed the Master‟s Report on February 12, 

2013. In pertinent part, the Master‟s Report stated:
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(1) That Article IV of the Last Will and Testament of Martha B. Schubert 

shall be construed to immediately vest the title to the real property owned 

by the decedent designated as 1951 Cherokee Boulevard and 1965 

Cherokee Boulevard into John Clinton Schubert at the time of the 

decedent‟s death and shall be considered as part of his share of the 

decedent‟s estate devised under the will;

(2) That since the ability of the will beneficiaries, Morgan Alexander 

Schubert, Jr. and John Clinton Schubert, to fairly and equitably divide the 

estate assets by agreement does not exist and has been lost, the executor, 

Richard L. Hollow, is hereby authorized to exercise the powers granted to 

him under Paragraph V of the decedent‟s will for the sale of assets of the 

estate, except the above real property on Cherokee Boulevard, and to 

distribute the proceeds in accordance with the wishes of the decedent as 

expressed in said will; . . . .

John Schubert filed objections to the Master‟s Report. Alex Schubert filed a 

motion for adoption and approval of the Master‟s Report.

The Trial Court heard the objections to the Master‟s Report and entered its 

Memorandum Opinion and Order on July 24, 2014 overruling the objections and 

adopting and approving the Master‟s Report after finding and holding, inter alia:

The decedent died on August 31, 2006. She executed her last will 

and testament on June 5, 2002. Prior to October, 2001, the decedent owned 

two lots fronting Cherokee Boulevard and three additional lots contiguous 

to the rear boundaries of the two lots fronting Cherokee Boulevard. The 

three additional lots, which are contiguous to the two Cherokee Boulevard 

lots, extend to and front Wilani Drive. . . .

In October 2001, the decedent conveyed the three lots on Wilani 

Drive to her son John Schubert. Thus, the devisee, John Schubert, argues 

that there was no property covered by the above devise because the two 

remaining lots fronting Cherokee Boulevard do not extend all the way to 

Wilani Drive.

The proof in this case is that the decedent owned no other property 

fronting Cherokee Boulevard and that the “Dan Mayo property,” 

specifically referenced in the devise, is one of the two lots fronting 

Cherokee Boulevard. As stated above, the three additional lots fronting 

Wilani Drive were contiguous to the rear lot lines of the two lots on 
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Cherokee Boulevard. It is clear that the decedent intended for the above 

specific devise to John Schubert to include the two lots owned by her on 

Cherokee Boulevard. . . .

It is well established that “[i]f the decedent is testate, real property 

vests immediately in the devisee named in the will unless it specifically 

directs that the property be part of the estate under the control of the 

executor.” Pritchards on Wills and Administration of Estates, § 634. Tenn. 

Code Ann. § 31-2-103. “If the representative attempts to sell lands without 

authority granted by will, his conveyance is a nullity . . . [.]” Pritchards on 

Wills and Administration of Estates, § 634. With the finding that the two 

lots fronting Cherokee Boulevard are within the specific devise to John 

Schubert, the two lots vested immediately upon the death of the decedent in 

the devisee, John Schubert and outside of the administration of the estate 

and the control of the executor. See Tenn. Code Ann. § 31-2-103. It 

further follows that the powers granted to the executor under Article V of 

the will do not include the power or authority to administer the two lots 

fronting Cherokee Boulevard. Despite the able arguments of counsel for 

John Schubert, this Court is unable to conclude that the words of devise, 

“be given to my son, John Clinton Schubert,” also constitute a power of 

disposition or management of the property in favor of the personal 

representative.

John Schubert appeals Trial Court‟s July 24, 2014 judgment.

Discussion

Although not stated exactly as such, John Schubert raises two issues on appeal: 1) 

whether the Trial Court erred in finding that the real property described in the second 

paragraph of Article IV of the Will referred to the Cherokee Lots; and, 2) whether the 

Trial Court erred in finding that the Cherokee Lots vested in John Schubert immediately 

upon Deceased‟s death.

We first consider whether the Trial Court erred in finding that the real property 

described in the second paragraph of Article IV of the Will referred to the Cherokee Lots. 

This issue concerns the Trial Court‟s construction of the Will. This Court discussed the 

standard of review to be applied in cases involving the construction of a will in Horadam 

v. Stewart stating:

The construction of a will is a question of law for the court; 

therefore, we review the trial court‟s conclusions of law de novo affording 
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them no presumption of correctness. In re Estate of Milam, 181 S.W.3d 

344, 353 (Tenn. Ct. App. 2005). In cases involving the construction of 

wills, the cardinal rule “is that the court shall seek to discover the intention 

of the testator, and will give effect to [that intent] unless it contravenes 

some rule of law or public policy.” Stickley v. Carmichael, 850 S.W.2d 

127, 132 (Tenn. 1992) (quoting Bell v. Shannon, 212 Tenn. 28, 367 S.W.2d 

761, 766 (Tenn. 1963)); see also In re Crowell, 154 S.W.3d 556, 559 

(Tenn. Ct. App. 2004); McBride v. Sumrow, 181 S.W.3d 666, 669 (Tenn. 

Ct. App. 2005). Furthermore, in will construction cases, we rely on the 

language of the instrument to determine the testator‟s intent:

[T]he testator‟s intention must be ascertained from “that 

which he has written” in the will, and not from what he “may 

be supposed to have intended to do,” and extrinsic evidence 

of the condition, situation and surroundings of the testator 

himself may be considered only as aids in the interpretation 

of the language used by the testator, and “the testator‟s 

intention must ultimately be determined from the language of 

the instrument weighed in the light of the testator‟s 

surroundings, and no proof, however conclusive in its nature, 

can be admitted with a view of setting up an intention not 

justified by the language of the writing itself.”

In re Cromwell, 154 S.W.3d at 559 (quoting Nichols v. Todd, 20 Tenn. 

App. 564, 101 S.W.2d 486, 490 (Tenn. Ct. App. 1936)); see also Pritchard 

on Wills §§ 384, 387, 388, and 409 (2d. ed.). Our Supreme Court has said 

that when ascertaining the testator‟s intent by construing the language used 

in a will, we must consider the entire will as a whole. In re Estate of 

Vincent, 98 S.W.3d 146, 150 (Tenn. 2003).

Horadam v. Stewart, M2007-00046-COA-R3-CV, 2008 WL 4491744, at *5 (Tenn. Ct. 

App. Oct. 6, 2008), Rule 11 appl. perm. appeal denied April 27, 2009. 

With regard to the issue now before us the Trial Court specifically found:

The proof in this case is that the decedent owned no other property 

fronting Cherokee Boulevard and that the “Dan Mayo property,” 

specifically referenced in the devise, is one of the two lots fronting 

Cherokee Boulevard. As stated above, the three additional lots fronting 

Wilani Drive were contiguous to the rear lot lines of the two lots on 

Cherokee Boulevard. It is clear that the decedent intended for the above 
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specific devise to John Schubert to include the two lots owned by her on 

Cherokee Boulevard. . . .

In his brief on appeal John Schubert argues, in part, that Deceased did not own any 

property at the time of her death that fit the full description of the real property contained 

in the second paragraph of Article IV of the Will. In short, John Schubert asserts that 

Deceased did not own any real property at the time of her death located on Cherokee 

Boulevard that ran all the way to Wilani Drive to the rear. He further argues that because 

the Will contains the phrase “running to Wilani Drive,” rather than „running toward 

Wilani Drive,‟ that the Cherokee Lots do not satisfy the description in the Will because 

the Cherokee Lots do not run all the way to Wilani Drive. This interpretation, however, 

strains the language used in the Will. Article IV provides that the real property “located 

on Cherokee Boulevard and running to Wilani Drive to the rear, . . .” includes the Dan 

Mayo property, which the parties agree does not and never did run from Cherokee 

Boulevard all the way to Wilani Drive.

We also must consider the language in the Will “weighed in the light of the 

testator‟s surroundings, . . .,” which include the fact that Deceased already had deeded the 

Wilani Lots contiguous to the Cherokee Lots to John Schubert and the fact that although 

at the time he drafted the Will Mr. Hollow knew that Deceased had owned the Wilani 

Lots, he was unaware that she previously had deeded them to John Schubert. Horadam, 

2008 WL 4491744 at *5. The end result given the proper construction of the Will as a 

whole coupled with the fact that Deceased previously deeded the Wilani Lots to John 

Schubert is that John Schubert will have received all of the property that Deceased once 

owned between Cherokee Boulevard and Wilani Drive. We hold, as did the Trial Court, 

that Deceased‟s intent was that the real property described in the second paragraph of

Article IV of the Will referred to the Cherokee Lots.

Next, we consider whether the Trial Court erred in finding that the Cherokee Lots 

vested in John Schubert immediately upon Deceased‟s death. As pertinent, Tenn. Code 

Ann. § 31-2-103 provides:

31-2-103. Vesting of estate – Net estate. -- The real property of an 

intestate decedent shall vest immediately upon death of the decedent in the 

heirs as provided in § 31-2-104. The real property of a testate decedent 

vests immediately upon death in the beneficiaries named in the will, unless 

the will contains a specific provision directing the real property to be 

administered as part of the estate subject to the control of the personal 

representative. . . .

Tenn. Code Ann. § 31-2-103 (2007).
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In the case now before us, Deceased died testate. Thus, pursuant to Tenn. Code 

Ann. § 31-2-103 her real property vested immediately upon her death in the beneficiaries 

named in the Will unless the Will contained a specific provision directing otherwise. As 

pertinent to this issue, the Will provides:

It is my specific will and request that all real estate which I own or 

may own at the date of my death located on Cherokee Boulevard and 

running to Wilani Drive to the rear, including the Dan Mayo property, be 

given to my son, John Clinton Schubert, as part of his share of my estate.

The Will directs that the real property in question is to “be given to my son, John 

Clinton Schubert, as part of his share of my estate.” Preceding this specific phrase the 

Will states: “All of the residue of my property, real, personal and mixed, of whatsoever 

kind and wheresoever situated, I give, devise and bequeath as follows: . . . .” The 

specific phrase with regard to the Cherokee Lots, however, contains only the words “be 

given,” not the words “devise” or “bequeath.” The direction that the property “be given” 

indicates that this property is to be administered as part of Deceased‟s estate and “given” 

to John Schubert “as part of his share of [Deceased‟s] estate” by the personal 

representative of the estate. The words “be given” without words such as “devise” or 

“bequeath” show that further action is necessary before the property can vest in John 

Schubert, especially in light of Deceased‟s specific direction that it be a “part of [John 

Schubert‟s] share of my estate.”

The analysis that the Cherokee Lots did not vest in John Schubert immediately 

upon Deceased‟s death is further supported by Article V of the Will wherein Deceased 

acknowledged “that a substantial portion of her estate may include real estate and other 

assets which cannot be divided as easily as cash, stocks, bonds or securities, . . .” and 

then made it “the duty of the Executor to ensure that an equitable division has taken place 

. . .” and granted the executor the authority to do things to effectuate the division. 

Article V also provided the executor the power to liquidate Deceased‟s assets if 

necessary. Deceased acknowledged in Article V that a substantial portion of her estate 

may consist of real property, which the executor would be unable to liquidate “to ensure 

that an equitable division . . .” was achieved if the real property was not subject to the 

administration of the estate. Thus, Article V supports the conclusion that the real 

property contained in the specific bequest to John Schubert did not vest immediately in 

John Schubert upon Deceased‟s death, but instead was subject to the administration of the 

estate. 

We hold that the Cherokee Lots did not vest in John Schubert immediately upon 

Deceased‟s death because the Will contained specific provisions directing that the real 
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property was to be administered as part of Deceased‟s estate subject to the control of the 

personal representative. As such, we reverse that portion of the Trial Court‟s judgment 

holding that the Cherokee Lots vested in John Schubert immediately upon Deceased‟s 

death.

Conclusion

The judgment of the Trial Court that it was Deceased‟s intent that the real property 

description in the second paragraph of Article IV of the Will refer to the Cherokee Lots is 

affirmed. The judgment of the Trial Court holding that the Cherokee Lots vested in John 

Schubert immediately upon Deceased‟s death is reversed. This cause is remanded to the 

Trial Court for collection of the costs below. The costs on appeal are assessed one-half 

against the appellant, John Clinton Schubert, and his surety; and one-half against the 

appellee, Morgan Alexander Schubert, Jr.

_________________________________ 

D. MICHAEL SWINEY, JUDGE
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