### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Septem ber 20, 200 2 Session
EDWARD HUTCHINSON, JAMES HUTCHINSON,

AND 

### LEIGH HUTCHINSON

V 

### . NANCY H. NEUMAN AND 

### JAMES L. DAY, JR.

Appeal from the Chancery Court for Fayette County No. 12284 Dewey C. Whitenton, Chancellor

No. W2001-02886-COA-R3-CV - Filed May 27, 2003

This is awill construction case. The husband devised a life estate in land to his wife, and at he r death, to his devisees. The husband devised other land in fee simple to his wife, and gave her the rest and residue of his estate. The husband died in 1954 and the wife die d in 1998. Th e remaindermen

under the husband’s will argued that cer tain real property

was included in the wife’s life estate and, thus, at her death, devolved to them. The benef iciaries of the wife’s will argued that the real property

in question was not includedin the life estate or mentioned in thehusband’ s will, andthus the land went to the wife in fee simple by operation of the residue clause in the husband’s will and should now devolve t o them. The trial court found that the husband intended to include the land in question in the life estate to the wife. Therefore, the land de volved to the husband’ s devisee s. The beneficiaries of the wife’s e state appeal. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

H OLLY K IRB Y L ILLARD , J., delivered the opinion of the court, in whi ch W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.

J. Pay son Matthews , Somerville, Tenness e e, and Ar thur E. Ne uman, Wash

ington, D C, for ap

pellants, Nancy H . Neuman and James L. Day , Jr.
Thomas M. Minor, Somerville, Tennessee, for appellees Edward H utchinson, James Hutchinson, and Leigh Hutchinson.
OPINION

In 1926, Bailey K . Morrison (“Decedent”) purcha sed from J. T. Green approximately 138
acres of land ( “J. T. Gre en trac t”), situa ted in Fa ye tte County , Tennes s ee. In 1945, the Decede nt1 The original complaint averr ed tha t the D efend ants were unwilli ng to consent to leasi ng their porti on of the

2,323 acres f

or farmi ng purposes. Because ri ghtf ul owners hip of ea ch parcel had not be en de termin ed, P laintiffs asser ted that Defendants’ refusal

to lease thei r land preve nted Plai nti ff s f rom le asi ng t heir

lan d. Therefore, Plaint iff s sought an inj unct ion ord ering D efend ants to le ase all of their land suitable f or farming. The Defenda nts deni ed th at t hey w ere n ot willing to lea se the lan d for fa rming

. -2- entered into a land-exchange agreement with George Green, a nd through this came to own approximately 25 acres o f land (“ Georg e Gree n tract” ). The J. T. Green tr act was a djacent to and immediate

ly south of the George Green tra ct. The tracts were

part of a larger parc el of land of over 2,323 acres owned by

the Decedent. In 1952, the Decedent executed a will tha t devised a life es tate to his wife, Allien Day

Morrison Nunn (“Wife”), in a number of parce ls of the total 2,323 acres of land. Under the Decedent’s will, at Wife’s death, the remainder would devolveto the Decedent’s sister and his nieces. One parcel included in the Wife’s life estate was “the Buck Gr een Farm composedof

approximately 125 acre s.” The Decedent’s will conta ined othe r devise s and beq

uests to Wife and to others. The re sidue of the Decedent’s estate was devised a nd bequeathed to Wife. The Decedent died in 1954. Wife died over forty years la ter, in 1998.
Thus, at the time of W ife’s death in 1998, the Decedent’s devisees, Edw ard Hutchinson, James Hutchinson and Leigh Hutc hinson (“Plaintiffs”), became the owners in fee simple of the real propert y in which Wife was granted a life estate. All real property devised by the Decedent to Wife in fee simple, or that passed to Wife thr

ough the residua l clause in the Dec edent’swill, were owned outright by Wife at her de at h. This real pr operty would pass pursua nt to Wife’s will to the beneficiaries under her will, Nancy H. Neuman and James L. Day , Jr. (“Defendants”).

In 1999, the Plaintiff-Appellees filed a lawsuit ag ainst the De fendan t-App ellan ts all eging, inter alia, that the parties were un able to specifically de signate ownership of every parcel of land within the 2,323 acre tr

act owned by

the Dec edent at

the time of

his death . The law suit originally sought injunctive relief to require the Defendants to lease their land. 1 Pursuant

to the complaint, a survey of the overal l trac t was c onduc ted. T he sur vey combi ned th e J. T . Green tract and th e George Greentract

and called it the “Buck Green Farm.” The Defendants then supplemented their answer to the co mplai nt, as serti ng that the su rveyors er red in combi ning t he t wo tracts. They argued that the 25 acre George G

reen tract was not

part of the life estate in

the “Bu ck Gree

n Farm”granted to Wife. The Def

endants a sked the t

rial courtto determine ownership of the 25 acre Geor ge Green tract.
A hearing was held on August 4, 2000. The primary issue to be tried was construction of the clause in the Decedent’s will devising a life estate to Wife in the “Buck Green farm composed of 125 acres.” It was undisputed that there was not a single parcel of land of 125 acres, and it was unclear who “Buck Green” was.
The Plaintiff

s called as a witne ss Keith Morris (“Morris”), a licensed rea l estate broker who hadworkedfor the Plaintiffs as anagent a nd a mana

ger of their pro perty . Morris w as famili ar with the Plaintiffs’ property. He noted that the Decedent, in his will, estimated the acreag e of a number of parcel s of land. M orris co mpared t he Decedent’s e stimated a creag e of seve

n of the pa

rcels to the2 Decedent devis ed to Wife th e foll owing propert ies wi th est

imated an d actual acreage:

Pro perty Decedent’s Estimated Acreage Actual Acreage Lipsky Farm 290 272.32 Melton Farm 150 103 .2 Mayo F arm 500 558.45 Lamar Clay Farm 350 385 .5 Stewart Farm 500 450 Heathcock Farm 150 127 J.E. Cowan Farm 12 11.5

-3- actual acreage of ea

ch parcel, and found

that the Decedent’s estimates were appr oximately 15% to 18% more or less than the actual acreage. 2 Morris noted that at least threeof the parcels in which Wife was devised a lifeestate were composed of more than one tra ct and one deed, and observed that when the 138 acre

J. T. Gree

n tract w as combined with the George Green tra

ct, the total acreage was 161.43. Morris had researched deeds a nd did not find a “Buck Green” on any deed. Mo

rris did not know a J. T. Green, a Georg e Gree n, or a B uck Gre en. At the hearing , the Plain

tiffs als o introduced into evid ence a 1 945 surve y c olor-co ded to show

the J. T. Gr

een and the Geor ge Green trac ts combined.
The Defend ants called Herb ert Walls ( “Walls”) to testify . At the time of the he aring, Walls was seventy- one yea

rs old, and had been a neighbor of the Decedent and his Wife for a number of ye ars. Walls said that he knew George Green, ha d heard of a

Buck Green but

did not know him, and hadnever known a J. T. Green. Walls testified that the J. T. Green property

was also known as the Buck Greenplace. He ind icate d that , after the De cedent acqui red th e George Green tract in 1945, he began farming the J. T. Green tract and the Geor ge Green tract tog ether as if they were one tract.
The Defendants also called William E. Dowdy (“Dowdy ”), aged sixty-seven, who worked for Wife on the farm from 1957 until 1970. Dowdy knew Ge orge G

reen and had nev er ref

erred t o him as Buck Green, although he ha d heard the name Buck Gree n. Dowdy had n o know ledge of anyone named J. T. G

reen. Co ntrary

to Walls’s te stimony , Dowdy said that the George Green tra ct was not being farmed

at the time

Dowdy beg an working for the Wife in the late 1950s, but rather that it was pasture.
The trial court ruled

orally that the

preponderance of the evidence indicated that it was the Decedent’s intent that Wife be devised a life e state in the 25 acre George Gr een tract as part of the Buck Gr een Farm , and t hat th e Deced ent di d not inten d for t he 25 a cre Geo rge Greentract to p ass to Wif e as part of the residuary e state. Hence, the trial court held that the 25 acre George Green tract, as well as the 138 acre J. T. Green tract, should pass to the Plaintiffs, the remaindermen under the Dec edent’swill.
The trial, however, did not end at that point. Approximately one month after the trial court’s rulin g, the Wife’s relatives discovered a schedule of property

that was appended to the Decedent’s-4-

estate tax return, filed after his death. The schedule ref lectedan explanation by the executor of the Decedent’s estate as to which parce ls of land Wife was devised a life estate and which she took in fee. The Def

endants m

oved to al

ter or a mend judgment or fo

r a new tr

ial b as ed on the n

ewly discovered

evide nce. Th e tria l cour t grant ed the moti on for new tr ial, s etti ng aside the ori ginal rulin g.
After

a hearing, the trial judge ruled that the document was inadmissible hearsay . The trial judge said that even if the document were not inadmissible hearsay, it would not alter his previous rulin g, since the document was prepared afte r the Decede

nt’s dea th by the execu tor of hisestate and didnot indicate the Decedent’s intent. Thus, the trial court ruled onc e aga

in that the propert y w ould go to the Plaintiffs, the Decedent’s devisees. Fr om this order, the Defendants now appeal. On appeal, the Defendants arg ue that the trial court

erred in determining that the Decedent intendedto include the George Green Farm within the devise of the Buck Green Farm. The Defend ants also argue that the trial co urt erred in ruling that the newly discovered evidence was inadmissible hearsay.
Since this case

was hea rd by the trial court sitt ing witho ut a jury, the trial court’ s findings of fact are reviewed

on the record with a presumption of correctness, unless the e vidence preponderates agains tthem. See Tenn. R. App. P. 13(d); Wright v. Cit y of Knoxv ille , 898 S.W.2d 177, 181 (Tenn. 1995). Questi ons of law , however, are reviewed de novo with no pre sumption of correctness. Burlew v. Burlew , 40 S.W.3d 465, 470 (Tenn. 2001) (citation omitted).
The Defend ants first assert that i t was n ot th e Deced ent’s inten t that the 25 acre Geo rge Greentract be included

in the dev

ise to Wife

of a life estate in the “Buck Green Far

m composed of approxima

tely 125 acres.” The Defendants assert that the will is not ambiguous, and that the Buck Green Farm i ncluded in the Decedent’s will refers only to the 138 acre J. T. Green tract. I n th e alternative, the Defendants contend that even if there is an ambiguity in the will, the language of the will is still clear enough to determine the Decedent’s intent without resorting to extrinsic evidence
or rules of construction. The Defendants argue that there is no proof in the record that the Decedent intendedto include the George Gre en trac t i n the devise of the Buck Green F arm. They note that
none of the witnesses associated George Green with Buc

k Green, and therefore, the re ference to the Buck Green Farm obviously refers to the J. T. Green tract alone.

In arguing that the decision of the trial cour t should be affirmed, the Plaintiffs rely on the color-coded

survey showing

the two tracts combined; the fact that other individual propert i es devised to Wife were comprised of more t han one deed; and the fact that after the Dec edent acquired the George Green tr

act, he began to farm the J. T. Green tract and the George Green tra ct together. To3 In Green , a port ion of t he tes tator ’s propert

y was devi sed to his brother, a portion to his s ister, and a por ti on was not speci fica lly devised. The Supreme Court of I owa aff irmed th e tri al cour t’s ruling. The trial court ha d held th at
one of the p arcels n ot spe cifically devised t o any devi see was pr operly g ranted t o the si ster becaus e th e la nd in quest ion
was farmed wi th l and that had been speci fica lly grant ed to the sister in the w ill. Green v. Gisl er , 48 N.W .2d at 869. The Green court cited to American Juris prudence in making its decis ion:

One of t he commone st proble ms ari sin g in connec ti on with devises of th e kind i n questi on is wh ether dist inct parcel s of

lan d owned by the tes tat or are to be incl uded in the pr ope rty passin g. T he ca ses in general supp ort the c onc lusion tha t if such pa rcels were used by the testat or [for farming purposes, or, at least] f or purposes incidental to t he ope ration o f a farm o r planta tion, or if the testator in hi s l if eti me custo marily regarded such parcels as a singl e unit, they wil l, i n the absence of any contrary intention, be regarded as passing [even though non-contiguous].

Id. at 868 (quoting 80 Am. Jur. W ills § 1245 ).

4 Th is Co urt has a lso stated that a laten t amb iguity is found where :
the equivoc ality of expression or o bscurity of intention does n ot arise from the words themselves, but from the ambiguous state of extrinsi c circumstances to whi ch the words of the ins trument refer, and which is suscep tible of

expl anat ion by the mere de velopme nt of ext raneou s f

acts , wi thou t al ter ing or adding t o the wri tten langua ge, or requiring more to be understood thereby than wil l fai rly comport with the o rdina ry or leg al sense of the wo rds an d ph rases m ade use of.

Ru ssell v. Ru ssell , 2002 T enn. App. LEX IS 584, at *21-22 (citing W eath erhe ad v . Sew ell , 28 Tenn. (9 Humph. ) 272, 295 (Te nn. 18 48) ). Co nverse ly, a paten t amb iguity “stem s from uncer tainty in the lan guag e of the w ill itsel f and is apparent on the face of the wil l. Itinv olves an ambi guous ter m tha t ca nnotbe cl ari fi ed by cons idering extran eou s facts.” Jacobsen v . Fl

athe , 199 7 T enn. A pp. L EX IS 63 5, at *7 ( citations omitted ).

-5- support the assertion that the tracts passed t o Wife together because they were farmed together , Plaintiffs cite an Iowa Supreme Court Case, Green v. Gisler , 48 N.W.2d 866 (Iowa 1951). 3

The purpose of a will construction suit is to ascertain and give eff ect to the inten t of th e testator. Russell v. R ussell , No. M2001-00926-COA-R3-CV, 2002 Tenn. App. LEXI S 584, at *6 (Tenn. Ct. App. Au g. 9, 200 2) (cita tions omitte d); see also Stickley v. Carmichael , 850 S.W.2d 127, 130 (Tenn. 1 992). I

t is a general

rule of will construction that the testator’s intent is to be determined by referring to the will itself without looking outside the four corners of

the document. Jacobsen
v. Flathe , No. 01A0 1-9511-C H-00510, 1997 Tenn . App. L EXIS 635, at *6

(Tenn. Ct

. App. Sept. 17, 1997). When a lat

ent ambig uity exists, howe

ver, extr insic evidence may

be considered. Stickley v. Thomas , 850 S.W.2d at 132, Russell v. R ussell , 2002 Tenn. App. LEXI S 584, at *21. A latent ambiguity a

rises
from an ambiguous state of e xternal circumst ances to which the

words of the will refer. It general ly invol ves a q uesti on of i denti fying a person or subject mentioned in t he will. It stems from an uncertain re ference in the document to things outside the will susce

ptible of explanation only by

the development

of facts elucidating what the testa tor was ta lking ab out.
Jacobsen v. Flathe , 1997 Tenn. App. LEXI S 635, at *7 n.2. (citations omitted). 4 Will construction is generally

a question of law. Russ ell v. Russell , 2002 Tenn. App. LEXI S 584, at *26. When-6-

extrinsic evidence is admitted, however, questions of fact enter into the equation. See id. a t *26- 27.Thus, the trial

court mus t make wit

ness credibility

determin ations. “ [T]rial j udg es, unlike appella te judges, have an

opportunity to observe the manne r and demeanor of the witness while they
are testifying,”and therefore, are better si tuated to evaluat e the witnesses. Mitchell v . Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998) (citi ng Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991)). Hence, determinations of credibility are

afforded great deference

on appeal. Id. (citations omitted).

In the case at bar, Decedent de vised “the Buck Green Far m composed of

approxima

tely 125 acres”to Wi fe for l ife. D eceden t did not o wn any prop erty trans ferred from Bu ck Gree n, alt hough he owned properties transferred from J.T Green and from George Gr een. Thus, a latent

ambiguity clearly existed, and the trial court properly admitted extrinsic evidence in order to determine the Decedent’s intent.
At the tria

l, there was no testimony indicating that “B uck” Green was either J. T. Green or George Green. There was a 1945 survey color-coding the J. T. Green and Geo rge Gr een tra cts together, and some testimony indicating that

the two tr

acts wer e farme d togeth

er. Consid

ering a ll of the evidence, and

giving appropriate defer

ence to the trial court’s determinations of cr ed ib il it y, we cannot say that the ev idence preponderates ag ainst the trial court’s holding that the Decedent intendedto d evi se t

o Wif e a life estate in b oth the J. T. Green tract and the

George Green tract, and that the p roperty would the

refore pass to the

Plaintiff s.
The Defendants also argue t hat the trial court erred in excluding the newly discovered evidence. We agree with the trial cou rt that, ev en if

th e d oc um en t w er e n ot in ad mi ss ib le he ar sa y, it reflects the understanding of the executor a nd not the intent of the Decedent, and theref ore woul d not affect the outcome of this case.
The decision of the trial cour t is affirmed. Costs are taxed to the appellants, Nancy H. N euman and James L. Day , Jr., and their surety, for whic h execution may issue, if nece ssar y
.

___________________________________ HOLL Y KIRBY L

IL LARD, JUDGE