IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 4, 2021

IN RE ESTATE OF HATTIE FAYE BAKER

Appeal from the Chancery Court for McNairy County 

No. P-1252 Don R. Ash, Senior Judge

No. W2020-00460-COA-R3-CV

The petitioner claims an interest in the estate of the second wife of her uncle, who was 

originally married to the petitioner’s aunt. Because the property at issue was held by the 

petitioner’s aunt and uncle as a tenancy by the entireties, the uncle owned the property in 

fee simple upon the aunt’s death. We conclude that the petitioner’s claim is without merit, 

and we affirm the decision of the trial court.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and THOMAS R. FRIERSON, II, J., joined. 

Mary Kay Mutters-Edelman, Benton, Arkansas, pro se.

Terry Abernathy, Selmer, Tennessee, for the appellees, Timothy E. Baker, Peggy Jo 

Berryman, and Kathy Ann Berryman.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Brooks Derryberry inherited from his father a large piece of property in McNairy 

County consisting of an old family homestead and farmland (“the Farm”). Mr. Derryberry 

married Rubye1 Blackwood in May 1936. On December 7, 1967, Mr. Derryberry executed 

a deed (“1967 deed”) stating his intention “to create a tenancy by the entireties in and to 

the entire interest” in the Farm with Rubye. Rubye died in November 1970 having never 

had any children. 

 

1 Also referred to as “Ruby” in some places.

04/06/2021
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In 1983, Mr. Derryberry married Hattie Faye Baker. Mr. Derryberry died in 

November 1997 having no children. No will was found following Mr. Derryberry’s death, 

thus leaving Ms. Baker as his sole heir under the laws of intestate succession. Ms. Baker 

died in 2015. By the terms of her will, Ms. Baker’s property was devised in equal shares 

to her three children, Peggy Jo Berryman, Kathy Ann Berryman, and Timothy Baker (“the 

Baker heirs”). In March 2015, an executor’s deed was recorded by the executor of Ms. 

Baker’s estate granting the Farm to the Baker heirs, who subsequently quit claimed their 

interests in the Farm to other members of their family.

On October 7, 2019, Mary Kay Mutters-Edelman (“Petitioner”), Rubye 

Derryberry’s niece, filed this lawsuit against Ms. Baker’s estate and the Baker heirs

(collectively, “the Estate”). Petitioner claimed to be “Heir to the Derryberry Estate” and 

requested that the trial court set aside the executor’s deed and the Baker heirs’ quit claim 

deeds and enter an order ejecting the Berryman family members from the Farm. In 

addition to the 1967 deed, the petition referenced a will executed by Mr. Derryberry on 

January 4, 1963, in which he gave and devised to Rubye all of his real and personal 

property, including “all my interest in my father’s estate.” This will was never probated.

 

The Estate filed a motion to dismiss, asserting that the petition did not entitle 

Petitioner to any relief and citing, in part, Tenn. Code Ann. § 32-3-105(a), the anti-lapse 

statute. After a hearing in February 2020, the trial court entered an order granting the 

Estate’s motion to dismiss. On appeal, Petitioner argues that the trial court erred in granting 

the Estate’s motion to dismiss and in failing to address allegations of fraud.

ANALYSIS

We begin by noting that Petitioner represented herself at trial and is representing 

herself on appeal. As a pro se litigant with no legal training, Petitioner is “entitled to fair 

and equal treatment by the courts.” Young v. Barrow, 130 S.W.3d 59, 62 (Tenn. Ct. App. 

2003) (citing Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000); 

Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997)). 

The following principles apply to pro se litigants:

The courts should take into account that many pro se litigants have no legal 

training and little familiarity with the judicial system. However, the courts 

must also be mindful of the boundary between fairness to a pro se litigant 

and unfairness to the pro se litigant’s adversary. Thus, the courts must not 

excuse pro se litigants from complying with the same substantive and 

procedural rules that represented parties are expected to observe.

Young, 130 S.W.3d at 62-63 (citations omitted); see also Hessmer v. Hessmer, 138 S.W.3d 

901, 903 (Tenn. Ct App. 2003). We grant pro se litigants “a certain amount of leeway” in 

the preparation of their appellate briefs. Hessmer, 138 S.W.3d at 903 (citing Whitaker, 32 
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S.W.3d at 227; Paehler, 971 S.W.2d at 397). This means that courts “measure the papers 

prepared by pro se litigants using standards that are less stringent than those applied to 

papers prepared by lawyers.” Id. at 903-04 (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); 

Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975); Winchester v. Little, 996 S.W.2d 818, 

824 (Tenn. Ct. App. 1998)).

I. Procedural issues.

Petitioner’s first argument is that the trial court erred in granting the Estate’s motion 

to dismiss because the motion was “procedurally flawed.” More specifically, Petitioner 

asserts that the Estate did not address the allegations in her complaint and “did not assert 

that the allegations in the Motion to Set Aside the Executor’s Deed failed to establish a 

cause of action . . . .” We respectfully disagree.

In its motion to dismiss, the Estate argued that “all of the claims and demands and 

allegations or opinions of fact or law as raised in the pleadings . . . should be summarily 

dismissed as a matter of law.” Thus, the Estate essentially asserted that the allegations in 

Petitioner’s complaint failed to state a claim upon which relief can be granted. See TENN.

R. CIV. P. 12.02(6). 

The grant or denial of a motion to dismiss involves a question of law, which we 

review de novo, without any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 

S.W.3d 889, 895 (Tenn. 2011). A party who files a motion pursuant to Tenn. R. Civ. P. 

12.02(6) asserts that the plaintiff has failed to state a claim upon which relief can be 

granted. The motion “challenges only the legal sufficiency of the complaint, not the 

strength of the plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for 

Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011); see also Willis v. Tenn. Dep’t of Corr., 

113 S.W.3d 706, 710 (Tenn. 2003). A Rule 12.02(6) motion is resolved by examining the 

pleadings alone; if the plaintiff can prove any set of facts in support of the claim(s) asserted, 

the motion should be denied. Webb, 346 S.W.3d at 426. The moving party “‘admits the 

truth of all the relevant and material allegations contained in the complaint, but . . . asserts 

that the allegations fail to establish a cause of action.’” Phillips v. Montgomery Cnty., 442 

S.W.3d 233, 237 (Tenn. 2014) (quoting Webb, 346 S.W.3d at 426) (further citations 

omitted). When ruling on Rule 12.02(6) motions, courts are to “‘construe the complaint 

liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of 

all reasonable inferences.’” Id. (quoting Webb, 346 S.W.3d at 426) (further citations 

omitted).

Although a trial court must liberally consider and construe all factual assertions in 

ruling upon a motion to dismiss, this rule does not extend to conclusory allegations. See 

Polite v. Metro. Dev. & Hous. Agency, No. M2007-02472-COA-R3-CV, 2008 WL 

3982915, at *3 (Tenn. Ct. App. Aug. 26, 2008) (finding that the plaintiff “failed to state 

‘factual’ allegations, as distinguished from ‘conclusory’ allegations,” that would entitle her 
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to relief). In the present case, Petitioner’s requests for relief were based upon her 

interpretation of the 1967 deed and Mr. Derryberry’s unprobated will. The proper 

construction of a deed or a will is a question of law, a matter we review de novo with no 

presumption of correctness. KT Grp., LLC v. Lowe, 578 S.W.3d 1, 4 (Tenn. Ct. App. 2018); 

In re Estate of Christian, No. E2015-02276-COA-R3-CV, 2017 WL 729753, at *2 (Tenn. 

Ct. App. Feb. 24, 2017) (citing McBride v. Sumrow, 181 S.W.3d 666, 669 (Tenn. Ct. App. 

2005)). The trial court here considered the facts alleged in the complaint and construed 

Mr. Derryberry’s (unprobated) will and the 1967 deed in the context of those facts. As 

discussed in full below, we have concluded that the trial court properly granted the Estate’s 

motion to dismiss under the applicable law. 

Petitioner also raises the argument that the Estate “failed to file a responsive 

pleading” to her petition and that the allegations in the petition should therefore be “deemed 

admitted in accordance with Tenn. R. Civ. P. 8.04.” However, Petitioner misconstrues the 

applicable law. Tennessee Rule of Civil Procedure 12.01 addresses the timeliness of 

pleadings and provides, in pertinent part: “The service of a motion permitted under this 

rule alters these periods of time . . . .” Rule 12.02 describes motions permitted under Rule 

12, including a motion for “failure to state a claim upon which relief can be granted.” 

TENN. R. CIV. P. 12.02(6). The rule further requires that “[a] motion making any of these 

defenses shall be made before pleading if a further pleading is permitted.” TENN. R. CIV.

P. 12.02(6). If the motion to dismiss had been denied by the trial court, the Estate would 

have had “15 days after notice of the court’s action” within which to file a responsive 

pleading. See TENN. R. CIV. P. 12.01.

We find no merit in Petitioner’s arguments concerning Tenn. R. Civ. P. 12.02(6).

II. Construction of 1967 deed.

Petitioner argues that the trial court erred in interpreting the 1967 deed as conveying 

a tenancy by the entireties. According to Petitioner’s reasoning, the deed created an “estate 

by the entireties” and entitles Petitioner to relief. For the reasons set forth below, this 

argument fails.

The primary concern of a court when interpreting a deed is “ascertaining the 

intention of the grantor.” Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 466 (Tenn. 

2012). We “ascertain the grantor’s intent from the words of the deed as a whole and from 

the surrounding circumstances.” Id; see also Neeley v. Neeley, No. M2008-01575-COAR3-CV, 2009 WL 1076740, at *3 (Tenn. Ct. App. Apr. 21, 2009) (citing Barber v. 

Westmoreland, 601 S.W.2d 712, 714 (Tenn. Ct. App. 1980)). 

In making her argument concerning the deed, Petitioner focuses upon the following 

provision appearing at the end of the instrument:
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To Have and to Hold the same to the said Ruby Derryberry and her heirs 

forever I covenant with the said Ruby Derryberry that I am lawfully seized 

of said land, and have a good right to convey the same, and that it is 

unencumbered in any way; and I bind myself and heirs to warrant and forever 

defend the title of the same to the said Ruby Derryberry and her heirs forever, 

against the lawful claims of all persons.

She asserts that this clause “clearly indicates that Rubye Derryberry’s heirs were to receive 

the Derryberry Farm upon the death of Brooks Derryberry.” As stated above, a deed must 

be interpreted as a whole with consideration of all of its provisions. The beginning of the 

deed sets forth the grantor’s intention in plain language: “to create a tenancy by the 

entireties.” We agree with the trial court’s reasoning that the deed’s final paragraph, relied 

upon by the Petitioner, “does not name a contradictory interest and is entirely consistent 

with the creation of a tenancy by the entirety where Brooks predeceases Rubye.” See 

Bennett v. Langham, 383 S.W.2d 16, 19 (Tenn. 1964) (“It should not be assumed that the 

grantor intended to contradict himself and the court should lean to a construction which 

avoids such a contradiction.”).

 

Petitioner alleges facts surrounding the execution of the 1967 deed to suggest that 

Mr. Derryberry’s intent was different than that expressed by the language of the deed. 

Petitioner acknowledges that, when Rubye died, Mr. Derryberry was the surviving tenant 

by the entirety with “fee simple ownership” of the Farm. Petitioner goes on to state, 

however, that “upon the death of Brooks Derryberry, the ownership of the Derryberry Farm 

reverted to the remaindermen in the 1967 Warranty Deed, Rubye’s heirs.” Petitioner’s 

reasoning here conflicts with the nature of the estate created by the 1967 deed, a tenancy 

by the entireties. 

 

The two defining characteristics of a tenancy by the entirety are (1) the right of 

survivorship and (2) inalienability.

2 See In re Estate of Fletcher, 538 S.W.3d 444, 448 

(Tenn. 2017); Robinson v. Trousdale Cnty., 516 S.W.2d 626, 632 (Tenn. 1974). Pursuant 

to the right of survivorship, if one tenant dies, the other owns the entire property in fee 

simple. In re Fletcher, 538 S.W.3d at 448; see also In re Garretson, 6 B.R. 127, 130 

(Bankr. E.D. Tenn. 1980). Contrary to the apparent assumption underlying some of 

Petitioner’s arguments, Mr. Derryberry did not hold a life estate upon Rubye’s death. 

 

2 Tennessee Code Annotated section 66-1-109 describes how a tenancy by the entireties can be created:

Any married person owning property or any interest therein in such person’s own name, 

desiring to convert such person’s interest in such property into an estate by the entireties 

with such person’s spouse, may do so by direct conveyance to such spouse by an instrument 

of conveyance which shall provide that it is the grantor’s intention by such instrument to 

create an estate by the entireties in and to the entire interest in the property previously held 

by the grantor.
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Rather, in accordance with the law pertaining to a tenancy by the entireties, he held the 

Farm in fee simple. In Quarles v. Arthur, 231 S.W.2d 589, 590 (Tenn. Ct. App. 1950), 

cited by Petitioner, the deed conveyed real property to “S. E. Quarles to her [for] her life

time then to her heirs of her body.” Rejecting the argument that language in the habendum 

clause showed an intent to convey a fee simple estate, the court held that the deed conveyed 

a life estate. Quarles, 231 S.W.2d at 591. Thus, Quarles did not involve a tenancy by the 

entireties and does not support Petitioner’s position.3

Petitioner cites the proposition set forth in Richards v. Taylor, 926 S.W.2d 569, 571 

(Tenn. Ct. App. 1996), that a deed should be interpreted “by an objective standard, i.e., 

what a reasonable onlooker would conclude the parties intended from the words expressed 

in the instrument.” We agree and conclude that the reasonable interpretation of the 

language used in the 1967 deed is that the instrument conveyed a tenancy by the entirety, 

thereby depriving Petitioner of any interest in the Farm.

 

III. Fraud.

Petitioner’s final argument is that the trial court “erred in failing to consider and 

make findings on the issues of fraud by the Berrymans that caused the theft of the 

Derryberry Farm from the Remaindermen on the 1967 deed.”

Petitioner’s Motion to Set Aside Executor’s Deed (her petition for purposes of the 

present case) contains the following pertinent allegations:

10. That Rubye Blackwood Derryberry, her parents James T. Blackwood, 

his wife Mary Emma Cypert Blackwood were life long residents of McNairy 

County, Tennessee, as were, and are many Blackwood and Derryberry family 

members. Had proper Notice been given that the probate proceedings in the 

instant case involved the Derryberry family home and real property, some of 

the Blackwood or Derryberry family members in the area would have 

contacted [Petitioner] and other heirs, and made them aware that their old 

family home and real property were at risk of being stolen.

. . . .

12. . . . The Deed [executed in November 1967 in which Brooks Derryberry’s 

sister, Jewel Moore, sold her interest in one parcel now constituting the Farm 

to Brooks and Rubye] is not relevant at all in the instant case, as the Executrix 

led this Court to believe. Rather, [the 1967 deed] is the Deed . . . that is 

relevant in determining the lawful owner of [the Farm]. This Deed was 

concealed from the Court in the instant Probate proceedings.

 

3 Because Mr. Derryberry did not hold a life estate, Petitioner’s reliance on Tenn. Code Ann. § 66-1-106

is likewise misplaced. 
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. . . .

16. Upon information and belief these Quit Claim deeds [by which the Baker 

heirs conveyed their interests in the Farm to other family members] were a 

means to further conceal the illicit activities involved in the instant case in 

connection with the theft of the Derryberry heirs’ real property and family 

log home . . . .

17. That as a result of the fraudulent deeding of the Derryberry’s family log 

home and real property by the Executrix to herself and siblings in the instant 

case, and they took unlawful possession of the real property and the 

Derryberry home. The Derryberry family home and the real property have 

been irreparably damaged by the heirs in the instant case. . . . The heirs in the 

instant case have erected a fence and a locked gate preventing the Derryberry 

heirs from gaining access to their family home and real property.

Elsewhere in her brief, Petitioner acknowledges that Mr. Derryberry’s unprobated 

will “had no remainder clause and the anti-lapse statute is not applicable because Rubye 

Derryberry had no children.” She then bases her appellate arguments on the 1967 deed.

The assertions of fraud made in the petition are irrelevant because the 1967 deed is the 

determinative document. Conclusory statements of fraud do not constitute factual 

allegations entitled to the presumption of truth. See Polite, 2008 WL 3982915, at *3. If we 

assume the truth of Petitioner’s underlying factual assertions, they do not change the 

outcome of the case. At Rubye’s death, Mr. Derryberry obtained fee simple ownership of 

the Farm and Petitioner and her family had no legal interest in the subsequent disposition 

of the property. 

The allegations of fraud and theft in the complaint stem from Petitioner’s erroneous 

view of the law and are without merit. 

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against

the appellant, Mary Kay Mutters-Edelman, and execution may issue if necessary.

_/s/ Andy D. Bennett_______________

 ANDY D. BENNETT, JUDGE