In Re Estate of Eden

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FILED

IN THE MATTER OF: Nov. 15, 1995

ESTATE OF JIM EDEN, Deceased )

) Cecil Crowson,

GEORGIA BRADLEY, ) Jr.

Appellate Court Clerk

)

Plaintiff/Appellant, )

) Trousdale Chancery

) No. 295

VS. )

) Appeal No.

) 01-A-01-9501-CH-00005

BETTY LEWIS, )

AGNES HENDSLEY, and )

BERTIE CARVER, Executors, )

)

Defendants/Appellees. )

APPEAL FROM THE CHANCERY COURT FOR TROUSDALE COUNTY

AT HARTSVILLE, TENNESSEE

THE HONORABLE BOBBY CAPERS, JUDGE

For the Plaintiff/Appellant: For the Defendants/Appellees:

Thomas A. Travaglini A. Russell Brown

Madison, Tennessee Lafayette, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal arises from a dispute over a will in which a 93-year-old man left

his estate to three of his four surviving daughters. The daughter who was not

named in her father’s will challenged the validity of the will after her sisters

propounded it for probate in the Chancery Court for Trousdale County. The

chancery court transferred the case to the Circuit Court for Trousdale County

where a jury found in favor of the will. The daughter who contested the will has

appealed. We have determined that no reversible error was committed in the

circuit court proceeding and, therefore, affirm the circuit court’s judgment and

remand the case to the chancery court for further probate proceedings.

I.

Jim Eden was a lifelong resident of Trousdale County. He and his wife

lived in and around Hartsville and raised twelve children. Mr. Eden’s wife died

in 1981, and Mr. Eden outlived most of his children - seven of whom had died by

the mid-1980's. Mr. Eden lived alone after his wife’s death and was largely self-

sufficient. He took meals regularly with one of his daughters who lived next door

and sought assistance occasionally from two other daughters, one of whom lived

in Macon County and the other in Davidson County. He did his own banking,

conducted his other business, and was a well-known figure around Hartsville.

Mr. Eden had prepared several different wills over the years. In 1986 when

he was eighty-six years old, he requested a lawyer in Hartsville to prepare a will

that left his entire estate to Betty Eden Lewis, Agnes Hendsley, and Bertie Carver,

the three surviving children who had been of most assistance to him and his wife

over the years. On October 30, 1986, Mr. Eden executed a simple, one-page will

stating:

After the payment of all debts and legal

obligations of my estate, it is my wish that my

daughters, Betty Eden Lewis, Agnes Sykes, and Bertie

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Eden Carver, have and use for the remainder of their

lives all the property, personal, real and mixed, owned

by me at my death, with the power to sell, mortgage,

use or consume such property for their needs in their

sole and absolute discretion. This property shall be

divided equally between the parties mentioned above.

The will did not mention Mr. Eden’s only surviving son, Jay Eden, who lived in

Clay County and who was gravely ill or his oldest surviving daughter, Georgia

Bradley, who had been living in North Carolina since 1952.

Mr. Eden maintained cordial relations with all his children during the last

years of his life. His only surviving son died in 1988. He also saw less of Ms.

Bradley than his other daughters because she lived over five hundred miles away,

but Ms. Bradley talked with him by telephone and visited him periodically. Mr.

Eden finally gave up driving his automobile following an automobile accident in

the mid-1980's. His family began to notice a deterioration in his mental acuity by

the summer of 1989. He was hospitalized in September 1989 and was later placed

in a nursing home in Lebanon. He died on May 8, 1992, at the age of ninety-three.

He left behind an estate worth approximately $150,000, including $130,500 in

cash.

Mr. Eden was survived by four daughters. Mses. Lewis, Hendsley, and

Carver filed a petition in the Chancery Court for Trousdale County to probate their

father’s will. Ms. Bradley contested the will on the grounds that her father lacked

testamentary capacity and that he “unintentionally forgot to include her in the

distribution.” The chancery court transferred the case to the Circuit Court for

Trousdale County for a jury trial in accordance with Tenn. Code Ann. §§ 32-4-

101.1 Following a trial in June 1994, a jury upheld the validity of Mr. Eden’s will,

and on August 8, 1994, the circuit court entered a judgment, stating that Mr. Eden

was “of sound mind and disposing memory at the time he executed his will on

1

The transfer to circuit court was unnecessary since Tenn. Code Ann. § 32-4-109 (Supp.

1995) gave the chancery court concurrent jurisdiction with the circuit court to conduct the

devisavit vel non proceeding. Neither party has taken issue with the decision to transfer the case,

and it did not materially affect the outcome of the proceeding.

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October 30, 1986” and remanding the case to the chancery court to complete the

probate proceedings.

II.

CONTEST DISTINGUISHED FROM CONSTRUCTION

Will contests differ from will constructions. The two types of proceedings

have different purposes and, accordingly, different rules of evidence and

procedure. Will contests involve factual questions which are submitted to a jury,

while will constructions involve matters of law for the court. It is thus important

for trial courts to determine initially whether a particular controversy involves

issues of contest or construction or both.

A will contest is a proceeding brought for the purpose of having a will

declared void because the testator lacked the requisite mental capacity to make a

will or because the will was procured by undue influence or fraud. Stacks v.

Saunders, 812 S.W.2d 587, 590-91 (Tenn. Ct. App. 1990); Muse v. Sluder, 600

S.W.2d 237, 240 (Tenn. Ct. App. 1980). It is an in rem proceeding, Lillard v.

Tolliver, 154 Tenn. 304, 323, 285 S.W. 576, 581-82 (1926); Rogers v. Russell, 733

S.W.2d 79, 84 (Tenn. Ct. App. 1986), that is intended to test only the external

validity of the will. Stacks v. Saunders, 812 S.W.2d at 590; Rogers v. Russell, 733

S.W.2d at 84. All persons claiming an interest in a will may become parties to the

proceeding, and the decision in a will contest is conclusive upon all the world.

Petty v. Call, 599 S.W.2d 791, 793 (Tenn. 1980).

The purpose of a suit to construe a will is to ascertain and give effect to the

testator’s intention. Williams v. Estate of Williams, 865 S.W.2d 3, 5 (Tenn. 1993);

Warrick v. Wright, 884 S.W.2d 126, 128 (Tenn. Ct. App. 1994); Presley v. Hanks,

782 S.W.2d 482, 487 (Tenn. Ct. App. 1989). Construction suits recognize the

testator’s right to direct the disposition of his or her property and thus, limit a

court to ascertaining and enforcing the testator’s directions. Daugherty v.

Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990).

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Trial courts should decide contest and construction issues separately when

they are presented in the same case. The better procedure is to first submit the

contest to a jury who will decide the factual issues affecting the validity of the

will. If the jury decides against the will, then the case is at an end, and the trial

court should enter judgment accordingly. If the jury decides in favor of the will,

then the trial court itself should decide the issues of construction since they are

questions of law. Presley v. Hanks, 782 S.W.2d at 487.

In this case, Ms. Bradley challenged her father’s will on the basis of his

mental capacity to make a will and on his failure to name her specifically in the

will. Accordingly, her suit presented both questions of contest and of

construction. The issue of Mr. Eden’s testamentary capacity presents a basic issue

of contest. The next issue, however, presents an issue of construction insofar as

Ms. Bradley asserts that the will is void as a matter of law for failing to disinherit

her expressly or by necessary implication. We will therefore review the jury

verdict on capacity first and then discuss the construction question.

III.

CONTEST OVER VALIDITY OF THE WILL

Ms. Bradley has raised several issues with regard to her will contest. She

asserts that the trial court should have excluded two witnesses’ testimony

regarding their conversations with Mr. Eden about his will. She also challenges

the denial of her requested jury instructions. Finally, she asserts that there was no

material evidence to support the jury’s verdict. We will address each of these

issues in turn after describing the basic procedure to be followed on a will contest.

A.

PROCEDURE ON A WILL CONTEST

The question presented in a will contest proceeding is whether the paper

offered for probate is or is not the testator’s valid will. Green v. Higdon, 891

S.W.2d 220, 222 (Tenn. Ct. App. 1994); Carver v. Anthony, 35 Tenn. App. 306,

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312-13, 245 S.W.2d 422, 425 (1951). The proceeding originated in the chancery

practice of sending the case to a court of law to try the question of the validity of

the will. Green v. Higdon, 891 S.W.2d at 222. The form of action is sui generis

and regulated entirely by statute. Jones v. Witherspoon, 182 Tenn. 498, 503-04,

187 S.W.2d 788, 790 (1945); Arnett v. Weeks, 27 Tenn. (8 Hum.) 547, 549 (1847);

Cude v. Culberson, 30 Tenn. App. 628, 637, 209 S.W.2d 506, 511 (1947).

When a contest is presented, the probate court should certify the will and

contest to the circuit court for trial, Tenn. Code Ann. § 32-4-101; Green v.

Higdon, 870 S.W.2d 513, 520 (Tenn. Ct. App. 1993), unless the contestant elects

to have the contest tried in the probate court pursuant to Tenn. Code Ann. § 32-4-

109. Once the contest has been set for trial, Tenn. Code Ann. § 32-4-104 (1989)

requires the parties to formulate the issues to be tried “under the direction of the

court.” The general issue in a contest proceeding is “Did he make a will or not.”

Green v. Higdon, 891 S.W.2d at 222.

The proponents of the will have the initial burden of proving that the will

was duly executed. See In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn. 1987).

This may be accomplished using the testimony of living witnesses and by showing

that the will complies with all formalities of law. See In re Estate of King, 760

S.W.2d 208, 210 (Tenn. 1988). Proof of due execution makes out a prima facie

case of the will’s validity because it gives rise to a presumption that the testator

was capable of making a will. Curry v. Bridges, 45 Tenn. App. 395, 407, 325

S.W.2d 87, 92 (1959); Needham v. Doyle, 39 Tenn. App. 597, 622, 286 S.W.2d

601, 612 (1955). Accordingly, the burden of proof then shifts to the contestant to

prove the will is invalid for some reason. Green v. Higdon, 870 S.W.2d at 520;

Taliaferro v. Green, 622 S.W.2d 829, 835 (Tenn. Ct. App. 1981).

In this case, the will was introduced by Ms. Bradley, the contestant, who

proceeded to present her witnesses first. Once Ms. Bradley finished her case-in-

chief, the will’s proponents presented their case-in-chief, including the proof

establishing the due execution of the will. While this order of proof may have

been somewhat unorthodox, we do not find it to be reversible error because it did

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not affect the outcome of the proceeding and because Ms. Bradley has not asserted

that the will was not duly executed in accordance with the required legal

formalities.

B.

ADMISSIBLE EVIDENCE IN CONTEST PROCEEDINGS

Ms. Bradley objected to the testimony of Ms. Carver and Mr. Eddie Taylor

about conversations between each of these individuals and Mr. Eden. The

substance of these conversations pertained to Mr. Eden’s reasons for devising his

estate in the manner in which he did.

Ms. Bradley asserts that Ms. Carver’s testimony was inadmissible under

Tenn. Code Ann. § 24-1-203 (1980), the so-called “dead man’s statute.”2 The

question of whether the “dead man’s statute” bars admission of testimony as to

transactions with or statements by the testator in a will contest proceeding was

answered in the negative over a century ago. The Tennessee Supreme Court held

that devisees, legatees, heirs, and distributees, are competent witnesses to prove

the declarations or statements of the testator in a will contest proceeding. Beadles

v. Alexander, 68 Tenn. 604, 607 (1877); see also Davis v. Davis, 74 Tenn. 543,

544 (1880); Orr v. Cox, 71 Tenn. 617, 619 (1879); Patterson v. Mitchell, 9 Tenn.

App. 662, 665 (1929).

For the dead man’s statute to apply, the proceeding must be by or against

the executor in her capacity as such. Newark Ins. Co. v. Seyfert, 54 Tenn. App.

459, 479, 392 S.W.2d 336, 345-46 (1964). The statute, therefore, does not apply

to a will contest proceeding because it is a proceeding in rem, not an action “by

or against [an] executor as such." In re Estate of Rollins, Madison Law No. 3, slip

op. at 3, 14 T.A.M. 8-11 (Tenn. Ct. App. Jan. 12, 1989) (No Tenn. R. App. P. 11

2

Tenn. Code Ann. § 24-1-203 provides that “[i]In actions or proceedings by or against

executors, administrators, or guardians, in which judgments may be rendered for or against them,

neither party shall be allowed to testify against the other as to any transaction with or statement

by the testator, intestate, or ward, unless called to testify thereto by the opposite party.”

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application filed). Thus, the statute does not bar Ms. Carver’s testimony regarding

her father’s statements about his will.

Our inquiry cannot end with the finding that Ms. Carver was a competent

witness. We must still determine whether Mr. Eden’s statements themselves are

admissible. If they are, the trial court properly overruled Ms. Bradley’s objections

to the testimony of both Ms. Carver and Mr. Taylor.

Testimony regarding a testator’s oral declarations concerning his or her

intent is suspicious and cannot be received as an aid to construction of a will. See

Marshall v. Marshall, 25 Tenn. App. 309, 315, 156 S.W.2d 449, 453 (1941). This

is because such testimony can be easily falsified and because the testator is no

longer available to give his or her version of the matter. Bowerman v. Burris, 138

Tenn. 220, 222-23, 197 S.W. 490, 490 (1917).

A testator’s intent and motives are not at issue in a will contest proceeding.

A contest calls into question the testator’s mental capacity to execute a will and

accordingly requires the trier of fact to determine whether the testator knew the

natural objects of his or her bounty and comprehended the extent of his or her

property and the manner of its distribution. Goodall v. Crawford, 611 S.W.2d

602, 605-06 (Tenn. Ct. App. 1980); McCormack v. Riley, 576 S.W.2d 358, 360

(Tenn. Ct. App. 1978). It also requires the trier of fact to decide whether the

testator was capable of knowing and understanding the effects and consequences

of his or her actions. In re Estate of Elam, 738 S.W.2d at 171; American Trust &

Banking Co. v. Williams, 32 Tenn. App. 592, 602, 225 S.W.2d 79, 83 (1948).

The testator’s conversations and declarations, together with any particular

fact from which the condition of the testator’s mind at the time of making the will

may be inferred, are competent on the issue of testamentary capacity. Cude v.

Culberson, 30 Tenn. App. at 643-44, 209 S.W.2d at 514; Melody v. Hamblin, 21

Tenn. App. 687, 695, 115 S.W.2d 237, 242 (1937). Furthermore, proof of the

reason for making a particular disposition is relevant to show that the testator

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knew the force and consequences of his act. In re Estate of Elam, 738 S.W.2d at

172.

Thus a testator’s statements regarding his personal and family relations and

the pecuniary condition of his children are admissible in a will contest proceeding

to rebut a claim that the exclusion of a particular heir indicates a mental infirmity.

Kirkpatrick v. Jenkins, 96 Tenn. 85, 90, 33 S.W. 819, 821 (1896); see also In re

Estate of Parsley, 864 S.W.2d 36, 39 (Tenn. Ct. App. 1988). Although an

instruction to the jury limiting the use of such testimony to the question of mental

capacity would have been proper, we find no error in the trial court’s failure to

give such an instruction when none was requested.

We have reviewed the portions of Ms. Carver’s testimony objected to by

Ms. Bradley. They relate to Mr. Eden’s November 1986 statements regarding his

relationships with his living children and the financial situations of his daughter,

Georgia Bradley, and his son, Jay Eden. Although this testimony could not have

been considered in a will construction case, it was properly admitted in this will

contest proceeding for the purpose of demonstrating Mr. Eden’s mental capacity

around the time he executed his will.

We have also reviewed the portions of Mr. Taylor’s testimony to which Ms.

Bradley objected as inadmissible hearsay. Mr. Taylor was the attorney who

drafted Mr. Eden’s will, and his testimony concerned his conversations with Mr.

Eden regarding the manner in which the will was to be written. Mr. Taylor

testified that he asked Mr. Eden a series of questions to determine if he had the

requisite mental capacity to make a will. Mr. Taylor’s testimony regarding Mr.

Eden’s desires to leave his estate to Mses. Carver, Lewis, and Hendsley and to

leave Ms. Bradley out of his will was thus offered for the purpose of showing that

Mr. Eden knew the natural objects of his bounty, comprehended the manner of his

property distribution, and understood the consequences of his actions. Thus, this

testimony was properly admitted. See Hickey v. Beeler, 180 Tenn. 31, 38-39, 171

S.W.2d 277, 279-80 (1943); In re Estate of Elam, 738 S.W.2d at 172.

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C.

THE SPECIAL JURY INSTRUCTIONS

Ms. Bradley also takes issue with the jury instructions. She contends that

the trial court erred by refusing to give the two special instructions that she

requested. While we do not find the special requests to be incorrect as a matter

of law, we find that the trial court correctly informed the jury concerning the

contest issues they were called upon to decide.

Will contests are oftentimes surrounded by confusion and uncertainty.

Hager v. Hager, 13 Tenn. App. 23, 27 (1930). The only proper source of legal

principles to guide the jury’s deliberations is the trial court’s instructions. State

ex rel. Myers v. Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961). Even

though we give the trial courts leeway with regard to the substance of their

instructions, Mitchell v. Smith, 779 S.W.2d 384, 390 (Tenn. Ct. App. 1989);

Thomas v. Hamlin, 56 Tenn. App. 13, 37, 404 S.W.2d 569, 579-80 (1964), the

instructions must still be substantially accurate statements of the law applicable

to the issues the jury must decide. Street v. Calvert, 541 S.W.2d 576, 584 (Tenn.

1976).

Determining the proper scope and substance of jury instructions requires

considering the parties’ theories, the evidence in the record, and the law applicable

thereto. Solomon v. First Am. Nat'l Bank, 774 S.W.2d 935, 940 (Tenn. Ct. App.

1989). Instructions given should not be inconsistent or confusing, Betty v.

Metropolitan Gov’t, 835 S.W.2d 1, 10 (Tenn. Ct. App. 1992), and should fairly

define the legal issues involved. See Smith v. Parker, 213 Tenn. 147, 156, 373

S.W.2d 205, 209 (1963); Grissom v. Metropolitan Gov’t, 817 S.W.2d 679, 685

(Tenn. Ct. App. 1991). Instructions that correctly state the law but have no basis

in the facts of the case are improper. See Betty v. Metropolitan Gov’t, 835 S.W.2d

at 9; Langford v. Arnold, 707 S.W.2d 521, 523 (Tenn. Ct. App. 1985).

The specific instructions requested by Ms. Bradley concerned the proper

manner in which to disinherit an heir. The question of whether an heir has been

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disinherited, however, is a question of construction of the will, see McDonald v.

Ledford, 140 Tenn. 471, 477-78, 205 S.W. 312, 314 (1918), which is a question

of law for the court. Presley v. Hanks, 782 S.W.2d at 487. The jury in this case

was properly presented only with the issue of capacity to make a will and not with

any issues of will construction.

There is an additional reason for rejecting Ms. Bradley’s proposed

instructions. While a jury could decide that an unjust disposition reflects a lack

of testamentary capacity, Rolen v. Rolen, 62 Tenn. App. 164, 170-71, 460 S.W.2d

355, 358 (1970); American Trust & Banking Co. v. Williams, 32 Tenn. App. at

606-07, 225 S.W.2d at 85, such a disposition is only one circumstance to be

considered along with all the other evidence tending to reflect on the testator’s

mental capacity. Haley v. Ogilvie, 2 Tenn. App. 607, 614 (1926). The requested

instructions would have been misleading to the jury since they did not focus on

the relationship between Mr. Eden’s dispositions and his testamentary capacity.

D.

THE WEIGHT OF THE EVIDENCE

Ms. Bradley’s final argument regarding the will contest relates to the

evidentiary support for the jury’s verdict. The same standard of review applies to

jury verdicts in will contest proceedings that applies in other jury trials.

Accordingly, we will review the record to determine whether it contains any

material evidence to support the verdict of the jury. Tenn. R. App. P. 13(d); Scott

v. Atkins, 44 Tenn. App. 353, 374, 314 S.W.2d 52, 61-62 (1957).

The will’s proponents presented several witnesses who testified regarding

Mr. Eden’s mental state around the time of executing the will. These witnesses

included one of Mr. Eden’s daughters, the attorney who drafted the will, a

paralegal who witnessed the signing of the will, and a bank teller who assisted Mr.

Eden on several occasions regarding his lockbox and the renewal of his

certificates of deposit. Each of these witnesses testified to their personal

observations regarding Mr. Eden’s competency and his ability to manage his own

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affairs in 1986. Their testimony revealed a man who mowed his own lawn, as

well as his daughter’s and a neighbor’s lawns, tended his own garden, drove his

own car, and did his own banking.

In addition to these witnesses, the proponents presented the deposition

testimony of Dr. Jack W. Carey, Jr., who had been Mr. Eden’s family physician

since 1979. Dr. Carey testified that besides general symptoms of “old age,” Mr.

Eden had exhibited no mental problems before becoming ill in 1989. He

described the 1989 change in Mr. Eden’s behavior as seemingly due to a condition

of “sudden onset” such as a stroke.

Testators are not rendered incapable of making a will by mere physical

weakness or disease, old age, blunt perception, or failing mind and memory, as

long as their mind is sufficiently sound to enable them to know and understand

what they are doing. American Trust & Banking Co. v. Williams, 32 Tenn. App.

at 602, 225 S.W.2d at 83-84. The jury in this case had before it material evidence

to support its finding that Mr. Eden’s mind was sufficiently sound in 1986 to

enable him to know and understand what he was doing when he executed his will.

IV.

CONSTRUCTION OF THE WILL

The circuit court in this case had concurrent jurisdiction with the chancery

court to construe the will and should have done so after the jury found in favor of

the will in the contest proceeding. Even though the trial court did not construe the

will as it should have, we will decide the question here rather than remand the case

for further time-consuming and costly proceedings. Since construing a will

involves questions of law, Presley v. Hanks, 782 S.W.2d at 487, our review will

be de novo on the record without any presumption of correctness.

A.

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Ms. Bradley’s first argument is that a will that fails to name an heir is void

as a matter of law. In this regard, she argues that her father’s will should be

declared void for failing to even mention her as a surviving daughter. We

disagree.

The power to disinherit is part of the power of testamentary disposition.

Bradford v. Leake, 124 Tenn. 312, 322, 137 S.W. 96, 98 (1911); In re Estate of

Jackson, 793 S.W.2d 259, 261-62 (Tenn. Ct. App. 1990). In order to disinherit an

heir, a testator must prepare a will that disinherits the heir by express words or by

necessary implication. McDonald v. Ledford, 140 Tenn. at 477, 205 S.W. at 314.

The will must also dispose of all of the testator’s property because any property

not devised will pass to all heirs under the laws of descent. Bradford v. Leake,

124 Tenn. at 321-22, 137 S.W. at 98; Nichols v. Todd, 20 Tenn. App. 564, 571,

101 S.W.2d 486, 490 (1936).

A testator has absolute power to make any division of his or her property

regardless of how capricious or apparently unnatural such division may appear.

Burns v. Allen, 93 Tenn. 149, 152, 23 S.W. 111, 112 (1893); Bowerman v. Burris,

138 Tenn. at 223-24, 197 S.W. at 491. Accordingly a testator’s failure to provide

for a living child in his or her will is ordinarily equivalent to a disinheritance of

that child. Burns v. Allen, 93 Tenn. at 152, 23 S.W. at 112.

This general rule has been altered by statute for children born after the

execution of a will. Yet, even in these cases, a court may still find that the child

has been disinherited by unavoidable inference when the child is not mentioned

in the will and the testator leaves all his property to someone else. Reeves v.

Hager, 101 Tenn. 711, 716, 50 S.W. 760, 761 (1899). Thus, the Tennessee

Supreme Court has held that a testator effectively disinherits both his existing and

after-born children by executing a will leaving his entire estate to his widow

without reference to any of his children. Fleming v. Phoenix Trust Co., 162 Tenn.

511, 516, 39 S.W.2d 277, 278 (1931).

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Mr. Eden’s will on its face does not mention Ms. Bradley but passes his

entire estate to Mses. Lewis, Hendsley, and Carver. Based upon the foregoing

authorities permitting the disinheritance of a child without naming the child on the

face of the will, we decline to find that Mr. Eden’s will is void as a matter of law.3

B.

Ms. Bradley also asserts that even if Mr. Eden’s will is not void as a matter

of law for failing to disinherit her explicitly, it still must fail because of the lack

of competent evidence that Mr. Eden intended to disinherit her. Ms. Bradley’s

argument fails to recognize, however, that a testator’s intention must be gathered

from the face of the will itself. Fariss v. Bry-Block Co., 208 Tenn. 482, 487, 346

S.W.2d 705, 707 (1961); Bowerman v. Burris, 138 Tenn. at 225, 197 S.W. at 491.

Unless a will is suspicious on its face, this court must enter judgment according

to the intention expressed in the four corners of the will.

A will providing for an unequal division of property among a testator’s

children is not inherently suspicious. Although a parent’s natural affection for his

or her children might prompt an equal testamentary division among them, the

Tennessee Supreme Court has recognized that parents might favor one child over

another. See Bowerman v. Burris, 138 Tenn. at 223, 197 S.W. at 491. Therefore,

the fact that one or more children are disinherited without being mentioned in a

will does not provide a basis for attacking a will. Bowerman v. Burris, 138 Tenn.

at 223-24, 197 S.W. at 491; Reeves v. Hager, 101 Tenn. at 716-17, 50 S.W. at 761.

Extrinsic evidence cannot be used to vary the unambiguous terms of the will

as written. See Warrick v. Wright, 884 S.W.2d at 128. Mr. Eden’s will was not

suspicious on its face even though it failed to mention Ms. Bradley or her brother

3

The lawyer who prepared Mr. Eden’s will testified that he knew of no requirement that

a testator expressly disinherit an heir in his or her will. While this may be technically correct,

the better practice is to include language in the will demonstrating that the omission of an heir

was a deliberate part of the testamentary act. 3 Jack W. Robinson & Jeff Mobley, Pritchard on

the Law of Wills and Administration of Estates § 1016 (5th ed. 1994).

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who was living when the will was written. By leaving his entire estate to Mses.

Lewis, Hendsley, and Carver, Mr. Eden disinherited Ms. Bradley, her brother, and

any other heirs by necessary implication.

V.

We affirm the jury verdict in favor of Mr. Eden’s will. We also conclude

that the will is not void because it failed to specifically mention Ms. Bradley and

that the will effectively disinherits Ms. Bradley by unavoidable inference. In

addition, we remand the case to the Chancery Court for Trousdale County for

further proceedings and tax the costs of this appeal to Georgia Bradley for which

execution, if necessary, may issue.

__________________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

SAMUEL L. LEWIS, JUDGE

__________________________________

BEN H. CANTRELL, JUDGE