In Re Carl Edwin Osborne, Jr. Living Trust -Concur in Part/Dissent in Part

05/28/2026

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 2, 2025 Session

IN RE CARL EDWIN OSBORNE, JR. LIVING TRUST

Appeal from the Probate Court for Shelby County

No. PR027086 Kathleen N. Gomes, Judge

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No. W2024-01768-COA-R3-CV

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JEFFREY USMAN, J., concurring in part and dissenting in part.

The majority opinion offers a thoughtful examination of the issues before this court.

I agree fully with the majority that the failure to make an offer of proof results in the waiver

of Wife’s challenge to exclusion of the testimony of Anthony Bradley, the drafter of the

trust. Nevertheless, because I do not understand the trust to operate in the same manner as

my colleagues, I respectfully dissent.

Our primary objective in construing a trust is to determine the settlor’s intent.

Williams v. Hardison, 704 S.W.3d 807, 816-17 (Tenn. Ct. App. 2024) (citing Harvey ex

rel. Gladden v. Cumberland Tr. & Inv. Co., 532 S.W.3d 243, 261 (Tenn. 2017)); Marks v.

S. Tr. Co., 310 S.W.2d 435, 438 (1958). We determine the settlor’s intent by construing

the language used throughout the trust document “in much the same way we interpret

contracts or wills.” Harvey ex rel. Gladden, 532 S.W.3d at 261 (citing Marks, 310 S.W.2d

at 437-38). Accordingly, we must consider the entire trust document and presume every

word used has some meaning. In re Est. of Kowalski, 574 S.W.3d 872, 877 (Tenn. Ct.

App. 2018) (citing In re Est. of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App. 2005)); Brown

v. Brown, No. W2009-02264-COA-R3-CV, 2011 WL 441266, at *2 (“The entire written

agreement must be considered in order to ascertain the parties’ intent.”). We ascertain the

settlor’s intention “based upon the usual, natural, and ordinary meaning” of the words used.

Brock v. Brock, 661 S.W.3d 133, 138 (Tenn. Ct. App. 2022) (quoting Quebecor Printing

Corp. v. L & B Mfg. Co., 209 S.W.3d 565, 578 (Tenn. Ct. App. 2006)); Brown, 2011 WL

441266, at *2 (stating that a trust document “must be interpreted according to its plain

terms as written”); Williams, 704 S.W.3d at 816 (explaining that determining the settlor’s

intent “may be easily done by looking to the four corners of the trust instrument” (quoting

Brock, 661 S.W.3d at 138)).

We must be careful to determine the settlor’s intention “from what he has written

and not from what it is supposed he intended.” See Briggs v. Est. of Briggs, 950 S.W.2d

710, 712 (Tenn. Ct. App. 1997); In re Est. of Link, 542 S.W.3d 438, 469 (Tenn. Ct. App.

2017) (“[T]estamentary intent must be determined ‘from what the testator has written and

not from what it is supposed he intended.’” (quoting In re Est. of Blackburn, 253 S.W.3d

603, 615 (Tenn. Ct. App. 2007))). Just as “[i]t is not the role of this Court ‘to make a

different contract than that executed by the parties,’” it is not this Court’s role to make a

different trust than that executed by the settlor. Brock, 661 S.W.3d at 138 (citations

omitted); see Andrews v. Andrews, 51 Tenn. 4, 11 (1871) (“Our duty is ended when we

ascertain what the testator’s will, as written, is; what he has omitted to provide for by

oversight or through ignorance, we have no power to supply.”).

Our “interpretation should be one that gives reasonable meaning to all of the

provisions of the agreement, without rendering portions of it neutralized or without effect.”

Brown, 2011 WL 441266, at *2 (quoting Graber v. Graber, No. W2003-01180-COA-R3-

CV, 2003 WL 23099689, at *3 (Tenn. Ct. App. Dec.31, 2003)). We should strive to “give

effect to every word or clause . . . when possible.” In re Est. of Owen, No. W2009-01531-

COA-R3-CV, 2010 WL 1172078, at *3 (Tenn. Ct. App. Mar. 29, 2010) (citing Bell v.

Shannon, 367 S.W.2d 761, 766 (1963)); see Brown, 2011 WL 441266, at *2. We “should

reject no word or clause that can be reasonably reconciled with the remainder” of the trust.

See In re Est. of Owen, 2010 WL 1172078, at *3 (citing Bell, 367 S.W.2d at 766).

The majority suggests that its understanding of the operation of the trust is in

tension, but not conflict, with a single provision of the trust. Specifically, the first two

sentences of Article Seven of the trust state: “If my wife survives me, my Trustee shall

hold and administer the remaining trust property in a separate trust as provided in this

Article. The trust will be referred to as the Marital Trust.”

In my view, this is not the only trust provision in tension with the majority’s

understanding of how this trust operates. At a critical foundational level, both the trial

court’s and the majority’s readings of the instrument problematically render Article Seven

and the Marital Trust that it creates an empty box. Under their respective readings of the

trust, neither the trial court nor the majority have been able to identify anything that actually

is in the Marital Trust.

Furthermore, while the same practical consequences follow from both the trial

court’s and the majority’s understandings of the operation of the trust, there is a

discordance between how the trial court and majority empty the Marital Trust. Addressing

the Marital Trust, the trial court observed that Wife “is the Trustee of [the] Osborne Trust,

and life beneficiary of the Trust. Separately, she is the beneficiary of the Marital Trust,

which includes all remaining property not in the Osborne Trust.” The trial court reiterated

this point in ruling that Wife is “the Trustee and beneficiary of the Marital Trust, which

includes all remaining property not in the Osborne Trust.” Additionally, the trial court

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ruled that beneficiaries identified in the Articles Eight and Nine have “a remainder interest

in the Osborne Trust after the death of [Wife]. As such, [Wife] cannot alter or destroy the

remainder interest of the beneficiaries.”

The latter conclusion conflicts, however, with multiple provisions of Article Seven.

For example, Section 7.02 provides that “My trustee shall distribute as much of the

principal of the Marital Trust to my wife as she requests in writing. In addition, my Trustee

may distribute as much of the principal to my wife as my Trustee determines necessary or

advisable for any purpose.” Similarly, under Section 7.03, “Upon written request of my

wife, my Trustee shall convert any unproductive property held in the Marital Trust to

income producing property.” Furthermore, Section 7.04 of the trust provides Wife with a

“General Power of Appointment.” It states as follows: “My wife has the testamentary

general power to appoint all or any portion of the principal and undistributed income

remaining in the Marital Trust at her death among one or more persons or entities, including

the creditors of my wife’s estate. My wife has the exclusive right to exercise this general

power of appointment.” Section 7.04 adds that “I intend to create a testamentary power of

appointment that is a general power of appointment as defined in Internal Revenue Code

Section 2041.”

The trial court, nevertheless, understands the beneficiaries under Articles Eight and

Nine to have a remainder interest in the Osborne Trust and understands that Wife could not

alter or destroy that interest. The trust itself plainly, however, gives Wife the ability to take

“as much of the principal of the Marital Trust” as she requests in writing and allows her to

appoint “all or any portion of the principal and undistributed income remaining in the

Marital Trust at her death.” Plus, under Section 7.01, the Trustee is required to “distribute

all of the Marital Trust’s net income to my wife at least annually during her lifetime” and

adds that “[n]othing contained in this instrument limits the right of my wife to receive the

entire net income of the Marital Trust.” Additionally, Section 3.09 grants Wife, as

successor trustee of the Osborne Trust, “all of the title, rights, powers, and privileges

granted to the initial Trustee.” These broad powers include, as described in Article 14 of

the trust, the power to execute documents; invest in any type of investment; establish any

type of bank account; authorize withdrawals from accounts; sell, transfer, exchange for

other property, and otherwise dispose of trust property; enter into contracts; sell, convey,

purchase, exchange, lease, mortgage, manage, alter, and improve real property; and

abandon any trust property, among other things.

The trial court seemingly sought to avoid the conflict between its ruling and Article

Seven by viewing the property in the Marital Trust as being comprised of property from

outside the Osborne Trust. This understanding, however, stands in direct contradiction

with the plain language at the outset of Article Seven: “If my wife survives me, my Trustee

shall hold and administer the remaining trust property in a separate trust as provided in this

Article. The trust will be referred to as the Marital Trust.” In other words, the Marital

Trust is not filled with property from outside the Osborne Trust but instead from the

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Osborne Trust itself. Thus, the plain language of the trust contradicts the trial court’s

analysis on this point. It is also unclear to what property the trial court could be referring

under its analysis. Schedule A of the Osborne Trust, which identifies the property that has

placed into the trust, states the following:

7755 Hunters Run Drive, Germantown, Tennessee 38138

This assignment includes all of my real, personal, tangible and intangible

property located in the United States, whether separate property or

community property and whether acquired before or after the execution of

this instrument[.]

Given the breadth of Schedule A,1 it is difficult to discern what property the trial court

could be referencing as property outside the Osborne Trust that would be filling the Marital

Trust.

While the majority does not expressly note its variance from the trial court on this

point, the majority’s reading does not seem to be in accord with that of the trial court.

Instead of understanding the Marital Trust as being filled by property from outside the

Osborne Trust, the majority concludes that “while a comprehensive list has not been

provided on appeal, it appears that additional property was directed into the Trust and

passed into the marital trust.” From the majority’s analysis, it is not clear what property

this is or how one would distinguish it from the property that is not in the Marital Trust.

The majority’s understanding appears to conflict in at least two respects with the

trial court’s ruling. As noted above, the trial court viewed the source of the property in the

Marital Trust as the “remaining property not in the Osborne Trust,” and the trial court

understood the Article Eight and Nine beneficiaries to have a remainder interest in all of

the Osborne Trust that Wife could not alter or destroy. The majority, however, instead

views the Marital Trust as being comprised of an unidentified subset of property in the

Osborne Trust that passed into it. If that were the case, presumably Wife would have the

variety of rights delineated by Article Seven as to that property including, among others,

the right under Section 7.02 to take the entirety of the principal thereof if she so chose and

the right under Section 7.04 to appoint the property at her death. However, under the trial

court’s ruling, Wife was not free to exercise such authority over property unless it was not

Osborne Trust property. The majority opinion, again, seems to be in conflict with the trial

court on this point.

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The majority describes the language in Schedule A as generic and non-exhaustive. I agree

that it is generic, but I fail to see how this generic language encompassing personal and real

property, tangible and intangible property, acquired before or after execution of the trust is not

exhaustive.

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The majority’s understanding of the operation of the trust also appears to be in

tension with the language guiding the flow of the trust property across Articles Six, Seven,

Eight, and Nine. All the parties agree that Article Six distributes a variety of specific

property to Wife, conferring varying interests in that specific property. For example,

Article Six of the trust distributes to Wife Husband’s automobile and all of his tangible

personal property. Wife also receives, under Article Six, a life estate in Epiphany Stock,

any real property including buildings and improvements used by Wife as her principal

residence, and an annual time share. In Section 6.05, the Residuary Distribution provision

of Article Six, the trust provides that “[a]ny property not distributed under this or prior

Articles of this instrument will be distributed as provided in the following Articles.”

The very next provision of the trust is contained in Article Seven and states the

following:

If my wife survives me, my Trustee shall hold and administer the remaining

trust property in a separate trust as provided in this Article. The trust will be

referred to as the Marital Trust.

If my wife does not survive me, my Trustee shall administer the remaining

trust property as provided in Article Eight.

Under the plain language of the trust, if Wife survives Husband, then “the remaining trust

property” is placed in the Marital Trust and administered in accordance with the terms of

Article Seven. If Wife predeceases Husband, then the Trustee administers “the remaining

trust property” as set forth in Article Eight. Wife did not predecease Husband; accordingly,

“the remaining trust property” flowed into the Marital Trust. Under the trial court and

majority’s readings, however, “the remaining trust property” does not mean “the remaining

trust property” after the distribution provided for in Article Six. They reach this conclusion

despite that being the most natural reading of the language at the outset of Article Seven.

Moving forward through the trust instrument, Section 7.05 provides for termination

of Marital Trust upon Wife’s death and provides that, “[i]f my wife has not fully exercised

her testamentary general power of appointment over the trust property remaining at her

death, my Trustee shall administer the unappointed balance or remainder of the Marital

Trust as provided in Article Eight.” Article Eight then provides for distribution upon the

death of the survivor of Husband and Wife. The distributions under Article Eight are to

come “from my remaining trust property not distributed under prior articles of this trust.”

The residuary distribution under Article Eight adds that “[m]y Trustee shall distribute all

remaining trust property not distributed under this or prior Articles of this trust as provided

in the Articles that follow.” Article Nine then states that, “[a]fter making the specific

distributions specified in Article Eight, my Trustee shall administer and distribute my

remaining trust property according to the provisions of this Article.” Additionally, “My

Trustee shall administer and distribute my remaining trust property (not distributed under

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prior Articles of this instrument) or other trust property allocated to this Article under the

terms of this Article.”

The most natural reading of the trust provisions is to understand the flow of trust

property as follows. After the death of Husband, if Wife survives him, then under Article

Six, certain property is distributed to Wife. Next, after the property is distributed under

Article Six, if Wife survives Husband, then “the remaining trust property” flows into

Article Seven, where it is administered under the terms thereof which give Wife significant

control. After the death of the survivor of Husband and Wife, the “remaining property”

flows into Article Eight, and finally the “remaining property” after Article Eight flows into

Article Nine.

The majority expresses a view that it does not make sense for Article Six to grant

Wife a life estate interest in certain property, only for Wife to end up taking that property

in fee simple under the terms of Article Seven. That, however, does not fully acknowledge

the legal distinction between Wife and a trust that benefits her. Importantly, although the

Marital Trust is directed to hold the remaining property for Wife’s benefit, the Marital

Trust is legally distinct from Wife herself. See Desai v. B. G. Naik Tr., No. E2024-00873-

COA-R3-CV, 2026 WL 907618, at *4 (Tenn. Ct. App. Apr. 2, 2026) (“In general, a trust

creates a fiduciary relationship where a settlor devises identifiable property into a separate

legal entity and an appointed person, the trustee, holds legal title to property for the benefit

of another, the beneficiary, pursuant to obligations imposed by the settlor.”); Elm

Children’s Educ. Tr. v. Wells Fargo Bank, N.A., 468 S.W.3d 529, 532 (Tenn. Ct. App.

2014) (“trusts . . . under Tennessee law are artificial legal entities”). Thus, by its direction

that the “remaining trust property” would be held “in a separate trust . . . referred to as the

Marital Trust,” Article Seven of the Osborne Trust has explicitly directed that “remaining

trust property” be held by the Marital Trust. Article Seven makes no grant of any property

to Wife herself in fee simple. Wife did not receive the property in fee simple; instead, “the

remaining property” stayed within the trust. That Wife may elect to exercise powers given

to her under the trust, both in her capacity as trustee and under the plain language of Article

Seven – which allows her to take as much of the principal as she so chooses – does not

change that the property itself remained trust property until after flowing into the Marital

Trust, where the trust confers significant authority upon Wife to act for her own benefit.

While this is not a desirable outcome for the beneficiaries under Articles Eight and

Nine, the trial court’s and majority’s readings of the trust in this case appear to empty by

judicial decision a Marital Trust that Husband created for Wife. Both the trial court’s and

majority’s readings of the trust are dependent upon a species of property that neither has

been able to discern or identify in order to render their reading of Article Seven as anything

other than a nullification of the Article. The trial court and majority also read the trust

language “the remaining trust property” in a manner that, at least in my view, is not the

natural reading of that language. I have difficulty reading “the remaining trust property”

language of Article Seven, which follows the distribution in Article Six, as anything other

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than the trust property remaining after the distribution in Article Six. I do not doubt that

Husband anticipated that Wife would leave significant assets in the trust that would then

be distributed as he directed under Articles Eight and Nine to his children, grandchildren,

and Mid-South Christian College. I also do not doubt that such an approach may be fairer.

The operation of the trust, however, fits together, its provisions reconciled, if one follows

the plain language. “[T]he remaining trust property” flows into the Marital Trust if Wife

survives Husband and into Article Eight if she does not. The Article Eight distributions

are to come “from my remaining trust property not distributed under prior articles of this

trust.” Then, under Article Nine, the Trustee “shall administer and distribute my remaining

trust property (not distributed under prior Articles of this instrument) or other trust property

allocated to this Article under the terms of this Article.” Articles Eight and Nine could end

up empty, but if they are emptied, they are emptied as a result of express language of the

trust – not by a judicial decision that requires the existence of property that has not been

identified by the majority or the trial court and an unnatural reading of language in the

trust.

While the majority’s analysis is thoughtful and appealing in many respects, I cannot

agree that the majority’s reading of the trust is the one that best reconciles its provisions.

Accordingly, I respectfully dissent.

s/ Jeffrey Usman

JEFFREY USMAN, JUDGE

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