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