IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 7, 2002 Session
HEIRS OF NEIL G. ELLIS v. THE ESTATE OF VIRGIE MAE ELLIS
Appeal by Permission from the Court of Appeals, Middle Section
Probate Court for Rutherford County
Hon. David Loughry, Judge
No. M1999-00897-SC-R11-CV - Filed March 25, 2002
The issue in this case is whether property held in a tenancy by the entirety is subject to the 120-hour
survival rule contained in section 31-3-120 of the Tennessee Uniform Simultaneous Death Act.
Three days after her husband’s death, Mrs. Ellis died of unrelated natural causes, and her will was
admitted to probate. The husband’s heirs sought to intervene in the probate proceeding, claiming
that because Mrs. Ellis did not survive her husband for 120 hours, section 31-3-120 deems both to
have died “simultaneously.” Consequently, they argued, Tennessee Code Annotated section 31-3-
104 authorized them to seek a one-half interest in the entireties property. The trial court denied the
motion to intervene, and the Court of Appeals affirmed. On appeal to this Court, we hold that
section 31-3-120 does not require one spouse to survive the other by 120 hours in order to obtain fee
simple title to property formerly held by the entirety. We also hold that the General Assembly, in
enacting section 31-3-120, did not intend to define the term “simultaneously” in section 31-3-104
as meaning “within 120 hours.” Instead, we conclude that the legislature intended that this term
should continue to receive its ordinary construction, meaning “at the same time.” The judgment of
the Court of Appeals is affirmed.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the
Court of Appeals Affirmed; Case Remanded
WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.
Laurie Y. Young, Murfreesboro, Tennessee, for the appellants, the Heirs of Neil G. Ellis, consisting
of William Oliver Ellis, James T. Ellis, III, Linda Wright, Henry Louis Bunce, Marjorie B. Edwards,
Catherine B. Hall, Erma Doyle Davis, Vera Sue Haire, Empie L. Bunce, Margaret A. Brown, James
F. Bunce, Karen Proctor Hall, and William T. Proctor.
William W. Burton, Murfreesboro, Tennessee, for the appellee, the Estate of Virgie Mae Ellis.
OPINION
FACTUAL BACKGROUND
Neil Ellis and Virgie Mae Ellis were married in 1944, and shortly thereafter, each executed
reciprocal wills. The wills did not identify either a contingent or a residual beneficiary, nor did they
provide for the disposition of the couple’s property in the event of their simultaneous or near-
simultaneous death. Instead, the material provision of each will simply bequeathed all of their
property to the other: “I will, devise and bequeath all of my property, real, personal and mixed, and
wherever situated to [my spouse], absolutely.” The couple had no children.
On February 11, 1999, Mr. Ellis died of natural causes. Three days later, his wife also passed
away of natural causes, and her will was admitted into probate the following month. On August 3,
1999, the appellants in this case, the heirs of Mr. Ellis, filed a motion to intervene in the probate
proceedings, claiming that section 31-3-104 of the Tennessee Uniform Simultaneous Death Act
(“TUSDA”) entitled them to a one-half share of the Ellises’ property held as tenants by the entirety.1
In support of their motion to intervene, the appellants argued that because Mrs. Ellis failed to survive
her husband by 120 hours—the default survival period required by Tennessee Code Annotated
section 31-3-1202 for a beneficiary to receive a devise under a will—then, in the absence of any
provision in the will to the contrary, the TUSDA deems both to have died simultaneously for
property distribution purposes under section 31-3-104.
The estate of Mrs. Ellis objected to the intervention, arguing that because entireties property
does not pass to the surviving spouse through a devise, section 31-3-120 does not require a spouse
to survive by 120 hours to obtain fee simple title to property formerly held by the entirety. The estate
also argued that the appellants were not entitled to claim a one-half share of the entireties property
under section 31-3-104 because the couple did not die “simultaneously,” or “at the same time,” as
required by the plain language of that section.
1
This section provides that “[w]here there is no sufficient evidence that two (2) joint tenants or tenants by the
entirety have died otherwise than simultaneo usly, the property so held shall be distributed one-half (½) as if one had
survived and one-half (½) as if the other had survived. . . .”
2
In relevant part, Tennessee C ode A nnotated sec tion 31-3-12 0 provides as follows:
(a) An individual who fails to survive the decedent by one hundred twenty (120) hours
is deemed to have pred eceased the decedent for purposes of the homestead allowance, year’s support
allowance, exempt property, elective share and intestate succession, and the decedent’s heirs are
determined acco rdingly.
(b) A devise e who fails to survive the testator by o ne hundred twenty (12 0) ho urs is
deemed to have predeceased the testator, unless the will of the decedent contains language dealing
explicitly with simultaneous deaths or deaths in a common disaster or requiring that the devisee
survive by a stated period of time in o rder to take under the will.
Subsection (c) further requires that survival by 120 hours must be shown by “c lear and convincing evidence.”
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After holding a hearing on September 15, 1999, the trial court denied the appellants’ motion
to intervene, and this decision was affirmed by the Court of Appeals. The intermediate court held
that section 31-3-104 did not apply for two reasons. First, it noted that because the couple’s
entireties property passed to Mrs. Ellis in fee simple immediately upon her husband’s death, her
estate held no entireties property to distribute to her husband’s heirs. Second, the court concluded
that because the Ellises did not die “at the same time,” section 31-3-104 was inapplicable. Rejecting
the appellants’ argument that the term “simultaneously” in section 31-3-104 should be interpreted
to mean “within 120 hours,” the Court of Appeals looked to case law from other states and held that
the term “simultaneously” means “at the same time.”3
We then granted permission to appeal to Mr. Ellis’s heirs to address whether a spouse
holding property as a tenant by the entirety must survive the other spouse by 120 hours before taking
that property in fee simple absolute. For the reasons given herein, we hold that section 31-3-120
does not alter the common law operation of estates by the entirety, nor does that section affect the
settled meaning of the term “simultaneously” as that term is used in section 31-3-104. The judgment
of the Court of Appeals is affirmed.
STANDARD OF APPELLATE REVIEW
The issues in this case present questions concerning the proper construction to be given to
Tennessee Code Annotated sections 31-3-104 and 31-3-120. Because “issues of statutory
construction are questions of law,” Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000); see also State
v. Williams, 38 S.W.3d 532, 535 (Tenn. 2001); Gleaves v. Checker Cab Transit Corp., 15 S.W.3d
799, 802 (Tenn. 2000), we review the issues in this case under a de novo standard of review,
according no presumption of correctness to the conclusions reached by the trial court, see Walker
v. Board of Prof’l Responsibility, 38 S.W.3d 540, 544 (Tenn. 2001); Reeves v. Granite State Ins.
Co., 36 S.W.3d 58, 60 (Tenn. 2001); Hawks v. City of Westmoreland, 960 S.W.2d 10, 15 (Tenn.
1997).
3
The cou rt cond ucted this analysis p ursuan t to Tennessee C ode Anno tated section 3 1-3-1 07 (2001), which
provides that “[t]his chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform
the law in those states which enact it.”
The Court of Appeals also noted that the record was unclear as to whether either spou se held any pro perty in
his or her own name at the time of their deaths. Although not relevant to the issues raised in this appeal, Mrs. Ellis was
appointed as her husband’s conservator in 1998, and she apparently sold all of his property, consisting largely of real
estate and equipment, to pay for the costs of his care and tre atment. The Co urt of Appeals correctly noted that while the
proceeds from the sale of any entireties property retains its character as entireties property, see Burt v. Edmonds, 224
Tenn. 403, 409-10, 456 S.W .2d 3 42, 3 45 (196 9); White v. Watson, 571 S.W .2d 493, 495 (Tenn. Ct. App. 1978 ), the
proceeds of the sale of any property owned individually b y Mr. Ellis would also retain its character as his individual
property. Noting that any devise of this individual property would lapse under each will, the Court of Appeals remanded
the case to determine whether any of the property was held, either in its original form or in the form of sale proce eds,
by either spouse individually.
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APPLICATION OF THE TENNESSEE UNIFORM
SIMULTANEOUS DEATH ACT
Although both Mr. and Mrs. Ellis left wills purporting to dispose of their respective estates,
only the will of Mrs. Ellis has been admitted to probate and is before the Court today. Nevertheless,
our resolution of the issues in this case must naturally rely upon the construction of both wills, if
only because the composition of Mrs. Ellis’s estate depends largely upon whether she received any
of her husband’s interests in property following his death. As such, the arguments of both parties
are primarily concerned with whether Mr. Ellis’s interests in the couple’s entireties property passed
to his wife immediately upon his death or whether these interests remained in his estate due to her
death only three days later. With this brief background in mind, therefore, we turn to the specific
arguments advanced by the parties.
SCOPE OF THE 120-HOUR SURVIVAL RULE CONTAINED IN
TENNESSEE CODE ANNOTATED SECTION 31-3-120
The appellants first argue that as a result of the addition of section 31-3-120 to the TUSDA
in 1997, see 1997 Tenn. Pub. Acts. ch. 426, § 16, Mrs. Ellis was required to survive her husband by
120 hours before she could obtain fee simple title to property formerly held by the entirety. In
support of their position, the appellants argue (1) that application of the 120-hour survival rule is not
limited to common disaster cases, and (2) that this survival rule applies to all cases in which a spouse
fails to survive the other by this statutory time period. As such, they conclude, because Mrs. Ellis
did not survive her husband for at least 120 hours, none of her husband’s interests in the couple’s
entireties property can comprise any part of her estate.
We agree with the appellants that section 31-3-120(b) is in no way limited to common
disaster cases and that this section may apply even when spouses or other beneficiaries die of
separate and unrelated causes. As demonstrated by its language, this section not only applies in cases
when the will does not contain language addressing simultaneous deaths, but it also applies when
the will merely fails to require “that the devisee survive by a stated period of time in order to take
under the will.” Consequently, the scope of section 31-3-120 reaches beyond common disaster
cases, and it sets forth a default rule of substantive law that applies in the absence of a contrary
survival provision in the will itself. Cf. Tenn. Code Ann. § 31-3-106 (“This chapter shall not apply
in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made
for the distribution of property different from the provisions hereof.”); Brundige v. Alexander, 547
S.W.2d 232, 234 (Tenn. 1976) (stating that the provisions of the TUSDA constitute “rule[s] of
substantive law” and are not merely presumptions of survivorship or rules of evidence).
Nevertheless, even though section 31-3-120 does apply outside of common disaster cases,
we conclude that it only partially affects the disposition of Mr. Ellis’s property in this case.
Significantly, section 31-3-120 does not apply to all types of property interests, and its language is
quite specific as to those interests affected by the 120-hour survival rule. For example, subsection
(a) states that the 120-hour survival rule applies for purposes of “the homestead allowance, year’s
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support allowance, exempt property, elective share and intestate succession.” In addition, subsection
(b) applies to all interests passed by “the will of the decedent.” However, no other interest in
property is specifically covered by the language of section 31-3-120.
Therefore, with regard to any property held by Mr. Ellis as a tenant by the entirety, we
conclude that the passing of this property to his wife’s estate was unaffected by the enactment of
section 31-3-120. Importantly, no part of section 31-3-120 addresses property held by the entirety.
Subsection (a) does not include entireties property within its list of affected interests, and subsection
(b) does not include entireties property because it only affects “devisees,” or those persons
“designated in a will to receive a devise.” Cf. Tenn. Code Ann. § 31-1-101(3). Because the law is
well settled that “the interest of a tenant by the entireties cannot be passed by will,” Brundige, 547
S.W.2d at 236; see also White v. Watson, 571 S.W.2d 493, 495 (Tenn. Ct. App. 1978)—meaning
that a surviving spouse in this context is not a “devisee” under the law—section 31-3-120(b) simply
does not apply to affect the disposition of entireties property. Accordingly, we disagree with the
appellants that section 31-3-120 requires a spouse to survive the other by 120 hours in order to obtain
fee simple title to property formerly held by the entirety.
With regard to any of Mr. Ellis’s property that would pass under his will, however, this
“individual” property is subject to the 120-hour survival rule. Because Mr. Ellis made no provision
requiring “that [his wife] survive [him] by a stated period of time in order to take under [his] will,”
section 31-3-120 operates as a default rule to require his wife to survive him by 120 hours to take
any devise under his will. Accordingly, because his wife did not survive him for the required
statutory period, she is deemed to have predeceased him as a matter of law, and his individual
property, if any, could not have passed to her estate.4
CONSTRUCTION OF TERM “SIMULTANEOUSLY” IN
TENNESSEE CODE ANNOTATED SECTION 31-3-104
The appellants next argue that even if section 31-3-120 does not strictly apply to property
held by the entirety, this Court should nevertheless construe the term “simultaneously” in Tennessee
Code Annotated section 31-3-104 to mean “within 120 hours.” More specifically, they argue that
the legislature enacted section 31-3-120 specifically to define the term “simultaneously” as that term
is used throughout the TUSDA. Consequently, the appellants maintain that when these two sections
are construed together, section 31-3-104 requires a spouse to survive the other by 120 hours in order
to obtain fee simple title to property formerly held by the entirety.
4
Importantly, the anti-lapse provisions of Tennessee Code Annotated section 32-3 -105 (2001) do not apply
to save these devises for the benefit of Mrs. Ellis’s estate. Unlike Brundige, Mr. and M rs. Ellis here both died without
“issue,” meaning that they died without any adopted or natural-born “lineal descendants.” Cf. Tenn. Code
Ann. § 31 -1-10 1(6); W hite v. Kane, 178 Tenn. 469, 472-73, 159 S.W .2d 92 , 94 (19 42). Co nsequently, the anti-lapse
statute does not apply in this case, and it cannot operate to save any devise made by one spouse to the other. Therefore,
Mr. Ellis’s lapsed devises remain in his estate and pass to his heirs through the laws of intestate succession.
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Initially, the appellants’ arguments appear to have some merit because, ordinarily, “[a] statute
should be construed, if practicable, so that its component parts are consistent and reasonable.” See
Marsh v. Henderson, 221 Tenn. 42, 48, 424 S.W.2d 193, 196 (1968). However, the polestar of
statutory interpretation has always been the intent of the legislature. As such, where the “carrying
out of the legislative intention, which is the prime and sole object of all rules of construction, can
only be accomplished by departure from the literal interpretation of the language employed,” then
the legislative intent should be applied over “the literal import of the words.” Tennessee Title Co.
v. First Fed. Sav. & Loan Ass’n, 185 Tenn. 145, 154, 203 S.W.2d 697, 700 (1947). Upon an
examination of the statutes in this case, we conclude that the appellants’ proposed interpretation
would not accurately reflect the General Assembly’s intention in this regard.
A venerable principle of Tennessee common law has been that property held in a tenancy by
the entirety passes immediately to the surviving spouse upon the death of the other spouse. Because
each spouse is “seized of the whole or the entirety and not of a share, moiety, or divisible part,”
Sloan v. Jones, 192 Tenn. 400, 402, 241 S.W.2d 506, 507 (1951), the death of one spouse “does not
put an end to the seisin of the survivor,” Bennett v. Hutchens, 133 Tenn. 65, 69, 179 S.W. 629, 630
(1915). Instead, upon the death of one spouse, the surviving spouse possesses an undivided interest
in the whole estate that is no longer subject to the undivided interest of another in that estate, or, in
other words, the surviving spouse possesses the property in fee simple absolute. Id.
Had the General Assembly intended that the appellants’ construction of sections 31-3-120
and 31-3-104 be given effect, it is clear that the legislature would have significantly changed the
common law of this state. After all, adopting this construction would essentially mean that the
undivided interest of the surviving spouse remains subject to that of the deceased spouse for 120
hours, even though the deceased spouse cannot lawfully be seized of any entirety interest under the
common law. Nevertheless, while the General Assembly unquestionably has the constitutional and
legislative authority to change the common law of this state, see Lavin v. Jordon, 16 S.W.3d 362,
368 (Tenn. 2000), it must make clear its intention to do so, see Kradel v. Piper Indus., Inc., 60
S.W.3d 744, 751 (Tenn. 2001). Without some clear indication to the contrary, we simply will not
presume that the legislature intended to change the common law by implication. See Lavin, 16
S.W.3d at 368.
Examining the provisions of the TUSDA as a whole, we see no clear indication that the
General Assembly intended to revise the common law operation of estates by the entirety. First, no
express language appears in the 1997 amendments to the TUSDA to evidence such an intention.
Second, as discussed above, section 31-3-120 does not address the disposition of property held by
the entirety, though the statute does cover the disposition of property held in other common law
estates. Consequently, while it appears that the term “simultaneously” may mean “within 120 hours”
in some situations under the TUSDA—such as perhaps in sections 31-3-102 and 31-3-103—it is not
clear that the legislature intended a similar construction with regard to the use of that term in section
31-3-104.
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Moreover, the legislative background of the 1997 amendments to the TUSDA confirms that
the General Assembly did not intend to change the common law operation of estates by the entirety.
As evidenced by the similarity of the language, the 120-hour survival rule of section 31-3-120 was
taken from sections 2-104 and 2-601 of the Uniform Probate Code of 1969 (“UPC”) and from
sections 2 and 3 of the Revised Uniform Simultaneous Death Act of 1993 (“Revised USDA”).5
However, the 120-hour survival rule contained in sections 2-104 and 2-601 of the UPC does not
apply to property held by the entirety. Instead, the drafters of the UPC placed the disposition of
entireties property in a separate section that deals generally with property in which co-owners
possess a right of survivorship. See UPC § 2-702(c).6 This approach is also consistent with the
drafting of the Revised USDA, which likewise placed the rules governing entireties property in a
section separate from those provisions forming the basis of the 1997 Tennessee legislation. See
Revised USDA § 4.7
When the legislature enacts provisions of a uniform or model act without significant
alteration, it may be generally presumed to have adopted the expressed intention of the drafters of
that uniform or model act. See Kradel, 60 S.W.3d at 754 & n.6. However, when the legislature
makes significant departures from the text of that uniform act, we must likewise presume that its
departure was meant to express an intention different from that manifested in the uniform act itself.
Cf. id. In this case, the General Assembly adopted a form of the 120-hour survival rule created by
5
See also 2 Pritchard on W ills and Administration of Estates § 92 3.1 (J ack W . Rob inson, S r. & Jeff Mobley
eds., 5th ed. Supp. 2000) (noting that section 31-3-120 “is based upon the provisions of the Uniform Probate Code”).
The similarity noted above is most evident with the U PC sections. UP C section 2-104 rea ds as follows:
An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the
decedent for purpo ses of home stead allowance, exemp t property, and intestate succession, and the
decedent’s heirs are determined acc ordingly. . . .
Like section 31-3 -120 (c), UPC section 2-104 also sets forth a clear-and-convincing standard of proof. Further, UPC
section 2-601 provides that
[a] devisee who does not survive the testator by 120 hours is treated as if he predeceased the testator,
unless the will of decedent contains some language dealing explicitly with simultaneous deaths or
deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator
for a stated period in order to take under the will.
6
This pro vision reads as follows:
(c) Except as p rovid ed in subsection (d), if (i) it is not established by clear and convincing evidence
that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-
half of the property pa sses as if one had survived by 120 hours and one-half as if the other had
survived by 1 20 hours . . . .
This section concludes by confirming that “[f]or the purposes of this subsection, ‘co-owners with right of survivorship’
includes joint tenants, [and] ten ants by the entireties . . . .”
7
In relevant part, section 4 o f the Revised U SDA provide s as follows:
Except as provided in Section 6, if (i) it is not established by clear and convincing evidence that one
of two co-owners with right of survivorship survived the othe r co-owner b y 120 hours, one-half of the
property passes as if one had su rvived by 12 0 hours and one-half as if the other had survived by 120
hours . . . .
According to section 1 (1), the phrase “co-owne rs with right of survivorship ” includ es tenants by the entirety.
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the UPC and the USDA, but it did not further adopt those uniform provisions that specifically apply
to entireties property. Therefore, its omission in this regard must be taken as strong evidence that
it did not intend to subject an estate by the entirety to the 120-hour survival rule of section 31-3-120.
Without a clear indication that the legislature intended to change the common law operation
of estates by the entirety, we conclude that the legislature did not intend the construction urged by
the appellants. Accordingly, the term “simultaneously” should continue to receive its ordinary
construction, meaning “at the same time.”8 Because the record clearly establishes that Mr. Ellis and
his wife did not die “at the same time,” section 31-3-104 does not apply in this case, and the
appellants cannot claim a one-half interest in the couple’s entireties property. Accordingly, we hold
that all property held by Mr. Ellis as a tenant by the entirety passed to his wife immediately upon his
death and that her estate alone may claim this property in fee simple absolute.
The Court of Appeals in this case reached a similar conclusion by relying upon
interpretations of the Uniform Simultaneous Death Act by other courts, but it did not specifically
examine the effect that section 31-3-120 has upon the TUSDA’s other provisions. Although courts
should generally interpret the provisions of the simultaneous death act so as “to make uniform the
law in those states which enact it,” see Tenn. Code Ann. § 31-3-107, we note that such an
interpretation is no longer practicable in this regard. With the addition of section 31-3-120 in 1997,
Tennessee now has a “hybrid” simultaneous death scheme that combines elements of the original
USDA adopted in 1940 with those of the Revised USDA adopted in 1993. This hybrid statutory
scheme is unique to all the states enacting any form of the USDA, and as such, case law from other
jurisdictions is not helpful to determine how the newly-added section 31-3-120 affects the other
provisions of the TUSDA.
In any event, the Court of Appeals reached the correct resolution of the issues presented, and
we therefore affirm its judgment. We also agree with the intermediate court that the record does not
clearly support the parties’ assertion that all of Mr. Ellis’s property was held by the entirety.
Consequently, we remand this case to the trial court to determine whether any part of Mrs. Ellis’s
estate is comprised of her husband’s individual property.
CONCLUSION
In summary, we hold that because Tennessee Code Annotated section 31-3-120 applies in
specific and limited cases, it does not require a tenant by the entirety to survive his or her spouse by
120 hours in order to obtain fee simple title to property formerly held by the entirety. We also hold
that the General Assembly did not intend for the term “simultaneously” in Tennessee Code
8
Cf. W alton & Co. v. Burchel, 121 Tenn. 715, 730, 121 S.W. 391, 394 (1907) (“[W]hen the proof shows that
two persons are killed in a common sudden disaster, the presumption is that they died simultaneously; that is, that they
both died at one and the same time.”). This definition is also consistent with holdings of other courts interpreting similar
provisions of the original USDA . See, e.g., McCurtis ex rel. Love v. Life Ins. Co. of N. Am., 849 F. Supp. 1141, 1146,
nn.10-11 (S.D . Miss. 199 4); Smith v. Smith, 317 S.W.2d 275, 282 (Ark. 195 8); White v. Taylor, 286 S.W.2d 925, 928
(Tex. 19 56); In re Estate of Villwock, 418 N.W .2d 1, 3 (W is. Ct. App. 198 7).
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Annotated section 31-3-104 to be defined as meaning “within 120 hours.” Instead, we conclude that
the term is properly construed according to its ordinary import, meaning “at the same time.”
Accordingly, we affirm the judgment of the Court of Appeals and remand this case to the Rutherford
County Probate Court for further proceedings consistent with this opinion.
Costs of this appeal shall be assessed jointly and severally to the heirs of Mr. Ellis, consisting
of William Oliver Ellis, James T. Ellis, III, Linda Wright, Henry Louis Bunce, Marjorie B. Edwards,
Catherine B. Hall, Erma Doyle Davis, Vera Sue Haire, Empie L. Bunce, Margaret A. Brown, James
F. Bunce, Karen Proctor Hall, and William T. Proctor.
____________________________________
WILLIAM M. BARKER, JUSTICE
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