In Re Estate of Gladys Alene Clifton ( 2021 )

03/18/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 3, 2020 Session
IN RE ESTATE OF GLADYS ALENE CLIFTON
Appeal from the Rutherford County Probate Court
No. 0000 Tolbert Gilley, Judge
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No. M2020-00432-COA-R3-CV
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This appeal concerns the interpretation of a will. The will divided the testator’s residual
estate into as many shares as the testator had children with the further instruction that the
share of a deceased child would be divided among that child’s “issue then living.” The will
stated, in pertinent part, that “‘issue’ . . . includes a person who has a parent-child
relationship . . . with the person through whom this person claims benefits.” When she died,
the testator had two surviving children and one deceased daughter. The deceased daughter
was predeceased by one of her two sons, and the deceased son was survived by two
children—the testator’s great-grandchildren. The petition to admit the will named the two
surviving children and the deceased daughter’s living son as the beneficiaries of the estate
but excluded the testator’s great-grandchildren, whose father had predeceased the testator.
When the testator’s great-grandchildren filed a motion to be included with their uncle as
“issue” of the deceased daughter, the estate opposed the motion, arguing that the great-
grandchildren were not “issue” of testator’s deceased daughter because the petitioners did
not have a “parent-child relationship” with the daughter, who was the petitioners’
grandmother. The trial court agreed and held that the only issue of the deceased daughter
who could inherit was her living son—the great-grandchildren’s uncle. We respectfully
disagree. The will’s plain language “includes” persons with a “parent-child relationship”
to “the person through whom [the] person claims benefits,” but does not exclude those who
do not. Accordingly, we reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court
Reversed and Remanded
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Steven Chase Fann, Murfreesboro, Tennessee, for the appellants, Stevie Ray Smith and
Kalie Brooke Smith.
Patrick Johnson, Nashville, Tennessee, for the appellee, Estate of Gladys Alene Clifton.
OPINION
In July 2014, Gladys Alene Clifton (“Mrs. Clifton”) executed a will that directed
her residual estate be divided into equal shares:
I divide all of the residue and remainder of my gross estate, real and personal,
wherever situated, into as many equal shares as there are living children of
mine and deceased children of mine with issue then living. Each living child
shall be given one share. Any share of my estate allocated to a deceased child
with issue then living shall be further divided into shares for said issue, per
stirpes. The terms “issue,” “child,” “children,” includes a person who has a
parent-child relationship, as defined under applicable state law, with the
person through whom this person claims benefits under my Will.
When she died in 2017, Mrs. Clifton had two living children, Penelope Clifton and Gene
Clifton, and one deceased child, Sherry Smith. Sherry had one living son, Randy Smith,
and one deceased son, Danny Smith. Danny was survived by two children, Stevie Ray
Smith and Kalie Brooke.
In February 2018, Penelope Clifton filed a petition to admit Mrs. Clifton’s will in
the Rutherford County Probate Court. The petition listed three beneficiaries: Gene Clifton,
Penelope Clifton, and Randy Smith. The court admitted the will and appointed Penelope
Clifton as the personal representative of Mrs. Clifton’s estate (“the Estate”). Over the next
two years, the Estate requested and received approval to sell 18 acres of Mrs. Clifton’s real
property.
In January 2020, two of Mrs. Clifton’s great-grandchildren, Stevie Ray Smith and
Kalie Brooke (“Petitioners”), filed a petition to enjoin the Estate from further action
pending an interpretation of the will. Petitioners asserted that Sherry Smith’s share of Mrs.
Clifton’s estate should have been divided between them and their uncle, Randy, because
Petitioners were “issue then living” of “a deceased child.” The Estate opposed the petition,
contending that the will defined “issue” as only persons with “a parent-child relationship”
to any deceased child. Under this definition, Randy was the only “issue then living” of Mrs.
Clifton’s deceased daughter, Sherry.
After a hearing in February 2020, the court agreed with the Estate and held that
Petitioners were not issue and, therefore, not beneficiaries of Mrs. Clifton’s residual estate:
While the Petitioners claim that they are the “issue” of Sherry Smith, the
definition of “issue” . . . is one where there is a “parent-child relationship.”
There is no “parent-child” relationship between the Petitioners and the
Testator. There is no “parent-child” relationship between the Petitioners and
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Sherry P. Smith. The intent of the Testator is clear in that only: (1) living
issue of the Testator, i.e. Penelope June Clifton and Gene Dale Clifton; or (2)
issue of the deceased Sherry P. Smith, i.e. Danny Smith and/or Randy Smith,
could possibly inherit through her. The Petitioners are neither of these.
Accordingly, the court denied the petition. This appeal followed.
ANALYSIS
Petitioners raised three issues in this appeal. We, however, have determined that the
dispositive issue is whether the residuary clause in Mrs. Clifton’s will limited or restricted
the meaning of the term “issue” to persons with a parent-child relationship to Mrs. Clifton
or one of her children. The construction of a will is a question of law that we review de
novo with no presumption of correctness. See In re Estate of Vincent, 98 S.W.3d 146, 148
(Tenn. 2003).
“It is the absolute right of the testator to direct the disposition of [the testator’s]
property and [courts] are limited to the ascertainment and enforcement of [the testator’s]
directions.” Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990). Thus, “[t]he basic
rule in construing a will is that the court shall seek to discover the intention of the testator,
and will give effect to it unless it contravenes some rule of law or public policy.” Id. When
doing so, it is our duty to give words their “common and accepted meaning, unless it clearly
appears another intention expressed by the testator is controlling.” Am. Tr. & Banking Co.
v. Hedges, 64 S.W.2d 527, 530 (Tenn. Ct. App. 1933). Accordingly, absent evidence to the
contrary, “technical words . . . must be given technical meanings.” Daugherty, 784 S.W.2d
at 653 (citing Third Nat. Bank in Nashville v. Stevens, 755 S.W.2d 459, 462 (Tenn. Ct.
App. 1988)).
In her will, Mrs. Clifton identified Sherry Smith, Gene Clifton, and Penelope Clifton
as her “children”:
At the time of executing this Will, I am unmarried. The names of my children
are listed below. Unless otherwise specifically indicated in this Will, any
provision for my children includes the below-named children, as well as any
child of mine hereafter born or adopted.
Sherry Prosnick Smith
Gene Dale Clifton, Jr.
Penelope June Clifton
Mrs. Clifton made one specific bequest to Penelope Clifton, which is not in dispute,
and left the residue and remainder to her “children” and their “issue” as follows:
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I divide all of the residue and remainder of my gross estate, . . . into as many
equal shares as there are living children of mine and deceased children of
mine with issue then living. Each living child shall be given one share. Any
share of my estate allocated to a deceased child with issue then living shall
be further divided into shares for said issue, per stirpes. The terms “issue,”
“child,” “children,” includes a person who has a parent-child relationship, as
defined under applicable state law, with the person through whom this person
claims benefits under my Will.
As Petitioners correctly point out, Tennessee law defines a person’s “issue” as “the
person’s lineal descendants, adopted as well as natural born, of all generations, with the
relationship of a parent and child at each generation being determined by the definitions of
child and parent contained in this title.” Tenn. Code Ann. § 31-1-101(6).1 Accordingly, we
have recognized that “[t]he word ‘issue’ includes all persons who have descended from a
common ancestor, and unless the context indicates otherwise means lineal descendants
without regard to degree of proximity or remoteness.” Decker v. Meriwether, 708 S.W.2d
390, 393 (Tenn. Ct. App. 1985) (citing Burdick v. Gilpin, 325 S.W.2d 547, 554 (Tenn.
1959)).
The Estate contends that the general definition of “issue” does not apply because
the will expressly states that “‘issue’ . . . includes a person who has a parent-child
relationship with [the deceased child of Testator].” We respectfully disagree that the use of
the non-limiting term “includes” limits or restricts Mrs. Clifton’s beneficiaries to only
those with a parent-child relationship to Mrs. Clifton’s children. To the contrary, as we
have previously held, when the word “includes” or “including” is used, “it serves as a term
of enlargement, not one of restriction.” Lovlace v. Copley, 418 S.W.3d 1, 18 (Tenn. 2013);
see Sears, Roebuck & Co. v. Roberts, No. M2014-02567-COA-R3-CV, 2016 WL 2866141,
at *6 (Tenn. Ct. App. May 11, 2016) (recognizing that “use of the term ‘include’ does ‘not
ordinarily introduce an exhaustive list’” (quoting Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 132 (2012))). Thus, by stating that “‘issue’
. . . includes a person who has a parent-child relationship with [Testator’s children],” the
will does not exclude those who do not.
1
“[U]nless a contrary intention appears in its terms, a will is construed and takes effect as if
executed immediately prior to the death of the testator.” Calhoun v. Campbell, 763 S.W.2d 744, 748 (Tenn.
1988) (citing Tenn. Code Ann. § 32-3-101).
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Based on the foregoing, we respectfully reverse the trial court’s determination that
Petitioners are not beneficiaries of Mrs. Clifton’s estate.2
IN CONCLUSION
The judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the Estate of
Gladys Alene Clifton.
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FRANK G. CLEMENT JR., P.J., M.S.
2
Because we resolve this matter on the plain language of the will, we need not address the two
additional issues raised by Petitioners: (1) “Whether the probate court erred in failing to invoke the anti-
lapse statute to find that Petitioners actually satisfy the parent-child relationship status allegedly required
by the will” and (2) “[w]hether the probate court erred by not adhering to the traditional rule of lapsed
residuary devises that would pass the lapsed benefits to the Petitioners’ lineal ancestors outside of the will
and through intestacy allowing them to take as beneficiaries.”
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