559 S.W.2d 938
Mrs. Jessie Lide died on February 15, 1973, leaving a holographic will which, in its entirety, reads as follows.1
The will appointed her niece Sandra White Perry as executrix, stated that Evelyn White was to have the home to live in and that it was not to be sold, and left all personal property to Sandra White Perry.2
Mrs. Lide was a widow with no children. Although she had nine brothers and sisters, only two sisters residing in Ohio survived her.3 These sisters quitclaimed any interest they might have in the residence to Mrs. White. The nieces and nephews of the testatrix served as defendants in the action.4
For approximately twenty-five years, Evelyn White, her husband who was the testatrix’s brother, and their daughter Sandra lived with Mrs. Lide as a family. After Sandra married in 1969 and Evelyn’s husband died in 1971, Evelyn White continued to reside with Mrs. Lide until the latter’s death in 1973 at age 88.5
Evelyn White, joined by her daughter as executrix, filed suit seeking construction of the will and alleging fee simple title to the home.6 The defendants contended that only a life estate passed to Mrs. White.7 The Chancellor held that the will conveyed only a life interest, refused to consider extrinsic evidence concerning Mrs. Lide’s relationship with her surviving relatives, and ordered the property sold with proceeds distributed among the beneficiaries.8 The Court of Appeals affirmed that decision.9
Whether Mrs. Lide’s holographic will conveyed a fee simple interest or only a life estate in the residence to Evelyn White?10
Under T.C.A. § 64-501, every grant or devise of real estate passes all the estate of the grantor or devisor.11 This occurs unless the intent to pass a less estate appears by express terms or is necessarily implied in the terms of the instrument.12 Under T.C.A. § 32-301, a will conveys all real estate belonging to the testator unless a contrary intention appears by its words and context.13 When the expression in the will is doubtful, the doubt is resolved against the limitation and in favor of the absolute estate.14
Yes. The established facts show that the will used the words 'I wish Evelyn White to have my home to live in and not to be sold' and 'My house is not to be sold'.15 These words appear without any express statement of a life estate and without any gift over to the heirs.16 Because no express terms limited the estate, the statutory presumption required the will to pass the entire fee simple interest to Evelyn White.17
The same facts demonstrate that the testatrix appointed an executrix and disposed of personal property outright. This confirms her capacity to make complete dispositions when intended. Yet she employed no such limiting language for the realty.18
Mrs. Lide’s holographic will conveyed a fee simple interest in the residence to Evelyn White.19
Related opinions on this issue
Joined by Chief Justice Henry
Justice Harbison dissented from the majority’s conclusion that the will conveyed a fee simple.20 He emphasized that the testatrix repeatedly stated her home was not to be sold and wished Evelyn White only to have it to live in.21 These phrases showed a clear intent to limit the gift to a life estate.22
The testatrix demonstrated her ability to make an outright gift by leaving personal property to her niece without restriction.23 Harbison concluded that the majority’s decision to strike the restraint on sale conflicted more with the testatrix’s apparent wishes than the life-estate construction adopted below.24
Whether the will’s direction that the home was not to be sold clearly evidenced an intent to limit the interest conveyed to a life estate?25
A restraint on alienation imposed simultaneously with a fee simple is void as inconsistent with the incidents of that estate and contrary to public policy.26 When language that might suggest a life estate is accompanied by no gift over and by the statutory presumption favoring complete disposition, the restraint does not overcome the presumption of a fee.27
No. The established facts contain the underscored phrases 'not to be sold' and 'My house is not to be sold'.28 Yet the will contains no remainder gift and no express life-estate language.29 Under the rule, the restraint is treated as an invalid attempt to limit a fee rather than as clear evidence that only a life estate was intended.30 The same facts show that the testatrix had lived with Evelyn White for twenty-five years.
The surviving sisters quitclaimed their interests to her. These facts are consistent with an intent to give complete ownership subject only to an unenforceable restraint.31
The will’s direction that the home was not to be sold did not clearly evidenced an intent to limit the interest conveyed to a life estate.32
Related opinions on this issue
Joined by Chief Justice Henry
Justice Harbison maintained that the repeated prohibition on sale evidenced the testatrix’s intent to create a life estate under which the restraint would be valid and consistent with the language 'to live in.'33 He observed that the testatrix knew how to make an outright gift of personal property to her niece.34 He concluded that the majority’s decision to void the restraint produced a result more at odds with the testatrix’s apparent wishes than the life-estate construction adopted by the Chancellor and the Court of Appeals.35
Whether the statutory presumptions against partial intestacy applied to the construction of the will?36
T.C.A. §§ 64-501 and 32-301 create a statutory presumption against partial intestacy. This presumption requires a will to be construed as passing the testator’s entire estate unless a contrary intention appears by express terms or is necessarily implied by the words and context.37
Yes. The established facts reveal a holographic will that disposed of the home and all personal property yet left no express remainder after any life estate.38 Because the will was susceptible of two constructions, one disposing of the whole estate and one resulting in partial intestacy, the statutory presumption required adoption of the construction that passed a fee simple to Evelyn White.39 The same facts show that the testatrix had no children and that her only surviving siblings quitclaimed their interests.40
The statutory presumptions against partial intestacy applied to the construction of the will and required that it be read to convey a fee simple.41