O. D. McKee and Estate of Anna Ruth McKee, Deceased, R. Ellsworth McKee and Jack C. McKee, Co-Executors - Page 19

                                       - 19 -                                         
               Under Tennessee law, the 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.  In re Walker, 849 S.W.2d 766                 
          (Tenn. 1993); Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn.            
          1990); Harris v. Bittikofer, 541 S.W.2d 372, 384 (Tenn. 1976).              
          The testator's intention is to be ascertained from the particular           
          words used in the will itself, from the context in which those              
          words are used, and from the general scope and purposes of the              
          will, read in the light of the surrounding and attending                    
          circumstances.  Third Natl. Bank v. First American Natl. Bank,              
          596 S.W.2d 824, 828 (Tenn. 1980); Moore v. Neely, 370 S.W.2d 537,           
          540 (Tenn. 1963).  In applying this cardinal rule, it is                    
          necessary to look to the entire will, and the testator's intent             
          must be ascertained from what the testator has written into the             
          will and not from what some interested party supposes that the              
          testator intended to do.  Burdick v. Gilpin, 325 S.W.2d 547, 551            
          (Tenn. 1959); Davis v. Price, 226 S.W.2d 290, 292 (Tenn. 1949).             
          Where a testator expresses a controlling or predominant purpose,            
          it is the duty of the court to effectuate that purpose and                  
          construe all subsidiary clauses to bring them into alignment with           
          that purpose.  Moore v. Neely, supra at 540.  Moreover, a general           
          intent will prevail over a secondary intent.  Jones v. Jones, 462           
          S.W.2d 872 (Tenn. 1971).  A will should be so construed to speak            






Page:  Previous  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Next

Last modified: May 25, 2011