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as of the date of the testator's death. Presley v. Hanks, 782
S.W.2d 482, 488 (Tenn. Ct. App. 1989) (citing Tenn. Code Ann.
sec. 32-3-101 (1984)).
In Tennessee, technical words used in a will drafted by an
attorney are to be given their technical meaning, in the absence
of a finding of a contrary intent on the part of the testator.
Fariss v. Bry-Block Co., 346 S.W.2d 705, 707 (Tenn. 1961). In
Daugherty v. Daugherty, supra at 653, the Supreme Court of
Tennessee explained the role of a court in examining the language
of a will by stating:
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. That intention is to be
ascertained from the particular words used, from the
context and from the general scope and purpose of the
instrument. [Citations omitted.]
The duty of the court is to expound, not create. Id. "This
Court cannot make a different will for her under the guise of
construing it." Sands v. Fly, 292 S.W.2d 706, 713 (Tenn. 1956).
Where a testator's intention cannot be given effect because of
public policy or certain rules of law, it must be given effect as
far as possible. White v. Brown, 559 S.W.2d 938, 939-940 (Tenn.
1977); Bell v. Shannon, 367 S.W.2d 761, 766 (Tenn. 1963);
Hamilton Bank v. Milligan College, 821 S.W.2d 591, 592 (Tenn. Ct.
App. 1991); Merchants & Planters Bank v. Myers, 644 S.W.2d 683,
688 (Tenn. Ct. App. 1982).
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