Friday, October 17, 2008
In Horadam v. Stewart, 2008 WL 4491744 (Tenn. Ct. App. 2008), Executrix appeals the trial court’s determination that there was a patent ambiguity in a clause of the will devising a gift to Beneficiary who brought the suit. The trial court determined that extrinsic evidence could not be used and found in favor of Beneficiary.
The Will in question is that of science-fiction author Andre Alice Norton. Her will named Ms. Stewart, who had lived with and cared for her for many years, as Executrix as well as the beneficiary of the residuary. Dr. Victor Horadam, a fan who had become a close friend, was named as beneficiary of “the royalties of all posthumous publications of my works.” Questions arose as to what constitutes the “royalties from all posthumous works.”
The Court of Appeals agreed there was an ambiguity, but found it to be latent and therefore, allowed the use of extrinsic evidence. Looking at just the four corners of the document, the trial court determined that Ms. Norton used the terms “copyrights” and “royalties” interchangeably. The court, however, found that the terms were not used interchangeably. They awarded the royalties to Dr. Horadam and copyrights to Ms. Stewart as part of the residuary. The Court of Appeals affirmed the trial court’s judgment removing Ms. Stewart as executrix of the estate and appointing an administrator ad litem.
Special thanks to Edward T. Brading (Herndon, Coleman, Brading & McKee, Johnson City, TN) for bringing this case to my attention.