## Facts

- Jessie Lide, an 88-year-old widow without children, died in 1973 leaving a brief holographic will.
- The will appointed Sandra White Perry (a niece) as executrix, left personal property to Perry, and stated: “I wish Evelyn White to have my home to live in and not to be sold” and “My house is not to be sold.”
- Evelyn White had lived with Lide for decades as a family member and continued residing with her until Lide’s death.
- Lide’s nieces and nephews, as heirs at law, claimed that White received only a life estate and that the remainder passed to them by intestacy.
- The chancery court construed the devise as a life estate, declined to consider surrounding circumstances as extrinsic proof of intent, and ordered the house sold due to poor condition, with proceeds distributed according to the court’s allocation.
- The court of appeals affirmed; the Tennessee Supreme Court granted review.

## Issues

1. Whether the will’s language devising the home “to live in and not to be sold” granted Evelyn White a fee simple absolute or only a life estate.
2. If a fee simple was devised, whether the directive that the house “is not to be sold” is a valid restriction or an invalid restraint on alienation.

## Decision

- The Tennessee Supreme Court reversed the lower courts.
- The court held the will devised the home to Evelyn White in fee simple absolute.
- The court held the “not to be sold” language was an attempted absolute restraint on alienation and was void.
- The case was remanded for further proceedings consistent with the opinion.

## Legal Principles

- A testator’s intent is determined from the entire will, read in light of surrounding circumstances, but controlling rules of construction apply when the language is uncertain.
- Tennessee law presumes a devise of real property passes a fee simple unless the will clearly shows an intent to create a lesser estate; ambiguity is resolved in favor of a fee simple.
- Language indicating use or occupancy (e.g., “to live in”) does not, without clear limiting words (e.g., “for life”) or a stated gift over, necessarily reduce a devise to a life estate.
- A direct, absolute restraint on alienation attached to a fee simple is void as repugnant to the estate granted; the fee passes free of the restraint.
- Courts disfavor constructions that produce partial intestacy when the will otherwise appears intended to dispose of the estate.

## Conclusion

The court construed the informal, ambiguous holographic devise as transferring a fee simple to Evelyn White under the presumption favoring absolute estates and invalidated the will’s absolute prohibition on sale as an impermissible restraint on alienation.


White v. Brown, 559 S.W.2d 938 (Tenn. 1977)