In re: Estate of Merle Jeffers McFarland -Dissenting

I respectfully dissent. The question in this case is whether, when a will includes a residuary clause with two or more beneficiaries, a lapsed residuary gift is to be distributed among surviving residuary beneficiaries or among the testator’s intestate heirs. The majority reaffirms Ford v. Ford, 31 Tenn. 431, 435 (1852), which holds that a lapsed residuary gift passes via intestate succession. I would overrule Ford and hold that where the residue of a will is devised to two or more persons and the share of one fails, that share passes to the other residuary devisees in proportion to their residuary interests. See Unif. Probate Code § 2-606(b), 8 U.L.A. 427 (1998); see also Restatement (Third) of Property: Wills & Other Donative Transfers § 5.5 cmt. o (1999).1 Consequently, in this case I would distribute the lapsed residuary gifts proportionally among the surviving residuary beneficiaries of the McFarland will rather than via the laws of intestate succession.