Combs v. Combs

131 Tenn. 66 | Tenn. | 1914

Mr. Justice "Williams

delivered the opinion of the Conrt.

The questions for solution in this case are of law:

Is a widow, who has dissented from her deceased husband’s will, entitled to have set apart to her, as a part of her allowance of a year’s, support, notes executed to the deceased for the rent of real estate devised to Ms cMlclren, when the notes do not mature until after tlie death of the husband and testator?

The county judge and the court of civil appeals have responded in the affirmative, and the case is before us on petition for certiorari in behalf of the devisees of the realty leased.

A dissenting -widow’s allowance may be set apart to her out of any personal assets of her deceased husband’s estate. Code (Shannon), section 4020. But by such personal “assets” is meant those which go into the hands of the administrator or executor for the payment- of debts. Agee v. Saunders, 127 Tenn., 680, 157 S. W., 64, 46 L. R. A. (N. S.), 788.

By the rule of the common law rents under a lease executed by the owner of the fee, so accruing after death, cannot be said to be the goods, chattels, rights, or credits of the deceased, since they are incident to the reversion, and vest in the heir or devisee. In tMs State, as well as in many other States, this rule is in force; it being said in Smith v. Thomas, 14 Lea (82 Tenn.), 324, that there is nothing in our statutes changing the rights of the heir or devisee. Combs v. Young, 4 Yerg. (12 Tenn.), 218, 231, 26 Am. Dec., 225; Rowan v. Riley, 6 Baxt. (65 Tenn.), 67; note to Walsh v. Packard, 40 L. R. A., 321.

The only case cited that relates to the setting apart of a widow’s allowance out of such after-accruing rentals is that of Stinson v. Stinson, 38 Me., 503. The lower court in that case had sustained the right of the widow against the heirs. Gn appeal it was said that the effect of the decree below would he to convert the forthcoming annual installments of rent from real estate leased for a period of ten years into personal property, and transfer them from the heir at law, to whom they descend, to the administratrix (the widow), to whom they do not belong, and the decree of the lower court was reversed.

It is pointed out by the counsel of the widow that all of the above cases involved rents to accrue under, and represented only by, the rental contract, or by way of account; and it is argued that in the pending case notes were taken for such rental sums, that the rents were thus placed in negotiable form, and that from this fact we should imply a severance of the rents from the reversion.

By the common law rent was capable of being separated or severed from the reversion by the owner of the land granting or devising the land and reserving the rent, or by his granting or transferring the rent and retaining the reversion. But the act which severs must be that of such owner, indicating a purpose to sever.

An indorsement of the rent notes before maturity by the lessor would, of course, effect a severance as-against one thereafter acquiring the reversion. Ellis v. Foster, 7 Heisk. (54 Tenn.), 131, 136; 2 Underhill, Landlord and Tenant, section 662.

In Kimball v. Walker, 71 Ill. App., 309, the rental sum to accrue was represented in a promissory note, and the court said that it would pass with the reversion but for the fact that hy a stipulation in the contract between the landlord and the tenant that the note was to be payable to, and by gift the property of, a third person, which fact operated to effect a severance.

If, however, the rents were represented by the rental contract only, or by account stated, an assignment of same would, for the same reason, work a like result, as, for example, an order in favor of a third person by the landlord on and accepted by the tenant. Leonard v. Burgess, 16 Wis., 42.

It has been held that the transfer or assignment need not be absolute. Thus, a transfer of a note for rent to accrue as collateral security works a severance, since the legal title to the note vests in the pledgee and there is involved a potential sale absolute. Cheatham v. Beck Co., 96 Ark., 230, 131 S. W., 699.

But the right of one claiming to be a transferee of a rent note as against the reversioner depends on the independent title being obtained by negotiation or in-dorsement previous to the passing of the reversion to the heir, devisee, or vendee of the lessor. Alabama, etc., Co. v. Oliver, 78 Ala., 158; 2 Underhill, L. and T., section 662.

This can but mean that the mere, representation of accruing rent in or by note, held at death by the lessor, cannot have the effect to sever; and such is. the ruling in Watkins v. Duvall, 69 Miss., 364, 13 South., 727, the intimation in our case of Ellis v. Foster, supra, and our holding in the present case.

Other phases, of the case are disposed of orally.

"Writ of certiorari granted, decree of court of civil appeals reversed, and cause remanded for further proceedings.