78 Tenn. 421 | Tenn. | 1882
delivered the opinion of the court.
On March 13, 1872, Alfred Darden departed this life, leaving him surviving a widow, twelve children,
On March 15, 1872, Harrill, the executor, drew up an agreement in writing to be signed by the widow and children, and which was signed on the same day by the widow and ten of the children and the husbands of three of these children. This instrument recites that the parties signing, naming them, “have interests in the estate of Alfred Darden, deceased, under his will, and have a great desire that his will be carried out.” Then follow the following clauses: “We therefore consent and agree with each other, and hereby bind ourselves to abide by and acquiesce in all the bequests and provisions of the said will of Alfred Darden, deceased, have knowledge of its provisions and bequests, and believe the same to be equal. We further agree and bind ourselves to accept the bequests, and hold valid and binding the acts and doings of Y. J. Harrill, executor of said will, in carrying out the directions and provisions of the same, and
Harrill, the executor named, proceeded to act as such, without giving bond or otherwise qualifying as required by law for executors. He sold all the personal chattels not embraced in the first clauses of the will, and collected the debts due the estate, and paid the debts of the testator. *The debts due the estate were principally in the form of notes given for land, having from one to four years to run to maturity. Erom time to time, he seems to have made payments to the legatees on their legacies. Two of these legatees, namely Henry G. Darden and Jane Anderson, the latter by note signed also by her husband James M. Anderson, were indebted to the testator by notes given for land conveyed to them by the testator, retaining a lien for the payment of the purchase money. The executor credited these notes with the share of the parties in the fund for distribution, taking their receipts also for so much paid on their legacies. In 1878, the executor made application to these parties for a settlement of their notes without success, and thereupon filed separate bills against them respectively to enforce the lien reserved on the land. On August 21, 1879, Henry G. Darden, James M. Anderson and wife, and five of the other children of the testator filed this bill against Harrill, and the residue of the children, and the descendants of the two children who
The bill expressly alleges that: “At the-term, 1872, of the county court of Hickman county, the county of the testator’s domicil, said will was admitted to probate.” The answer of the defendant Harrill concedes that the will was regularly probated. As between these parties any evidence to establish the contrary was inadmissible. Moreover, the entire relief asked for is based upon the fact of the validity of
Whether 'an executor can rightfully act as such without having first taken out letters testamentary, and qualifying by taking an oath for the faithful performance of his duty, or avoid the consequences which usually follow a neglect to file an- inventory and make settlements in court, are questions which may admit of little doubt in ordinary cases. But the complainants are clearly estopped to make them in this case. All of the complainants, except one, have, as we have seen, expressly coven mted and agreed in writing to abide by the provisions of the will, and to hold valid the acts of the executor without his going into court, and qualifying in the usual way. And all of them have sanctioned the actions of the executor by making settlements with him from time to time, and receiving their share of the funds of the estate realized by him. Third persons might question his authority, but the complainants cannot. As to them he is a trustee by contract clothed with the usual powers of an executor, and may be held to account, and may claim to account accordingly. The agreement was not only a contract between the children and the widow, who had
The bill concedes that the descendants of the two children of the testator who were dead at the making of the will, would take the devise or bequest to the ■children. The Code, sec. 2196, so expressly provides.
This brings us to the real object of this bill, which is to enjoin the bills filed by the executor against Henry G. Darden and James M. Anderson, to enforce the vendor's lien on the land bought by them respectively from the testator, and to have the notes given for the purchase money declared to be advancements, not debts. The note of Henry G. Darden to his father, dated October 26, 1871, is thus worded: “Due Alfred Darden or order one thousand dollars for a tract of land, the same on which I now live, which I have this day purchased of him, payable at the death of said Alfred Darden, or whenever I shall sell and transfer said land to any other person.” The conveyance of the testator to Anderson and wife was made on August 9, 1870, for the consideration of $1,500, for which he took their two notes, one due January 1, 1873, for $300, and the other for $1,200, payable at the death of the testator, or whenever An
The will of the testator plainly shows an intent on his part that his children should share equally in his estate, to which end they were required to account for advancements. The parol testimony further shows that such was the testator’s intent during life, and that this intent was kept in view in all of his dealing with his children. Some of his children had moved to Texas, and another intent disclosed by the language of the deeds to Henry G. Darden and Anderson and wife, and by the notes for purchase money executed by them to him, was that they should not dispose of the property conveyed during his life. It fully appears that the testator supposed that the share of each of his children in his estate would be about $1,200, and that when he conveyed land to either of thorn, he took the purchase notes with a view to this fact. Thus he conveys to Anderson and wife land worth $1,500, and took from them one note made payable at a fixed time for $300, which it was distinctly understood they were to pay. The other note was made payable at the death of the testator, unless Anderson and wife undertook to sell or transfer the land in his lifetime. In the latter event, he reserved the right to treat the purchase money as a debt, which he might at once collect. If no sale were made in his lifetime, then he expected that Anderson and wife would receive a share of Tiis estate equal -in amount to .the note, which would thereby be extinguished. The note of Henry
It turns out in fact that the share of each child will not be $1,200 as of the death of the testator, but a less sum. And the question is whether, in that event, the testator intended that these children should receive a larger share of the estate than the other children, and therefore entitled to a surrender of the note, or only to an equal share with the other children, and therefore bound for the amount of the note beyond the share? To ask the question is to answer it. For the intention of the father beyond all doubt, as to which there is not the least conflict in the testimony nor on the face of the will, was that his children should share equally in his estate. And the notes were taken for the purchase money of the land, and lien retained for their payment expressly to secure this equality. A mistake on his part as to the probable quantum of the share of each child cannot possibly be allowed to control the general intent so fully disclosed. The money due by the notes was clearly a debt, which might be, and he expected would be satisfied by the child’s share in his estate. The form of the transactions, and the testimony introduced in relation to them, leave not a particle of doubt of the correctness of the conclusion.
The most of the excejjtions to the master’s report filed by the complainants, to "which our attention is ■called, were intended to raise the questions considered in the foregoing part of the opinion. They are settled by the conclusions announced. Exception No. 4 is
The chancellor’s decree was correct, and will be affirmed, and a decree ma'y be drawn up here in conformity with this opinion, and the cause remanded. The complainants will. pay the costs of this court.