81 Tenn. 189 | Tenn. | 1884
delivered the opinion of the court.
Bill by the heirs of John B. Hester, who had •died intestate, being the two brothers and a nephew ■of' the deceased, against Charlotte Hester, the intestate’s widow, and Dora Sovy, a daughter of Charlotte by a former husband, to set aside a deed of gift of :a lot in Memphis made by the intestate to his wife, and ■ a deed of trust of an adjoining lot . made by the intestate to a trustee to secure a debt due to Dora Sovy. The chancellor set aside the deed to the wife, and allowed the complainants to redeem the other lot. The Referees have reported that the decree should ■be affirmed. The widow and her daughter have excepted to the report.
The intestate’s estate is insolvent, the two lots in •controversy being the only property of which the intestate died possessed. Hester was a-ship carpenter, :and at one time was in partnership with a man by the name of Sovy. He then owned the lots in question, lived on one of them, and rented part of his house to his partner. Sovy died in 1855, leaving a widow, the' defendant, Charlotte, and two daughters, the defendant, Dora, being the oldest, and then about two years of age. The widow and children continued to live in the same house with intestate. The youngest daughter married the defendant, W. B. Hood. The ■oldest daughter continued to have a room in the house, but seems to have spent much of her time after she _grew to womanhood at New Orleans, St. Louis, and
The testimony is conflicting, and utterly irreconcilable, as to the extent of the failure of the mental faculties of the intestate during his last illness, and for several months before. That there was a gradual waning of his faculties is certain, and it is probable, as one or two of the. medical witnesses testify, that for a year or two he had been suffering from a gradual softening of the brain. But it is proved that he served as a juror in the criminal court for several weeks during the months of December, 1878, and January, 1879, that he had some legal business with a lawyer in April, 1879, which he conducted in such a manner as to satisfy the lawyer that he fully comprehended it, and was entirely sound of mind, and that the lawyer who drew the deed of gift to the wife,
The proof is clear that in April, 1875, the lot on which the intestate lived was levied upon, and sold under an execution against him, and that in March, 1877, he borrowed from the defendant, Dora Sovy, $400, with which to redeem the property. To secure her*, he conveyed the lot in trust to the defendant, Hood, to secure his, note at one year in favor of Dora Sovy for the money thus borrowed, with interest. This deed was executed on March 31, 1877, and authorized the trustee, in case of default of payment, to sell the lot for cash, on ten days’ notice in a Memphis newspaper, free from the equity of redemption. The deed also contained this clause: “ It
At the time this deed was executed, the testimony leaves no doubt of the competency of the grantor to make it, and that the transaction was exactly what it purported to be. The instrument was not' intended -to be a will, and cannot take effect as a will because it is not in the handwriting of the grantor, nor attested by witnesses. It conveys specific property for :a specific purpose, retaining the right to redeem during life. The conveyance of particular property and the actual delivery of the instrument as a deed fixes its character: Caines v. Marley, 2 Yer., 582; Cains v. Jones, 5 Yer., 250; Watkins v. Dean, 10 Yer., 321; Fry v. Taylor, 1 Head, 594, 600; Swails v. Bushart, 2 Head, 561. And the question is whether as a deed it is effective for the purpose expressed on its face.
The exceptions to the report of the Referees will lbe sustained, the decree of the chancellor reversed, and :a decree rendered here in favor of the defendants, •and the bill dismissed with costs.