83 Tenn. 607 | Tenn. | 1885
delivered the opinion of the court.
On November 29, 1867, Samuel Wheatley departed this life in Maury county, where he had long resided, leaving as his only heirs-at-law F. M. Wheatley, A. C. Wheatley and Sarah M. Howard, the wife of I. L. Howard. On January 7, 1868, A. C. Wheatley was ..appointed and qualified as administrator of the dece
On March 21, 1881, the bill before us was filed in the chancery court at Columbia, by the five adult children of I. L. Howard and' Sarah M., his wife, against the two infant children of Howard and wife, against Howard and wife, and against F. M. Wheatley and the two children of A. C. Wheatley, who had died about 1874. The object of this bill was to set up title in the children of Howard to the 119 acres of land sold to J. S. Allen as aforesaid, and, on the strength of that title, to obtain the purchase money received from Allen by confirming the sale made to him. The bill states the foregoing facts, and refers to the records and papers in the suit to sell the land, and in the suit of Byers and wife, for a full understanding of the facts. It then states that those causes had proceeded and been conducted as if, and upon the supposition that, Samuel Wheatley had died intestate, whereas he had made a will, which was duly proved and recorded on December 6, 1869. By this
The final hearing by the chancellor, November 5, 1881, was upon the proceedings in the cause, “and also upon the record in the case of I. N. Byers and wife against A. C. Wheatley and others, and the record
The Referees find that the condition of the devise Avas not complied Avith, but they are also of opinion that, even if the condition had been performed, the Avill could not affect the rights of Byers and Avife as creditors of the testator’s estate, the debt being an equitable lien on the land. They report that the chancellor’s decree should be reversed, and that Byers and wife should be paid the balance of their debt, not otherwise satisfied, first out of the proceeds of the sale of the land, the cause being remanded for the
B.yers and wife except to that part of the report which proposes to charge them with one-half the costs •of this court. And the Howards file exceptions which open the case as to them.
It is tacitly conceded by the bill, and in argument, that the condition of the devise under which the complainants claim was a condition precedent, and that the devisees took no vested interest in the land until the condition was performed. We have had occasion, recently, to consider the law governing such testamentary provisions, and are of opinion that the concession has been properly made: Cannon v. Apperson, 14 Lea, 553. Howard and wife were parties defendant both to the bill of A. C. Wheatley and E. M. • Wheatley for the sale of the land in controversy, and to the bill of Byers and wife claiming the same land. Howard’s -wife was made a defendant in both ■cases as one of the heirs of Samuel Wheatley, and she and her husband asserted her rights accordingly. A 'decree for the sale of the land was obtained in the Wheatley case, which was enjoined by the bill of Byers and wife. The Wheatleys- and the How-ards answered this bill, and filed a cross-bill in their character of heirs, insisting* upon their right to the land, and seeking a dissolution of the injunction obtained by Byers and wife. The cross-bill seems to have been filed after tbe probate of the will of Samuel Wheatley, and was sworn to b.y Howard, the
Under these circumstances,. we think I. L. Howard is simply mistaken when, in his deposition taken in this cause, he says (that he left the note with the county court clerk merely to be held until called for by him, and that he delivered it to Gordon as administrator to be cancelled. And no matter what may have been the intentions of Sarah M. Howard in the premises, and conceding the fact to be as she now testifies, that she always intended to comply with the condition of the devise, it is very certain that neither she nor her husband ever actually complied with -the condition, unless they may be treated as having done so by their answer in this cause. Whether that compliance is not in time as against their co-heirs, it is unnecessary to enquire, for the Wheatleys have not appealed from the chancellor’s decree. The compliance is ‘clearly too late as to creditors who have acquired rights in the land upon the faith of their election to treat the land as descending to the wife as heir, and to file the note as a valid charge against the estate.
The Referees are also right in holding that the will would not affect the rights of Byers and wife. The Howard children, as devisees, might, if the condition precedent had been complied with, have sued Allen, the
The exceptions of the complainants to the report ■of the Referees must be disallowed, the chancellor’s decree reversed, and a decree entered in accordance with the report, except as to the costs of this court. The complainants will be charged with all the costs ■of the court below, and of this court, the exception ■of Byers and wife to the report of the Referees in the matter of costs being well taken.