103 Tenn. 232 | Tenn. | 1899
This bill was filed to set up a parol trust in land.' The land' in controversy was owned by John E. Hudspeth, during his life and he had acquired it by will from his wife, Lizzie. M. Hudspeth. Hudspeth and wife lived for many years in Shelby County, and had accumulated, by their joint efforts, a considerable estate. It appears they invested their earnings in small farms from 35 to 50 acres in size.
The title to several of these farms was taken in his name, two in her name, and several in their joint names. Tt appears that the family residence was erected on one of her tracts. Having no .children, each desired that the survivor should have the propertv_ of the other. 'Accordingly, on February 13, 1891, John E. Hudspeth executed his will, by which he bequeathed and devised to his wife his entire estate, appointing her executrix without bond. On March 12, 1891, one month thereafter, Mrs. Hudspeth executed a will devising her property to her husband and appointing him executor without bond.
Mrs. Hudspeth died on the 20th of October, 1898, and thereafter, on the 4th of January,
The second assignment of error is that the decree cannot be sustained because the evidence does not show such a coiitraet or agreement, clearly, convincingly, and irrefragably leaving no doubt as to the real character of the transaction.
In the case of McCammon v. Peltitt, 3 Sneed, 246, it was held that a trust may be raised on a written will, absolute and unconditional on its face, but in order to do this the proof must be clear, convincing and irrefragable. The rule thus laid down has been well expounded by Chancellor Gibson thus: “When, therefore, we read in the books that in various cases, such as suits
So that the position of defendants’ counsel that the evidence produced by complainant must convince the Court beyond a reasonable doubt is not correct.
In Sanford v. Weeden, 2 Heis., 76, Chief Justice Nicholson said: “Different Judges have employed different language in declaring the character and the weight of the proof which is necessary and sufficient to set up a resulting trust. The result of all the attempts to define the rule as to the amount of parol proof necessary in such cases is, that the conscience of the Court should be fully satisfied that the facts relied on
The third, fourth, and. fifth assignments of error • are based upon the Chancellor’s rulings on questions of evidence. We find, however, from an examination of the record, that the action of the Chancellor on these exceptions is not shown, hence there is nothing- for this Court to' review. There was no bill of. exceptions taken at the time, nor is the action of the Court recited in the decree or in any interlocutory order. Anderson v. Railroad Co., 91 Tenn., 44; Kelly v. Fletcher, 94 Tenn., 1-4; Gibson’s Suits in Chancery, Sec. 1045, p. 991.
The preponderance of the evidence fis that John If. Hudspeth procured his wife to make a will in his favor, promising that if he outlived her he would devise her property to her heirs and not to his heirs at law.
’ The decree is affirmed.