69 Tenn. 83 | Tenn. | 1878
delivered the opinion of tbe court.
About the year 1828, John Lincumfelter, his sister Betsey and their mother, were living together on rented land. The brother was an industrious, thrifty farmer and good trader, while the sister was an equally industrious, managing and thrifty housekeeper. The mother died in a few years, and the brother and sister continued to live together until the death of the brother in 1860. During the whole period the business was carried on exclusively by the brother, in his own name buying, selling, trading, and loaning moneys the property bought, real and personal, being conveyed to him, and all obligations made to or by him. At his death the estate, real and personal, seems to have
The theory of the bill is not that there was any contract of partnership between John Lincumfelter and his sister Betsey, but that she contributed, by her labor, to the creation of the estate accumulated, and ought, for this reason, to have an interest in the property to the extent of one-half at least, either as a co-partner of her brother, or by way of resulting trust. “They were poor .and penniless,” says the cross-bill, “and by common consent went to work together jointly without any specific agreement as to what should be done with the fruits of their labor, each one striving in his particular sphere to add to the general stock.” There is not a particle of proof in this voluminous record of over five hundred pages that the complainant in the cross-bill ever, at any time during the lifetime of her brother, made the least claim to-any portion of the property or its profits held and managed as his own by John Lincumfelter. The great, mass of testimony is, that the property was considered by John Lincumfelter himself, and by every other per-
Eeliance is, however, placed on the testimony of sis or eight witnesses, who, during the period of about forty years the brother and sister lived together, depose to isolated conversations held with the brother at different times and at long intervals, in which he seems to recognize his sister’s interest in the property. One witness, whose testimony is perhaps as strong as any, says: “I never heard them (the brother and sister) talking together, but I have heard him talk. He told me on two occasions how they had lived together. He said they had been housekeeping together about forty years, and working to each other’s hands, and if they made anything it Was to be divided equally between them, and whichever outlived the other was to have the property- while they lived, and at the death of both, if there was anything left of his part, he wanted it to go to his children” — meaning two illegitimate-children of his then living with him and his sister. Another witness, however, who deposes to a similar conversation, thus words it: “He said he intended the property they had, if she outlived him, to go to Betsey, and then to the children they were raising.” One witness understood him to say, “Half of it was hers anyhow.” Another, “that them that was helping
The complainants concede in the original bill that it was agreed by Jacob Lineumfelter and Polly Taylor that their sister Betsey should have the farm for life, and the personal property on it absolutely. These were just concessions on their part, highly honorable to them under the circumstances, even in the absence of contract. But I think the weight of evidence is that there was an agreement at the time, that, in consideration of these concessions, the residue of the estate should be divided between the parties, the debts when collected, the lands at the death of Betsey, which event has happened. And although the agreement may not have all the requirements of a valid contract, the complainants affirm in their bill their willingness to
The revival of the claim of the cross-bill was an after thought, due more to the administrator than to his aunt Betsey. He has, confessedly, been using the-money of the estate by an ostensible payment to her under her revived claim, and a borrowing from her. He will be held to the usual administrative account, except of the personalty on the farm and the Larue note, and, having failed to make any settlement of the administration before bill filed, he will be allowed no compensation, will be charged with interest, and will pay the costs of taking the account. The residue of the costs under the original bill will be paid out of the estate, or equally by the three parties entitled.
The decree below will be reversed, and a decree-entered in accordance with this opinion.