83 Tenn. 438 | Tenn. | 1885
delivered the opinion of the court.
Mrs. Catharine D. Williams died in Greene county, May, 1870, possessed of a large estate, both real and personal. She left a will disposing of the entire estate, with the exception of some small bequests, to her three sons, Joseph A., Thomas L. and complainant, William D., and her only daughter, Eliza D. Sneed, who had intermarried with the late Hon. Wil
This bill has two leading objects: First, a construction of the will of Mrs. Williams in the several matters specified; second, to take the settlement of the estate from the control of the executors, and have a settlement of the. same in the chancery court, with a general account of its administration. In addition, a claim is presented for $1,200 for personal services rendered by complainant for the executors in attending to the business of the estate, together. with a specific relief, in reference to a tract of land sold by the executors, known as the College Farm, a portion of which was purchased by his wife.
The relief is sought in these matters, based on charges that the executors “have not sought the aid of a court of chancery to construe said will, but have construed it themselves,” “and have failed to avail themselves of such evidence as would show the nature of the business or the proper meaning of the will, have given to some provisions a construction not intended by the testatrix, greatly to his prejudice, and
In addition, it is charged that certain provisions of the will are'nugatory and void as against public policy, requiring in substance that the legatees and de-visees shall submit to the judgment of the two ex-’ ecutors in all matters of construction and discretion in the settlement of the estate, and that if any one of them shall sue them for a construction of the will,, or for matters confided to them by the will, such party shall forfeit the interest given to him or her, under the same.
The executors answer, giving an emphatic denial of all charges implicating them in any wrong construction of the will, or wrong conduct in their administration of the estate. They accompany their answer with schedules containing a complete showing of all the business done by them. The clear, business-like and satisfactory showing thus made,- the work of David Sevier, who was the active executor in the conduct of the business, is most creditable, and deserves the commendation of this court.
The report of Referee Frizzell has succinctly stated the leading issues between the parties, collating the facts found by the Commission, with specific references to the record, where they may be found, thus giving us efficient aid in the investigation of the complex record before us.
We will dispose of the questions presented in the order indicated, or as nearly so as may be found convenient:
By the fourth clause 'of the second codicil, of date February 17, 1867, the testatrix provides: “Having purchased at a chancery sale made since the date of my original will, the house and lot of my -son, William D. Williams, in front of the court-house in Greeneville, it is my will that the said William L. Williams shall have the privilege of redeeming the same by paying the amount of purchase-money, with interest, to my executors and trustees at any time within twelve months from my death; or if they, within that time, can sell the property for more than the purchase-money and interest, they are to pay the surplus to him, and he is not to account for it in any' manner. If not redeemed within twelve months, the property will form part of my entire estate, or if sold, the purchase-money paid by me, with interest, will be so considered.”
An elaborate argument has been submitted to us,, endeavoring to support the view that “ purchase-money”' in this fourth clause only meant two debts, Sevier’s, and Gass’, which were paid by Mrs. Williams, the purchaser, and not the $5,025 for which she gave her note at the chancery sale. But on looking at the exceptions filed by complainant, we find nothing that points to this precise question. The question, however, does come into view in support of the contention made in the exceptions filed, and will be considered in the proper connection.
We will take up the exceptions of complainant as
This exception presents as its sole question the-point as to whether the complainant shall be charged with the note referred to as an advancement or not,, and puts the objection on the ground that it was given to him by his father, Alexander Williams, and the will excludes such advancements in express terms, except two instances, one to Mrs. Sneed, the other to-complainant.
But the proof shows that this note was sued on by Mrs. C. D. Williams, attachment levied on the land referred to in clause four of codicil quoted above,, sold November 9, 1866, for this and the debts of Sevier and Gass, and note of Mrs. Williams for $5,025, given for the purchase price, and then the land disposed of by said clause, or its proceeds. Mrs. Williams was the sole legatee of her husbaud and his executrix, and as such beneficial owner of this note. Complainant attempts to show that this judgment was only a means to cover up his property from judgments sought against him at the time, and was never intended to be enforced. But the decided weight of the proof is against this contention. The fact that Mrs. Williams retained this land, into which this judgment entered, and disposed of it and proceeds by-
It is argued, too, that she gave complainant an order on Sevier for $3,000, part of the money for which the land was afterwards sold to Galbraith & Ingersoll, and thus showed her recognition of his right to the proceeds of the property. But it is clearly shown no such purpose existed, but the contrary. She required a receipt; to be taken from complainant for this sum, showing that the amount was received, “ not in payment or part payment of any claim or demand I may have -against her, but as an advancement or loan by her to enable me to make a start in business, and I bind myself to account for the same hereafter when required to do so.”
We need not discuss the position taken in argument, that the judgment in favor of Mrs. Williams is valid. It is unimportant in the view of the case we have taken. The principle, now well settled, as
The next exception is, because complainant is held to be -the principal in the note for $1,590.58, and testatrix only surety, the proof showing, as claimed, that complainant was the beneficiary in said note only to the extent of $290.89. The only distinct proof as to this sustains the decree of the chancellor.
The Referees hold W. D.. Williams was principal on this note, his mother security, and charge him with this sum, but allow him to show such sums as were used for his mother in taking the account. The facts are substantially as stated by complainant, that in 1858 he had borrowed from Sneed $1,000, and given his note for it, but that it was to be used, and was used, for the benefit of his mother, except perhaps $290, or thereabouts. That afterwards he,
We, or either of us, promise to pay W. H. Sneed $1,598.58, with interest from December 1, 1866. Value received. January 26,1867.
Wm. D. Williams,
0. D. Williams.
He claims this note was given in a settlement had ■at this meeting with Sneed, and included two other notes of complainant for $100 each, and perhaps some ■other matters. That he objected to giving his note at the time, as he claimed to have used but' a small part of the $1,000 for himself, and had no access then to his papers, but it was suggested that all this ■could be adjusted between him and his mother, whereupon he signed the note, and gave him a statement of the settlement now shown in the record.
We think the Referees have reached the proper ■conclusion. It is conceded 'by Williams that he borrowed the money, the $1,000; the other notes included were his own. He claims the greater part of the $1,000 was used for his mother, and being allowed to show this, is all he can ask.
The next exception is, because certain sales of parts of what are known as the “ college farm,” a sale made for partition, are reported to be ratified. These sales were made to Joseph A. and Thomas L. Williams, two of the devisees. The objection is that they were but provisional, and in parol, and it is ■claimed in argument, the property shown to be worth more than was bid for it by purchasers. We think •the sale was fair, and no inadequacy of price shown
The fourth exception, as to the old note and judgment on it being void, lias been already disposed of.
The fifth exception is: “ Because the claims of David Sevier, one of the executors, against the estate, of $726.85, $2,462, $884.18 and $2,000, as shown in the statement of the executor’s account, axe allowed, he having shown no retainer for these debts by settlement or otherwise, within two years and six months, nor indeed in ten years. For this reason the statute of limitations, it is insisted, bars these claims.
The Referees report in favor of allowing these •claims, as they say “ under the peculiar circumstances of the case, and especially under the power conferred upon the executors in the sixth clause of codicil No. 2, “ giving them full power to settle all the business of the estate by compromise or arbitration, to release any debt or parts of debts, to take property in payment whenever they think it best, to dispose of the same, to pay, if they see proper, just debts ■barred by the statute of limitations.”
We see nothing in these provisions to excuse the executors themselves from the obligations imposed by law as to debts due to themselves or either one of them. It is probable the clause referring to pay debts barred by statute of limitations could only apply to the general statutes of limitations, and not to the statute of two years and six months, requiring all
Exception sixth is: “ Because compensation is allowed to the executors for services, when it is alleged they have unreasonably delayed the settlement of the estate.”
The fact is that the delay is explained and met by the fact of repeated litigations that would have prevented a complete settlement of the estate, if attempted, together with the complication of the business. Under the enlarged discretion given the executors, together with the express provision that they should be liberally compensated, found in the will, nothing but a gross breach of duty would cut off compensation for such services as have been rendered. We see no evidence of this; on the contrary, perfect good faith, and more than ordinary care in the transaction of the business confided to them. This exception must be overruled.
We think the report of the Referees is correct in reversing the decree of the chancellor, dismissing so much of the answer of the executors, as was made a cross-bill. It was proper to file this in order to-get possession of the land purchased by parol by complainant or his wife, which he was in possession of, and also to bring in the heirs or devisees of Mrs.
Exception 8 is because the report recommends the confirmation of the sale of the “college farm” to Joseph A. and Thos. L. Williams, and rescission of the one to wife of complainant. The sale being in parol, the executors having ample power to make it, having affirmed it as above, and having been perfectly fair, as we think, the report is correct. The dis-affirmance is proper as to complainants'wife, the purchase-money never having been paid, and no ability to pay. The sale having been disaffirmed, the usual consequences follow of account for rents during occupation, to be met by taxes paid, if any, and better-ments as far as land enhanced in value, if any. No one could interfere to prevent executors confirming sale, unless fraud or collusion was shown, and none can be made out in this case.
The exceptions of Mrs. Jones and children are next
The third exception is, because the report recommends that interest should be allowed on advancements from death of testator.
This is correct as to all money advancements, or property advanced in the lifetime of the testator, with the money value charged against the legatee in the will. See 3 Yer., 122; Johnson v. Johnson, 13 Lea. As to property advancements, the rule is given in Judge Cooper’s note to the ease in 3 Yerger, approved in McNairy v. McNairy, Nashville, December, 1874, that the property, as it existed at the death of the testator, with the advancements, constitute the fund for division, and the children are entitled to share in the subsequent increase and profits in the proportion in which they were entitled to the corpus. These rules will serve to guide in the final settlement of this case.
The other exception is as to debts due David Sevier, barred by statutes of two and a half and seven years, and has been already disposed of.
Two questions only are raised by the exceptions of respondents, the executors and Joseph and Thomas L. Williams. The executors except because it is recommended that interest should be charged on assets from the time realized.
Interest on assets is a matter within the sound legal discretion of a court of equity: Turney v. Williams, 7 Yer., 213; 3 Heis., 637; 9 Heis., 821. The
We have held there has been no unreasonable delay in the settlement in this case; that it was caused by circumstances over which the executors had no control. The assets, as far as we can see, have been realized as promptly as possible, and paid out to meet the liabilities of the estate, or to legatees.
On careful examination of the schedules showing collection and payments, it is seen the assets were paid out about as fast as received, probably not more-retained in their hands at the time of filing complainant’s bill than enough to compensate for services and expenses of settlement; at any rate there is no evidence of any misuse of the funds, or that they have been imperilled in any way. We do not think the executors, making so full and fair a showing of their accounts, should be charged with interest on assets, except any surplus that may be found in their hands at the time of filing the bill for an account, if any such can be shown, and from that period, or unless it can be shown, which is not done in this record, they have made interest or used the funds themselves.
The defense is made alone in the answer of the executors, but is not made in the answer of Thomas 'L. or Joseph A. Williams, or any other party.
The first question is, whether the executors can insist on this forfeiture, standing alone as trustees, having no interest whatever in the property, when the other devisees and legatees have waived whatever rights they might have had under the will to enforce ■the forfeiture, by failure to insist upon it in their pleading, or urge the enforcement of the forfeiture in any way, except by joining the executors in excepting to the report of the Referees on this ground.
The language of . the particular clause imposing the restraint on her children is, “ should any of my children seek to contest my will, or to disturb my said executors and trustees, by suits or otherwise, in the lawful exercise of their authority, then such child shall thereby forfeit any claim, legal or equitable, to any part of my estate. It is seen from this language .that there is no gift over in case of forfeiture thus incurred, nor is it made part of any general residuary disposition. We think the failure of the other legatees and devisees to insist upon the forfeiture sug
It could hardly be pretended, however, that the bona fide creditors refusing to do this, and submitting to being deprived of the benefit, could have it forced, upon them by the trustee, who was merely the agent for the execution of the trusts of the instrument, with no beneficial interest to be served or injured. No difference in principle is seen between the case put and the case now in hand.
We, therefore, conclude the trustees cannot raise this question on these facts, and the beneficiaries have
This disposes, we believe, of all the questions presented by the exceptions filed. A decree will be drawn in accord with this opinion. The costs of this court will be paid, one-half out of the fund in the hands of the executors, the other by complainant, and of the court below in the same proportion. Future costs to be adjudged by the chancellor. ,•
The case will be remanded for the account in accord with this opinion.