120 Tenn. 589 | Tenn. | 1908
delivered the opinion of the Court.
Complainant, as administrator with the will annexed of Mrs. Elizabeth Phelan, deceased, filed this bill to recover of J. J. Phelan, surviving husband and the original administrator of the said Elizabeth, the sum of $1,026 alleged to have been unlawfully appropriated by him. Mrs. Elizabeth Phelan died in the city of Memphis on June 19, 1905, leaving surviving her, her husband, J. J. Phelan, and their infant child Angela, born October 19, 1908. Shortly after the death of said Eliz
On the hearing the chancellor was of opinion that the defendant Jos. J. Phelan was only entitled to one-fifth of the bank deposit collected by him and that the balance thereof belonged to the other legatees mentioned in the will of Elizabeth Phelan. The chancellor accordingly pronounced the decree against the 'defendant J. J. Phelan and the National Surety Company, his bondsmen, for the sum of $918.52, and the costs of the cause. On appeal the decree of the chancellor was affirmed by the court of civil appeals, and the cause is here on a writ of certiorari granted by this court at a former day of the term. The defendant Jos. J. Phelan has assigned as error the decree of the court of civil appeals.
It is contended on behalf of the said J. J. Phelan that the will of his wife in which she undertook to dispose of this personal property was void for the reason that it was not her sepai*ate estate, but belonged to the defendant as husband jure mariti. In the case of Perry et al. v. Gill, 2 Humph., 218, the rule of common law in respect of the right of a married woman to make a will was stated as follows:
“(1) She can make a will of property which is hers, not yet reduced into the husband’s possession; but this with the assent of the husband, not in general, but to the*595 particular will, and in sucb case the assent avails nothing unless he survive, it being but his waiver of his right of being her administrator.
“(2) Independently of the assent of her husband, a wife has power of disposition by will of her separate property.”
It has been supposed that the power of a married woman to execute a will of her personal property has been enlarged by Acts 1869-70, p. 113, c. 99 (Shannon’s Code, sections 4242-4247), but this is a mistaken idea. An attentive examination of this act will show that it was intended to deal exclusively with the power of the married woman in the disposition of her real estate by will, deed, etc.
In Pritchard on Wills, sections 83-84, the law on this subject is well stated:
“The uniform rule in this State has been to deny to married women testamentary capacity except in certain cases and to enforce the rules of the common law except so far as they have been modified or abrogated by statute. To the wife’s testamentary incapacity there were certain exceptions, principally applicable to personal property, which were recognized in England, and which are still recognized in this State, and the rules of common law with respect to real property have been so much modified by statute in this State that coverture has almost ceased to be a disability to making a will of that class of property. Our statutes have been principally directed to conferring on married women powers*596 of disposition of their real estate, and to the enlargement of those powers from time to time, leaving the rules governing their power over personal property undisturbed.”
The next inquiry that arises is in respect of the legal status of this bank deposit — whether it was the separate estate of the wife, or -whether it was such personal property as belonged to the husband jure mariti. The. general principle of the common law' is that marriage amounts to an absolute gift to the husband of all personal goods of which the wife is actually or beneficially possessed at the time, or which comes to her during coverture. Prewitt v. Bunch, 101 Tenn., 735, 50 S. W., 748; Wade v. Cantrell, 1 Head, 345; Allen v. Walt, 9 Heisk., 242; Joiner v. Franklin, 12 Lea, 422; Handwerker v. Diermeyer, 96 Tenn., 619, 36 S. W., 869.
The common-law rule that the husband is entitled to receive and reduce to possession during coverture all choses in action, whether in the form of notes, debts, or legacies, belonging to the wife at the time of their marriage or accruing afterwards, prevails in Tennessee. Prewitt v. Bunch, supra; Rice v. McReynolds, 8 Lea, 36.
Personal property in possession, and the possession of the wife in such cases is the possession of the husband, is in law the property of the husband, nothing else appearing to show a separate property of the wife. Prewitt v. Bunch, supra; Wade v. Cantrell, 1 Head, 345; Hollingsworth v. Miller, 5 Sneed, 472; Cow v. Scott, 9 Baxt., 305.
“A separate estate in personal property may be created, not only by writing, but by a parol gift. When the gift is from a stranger, the intention to create the separate estate must usually appear from the express language of the donor; but, where a gift of personal property is made by the husband directly to the wife during coverture, the intention to include his own rights is inferred from the relation of the parties without the use of the express words that would be required where a third person is the donor.” Pritchard on Wills, section 86.
It remains to apply the principles of law just stated to the facts disclosed in the record. It is concede^ that the defendant, J. J. Phelan, was a railroad engineer and received a salary for his services varying from $160 to $200 per month, and that during his married life he turned over to his wife his salary as it was paid him. It is contended, however, on behalf of the defendant, Phelan, that this fund was accumulated in the hands of his wife as mere custodian for the purpose of defraying household and other incidental expenses, and that the surplus belonged to him. It is the theory of the complainant that this fund was an absolute gift from the husband to the wife, and that it thereby constituted her separate estate by implication and intendment of law
The defendant, J. J. Phelan, was asked:
“Q. 21. If any, what custom did you have regarding your checks representing your monthly salary? A. Always gaye them to my wife as soon as I got them.
“Q. 22. If’you had any particular reason in doing this, please state exactly what the reason was? A. Because she was good and kind, and I knew she would take care of it.
“Q. 23. Did either you or she understand that you were giving her those checks for her own personal use, or merely constituting her custodian for the fund for your common benefit? A. I always placed that confidence in her that she was good and kind, and would take care of my money for me.
“Q. 24. Now, Mr. Phelan, your wife, the said Mrs. Elizabeth Phelan, deceased, recognized your right to the fund which you intrusted to her, did she not? State to what extent she recognized such right? A. - Well, she always gave me whatever I asked her. When I wanted $10, $20, or $30, I always got it.
“Q. I believe you have testified that she did not say in whose name that deposit'was being made? A. No, sir; I never asked her. I said: ‘You always put it in your own name. I will not outlive you.’ That was one time that we were talking about it. I merely passed the remark and I didn’t expect to outlive her.”
It appears from the stipulation of agreed facts that:
“Mrs. Elizabeth Phelan at the time of her death was an owner of real estate near the corner of Main street and Iowa avenue in the city of Memphis. That said real estate, together with the sum of $276.18 paid to her about the 21st day of July, 1903, was left her under the will of John Mvnehan, deceased, but that said property was not impressed by said will as a separate estate. It is further agreed that on or about the 14th day of November, 1904, Mrs. Elizabeth Phelan collected from the city of Memphis, as damages to her said real property on Iowa avenue occasioned Jby the construction of a subway, the sum of $1,200, less the sum of $300 paid as counsel fees, and that on payment of said amount she and her husband, J. J. Phelan, executed a joint receipt therefor. It is further agreed that H. H. Eoynan, real estate agent, collected rent on said property for several months, paying it over to Mrs. Phelan until March 1, 1903,- when she informed him that she would attend to future collections of rent. It is further agreed that the sum of $1,189.57 mentioned in the inventory filed by said J. J. Phelan, administrator, represented collections*600 from the Union & Planters’ Bank, in which said Mrs. Elizabeth Phelan held two certificates of deposit, both payable to her order, one for $928.72, dated November 22, 1904, the other calling for $280.85, dated December 1,1904. It is further agreed that the bank officials state they have no record showing when this money, was placed in the bank and no means of knowing where it came from; that it may have been deposited there on above mentioned dates, or the certificates may have been renewals; that the books previous to these debts were placed in the vaults when the bank moved to its present location; and that to hunt them up would entail more time than the bank officials are willing to take.”
It thus appears from the agreed statement that not only the salary of J. J. Phelan went into the hands of his wife, but that she also received the sum of $900 as damages to her property on Iowa avenue; that she also received the sum of $276 under the will of John Myne-han, deceased, and that she also collected and received rents upon her property in the city of Memphis; and that she also received from Canada other sums amounting .to several hundred dollars. The record fails to disclose the source from which Mrs. Phelan derived the fund of $1,189 deposited to her credit in the Union & Planters’ Bank at the date of her death and which is the subject of the present controversy.
In Wood v. Polk, 12 Heisk., 222, it is said: “It is a doctrine of law long recognized in this State that in a gift of property to a feme covert, if it be the intention
It is said that the fund that went into the hands of Mrs, Elizabeth Phelan arising from rents of her real estate, the funds derived from the city in liquidation of damages inflicted upon this property, constituted her separate estate for the reason that on December 12, 1903, the said Joseph J. Phelan executed a deed to his wife in which he released all his estate, right, and interest in the real estate of his wife. As we have already seen, this real estate was devised to her by John Myne-han, 'deceased, but was not impressed as a separate estate by the terms of the will. The release of the husband recited that: “The said Joseph J. Phelan had remised, released, and forever quit-claim unto my beloved wife, Elizabeth Phelan, aforesaid, her heirs and assigns forever, all the estate, right, title, and interest, which at law or in equity I now have or may hereafter acquire as tenant by the curtesy in and to the following described tracts or parcels of land situated in the city of Memphis [describes them].”
And stated:
*602 “That the above mentioned parcels of land, being the same owned at the time of his death by John Mynehan, deceased, late of Shelby county, Tennessee, and by him devised to the grantee herein.”
It will thus be observed that the husband, Joseph J. Phelan, not only released every possible interest he may have had in said real estate, but also any interest he might thereafter acquire as tenant by the curtesy in and to this real estate. It appears from the record that the sum of $900 which went into the hands of the wife arose from the settlement of a claim for damages sustained by this real estate, and that the rents that went into Mrs. Phelan’s hands were also derived from this real estate. The husband having by deed released all his right, title, and interest both in law and in equity to the real estate, it follows that he also surrendered all claim to rents and damages arising therefrom. It follows that these items constituted the separate estate of Mrs. Phelan; all interests thereto and therein having been released by the husband prior to her death.
But it is impossible to say after a thorough examination of the evidence that this bank deposit arose from the separate estate of the wife. If it be treated as personal property coming into the hands of the wife during coverture, it became the property of the husband jure mariti; or, if the certificates of deposit which represented this fund be treated as choses in action (as they are), the husband had a right, after the death of
“The question as to the infancy of the testatrix might undoubtedly have been made upon the offer of the will for probate in the county court, or upon contest in the circuit court, and the judgment of the court. establishing the will wmuld, if unreversed, have been conclusive whether the court in fact adjudged that she was of full age, or that an infant might devise realty. In either case it w7ould have been the judgment of a court of exclusive jurisdiction and in the nature of a proceeding in rem. So that upon principle the probate must be as conclusive of the testamentary age of the testatrix as*604 it is of testamentary capacity in other respects until set aside in the regular mode.”
Mr. Pritchard in his work on Wills, section 44, says:
“The probate of a will in the county court is in the nature of a proceeding in rem, operating on the subject-matter and binding generally. In the absence of a fraud and collusion, the probate is conclusive until annulled, as to the capacity of the testator, the testamentary character of the instrument, and its due execution, and not even a court of chancery can inquire into these matters, even though fraud and undue influence in procuring the will are alleged. The only mode in which the probate can be set aside is upon a contest successfully prosecuted upon an issue of dcvisavit vel non in the circuit court.”
It appears that, before the will in question was probated, the defendant, Phelan, qualified as administrator of his wife, and reduced the choses in action to possession. It is true, as 'disclosed by this record, that the defendant Phelan was informed and knew of the existence of the will of his wife before he took out letters of administration and appropriated the, bank deposit in question.
We are of opinion, however, that the husband is not concluded by the probate of his wife’s will to challenge her right in this proceeding to dispose of personal property that belonged to him jure mariti, or to defeat his rights to administer on her estate and reduce to possession her choses in action. This is an entirely dif
