Alexander v. Joseph Miller's Heirs

• Decision Date: 16 December 1871
• Citation: 54 Tenn. 65
• Parties: JAMES ALEXANDER, Ex'r, et al. v. JOSEPH MILLER'S HEIRS.
• Court: Tennessee Supreme Court

54 Tenn. 65

JAMES ALEXANDER, Ex'r, et al.

v.JOSEPH MILLER'S HEIRS.

Supreme Court of Tennessee.

Dec. 16, 1871.

FROM SUMNER.

From the Chancery Court, September Term, 1867. THOMAS BARRY, Ch.

JORDAN STOKES for the children of Jno. M. Miller, deceased, and for those of Mrs. Alexander by her first husband, Wood S. Miller, said:

1. The testator's widow took the whole estate, real and personal, for life, including the realty acquired after the date of the will. Code, sec. 2195; Wynne v. Wynne, 2 Swan, 405.

2. The expression, “out of moneys of which I may die possessed,” must be confined to gold and silver coin and current paper, there being no intimation of a larger meaning. Mann v. Mann, 1 John. Ch., 236; Gordon v. Gordon, MS.

3. The personal estate is indeed the primary fund for the payment of debts, in the absence of any provision to the contrary; but the testator may, by express direction or by implication, exonerate the personalty from primary liability, and cast this upon the realty.

4. The personalty here being given to the widow for life, and to the grandchildren, etc., after her death--excludes the idea that any of it was intended to be applied to the payment of the debts.

The testator dying intestate as to reversionary interests in realty, the law casts upon these the burden of primary liability for the debts, after the exhaustion of the moneys on hand, etc. Miller v. Harwell, 3 Murp., 204; Roberts v. Wortham, 2 Dev., Eq., 173; Palmer v. Armstrong, 2 Dev., Eq., 268; Kirkpatrick v. Rogers, 7 Ind. Eq., 45; White v. Green, 1 Ind. Eq., 49.

The main body of the testator's indebtedness was for unpaid purchase money of a portion of this realty, constituting a lien thereon. Unquestionably the legatees may force the creditors to resort first to their lien before coming upon their legacies. Miller v. Harwell, 3 Murp., 204; 1 Story's Eq. Jur., sec. 565. The executor having first taken the personalty to pay the debts, the legatees must be subrogated, for reimbursement from the undevised realty. 1 Story's Eq. Jur., 565.

5. Mrs. Alexander took an estate for her own life, certainly, in the land devised to her for and during the joint and several lives of herself and husband. Admit that she took an estate therein for the life of her husband also, yet he could not take by courtesy after her death, since courtesy does not attach to any estate less than a legal or equitable estate of inheritance. Nor could he take by virtue of his right to the wife's chattels real; for though not a descendible freehold, the estate was nevertheless a freehold, and not a mere chattel real. The husband here could not take at all. The doctrine of special occupancy does not obtain in Tennessee. The estate of Mrs. Alexander passed upon her death to her children, under Code, secs. 51 and 2420.

6. The testator's grandchildren took the remainder interests in realty and personalty per capita, and not per stirpes. Rogers v. Rogers, 2 Head, 660; Ingram v. Smith, 1 Head, 471; Wood v. Saunders, 3 Sneed, 387;Seay v. Winstead, 7 Hum., 472.

JOHN W. HEAD, for the executor, said:

The Court below erred in holding that the testator died intestate as to the two tracts known as the Grim land, etc. A testator is never presumed to die intestate as to any of his property. Courts lean against a construction involving this result. Marlerly v. Strode, 3 Ves., 450; Booth v. Booth, 4 Ves., 403; Collin v. Collin's Ex., 3 Ohio St., 373;Williams v. Williams, 10 Yerg., 25;Gourley v. Thompson, 2 Sneed, 387.

Under Code, sec. 2195, a will speaks as if written immediately before the testator's death. All the testator's property will pass thereunder, unless it appear that a portion was meant to be excluded. Winchester v. Foster, 3 Bush., 366.

The primary rule of interpretation is to carry out the intention. Williams v. Williams, 10 Yerg., 26; Dicker v. Dicker, 3 Ohio, 157; Painter v. Painter, 18 Ohio, 247; Worman v. Teagarden, 2 Ohio, 380; Hoover v. Gregory, 10 Yerg., 449;Berry v. Headington, 3 J. J. Mar., 321.

The intention is to be arrived at from the language of the will, read by the light of surrounding circumstances. Precedents avail here comparatively little. Extrinsic evidence may be resorted to in order to clear up latent ambiguity. It is apparent that the ridge lands are to be included under the expression, the “home tract.” The evidence shows that they were bought and used, and regarded as an appendage to the “home tract.” The town lot falls under the same appellation, when its relation to the “home tract” is considered. There can be no doubt as to the disposition of the Grim lands. These and the ridge lands and the town lot must all pass under the will.

Mrs. Alexander took an estate under the will for the life of herself and husband. An estate to A during life and the lives of B and C is cumulative, and will exist until the death of the longest lived of the three. 1 Wash. on Real Prop., marg. p. 90; Coke Lit., 41, b.; 3 Prest. Com., 225.

The wife dying, who takes the remnant of her estate which subsists during the husband's life? Not the husband; for the estate not being a fee, he has no courtesy; 2 Black. Com., 99; 1 Wash. on Real Prop., marg. p. 130; Haywood v. Moore, 2 Hum., 588; 1 Green Cruise, marg. p. 148; 4 Kent's Com., marg. pp. 27-8; and the doctrine of special occupancy does not exist in Tennessee. By a proper construction of the statutes, N. and C., p. 247, and N. Suppl., p. 147, substantially carried into Code, secs. 2420 to 2428, an estate pur autre vie descends to the lawful representatives or heirs of the deceased. See Campbell v. Taul, 3 Yerg., 561; Guion v. Burton, Meigs, 570. The word “land” in Code, sec. 2420, is used as defined in sec. 51, and comprehends lands, tenements, and hereditaments, and all rights thereto, and interests therein, equitable and legal.GUILD & SMITH and WILLIAMSON & MARTIN, for R. W. Miller and E. G. Seawell and wife, said:

Gen. Miller died intestate as to the three tracts of land and the town lot, etc. These descended to his four children or their representatives, advancements to be collated, etc.

The proof sustains the Master's report upon the amount of advancements made.

In estimating these, it was correct to look to their value at the time of the testator's death. Burton v. Dickerson, 3 Yerg., 112; 2 Wil. on Ex., p. 1285, note B.

As to the rule in calculating the value of expectancies, see 3 Bland (Md.), 282, where the subject is exhaustively treated.

The remainder of the briefs consisted of an elaborate discussion of the special matter of the case.

DEADERICK, J., delivered the opinion of the Court.

General Joseph Miller, of Sumner county, made his last will and testament on the 15th of December, 1856, and died on the 20th of November, 1858.

Susannah Miller, wife of testator, was by the will appointed executrix, and James Alexander, the complainant in this cause, and son-in-law of testator, was appointed executor.

In November, 1863, Mrs. Miller died, leaving Alexander surviving executor.

At the time of the execution of the will, and the death of the testator, he was the owner of a valuable estate, consisting of real estate and slaves, and other personal property; and he left as his devisees, legatees, and heirs at law, his widow, one child Nancy J. Alexander the wife of complainant, and the following named grandchildren:

Susan Miller Seawall and R. M. Miller, who are the children of Andrew K. Miller, a son who died in February, 1853; Joseph Miller, A. W. Miller, R. G. Miller, and Thomas Miller, children of the said Nancy Jane by a former husband, and Susie and Jennie Alexander, her children by complainant, her last husband; J. K. Miller, son of R. G. Miller, a son of testator, who died in April, 1843; J. M. Miller, A. K. Miller, Susan Miller, Nancy Jane Miller, and Polly W. Miller, children of Robert Miller, son of testator, who died 30th of August, 1850. Thus at the date of the will and at the time of the testator's death, he left surviving him his widow, one daughter Nancy J. Alexander, and fourteen grandchildren.

Since testator's death his widow has departed this life, as before stated, and on the 23d March, 1870, and since the institution of this suit, his only surviving child, Nancy J. Alexander, also departed this life, leaving her husband and the children hereinbefore named surviving her.

After the testator had made his will he purchased other lands in Sumner county.

The bill was filed in the Chancery Court of Sumner county, December, 1865, by the surviving executor, asking for a construction of the will; that the rights of the parties thereunder might be declared; that advancements made by testator might be accounted for; the lands not devised sold; and the estate settled under the direction of the Chancellor.

Several questions of interest are presented in argument and arise upon the record. The first clause in the will is as follows: “I will and direct that all my just debts be paid by my executor hereinafter to be named, out of any moneys of which I may die possessed, or may first come to his hands or possession.”

The next clause gives, devises and bequeaths to his wife Susannah Miller, for and during her natural life, all the real and personal estate of every description of which the testator may die seized and possessed, not therein otherwise disposed of, for her natural life, with the privilege of the revenues, profits, and increase arising therefrom.

After various specific devises of real estate and bequests of personalty, all of which were to take effect on the termination of the life estate of his widow, by the 8th clause of his will the testator adds: “At the death of my wife Susannah, I will and direct that all my then remaining personal property not herein disposed of, be equally divided between my grandchildren and the heirs and representatives of those who may have died leaving issue, share and share alike.”

In view of these several provisions of the will, together with the fact...