Allen v. Neal
| Decision Date | 12 November 1965 |
| Parties | , 217 Tenn. 181 Mrs. Vicie Ferguson ALLEN, Appellant, v. Basil NEAL et al., Appellees. |
| Court | Tennessee Supreme Court |
Allen Shoffner, Shelbyville, for appellant.
William C. Sugg, Fayetteville, Robert J. Parkes, Fayetteville, for appellees.
The issue presented by this appeal is the right of Appellant to contest the will of her aunt. In this opinion the contestant of the will, Mrs. Vicie Ferguson Allen, will be referred to as Appellant and the proponents of the will, Basil Neal, et al. as Appellees. A short history of events leading up to the case sub judice will help to point up the issue.
On 22 December 1962 the holographic will of Mrs. Silena Huffman was probated in the County Court for Moore County. This probate was in common form. Appellant is a legatee under this will and also an heir at law of the testatrix.
On 7 December 1963 Appellees, as duly qualified and acting Executors of the Estate of Silena Huffman, filed their bill in the Chancery Court for Moore County against interested parties, including Appellant, seeking a construction of the will and determination of the rights of all parties. The bill set out the death of the testatrix and the probate of the will in the County Court for Moore County. A photostatic copy of the will was made an exhibit to the bill. Appellant, served with process, elected not to answer and a pro confesso was entered against her. This suit was prosecuted to final judgment and a decree, construing the will and determining the rights of the parties, entered on 13 May 1964.
On 29 June 1964 Appellant, in the case sub judice, filed her petition in the County Court of Moore County to contest this holographic Will on the grounds, (1) the paper writing probated in common form as the holographic Will of the said Silena Huffman contained alterations not in the testatrix's handwriting, (2) the testatrix lacked testamentary capacity, and (3) the paper writing was procured by the fraud and undue influence of persons receiving substantial benefits under said purported will. Appellees filed an answer in the County Court to this petition incorporating therein an affirmative plea of estoppel. This plea of estoppel alleged Appellant was made a party defendant in the suit to construe the will in the Chancery Court of Moore County; that she acknowledged service of process; that a pro confesso was entered against her; that this chancery suit was prosecuted to final judgment; and she is thereby now estopped to contest this will. On this question of estoppel the County Court found against Appellees and they prayed for and were granted an appeal to the Circuit Court for Moore County.
The case was heard in the circuit court, without a jury, upon stipulation of facts with the sole question at issue being the right of the Appellant to contest the will. The trial judge found Appellant was estopped to contest the will as a matter of both equitable and judicial estoppel. The cause is here on appeal by Appellant.
The question presented is whether an adult heir at law of the testatrix and a legatee under a will duly probated, who, having been made a party defendant in a chancery proceeding to construe said will, elects not to answer and has a pro confesso taken against her is then thereby estopped from later contesting the will on the issue of devisavit vel non.
One of the necessary elements in equitable estoppel is set out in Rogers v. Colville, 145 Tenn. 650, 238 S.W. 80 (1921) as follows:
In order to create an estoppel, the party pleading it must have been misled to his injury; that is, he must have suffered a loss of a substantial character, or have been induced to alter his position for the worse in some material respect. As otherwise expressed, where no available right is parted with and no injury suffered, there can be no estoppel in pais. And a fortiori, an act clearly beneficial to the persons setting up the estoppel, cannot be relied on. In the absence of injury, it is, of course immaterial that the other elements of estoppel are present. 145 Tenn. 650, 238 S.W. 80.
This rule set out in the Rogers case has since been followed in a number of cases: See Morristown Furniture Co. v. Peoples Natl. Fire Ins. Co., 149 Tenn. 214, 259 S.W. 539 (1923); Church of Christ v. McDonald, 180 Tenn. 86, 171 S.W.2d 817, 146 A.L.R. 1173 (1943); Osborne Co. v. Baker, 35 Tenn.App. 300, 245 S.W.2d 419 (1951).
Judicial estoppels arise from sworn statements made in the course of judicial proceedings, generally in a former litigation, and are based on public policy upholding the sanctity of an oath and not on prejudice to adverse party by reason thereof, as in the case of equitable estoppel. Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313 (1924).
We do not think the doctrine of either equitable or judicial estoppel, viewed in its strict sense, is applicable to the facts of this case. Appellees filed this bill in chancery to construe the will, which was necessary in order for the estate to be properly administered. This action as not only clearly beneficial to Appellees but also to anyone who would take under the will. Further we do not find any act by Appellant causing Appellees to be misled to their injury or to cause them to alter their position for the worse in any material respect. Appellee filed no statements, sworn to or otherwise, in the chancery proceedings.
There is a line of cases in this State supporting the rule of not allowing a litigant to take an inconsistent position in judicial proceedings. In Stearns Coal & Lumber Co. v. Jamestown Railway Co., 141 Tenn. 203, 208 S.W. 334 (1918) Stearns brought a suit for damages against the Railway Co. in the circuit court by which action, as a matter of law, Stearns admits the legality of the charter of the Railway Co. and would be estopped to later deny such in that suit. Stearns then filed its bill in chancery against the Railway Co. setting out the circuit court action and alleging at the time this circuit court action was brought it was not advised of the situation it now alleges stripped the Railway Co. of its corporate status. The bill prayed the circuit court action be enjoined and in effect all issues be settled in the chancery court. This court held, whether these two...
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