Bigley v. Watson

• Decision Date: 19 March 1897
• Parties: BIGLEY et al. v. WATSON et al.
• Court: Tennessee Supreme Court

39 S.W. 525

98 Tenn. 353

BIGLEY et al. v. WATSON et al.

Supreme Court of Tennessee.

March 19, 1897

Appeal from chancery court, Davidson county; Thomas H. Malone Chancellor.

Bill by T. J. Bigley and others against W. S. Watson and others. From a judgment of the court of chancery appeals affirming a decree dismissing the bill, complainants appeal. Affirmed.

Stokes & Stokes, for appellants.

M. B Howell, for appellees.

W. O Vertrees, guardian ad litem.

CALDWELL J.

This is a proceeding in equity to set up title by inheritance to certain real estate, to remove clouds from that title, and to have an account of rents and profits. The chancellor, hearing the cause on its merits, dismissed the bill, and the court of chancery appeals affirmed his decree.

George W. Boyd died, testate, many years ago; and by his will probated in 1830, gave considerable real estate to his widow and four children,-one son and three daughters. The widow dissented from the will, and procured an allotment of dower. In the course of time the widow died, and the property covered by her dower passed, under the will, to the four children. Subsequently one of the daughters died, intestate, unmarried, and without issue. Thereupon the other three children, all of whom were married, and the husbands of the two daughters, filed a joint ex parte petition in the chancery court of Davidson county to have the real estate previously covered by the dower and that owned by the deceased daughter partitioned among the three surviving children in equal parts. Steps appropriate to that end were taken under the direction of the chancellor; and final decree, divesting and vesting title, was passed in November, 1854. By this decree the title to a tract of 56 acres and to a town lot, assigned to Mrs. Sarah A. Watson, one of the surviving daughters, was vested in her "for her sole and separate use during her life, and at her death to her children then living, and the issue of such as may be dead." Mrs. Watson then had two children, but both of them died, without issue, in her lifetime. She herself died in 1892, and by her will devised the real estate just mentioned to her husband, W. S. Watson, the father of her children. He went into possession under the will; and, as a devisee of his wife, sold the 56 acres, and mortgaged a part of the town lot. In 1895, the complainants in this cause, as heirs at law of Mrs. Watson, filed their bill against her husband and his conveyees to recover the whole of said property, to remove his conveyances as clouds upon their title, and to have an account for mesne profits.

The theory of the bill, briefly stated, is that Mrs. Watson, having only a life estate, could not effectively devise the remainder; and that, having left no children, nor the issue of children, the remainder did not become vested in them, but, upon her death, descended to her heirs at law. Answering, the defendants say, in substance: (1) That so much of the partition decree as undertook to cut down her interest in her own land to a life estate was coram non judice, and void; and (2) that, treating that decree as valid, she nevertheless had power to devise the remainder, because the contingency upon which it was to vest never happened; and (3) that, in any event, Watson is entitled to a life estate as tenant by the curtesy. It is undoubtedly true that the partition decree is somewhat broader than the pleading. The petition under which that decree was rendered sought only a division of the lands among the three claimants; while the decree went further, and divided the fee of Mrs. Watson into a life estate and remainder, giving the former to her, and the latter to her children and their issue living at her death. It is well settled that a decree should be confined to the matters presented in the pleadings, and that an adjudication of other matters is coram non judice, and, for that reason, subject to avoidance. Gilreath v. Gilliland, 95 Tenn. 383, 32 S.W. 250; Rogers v. Breen, 9 Heisk. 679; Randolph v. Bank, 9 Lea, 68, and cases cited. This rule, however, does not extend to consent decrees rendered in causes where the court had jurisdiction of the parties and of the subject-matter. Railroad v. Ketchum, 101 U.S. 289; Railway Co. v. U. S., 113 U.S. 261, 5 S.Ct. 460; 5 Enc. Pl. & Prac. 962; Boyce v. Stanton, 15 Lea, 347. The decree here impeached by the defendants falls within this exception to the general rule, and must, therefore, be treated as operative in all of its parts. Mrs. Watson was in a court of plenary jurisdiction, upon her own petition; and with full knowledge of her rights she and her husband assented to, and, through their counsel, procured, the decree in question. It matters not, in this proceeding, that Mrs. Watson was a married woman at the time, for decrees entered by consent of persons under the disability of coverture or infancy are avoidable alone by original bill, and then only for good reasons shown. Jones v. McKenna, 4 Lea, 630; Musgrove v. Lusk, 2 Tenn. Ch. 580; Wall v. Bushby, 1 Brown, Ch. 484; 2 Daniell, Ch. Pl. & Prac. (5 Am. Ed.) *974. In any and every aspect of the question the decree was binding on Mrs. Watson so long as she elected to let it stand. She did not, in fact, avoid it in her lifetime; hence, it was in force at her death, and is now binding on those claiming under her. By the plain terms of the decree Mrs. Watson reserved to herself only a life estate. This being so, and nothing else appearing, her husband is entitled to nothing as tenant by the curtesy. Curtesy cannot attach to a mere life estate. Beecher v. Hicks, 7 Lea, 207; Alexander v. Miller's Heirs, 7 Heisk. 81; 2 Kent, Comm. *134. That part of the decree which adjudged that the lands allotted to Mrs. Watson should pass "at her death to her children then living, and the issue of such as may be dead," created a valid contingent remainder in fee. The interest given was a remainder in fee, because it comprised the whole residue of the estate (4 Kent, Comm. *198; 2 Bl. Comm. 164; 2 Washb. Real Prop. [5th Ed.] 585); and it was contingent, rather than vested, because limited to take effect in "dubious and uncertain" persons, as under Blackstone's first class and Fearne's fourth class of contingent remainders. 2 Bl. Comm. 169; 1 Fearne, Rem. 3-9; 4 Kent, Comm. *206, 207; 2 Washb. Real Prop. 608, 614.

It is not amiss to remark in passing that "the lines of distinction between vested and contingent remainders are so nicely drawn that they are sometimes difficult to be traced" (4 Kent, Comm. *204), and that in those instances where the disposition is so obviously upon the border as to be inherently doubtful between the two, the doubt will be resolved in favor of the former, for the reason that the general law favors the vesting of estates at the earliest practicable moment. This remainder failed, because the line of remainder-men became totally extinct before the happening of the event upon which alone it could possibly have vested. The only two children born to Mrs. Watson, the life tenant, died, without issue, years before her death; consequently she died without children "then living," and there was no one to take the remainder, as such.

This suit was brought, as before recited, to solve the problem of the present ownership of the property, complainants asserting their right to it as heirs at law of Mrs. Watson, and the defendants claiming it through her will to her husband. In deciding the question it is important to inquire first when the remainder fell. If it was extinguished immediately upon the death of the longer liver of her two children, or at any other time in advance of her own death, Mrs. Watson at that moment became the absolute owner of the whole estate, and unquestionably had plenary power to dispose of it by will to her husband, or to any one else, subject to his right as tenant by the curtesy. On the other hand, if the remainder ceased only at the very instant of her death, the controversy between the heirs and the devisee as to the better title becomes more interesting. It is not difficult to state a case in which a remainder would cease effectually anterior to the termination of the life estate. For instance, if land be given to A. for life, with remainder in fee to B. if living at A.'s death, and B. dies first, the remainder is completely extinguished at the moment of B.'s death, and the donor may thereafter deal with the fee the same as if the remainder had never been created. Mrs. Watson was an old woman when she died, and it is suggested that on account of her advanced age she was entirely incapable of bearing other children for years after the death of the two born to her when younger, and therefore that the remainder came to an end, and she was again full owner of the land some time in advance of her own decease, and while she still survived. This suggestion, so far as involving a conclusion of law, is unsound, because based upon an assumed impossibility of other issue to Mrs. Watson after she had grown old. Lord Coke says "The law seeth no impossibility of having children" (Co. Litt. 28); and Blackstone says, "A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties, even though the donees be, each of them, an hundred years old." 2 Bl. Comm. 125. This rule of law has been recognized and applied in several American cases. In State v. Lash, the supreme court of New Jersey briefly remarked that "by the common law the possibility of issue is commensurate with life." 16 N. J. Law, 388. In a comparatively recent case the supreme court of Pennsylvania used this emphatic language, namely: "The rule has stood the test of time, and received the sanction of ages. *** Nature has fixed no certain age, by years, at...