Bradford v. Leake

• Decision Date: 21 March 1911
• Citation: 137 S.W. 96,124 Tenn. 312
• Parties: BRADFORD et al. v. LEAKE et al.
• Court: Tennessee Supreme Court

137 S.W. 96

124 Tenn. 312

BRADFORD et al. v. LEAKE et al.

Supreme Court of Tennessee.

March 21, 1911

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Suit between James C. Bradford and others and J. O. Leake and others for the construction of the will of Rebecca S. Lea deceased. From a decree construing the will, the former appeal. Affirmed.

Jno. J Vertrees, P. D. Maddin, and W. A. Guild, for appellants.

J. M Anderson, W. A. Buntin, Seay & Seay, F. Slemons, O. Lea, and Perkins Baxter, for appellees.

NEIL J.

The bill in this case was filed by the executors of the will of Mrs. Rebecca S. Lea, deceased, in the chancery court of Davidson county, for the purpose of settling her estate, and, as incidental thereto, to obtain a construction of her will, and of the will of her son, John M. Lea, Jr., under which she derived nearly all of the property which she devised. All of the questions involved in the case were settled in the court below, except those which affect the property described in the seventh item of Mrs. Lea's will. As to the property devised in this item, there is a controversy between Mrs. Bessie Leake, the daughter of Mrs. Lea, and a brother of Mrs. Lea, and the children of her deceased brothers and sisters. It is insisted by the latter that Mrs. Leake, the daughter, is debarred from taking this property by virtue of certain provisions in the aforesaid will of John M. Lea, Jr.

In order to a proper understanding of these matters, it is necessary to set out a portion of the will of John M. Lea, Jr., and likewise the seventh item of the will of Mrs. Lea.

So much of the will of John M. Lea, Jr., as it is necessary to reproduce is as follows:

"As to all the rest, residue and remainder of my estate and effects, whatsoever and wheresoever, both real and personal, whether in possession, reversion, remainder or expectancy, I give, devise and bequeath the same unto my mother, Rebecca Salmons Lea, to and for her own use and benefit absolutely, provided that she does not marry again; but, if she marries again, I give, devise and bequeath the same, from the time of her marriage, to my cousin, Overton Lea, Jr., son of Overton Lea, Sr., of Nashville, Tenn.

"I will and direct that not any portion of my estate come into the possession of my sister, Bessie Kelly, the wife of Robert Dalton Kelly, or into the possession of her husband, or of any descendants of hers, or of any one bearing the name of Kelly.

"In case my mother, Rebecca Salmons Lea, dies during my lifetime, or in case she dies interstate, or in case she gives or bequeathes to my sister, Bessie Kelly, or her husband, or any descendant of hers, or any one bearing the name of Kelly, any portion of my estate, I give, devise and bequeath said rest, residue and remainder of my estate and effects whatsoever, both real and personal, whether in possession, reversion, remainder or expectancy, unto the said Overton Lea, Jr., to and for his own use and benefit absolutely."

Item 7 of the will of Mrs. Lea is as follows:

"Item 7. To Overton Lea, of Davidson county, Tennessee, brother of my deceased husband, I devise the following property in Memphis, Tennessee, subject to the mortgage thereon, which in accepting this bequest, he must take subject to and assume the payment of said mortgage:

"(a) Part of lot one hundred and nine (109) in the original plan of Memphis, being the northwest corner of Main and Court streets, thirty-five (35) feet by one hundred and forty-eight and one-half (148 1/2) feet, upon which is erected a six-story storehouse, now occupied by Lowenstein & Co.

"(b) A lot on the southwest corner of Madison and De Soto streets, fronting fifty-four (54) feet on Madison street, and one hundred and forty-eight (148) feet on De Soto street."

Overton Lea filed a formal renunciation and refusal in writing to accept the devise sought to be given him.

This renunciation precipitated the controversies which we are to settle in the present case.

The validity of that portion of the will of John M. Lea, Jr., which is reproduced above was settled by this court in the case of Overton v. Lea, 108 Tenn. 505, 68 S.W. 250.

Mrs. Lea survived her son, and she never remarried.

It is insisted in behalf of the collateral kindred of Mrs. Lea that the conditional limitation (for a discussion of which subject see Fowlkes v. Wagoner, 46 S.W. 586), based on the contingency of Mrs. Lea dying intestate, or of an attempted disposition of the property by her to Bessie Kelly, now Bessie Leake, imposed upon the property in her hands was satisfied by the execution of the will, even though the seventh item of it, which alone concerned the property involved, was rejected by the proposed devisee; that she died testate in September, 1905, and thereby satisfied and prevented the operation of the conditional limitation, and that the subsequent renunciation by Overton Lea, in February, 1906, could not restore such conditional limitation to life and vigor; and that upon the filing of such renunciation the property would simply fall into the estate of Mrs. Lea, to be disposed of under the statute of descents, save only that the daughter could not inherit from the mother because of the provision in the will of John M. Lea, Jr., which reads, "I will and direct that not any portion of my estate come into the possession of my sister, Bessie Kelly, wife of Robert Dalton Kelly, or into the possession of her husband, or of any descendants of hers, or of any one bearing the name of Kelly;" and that by reason of such setting aside of Mrs. Kelly (now Mrs. Leake), the collateral kindred, the brothers' and sisters' children would be the next of kin, and would take the property by inheritance from Mrs. Lea. In support of this view we are referred to the following: On the point that she did not die intestate, having left a will, although it was ineffectual, 23 Cyc. 41; 2 Bl. Com. 494; 2 Kent's Com. 408409; 1 Bouvier's Law Dictionary, 1117, Rawl's Revision; Den. v. Mugway, 15 N. J. Law, 330-331; In re Commissioners' Estate, 47 A.D. 120, 62 N.Y.S. 188; Messman v. Egenberger, 46 A.D. 46, 61 N.Y.S. 556. On the point that the language last quoted was a condition annexed to the estate, and binding, no matter into whose hands it might pass, Hogeboom v. Hall, 24 Wend. 146; Pickering v. Pickering, 15 N.H. 281; Wilson v. Wilson, 38 Me. 18, 61 Am. Dec. 227; Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682. On the point that conditions which prevent the alienation of the estate to a particular person or for a certain limited period, if reasonable, are not subversive of the estate, Pritchard on Wills, § 161. On the point that a provision in a will declaring that a certain person shall never take the estate is good, although the property is not given in the same will to any other, Tabor v. McIntyre, 79 Ky. 505-509; Clarkson v. Clarkson, 71 Ky. 655; Sullivan v. Straus, 161 Pa. 145, 28 A. 1020; In re Tucker's Estate, 209 Pa. 521, 58 A. 889. Willis v. Watson, 4 Scam. (Ill.) 65. On the point that, where the immediate heirs cannot succeed to the estate, then it will pass to those next entitled under the law, Mager's Succession, 12 Rob. (La.) 584; Layre, v. Pasco, 5 Rob. (La.) 9; Jackson v. Jackson, 7 Johns. (N. Y.) 214; Scott v. Cohen, 2 Nott & McC. (S. C.) 293; Orr v. Hodgson, 4 Wheat. 453, 4 L.Ed. 613.

Counsel for the executors have filed a brief, in which they concede Mrs. Rebecca S. Lea did not die intestate, but insist her daughter Mrs. Kelly took the property of Mrs. Lea as heir of her mother, Mrs. Rebecca S. Lea.

With reference to the above clause of the will of John M. Lea, Jr., relied on ("I will and direct that not any portion of my estate come into the possession of my sister, Bessie Kelly, wife of Robert Dalton Kelly," etc.), it is said that this is ineffectual and abortive, because a negative instrument is not a will; that to be a will it must be an affirmative dispositive document, as to which there is one recognized exception, to the effect that an instrument in the form of a will, which nominates and appoints an executor or revokes a previous will, without making any affirmative disposition of property, has also come to be regarded as a will (1 Rood on Wills, § 479; 1 Underhill on Wills, §§ 4, 5, pp. 6, 7; 1 Jarman on Wills, 16); but, for the reason that a will, to be effective so far as property is concerned, must be an affirmative dispositive document, it is well settled that negative and prohibitive provisions are inoperative and without effect, citing Rood on Wills, § 497, as follows: "The law appoints definite methods and channels of disposition of all intestate property. The heirs take by operation of law, without any act or will of the intestate. He can deprive them of it only by exercising the option the law gives him of disposing of it while he lives, or giving it to others by his will. If he says, 'I wish my sons to have only $1 each from my estate,' or 'I give this property to my wife in satisfaction of all her claims on my estate,' he does not thereby give the rest of his property to any one else, either expressly or by implication. *** The unfavored children will take their regular share" of all the property not given to any one else. See, also, Coffman v. Coffman, 85 Va. 459, 8 S.E. 672, 2 L. R. A. 848, 17 Am. St. Rep. 69, 7 Am. Prob. Rep. 380, in which the principle is decided that a testator can disinherit his heirs only by giving his property to others, and that mere words of exclusion, without an affirmative disposition to another, will not suffice to disinherit.

In that case the testator said, "It is my will that my son William H. Coffman be excluded from all my estate at my death, and have no heirship in the same;" but the testator did not give his...