Brown v. Brown

• Decision Date: 30 January 1888
• Parties: BROWN v. BROWN et al.
• Court: Tennessee Supreme Court

6 S.W. 869

86 Tenn. 277

BROWN v. BROWN et al.

Supreme Court of Tennessee.

January 30, 1888

Appeal from chancery court, Maury county; W. S. FLEMING, Chancellor.

Petition by non-resident defendants, H. A. Brown and others, to the chancery court of Maury county, to be permitted to answer in a suit commenced by John P. Brown, asking for a construction of the will of one John Brown, deceased, and claiming the estate mentioned therein. Upon plaintiff's motion, the petition was stricken from the file. Defendants appealed.

p>Page Hayes & Floyd, for petitioners.

W. I Webster, W. C. Taylor, Hughes & Hatcher, W. S. Fleming & Son and N. R. Wilkes, for respondents.

NEIL Special Judge.

In June, 1858, John Brown died in Maury county, leaving a widow and two children, a son and daughter, surviving him. He was the owner of a very large estate. He left a will, which was duly probated in July, 1858. After providing for the payment of his debts, the comfort of his widow, and the maintenance of his children during the minority of his son, this will proceeds: " Item 4. Upon the coming of age of my son, and after the division and allotment to my wife as aforesaid shall have taken place, I will and direct that the residue of my real and personal estate be equally divided between my two children * * * Item 5. I will and direct that the property real and personal which my children shall take under this will shall, upon the death of either of them without leaving a child or children, or the issue of such child or children living at his or her death, go to the survivor of them; and should both of my children die without leaving a child or children living at their death, then, and in that event, I direct that the property given to them as hereinbefore provided, embracing that which they may get as survivors, shall go over to and be equally divided among the children of my deceased sister Elizabeth Stewart, and of my brother Hamilton Brown, taking per capita; and, in case any of said children should be dead, but leaving children then living, such child or children shall represent the deceased parent, and take such interest as said parent would have taken if alive."

The controversy arises on these two items. Testator's daughter died in 1858, without issue. March 1, 1878 testator's son John P. Brown, filed his original bill in the chancery court of Maury county, asking a construction of the said fourth and fifth items of his father's will insisting that the limitations over contingent upon the death of his sister and himself without issue living at the time, were void; and claiming the whole estate. This bill was filed against H. A. Brown and his two children, Thomas and Hamilton, citizens of Maury county, and James Stewart, Jane Colten, Ann Pointer, and others, the children and grandchildren of Elizabeth Stewart, deceased. H. A. Brown is the son of Hamilton Brown, mentioned in the fifth item of the will. Process was issued and served upon him and his two children. Publication was made for non-residents, save two, omitted by mistake.

H. A. Brown answered the bill, raising a single issue, denying the construction placed upon the will by the bill, insisting that the limitations over were valid. A guardian ad litem was appointed for Thomas and Hamilton Brown, and he answered, making the same issue. An order was entered purporting to appoint a guardian ad litem for all such of the non-resident defendants as might be minors, but no names of such were given in the order. The guardian ad litem so appointed filed his answer, making the same issue. An order was entered directing judgment pro confesso against all the non-resident defendants save such as might be minors. In this state of the pleadings the cause came on for hearing, and the chancellor decreed in defendants' favor, construing the fifth item of the will as creating a valid executory devise in favor of the children of Elizabeth Stewart and Hamilton Brown, and dismissed the bill. The complainant, John P. Brown, appealed to this court. This was in November, 1878. Pending this appeal, the general assembly passed the act of March 25, 1879, entitled "An act to relieve the dockets of the supreme court of Tennessee of the great number of cases now encumbering them, and for the appointment of a special commission," commonly known as the commission court. On the first Monday in October, 1879, this cause was heard before the commission court, and held under advisement until the twentieth of January, 1880, on which day a decree was rendered by that court, whereby the decree of the chancellor was declared to be erroneous, and was reversed.

The decree of the commission court set forth and construed the fifth item of the will, and declared void the executory devise of this item to the children of Elizabeth Stewart, and Hamilton Brown, and adjudged the complainant, John P. Brown, to be the absolute owner in fee-simple of all the property and estate devised and bequeathed by the will to himself and his sister. This decree was certified by the commission court to this court for approval, and was approved in ordinary course as other causes certified from that tribunal.

Pending this suit, John P. Brown married, and one child was born to him. This child died in October, 1881. On the first day of January, 1882, John P. Brown died without issue living at his death, but leaving surviving him his wife, Maggie C. Brown. He left a will, under which his widow, and his nephew Roy Alexander, and his niece Mamie Cole, are claiming the estate, and in this will Wiley J. Embry was nominated executor, and was duly qualified, and all these parties are properly represented in the record. It is not necessary to the settlement of the questions arising in this cause to notice the will of John P. Brown in terms more particular.

On the ninth day of March, 1882, J. T. Stewart, and all others entitled in the Elizabeth Stewart interest, presented their petition to this court in which, along with other grounds of relief not necessary now to notice, they sought to have the decree of January 20, 1880, opened under the provisions of Code, §§ 4379-4381, (New Code, §§ 5122, 5124,) providing for a three years' saving in behalf of non-resident defendants not served with process. This application was refused, on the ground that the granting such relief in that form would involve the exercise of original jurisdiction; and it was further held that the redress secured by these provisions should be sought in the court of original jurisdiction.

At the April term, 1882, of the chancery court of Maury county, the same parties presented their petition to that court, reciting the foregoing facts and others, not now necessary to notice, insisting that under a proper construction of the said fifth items of the will they were entitled to the estate, and asking to have the decree opened under the sections of the Code above cited; and accompanied the petition with bond for costs, and prayed leave of the court to file it. Thereupon the court ordered the petition, exhibits and bond to be filed subject to all lawful defenses and exceptions, including the right of the persons made defendants thereto, to move the court to take the petition from the files, and further ordered that process issue as prayed for in the petition against Wiley J. Embry, executor of John P. Brown, Maggie C. Brown, his widow, the nephew Roy Alexander, and his guardian E. H. Hatcher, and likewise against Mamie Cole, returnable on the first Monday in October, 1882; that being the first day of the next ensuing term. The petition was filed on the twenty-seventh day of April, 1882, and the process was duly issued and executed. At the October term, 1882, Wiley J. Embry, executor, Maggie C. Brown, and E. H. Hatcher, guardian, moved the court to strike the petition from the files. This motion was sustained by the chancellor. The petition was accordingly stricken from the files of the court; the petitioner prayed an appeal to the court; the cause was tried before the referees; their report was filed May 4, 1885; both sides excepted; and the whole case is open.

The sections of the Code under which the question made in this case arise are as follows:

After providing for suits brought by attachments of property, the Code proceeds, section 4379, (New Code, § 5122:) "In all other cases, a decree against a defendant, without personal service of process, who does not appear to defend, is not absolute for three years from the decree, unless a copy of the decree is served upon the defendant; in which case it becomes absolute, if the defendant fails to come forward and make defense within six months after service." Section 4380, (New Code, § 5123,) is not important in the present inquiry. 4381, (New Code, § 5124.) "The original defendant, his heir, representative, or assignee claiming under him, by virtue of any act done before the commencement of the suit, may within six months after service of a copy of the decree, or within three years after the decree, be admitted to answer the bill upon petition showing merits, and giving security for the payment of costs; and witnesses on both sides may be examined, and such other proceedings may be had thereon as if the cause were then newly begun."

Many grounds were assigned in support of the motion to dismiss, in the chancery court, and the same grounds are relied on here. Leaving out of view, for the present, the fourth and seventh grounds, the others may be summarized as follows: That a final decree having been rendered in this cause in the chancery court in November, 1878, and appeal having been prosecuted to the supreme court, and final decree entered in the supreme court, there was and could be, when the petition was filed, no such cause in the...