Brown v. Severson

• Decision Date: 31 October 1873
• Citation: 59 Tenn. 381
• Parties: Ellen Brown et al. v. C. S. Severson et als.
• Court: Tennessee Supreme Court

59 Tenn. 381

Ellen Brown et al.

v.C. S. Severson et als.

Supreme Court of Tennessee.

October Term, 1873.

FROM SHELBY.

From the First Chancery Court of Shelby County, October Term, 1870. R. J. MORGAN, Ch.

W. H. STEPHENS for Complainants.

ELLET & PHELAN for Defendants.

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

This is a bill of review filed by the complainants, the three children of Joseph Brown, and others, seeking to review and reverse a decree of the chancery court at Memphis construing the will of George P. Cooper, and awarding Georgia Pettit, one of the daughters of the testator, an equal share of his property under this suit.

The first, and the leading question, in the case is, whether the Chancellor's decree, on the face of it, discloses an error of law for which, under the established rules, it should be reversed.

In the language of Judge McKinney, in the case of Eaton v. Dickinson, 3 Sneed, 400:--

“By error apparent on the face of the decree, is not meant a decree merely erroneous and improper in itself because based on inadmissible or improper evidence, or contrary to, or unsupported by, proof; but a decree that in point of law is erroneous upon the state of facts as assumed and set forth in the body of decree itself.”

In other words:--“The question is, not whether the cause is well decided, but whether the decree is right or wrong on the face of it.” 17 Vesey, 178.

We need but say that, the case standing on demurrer, we can look only at the errors of law pointed out in the bill itself. We can not look at any others even if they be found in the record. Under these well settled rules, we proceed to examine the question presented.

After appointing his wife and Sylvester Bailey to execute his will, and the former as the guardian of his children, the portion of the will follows out of which this case has arisen:-- “Said executor and executrix are jointly to hold and use all my real and personal estate not otherwise herein specifically bequeathed, for the proper support, education, and inheritance, of my said children, by continually, and with all usual restrictions and provisions, renting out my houses in the city of Memphis, all net proceeds to go continually into a fund created thereby, and by such other money or its equivalent, and such real and personal estate as I now possess, or as may be hereafter acquired by myself, or by said executor and executrix in virtue of this will, the money to be safely loaned in prudent parcels on ample security for not more than one year at a time. And said fund, (being all my money and property, real and personal, not herein specifically bequeathed) is to be legally and equitably estimated whenever any of said children may marry or attain lawful age, so that such child shall then have an equal share of said estimated fund or property, to belong to and be the property of only said child, and at her death, to and of her lawful issue; and if such child die without such issue, then said equal share of said estimated fund or property to revert to and continue in said fund, for common division as before among the survivors.”

He then adds:--“Provided however, in every case, that no child shall ever marry any blood kin, or blood relation, or any Catholic, or adherent of the Roman Catholic Church, or of its Papal Head; nor before her eighteenth year shall be full; and should any of my said children marry in any way contrary to any part of this provision, then that child shall take or receive, in lieu of what is or has been herein bequeathed to her, one thousand dollars in money, to be disbursed and used by my said executor and executrix in the careful purchase of such things as said child may need in and towards housekeeping, and to be given to said child on loan or in trust, and to constitute the whole of that child's legacy. And it is to be most devoutly hoped that no child of mine will ever be fascinated by an infidel, or idler, or loafer, or debaucher, gamester or drunkard.”

The correctness of the Chancellor's view of the legal effect of this clause, is the first question to be disposed of.

After reciting the above clauses, the decree proceeds thus:--

“And it further appearing to the court that the complainant Georgia was not at the time of her marriage eighteen years of age, but that her said marriage was in all other respects consistent with the said provision, and that said testator became fully reconciled to, and satisfied with, said marriage, and repeatedly expressed his satisfaction therewith, and his desire that said condition and forfeiture should be dispensed with; and the court being of the opinion that the said provision or condition in said will was intended by the said testator to apply to such marriages as took place after his death, and not to those solemnized in his lifetime; and being further of the opinion that said condition is ineffectual, upon the ground that the same was evidently intended and used by said testator in terrorem, and not with a view to impose a forfeiture; therefore the court doth order, adjudge, and decree, that the complainant Georgia did not by her said marriage before she attained eighteen years of age, forfeit her share and interest under said will in her father's estate.”

On the question presented, there has been much conflict of opinion in the English courts, and it would be useless to attempt to reconcile the cases. Many of them seem to have been decided according to the views of the particular Chancellors, rather than upon any definite principle deduced from the analogies of the law. It seems to us that when it was settled that every man of sound mind might dispose of his estate by last will and testament, it would have been far safer, and certainly it would have relieved the courts of much perplexity, to have held that, whatever that disposition might be, when fairly ascertained, it should be carried out; this rule, as a matter of course, being subject to the qualification, that such...