Campbell v. Campbell

• Citation: 66 S.W.2d 990,167 Tenn. 77
• Parties: CAMPBELL v. CAMPBELL.
• Decision Date: 16 January 1934
• Court: Supreme Court of Tennessee

66 S.W.2d 990

167 Tenn. 77

CAMPBELL v. CAMPBELL.

Supreme Court of Tennessee.

January 16, 1934

Appeal from Chancery Court, Hamilton County; W. B. Garvin Chancellor.

Suit by James Luther Campbell against Mrs. Lavinia H. Campbell. From an adverse decree, James Luther Campbell appeals.

Affirmed.

Sizer Chambliss & Kefauver, G. W. Chamlee, and G. W. Chamlee, Jr. all of Chattanooga, for appellant.

Benton White and Cantrell, Meacham & Moon, all of Chattanooga, for appellee.

GREEN Chief Justice.

This is a contest between the widow and son (by a former wife) of L. D. Campbell, deceased, over the division of a legacy passing under the will of Mrs. Adelia Craigmiles Cross, more recently deceased. The chancellor decreed in favor of the widow, and the son has appealed.

L. D. Campbell died in September, 1927. Prior to his death Mrs. Cross made a will containing the following provision:

"In appreciation of acts of friendship from my friends Mr. and Mrs. L. D. Campbell of Cleveland, Tennessee, I will and bequeath to them jointly the sum of $5,000."

Mrs. Cross died in September, 1928, about a year after the death of L. D. Campbell. The son of L. D. Campbell contends that he is entitled to one-half of this legacy under section 8134 of the Code providing that, when a devisee or legatee dies before the testator, or is dead at the making of the will, the issue of the donee shall take the estate devised or bequeathed, unless a different disposition is required by the will. The widow contends that the terms of the bequest above set out made her husband and herself, if not technical joint tenants, tenants by the entirety, and that, surviving her husband, she is entitled to the whole legacy.

The controversy may be settled by determining whether, since the enactment of chapter 126, § § 1, 2, of the Public Acts of 1919, Code, § § 8460, 8461, tenancy by the entirety in personal property exists under our laws.

Technical joint tenancy was abolished in this state many years ago. Code, § 7604. This statute, however, did not abolish tenancy by the entirety. Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629, and cases cited.

While joint tenancy prevailed, there was no lapse of a devise or bequest to joint tenants by reason of the death of one of the beneficiaries in the testator's lifetime. Each being the taker of the whole estate, though not wholly and solely, the survivor took the whole property. Buffar v. Bradford, 2 Atk. 220; Morley v. Bird, 3 Ves. 628. If, therefore, Mr. and Mrs. Campbell could be regarded as joint tenants of the legacy of Mrs. Cross, Mrs. Campbell would be entitled to the whole of this bequest. If they be regarded as tenants by the entirety of this legacy, the right of Mrs. Campbell to take the whole as survivor rests upon a basis even firmer.

Our intermediate courts have differed as to whether tenancy by the entirety in personal property has existed in Tennessee since chapter 126 of the Pub. Acts of 1919. The Court of Civil Appeals in Bellar v. Ferrell, Nashville, 1923, held that such tenancy did exist in such property since the enactment of that statute. The Middle Tennessee section of the Court of Appeals held to the contrary in Scholze v. Scholze, 2 Tenn.App. 80, the latter court expressing the opinion that tenancy by the entirety with respect to personal property never existed in Tennessee, nor indeed at common law.

It will be recalled that chapter 26 of the Public Acts of 1913 fully emancipated the married woman from the disabilities of coverture and enabled her to hold her estate as a feme sole, and, as said in some of our cases, to a great extent destroyed the legal unity between husband and wife as to property rights. It was held in Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416, 417, that this statute had the effect of abolishing tenancies by the entirety in this state.

The General Assembly of 1919, however, by chapter 141 of the acts of that year, repealed chapter 26 of the Acts of 1913. Its provisions, in turn, were immediately re-enacted by the same Legislature (chapter 126, Pub. Acts of 1919), but with this addition: "Nothing in the previous section shall be construed as abolishing tenancies by the entirety, or as affecting the husband's right of courtesy"--changed to "curtesy consummate" by Code, § 8461. Plainly the Pub. Acts of 1919 were designed to meet the decision in Gill v. McKinney, supra, to restore the estate by the entirety held by this court to have been destroyed by the Act of 1913. If then tenancies by the entirety in personalty were recognized in Tennessee prior to the act of 1913, clearly they were reinstated by the Acts of 1919.

Naturally, in Gill v. McKinney, supra, Judge Lansden undertook to define the estate which the court was declaring the act of 1913 demolished. By way of definition he adopted the description of that estate given by Judge McKinney in Ames v. Norman, 36 Tenn. (4 Sneed) 683, 70 Am. Dec. 269, in the course of which it was said that "this tenancy may exist whether the estate is in fee, for life, for years, or other chattel interest, and whether the property be in possession, reversion, or remainder." After aptly characterizing Judge McKinney as "one of the ablest and most learned common-law judges in America," Judge Lansden, referring to the description from which the above quotation is taken, observed that it had been "accepted as the law in this state, and so far as we are advised it has never been doubted since."

In four decisions of this court it has been held that a chose in action payable to husband and wife would pass to the surviving spouse upon the death of the other. Smith v Haire, 133 Tenn. 343, 181 S.W. 161, Ann....