Cannon v. Ewin

• Decision Date: 08 August 1934
• Parties: CANNON v. EWIN et al.
• Court: Tennessee Court of Appeals

77 S.W.2d 990

18 Tenn.App. 388

CANNON v. EWIN et al.

Court of Appeals of Tennessee, Middle Section.

August 8, 1934

Certiorari Denied by Supreme Court Jan. 12, 1935.

Appeal from Chancery Court, Williamson County; Douglas Wikle Special Chancellor.

Suit by Newt Cannon, Jr., against Ben D. Ewin, Sr., and the Nashville & American Trust Company, executor under the will of Sue P Allen, deceased, in which defendant Ewin filed a cross-bill. From a decree for defendant and cross-complainant Ewin complainant and defendant executor appeal.

Affirmed.

CROWNOVER J., dissenting.

Wirt Courtney, of Franklin, for defendant and cross-complainant Ben D. Ewin, Sr.

Trabue, Hume & Armistead, of Nashville, for defendant and cross-complainant Nashville & American Trust Co.

DEWITT Judge.

Mrs. Sue P. Allen, widow of B. B. Allen, died testate leaving a large estate. She had no children, and her nearest relatives were two half-sisters and two half-brothers, but at the time of her death, two half-sisters and one half-brother were surviving. This half-brother was the defendant and cross-complainant Ben D. Ewin, Sr. He had no estate or income. Mrs. Allen's will contains the following:

"I give and bequeath to my brother Ben R. D. Ewin the sum of Seven Thousand ($7,000) Dollars."

The will was executed by her on March 27, 1923. At that time she was surety on notes of her said brother aggregating $6,675. On October 15, 1926, she paid all these notes off. He executed a note to her for $6,970, and he paid interest on it for four months. The note was among the assets of Mrs. Allen at the bank at the time of her death. With interest it amounted to approximately $7,000. Mr. Ewin testified in answer to a question on cross-examination that he gave this note to Mrs. Allen upon his own suggestion, that she did not want to take it, and would not take it until he insisted upon it. His testimony to this effect on his original examination was objected to and the objection sustained; and this testimony was given on cross-examination in response to questions asked. The executor refused to pay him the amount of the bequest, insisting that it should be applied on the note.

The original bill in this cause was filed by Newt Cannon, Jr., claiming as creditor of Ben D. Ewin, Sr., to subject the proceeds of the legacy to the payment of his claim. The Nashville & American Trust Company, executor, resisted such appropriation of the legacy on the ground that Ewin owed his sister's estate the note of $6,970, with interest, equal in amount to the legacy, and therefore he was not entitled to have the legacy paid to him. Ben D. Ewin, Sr., filed an answer and a cross-bill in which he denied liability, set up the defense that his sister had given to him the note, and also "that it was the true intent and purpose of his said sister to bequeath him the sum of $7000 free and clear of any claim or encumbrance; that on divers occasions and to divers persons, after the payment of said note by her and prior to her death, she stated that said note had been discharged; that the sum thereby expended by her was a gift; that said note was not to be held against this cross-respondent in any wise, nor was he to be held accountable or responsible for the payment of same or any part thereof, as she did not desire to show a preference to other members of the family who had been given large sums of money without being required to pay same."

A jury was demanded and issues were made up by all of the parties under the direction of the court. The first three issues related to the question whether or not Mrs. Allen had, during her lifetime, made a gift of the aforesaid sums to Mr. Ewin and in effect canceled the note. The fourth issue submitted to the jury was as follows:

"Was it the intention of the said Mrs. Sue P. Allen to leave the said Ben D. Ewin, Sr. the legacy in her will free, clear and unimpressed, by any claims or demands of her estate upon Ben D. Ewin, Sr.?"

The jury answered all of these four issues in favor of Ewin. A decree was entered sustaining the answer and cross-bill of Ben D. Ewin, Sr., and ordering that the executor pay to him the sum of $7,000 in the administration of the estate, free from any claim or offset by reason of his note for $6,970 of October 15, 1926. It was specifically declared in said decree that this note was in the lifetime of Mrs. Allen canceled and in effect delivered up to her said brother and was merely held by the Nashville & American Trust Company as agent for Ben D. Ewin, Sr. The language of the decree, fully sustaining the cross-bill, fairly includes the finding on issue No. 4. This issue was directly responsive to the issue tendered by the aforesaid paragraph of the answer and cross-bill of Ben D. Ewin, Sr., to the cross-bill filed by the executor. The executor made no objection to the issues as made up and submitted to the jury, and where a case is tried on the theory that certain issues have been formally raised, it cannot be objected for the first time on appeal that such issues were not in fact joined by proper pleadings. 2 R. C. L. 81, and cases cited.

We hold that the fourth issue was a material issue, proper to be submitted to the jury, although it involved a mixed question of law and fact; that it was not outside of the scope of the pleadings. We further hold that the decree sustaining the cross-bill of Ben D. Ewin, Sr., was not based solely upon the cancellation of the note during the lifetime of the testatrix, but was also based upon the finding upon this issue No. 4, which fairly presented the question whether or not it was the intention of the testatrix to release the debt in making her bequest of $7,000 to her said brother. The executor contends that evidence of extrinsic facts and circumstances was inadmissible to show that Mrs. Allen intended by her bequest to cancel the debt and in addition to give to her brother the sum of $7,000. A rule is invoked that where such intent does not clearly appear on the face of the will the mere bequest does not operate to release or extinguish the debt. This is a general rule; but the fundamental and controlling rule to which all others are subordinate, with a few exceptions, in the construction of wills, is to ascertain the intention of the testator, and, having ascertained that intention, whatever it may be, if it is lawful it should be carried out.

In Adkisson v. Adkisson, 4 Tenn. Civ. App. 453, it is said (per Mr. Justice Wilson):

"While this intention of the testator is to be gathered from what is found within the four corners, within the lids of the instrument; that is, from the particular words used in the will, their context, and the general scope and purpose of the instrument. Hadley v. Hadley, 100 Tenn. 446 ; East v. Burns, 104 Tenn. 169-183 ; Dixon v. Cooper, 88 Tenn. 177 ; Williams v. Williams, 10 Yerg. 20, 21; Lynch v. Burts, 1 Heisk. 600-604; Armstrong v. Armstrong, 4 Baxt. 357-359, yet this rule does not preclude Courts from hearing parol testimony that will enable them to put themselves as near as possible in the situation of the makers of the wills whose language is to be interpreted; such, for instance, as shows the state of facts under which the wills were made, the situation of the properties of the testators, the members of their families and other relevant or cognate facts. Pritchard on Wills, § 499; Schouler on Wills, § 466; Gannaway v. Tarpley, 1 Cold. 572; Bunch v. Hardy, 3 Lea, 544-547; Ballentine v. Wright. 7 Lea, 26-30; Hottell v. Browder, 13 Lea, 676-679; Dixon v. Cooper, supra; East v. Burns, supra. We need only observe, in this connection, that the testator's intention, as disclosed by the language of his will when read in the light of the facts and circumstances surrounding him at the time of its execution, will not be set aside or disregarded by proof aliunde, showing, however, clearly a different intention on the part of the testator."

This rule admitting parol evidence for this purpose was specified as adopted and applied in many of our cases, although there is also a general rule that parol evidence is inadmissible to contradict, add to, or explain a will where there is no ambiguity on its face. Clark v. Clark, 2 Lea, 723; Horton v. Thompson, 3 Tenn. Ch. 581; Weatherhead v. Sewell, 9 Humph. 272; Gourley v. Thompson, 2 Sneed, 387, and other cases. A strict rule is applied in the interpretation of a will which on its face discloses the intention of the testator; that the intention that controls in the construction of a will is that intention which is expressed in the will or fairly inferable from it terms; that the court will not give effect to an intention, though morally certain that it existed in the testator's mind, unless it has found expression in his will. This rule was declared and applied in Fox and Wheatley v. Fox, 102 Tenn. 77, 50 S.W. 765, 767, the court saying:

"The question is not what the testator intended in his mind, but what is the meaning of his words and his intention, as shown by them."

In such case the only question is what the language shows to have been the testator's intention. Parol evidence is simply inadmissible to show a different intention from that expressed in the will. This doctrine was declared in the recent case of Martin v. Hale, 167 Tenn. 438, 71 S.W.2d 211, in the opinion by Mr. Justice Chambliss. It may be harmonized with the admission of extrinsic evidence in other cases upon the theory that in those cases the intention as to the question involved is not shown in the will. It cannot be doubted that the will of Mrs. Allen shows on its face a clear intention to give to Mr. Ewin the sum of $7,000. The question whether or not she intended to release the debt by canceling the note arises from extrinsic evidence...