Clark v. Pence

• Decision Date: 31 October 1903
• Citation: 76 S.W. 885,111 Tenn. 20
• Parties: CLARK et al. v. PENCE et al.
• Court: Tennessee Supreme Court

76 S.W. 885

111 Tenn. 20

CLARK et al. v. PENCE et al.

Supreme Court of Tennessee.

October 31, 1903

Appeal from Chancery Court, Washington County; Hal H. Haynes Chancellor.

Bill by George E. Clark and others against George F. Pence and others. From a decree of the Court of Chancery Appeals affirming a decree for defendants, complainants appeal. Affirmed.

Deaderick & Epps and Kirkpatrick, Williams & Bowman, for appellants.

Isaac Harr, E. J. Baxter, and Rose & Hickey, for appellees.

McALISTER J.

Complainants as sureties on the bond of D. S. Northington, who, qualified as administrator of Julia Pence, deceased, filed this bill quia timet to be exonerated from liability for funds collected by said administrator belonging to the estate of Pleasant Witt, deceased. It was conceded that said sureties were liable for all assets that came into said administrator's hands belonging to the estate of Julia Pence, deceased, but it was alleged that he had also collected funds due the estate of said Witt. The controversy arises upon the following facts found by the Court of Chancery Appeals through Judge Wilson:

"A number of years since, Pleasant Witt died testate in Washington county, leaving a widow, Julia, and three children, two of them minors. He possessed real estate valued at $2,500 or $3,000, besides some personal property. He appointed his wife, Julia, his executrix, without bond. She was given full power to dispose of his property, both real and personal, as she saw proper for the best interests of herself and children; and it was provided therein that upon her marriage it should be divided, or what remained should be divided, into four equal parts, she taking one part, and each of the three children one part. All the personal property available was exhausted in the payment of the debts of the testator, as well as a part of the real estate which was sold. After the payment of debts and the costs of administration, there remained about $1,600, proceeds of the sale of real estate. The real estate, it appears, was sold to the defendants Campbell and Fraker for $3,500. They paid $2,000 cash, and executed their three notes for $500 each to the testatrix, Julia, as executrix of the will of her first husband. They paid off two of these notes before she died, leaving one note for $500 outstanding and unpaid in her hands. The said Julia intermarried with the defendant George F. Pence. Upon her marriage, one-fourth of the estate devised by her husband, having been converted into personal property by the sale of the real estate, was reduced to possession by defendant Pence. Said Pence became the guardian of one of her minor children by her first husband, and D. S. Northington became the guardian of another. Her husband, the said George F. Pence, borrowed two sums from her, and executed his notes therefor, payable to her as executrix. The notes of Campbell and Fraker given to her for real estate were also payable to her as executrix. The said Julia died intestate, and D. S. Northington qualified as the administrator of her estate, with complainants, Clark, Jackson et al. as sureties on his administration bond. The notes aforesaid given by her last husband to her as executrix for borrowed money, and the last note given her by Campbell and Fraker for the real estate, payable to her as executrix, passed into the hands of D. S. Northington after his qualification as her administrator. These notes were turned over to said D. S. Northington, as her administrator, by her last husband, defendant Pence. Pence, it appears, paid to Northington, as said administrator, the notes given by him to his wife as executrix of her first husband, Pleasant Witt, deceased, and the proceeds were properly disbursed by said Northington. Northington also collected, with interest, the notes executed by Campbell and Fraker for the real estate sold to them by Mrs. Witt. Northington then fled the country, without making any settlements or reports as administrator. Said Northington is insolvent."

The present bill, as already stated, was filed by the sureties on the administration bond of Northington, praying to be relieved from liability for funds collected by said Northington which belonged to the estate of Pleasant Witt, deceased. The theory of the bill is that complainants had become bound as sureties on the bond of said Northington, executed as administrator of Julia Pence, deceased, and that as such administrator Northington had no authority to collect notes which had been executed to Julia Witt as executrix of Pleasant Witt, deceased, her first husband. The bill further alleges that the said Julia had no estate of her own, the personalty owned by her having been reduced to possession by her husband, the said George F. Pence, after their marriage. Complainants allege that they are, nevertheless, entitled to be relieved as sureties of said Northington on his administration bond under the statute, and that the flight of said administrator from the country prevents the obtaining of this relief in any other way, so far as they know, except through this proceeding.

Defendants Fraker and Campbell answered the bill, in which they resisted the relief asked by complainants. They denied that Mrs. Pence had no estate to be administered, and alleged that as executrix she did have an estate under the terms of the will of Pleasant Witt, deceased. Defendant Pence filed a demurrer to the bill, assigning the following grounds, viz.:

Complainants are not entitled to be relieved as sureties on the bond of Northington, because their bill on its face alleges that the said Julia Pence at her death had no estate of her own, and no estate whatever except what came to her hands as executrix of her first husband, and, if so, complainants knew or ought to have known this fact; and yet they became the sureties of Northington as her administrator, and thus enabled him and put it in his power to collect these notes from the borrowers as assets of her estate, and hence they are now estopped to deny their liability as sureties on his bond; and, said administrator having collected these notes and other assets on the strength of his appointment and his bond, complainants are estopped to deny the validity of said bond or the legality of Northington's...