Davis v. Mitchell

• Decision Date: 11 June 1943
• Citation: 178 S.W.2d 889,27 Tenn.App. 182
• Parties: DAVIS et al. v. MITCHELL et al.
• Court: Tennessee Court of Appeals

178 S.W.2d 889

27 Tenn.App. 182

DAVIS et al. v. MITCHELL et al.

Court of Appeals of Tennessee, Western Section.

June 11, 1943

Certiorari Denied by Supreme Court February 5, 1944.

Appeal from Chancery Court, Knox County; Hamilton S. Burnett Circuit Judge.

Suit by Pliner Davis, administratrix of the estate of Dixie Anne Davis Sullins, deceased, and others, against Jenny L Mitchell, executrix and trustee under the will of S. B Luttrell, deceased, and another, to recover part of the estate of S. B. Luttrell, wherein the defendant executrix and trustee filed a cross-bill seeking a construction of the will of S. B. Luttrell. From a decree dismissing the bill complainants appeal, and the defendants file the record for error, seeking a review of adverse rulings.

Affirmed.

Testerman, Ambrose & Badgett, Fowler & Fowler, H. K. Williams, Jr., and Guy L. Webb, all of Knoxville, for complainants and cross-defendants.

Donaldson, Montgomery & Kennerly and Kennerly & Key, all of Knoxville, for defendants and cross-complainants.

ANDERSON Presiding Judge.

The ultimate question for decision is the construction to be given the will of S. B. Luttrell, a prominent citizen of Knoxville, who died some years ago, leaving in an active trust a large estate consisting of both real and personal property. It is asserted that the trust created by the will is of the kind known as a 'spendthrift trust'. Among the beneficiaries was the testator's grandson, David Sullins, who was single at the time of the testator's death. There is, however, a provision naming the wife of David Sullins as a beneficiary in the event of his marriage and death during the term of the trust leaving a wife surviving him. These provisions give rise to the controversy.

David Sullins is alleged to have intermarried with Dixie Anne Davis some three years after the testator's death. While the trust was still active, both were coincidentally shot and almost instantly killed in an assault committed by one Farley in Harlan County, Kentucky. Both died intestate and without issue.

The original bill was brought by the personal representative of Dixie Anne Davis Sullins and her heirs at law and next of kin against the executrix and trustee under the will of S. B. Luttrell. The administrator of the estate of David Sullins is also named as a defendant therein. A cross-bill was filed by the executrix and trustee seeking a construction of the will. A further identification of the parties and statement of the pleadings is unnecessary.

Broadly speaking, the complainants contend that they as the representatives of Dixie Anne Davis Sullins are entitled to a certain part of the estate of the testator, S. B. Luttrell. This claim postulates three primary propositions, each of which is strenuously controverted by the defendants. These are as follows: (1) that David Sullins and Dixie Anne Davis were lawfully married; (2) that Dixie Anne survived her husband; (3) that as his widow she was entitled under the terms of the will to a certain part of the estate, which, being a vested, transmissible interest, passed upon her death intestate to the complainants as her real and personal representatives. Alternative to the last proposition, the complainants contend that David Sullins took a vested, transmissible interest in the estate, which, upon his death, passed under the laws of intestacy.

The regular chanceller recused himself and the case was tried by the Honorable Hamilton Burnett, then a judge of the Circuit Court of Knox County, now a member of this court assigned to the Eastern section, sitting by interchange. Due to Judge Burnett's disqualification, the case, on motion of all parties concerned, was transferred to Jackson and heard by the Western section of the court sitting at that place.

Pursuant to a demand by the complainants, the issue of whether Dixie Anne Davis survived her alleged husband was submitted to a jury who answered that question in the affirmative. A motion for a new trial by the defendants having been overruled, the chancellor proceeded to a consideration of the other two propositions. He ruled that Dixie Anne Davis and David Sullins had been lawfully married, but that the former took nothing under the will and that the interest of the latter was not a vested, transmissible interest but one which under the terms of the will terminated and reverted to the trust estate upon his death without descendants.

The bill was accordingly dismissed and the complainants appealed. The defendants filed the record for error, seeking a review of the adjudication made by the chancellor with respect to the validity of the marriage of David Sullins and Dixie Anne Davis and of his action in overruling their motion for a new trial as to the issue of survivorship, which the jury had found adversely to them.

There were certain other proceedings to which, in the view we have of the case, it is unnecessary to refer.

Upon the trial of the issue submitted to the jury, it was conceded by the complainants that in any view of the evidence there was but a very brief interval between the death of David and that of Dixie. The defendants contended that either there was no such interval at all, or that Dixie died first. As stated, the verdict was to the effect that Dixie survived David. The first question for decision is whether this verdict is supported by the requisite quantum of evidence.

The jury trial was pursuant to the provisions of Code, Section 10574, granting to either party to a suit in chancery the right to a trial by jury of any material fact in dispute, save in certain cases, of which this is not one. Code, Section 10579, provides that such trials 'shall be conducted like other jury trials at law, the finding of the jury having the same force and effect, and the court having the same power and control over the finding, as on such trials at law.' A verdict returned in such a trial is not merely advisory but is entitled to the same weight and effect as a verdict in a court of law. James v. Brooks, 53 Tenn. 150; McElya v. Hill, 105 Tenn. 319, 59 S.W. 1025; Beatty v. Shenck, 127 Tenn. 63, 152 S.W. 1033, and cases cited; see also, Mutual Life Ins. Co. v. Burton, 167 Tenn. 606, 72 S.W.2d 778.

The rule promulgated in Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666, applies to issues falling under the inherent jurisdiction of a court of equity and hence has no application here.

In this case, therefore, the question in this court is the same as if the appeal had been from a judgment entered on the verdict of the jury in a trial at law, namely, whether there is any material evidence to support the verdict. Scruggs v. Heiskell, 95 Tenn. 455, 32 S.W. 386; Ray v. Crain, 18 Tenn.App. 603, 80 S.W.2d 113. Under established rules of procedure regulating the review of jury trials of issues of legal cognizance, this question must be determined upon a consideration of the evidence viewed in the light most favorable to the prevailing party, disregarding all that is repugnant to that view. So considered, there was material evidence to support the following version of the facts:

On the night of the tragedy, David and Dixie had been traveling in a four-door Dodge automobile, a type known as a sedan, with David driving. They were destined to Kenvir, Kentucky. At Pineville, Kentucky, they picked up a hitchhiker by the name of Van Bever. David continued to drive until they reached Harlan. En route, a number of stops had been made for the purpose of procuring ice and other accessories appropriate to drinking whiskey, a practice in which both David and Dixie frequently engaged. When the party reached Harlan, Dixie decided that David was too drunk to continue driving the car and at her insistence Van Bever took over its operation. Upon being relieved of this task, David got in the rear seat, leaving Van Bever and Dixie on the front seat, Van Bever under the wheel on the left and Dixie on the right. They continued in these respective positions until they reached Everts, Kentucky, shortly before 12:30 o'clock A. M. Being unfamiliar with the road leading out of Everts to their destination, Van Bever stopped at a street intersection to make inquiries of a man who turned out to be Farley, then standing under a street light with a pistol in a holster strapped on the outside of his clothing. Van Bever took him to be a peace officer of some kind.

When the car stopped David got out of the left rear door, walked toward Farley and engaged him in conversation, first asking the way to Kenvir. Failing to receive a satisfactory answer, David, for some unexplained reason, asked Farley two or three times to let him see the pistol which the latter was wearing. Farley declined, laughingly at first, saying, 'No, I don't play that way'. When he made the third request, Davis, who was apparently very much intoxicated, held out his hand and stumbled toward Farley and 'put his hand on the pistol'. This time Farley backed off three steps and with a stern face and stern voice again said, 'I don't play that way'. At or about this juncture, Van Bever turned to Dixie and asked her to get David back in the car before there was any trouble, saying 'these Harlan County people shoot pretty easy'. Dixie replied, 'No, he will be all right', and asked for a drink of whiskey. Van Bever reached in the back end of the car for the water to be used as a chaser and just as he had accomplished this detail, three or four shots were fired, 'real fast'.

At this time David and Farley were standing on the left of the car David being between it and Farley and on the side next to Van Bever who was still sitting on the front seat. Upon hearing the shots, Van Bever looked around and, as he testified, 'saw the flame from the gun the last time Mr....