Duncan v. Peebles

• Decision Date: 23 July 1945
• Citation: 192 S.W.2d 235,28 Tenn.App. 592
• Parties: DUNCAN v. PEEBLES.
• Court: Tennessee Court of Appeals

192 S.W.2d 235

28 Tenn.App. 592

DUNCAN v. PEEBLES.

Court of Appeals of Tennessee, Western Section.

July 23, 1945

Certiorari Denied by Supreme CourtJan. 11, 1946.

Appeal from Chancery Court, Shelby County; John E. Swepston Chancellor.

Suit in equity by Bessie E. Duncan against Fred J. Peebles individually and as executor of the estate of Lida Kurtz Billingsley, deceased, to establish complainant's title to certain personal property.From a decree of dismissal complainant appeals.

Affirmed.

Albert G. Riley, of Memphis, for complainant.

Canale Glankler, Loch & Little, of Memphis, for appellee.

BAPTIST Judge.

The bill was filed in the Chancery Court of Shelby County by the complainant below, Bessie E. Duncan, against the defendant below, Fred J. Peebles, individually, and as executor of the estate of Lida Kurtz Billingsley, and in which she claimed the title to certain personal property which is specifically described in the bill, consisting of jewelry, bonds and stocks.

It alleges that the defendant was appointed executor of the will of Lida Kurtz Billingsley, and that the property in question has come, or should have come, into the possession of the defendant; that the complainant is a beneficiary under said will, having been devised certain real estate, called the homeplace, at 114 Pontotoc Avenue in Memphis.

That in his lifetime Daniel Kurtz, husband of the testatrix, on September 5, 1905, made a gift to his wife, the testatrix and the complainant of said real estate and personal property located at 114 Pontotoc Avenue, together with jewels bought by him evidencing the same by a written instrument.

That the testatrix recognized the gift of the said property to be to her for life and recognized the complainant's right to said property at her death.

The complainant's claim to the personal property in question is based upon the written instrument mentioned above and which is as follows:

'Memphis, Tenn. September 5-1905

We the undersigned do agree among ourselves to the following terms and conditions:--My wife Lida Gates Kurtz is to have Stocks & Bonds; Real estate and personal property located at 114 Pontotoc St., in the city of Memphis, Tenn and all jewels bought for her by myself Dan Kurtz, until, her death, at which time all the above are to be given in full to have & to hold or dispose of as she may see fit to my niece Bessie Kurtz Eberwine, of Evansville, Ind., who has so lovingly helped to care for and comfort me during my last illness.

Signed Lida G. Kurtz

Daniel Kurtz

Bessie Eberwine

I acknowledge the attached agreement and the three signatures are true and legitimate.

Signed Lida K. Billingsley"

The contention of the complainant is that this instrument created a life estate in the property in Lida G. Kurtz, with vested remainder in the complainant.

The answer of the defendant admitted that a portion of the personal property described in the bill came into his possession, but denied that he had received all of it.

It is alleged that the writing relied on by the complainant created no title in her to the property.

It is admitted that the complainant was a beneficiary under the will of Lida Kurtz Billingsley.

It is alleged that the complainant was also a beneficiary under the will of Daniel Kurtz, having been devised the sum of $2,000, and that she accepted the same; that the will of Daniel Kurtz gave to his wife, Lida G. Kurtz, the property now claimed by the complainant; that having accepted the provisions made for her in the will of Kaniel Kurtzshe is now estopped to claim the property given by Daniel Kurtz to his wife, Lida G. Kurtz, under the provisions of his will.

At the close of the complainant's proof the defendant moved the Court to withdraw the issues from the jury and enter a decree in his favor.

The motion was allowed and a decree entered dismissing the complainant's bill.

The material parts of the Chancellor's opinion are embodied in the decree which is as follows:

'And the Court thereupon, on the evidence introduced, ordered, adjudged and decreed, as follows:

'That the jewelry described in the original bill, title to which was claimed by complainant in this cause, was owned in complete ownership by Lida Kurtz, wife of Daniel Kurtz, at and before the death of the said Daniel Kurtz; that, therefore, the said Daniel Kurtz had no right and was unable to make any gift of said jewelry to complainant herein and that the instrument of writing sued on herein, dated September 5, 1905, properly construed was, as to said Lida Kurtz, merely a promise by her to make a gift and, being without consideration, was, therefore, unenforcible.That, in addition to the foregoing reason, the complainant was named as a devisee in the will of Lida Kurtz Billingsley, deceased, she having been devised the house and lot known as premises 114 Pontotoc Avenue, Memphis, Tennessee, and having taken said real estate under said will, is estopped to claim the jewelry and other personal property described in the bill which was bequeathed to the defendant under the residuary clause of said will.

'That the complainant was named as a legatee in the will of the said Daniel Kurtz, deceased, and complainant having accepted the provision made for her in said will, is estopped to claim title to the stocks and bonds owned by the said Daniel Kurtz at the time of his death and bequeathed to his wife, the said Lida Kurtz, which said stocks and bonds are described in the original bill in this cause.

'That the complainant, having taken the real estate owned by the deceased, Lida Kurtz Billingsley, at the time of her death and known as premises 114 Pontotoc Avenue, Memphis, Tennessee, under the terms of the will of the said Lida Kurtz Billingsley, deceased, is estopped to claim title to any of the furniture, furnishings or other personal property located in said house. same having been devised to the defendant herein under the residuary clause of the will of said decedent.

'It is, accordingly, ordered, adjudged and decreed that the defendant, Fred J. Peebles, acquired title to all of the personal property described in the original bill filed in this cause, including the furniture, furnishings and personal property located in the house known as premises 114 Pontotoc Avenue, Memphis, Tennessee, which the said Lida Kurtz Billingsley owned at the time of her death and title to which was claimed by the complainant under said instrument of writing dated September 15, 1905, said defendant having acquired title thereto as the residuary legatee under the will of the said Lida Kurtz Billingsley.'

From this decree the complainant has appealed and assigned errors.

The written instrument executed by Lida G. Kurtz, Daniel Kurtz and Bessie Eberwine, dated September 5, 1905, and under which the complainant claims title to the property in question, has been set out.

Previously on July 18, 1905, Daniel Kurtz had executed his will.He died in Shelby County in November 1905, and the will was offered for probate in the same month.

The parts of the will material in this case are as follows:

'Item I.After the payment of my debts, I devise my interest in a house and lot on Pontotoc Street, No. 114, to my wife, Lida Gates Kurtz.

'Item II.I give her all my stocks and bonds of which I may die possessed, and in addition thereto, ten thousand ($10,000.00) in cash.

* * *

* * *

'Item V. I bequeath to my nephews and nieces, of Evansville, Indiana, the following amounts: To Miss Bessie Eberwine, Two Thousand Dollars ($2000.00); to Alberta Eberwine, Two Thousand Dollars ($2000.00); to William Eberwine, Two Thousand Dollars ($2000.00); to Phillis Eberwine, One Thousand Dollars ($1000.00); to Mrs. Warren, One Thousand Dollars ($1000.00); to Mrs. Allen, One Thousand Dollars ($1000.00); to Mrs. Fannie Lavalle, One Thousand Dollars ($1000.00).'

Relative to the bequest to her in the sum of $2,000 the complainant testified that she did not receive but a small part of the bequest, the reason being that the executor was young and inexperienced and made a poor job in the administration of the estate; that she accepted the provisions of the will and got as much of the money as she could get out of the executor.

After the death of her husband Mrs. Kurtz continued to live in the home on Pontotoc Avenue which had been devised to her by the will of Daniel Kurtz and continued in possession of the personal property including the jewelry and household furniture, together with the stocks and bonds devised to her by her husband's will.

Later Lida G. Kurtz was married to one George Billingsley with whom she lived until his death in 1936.

During the last-mentioned marriage she conveyed to Billingsley the home on Pontotoc Avenue, but later procured a reconveyance of the property from him to her.She also transferred to him title to certain stock in the State Savings Bank, but later he transferred the title in said stock from him to her.She disposed of the City of Memphis Water Department bonds devised to her under the will of Daniel Kurtz.

In October 1942Mrs. Lida Kurtz Billingsley died and left a will the parts of which material to this case are as follows:

'Item 2.I give my home at 114 Pontotoc Avenue, corner Mulberry Street, in Memphis, Tennessee, to my niece, Bessie Eberwine Duncan, 126 S.W. Sixth Avenue, Miami, Florida.

'Item 3.I have already given my house and lot situated at 306 Beakes St., Ann Arbor, Michigan, to my sisterBernice Biddle Grams, per deed conveying same, and I hereby ratify and confirm said transfer and gift.I also give to my said sister my diamond ear-rings and all of my personal wearing apparel.

'Item 4.I give my diamond ring set between sapphires to my grandniece, Mary...