First Am. Nat. Bank v. Evans

• Citation: 24 McCanless 393,417 S.W.2d 778,220 Tenn. 393
• Parties: , 220 Tenn. 393 FIRST AMERICAN NATIONAL BANK, Administrator of the Estate of Milton S. Evans, Deceased, Appellee, v. Jewell B. EVANS, Mrs. Earnest H. Zimmerlee, Kenneth Warren Evans, and Franklin D. Evans, Appellee and Appellants.
• Decision Date: 28 July 1967
• Court: Supreme Court of Tennessee

Page 778

417 S.W.2d 778

24 McCanless 393, 220 Tenn. 393

FIRST AMERICAN NATIONAL BANK, Administrator of the Estate of Milton S. Evans, Deceased, Appellee, v. Jewell B. EVANS, Mrs. Earnest H. Zimmerlee, Kenneth Warren

Evans, and Franklin D. Evans, Appellee and Appellants.

Supreme Court of Tennessee.

July 28, 1967.

Rebecca Thomas, Nashville, for Mrs. Earnest H. Zimmerlee, Kenneth Warren Evans, and Franklin D. Evans, appellants.

Neil Robertson, Ashland City, for Jewell B. Evans, appellee.

OPINION

CRESON, Justice.

This appeal comes from the Chancery Court of Cheatham County, Tennessee.

On May 6, 1966, the appellee, First American National Bank, Administrator of the Estate of Milton S. Evans, filed its bill for declaratory judgment. That bill named as defendants Jewell B. Evans, the widow of Milton S. Evans, Mrs. Earnest H. Zimmerlee, Kenneth Warren Evans, and Franklin D. Evans, the children of Milton S. Evans, deceased, by a prior marriage.

The question presented for determination in that court and in this was and is--who is entitled to the proceeds of a promissory note executed by Charles A. Petre and wife, Frances F. Petre, in the original principal amount of $41,000.00, and payable to 'Milton S. Evans et ux'. This note represented the proceeds of a sale of real state belonging to Milton S. Evans. Mr. Evans had acquired the entire title to this property, by reason of his survivorship of his first wife.

A stipulation of facts was entered into in the trial court. The case was heard in the trial court upon bill and answer, and stipulation of facts. The facts stipulated are as follows:

'In this cause, by agreement of the parties, as evidenced by the signatures of their counsel hereto, it is stipulated as follows:

'Complainant First American National Bank is the duly appointed and lawfully acting administrator of the estate of Milton S. Evans, deceased, and is entitled to bring this suit under Sections 23--1101 et seq. Tennessee Code Annotated.

'Said Milton S. Evans died intestate on February 3, 1966, leaving a widow, Defendant Jewell B. Evans, to whom he was married on the 31st day of October, 1962, and three children of a previous marriage, Mrs. Earnest H. Zimmerlee, Franklin D. Evans and Kenneth Warren Evans.

'Said Milton S. Evans and his former wife, Myrtle Evans, mother of said children, owned as tenants by the entireties a certain tract of land in Davidson County, Tennessee, the same having been conveyed to them on August 19, 1943, by deed of record in Book 1274, page 340. Register's office for said County.

'Myrtle Evans died on October 2, 1958.

'On March 22, 1963, said Milton S. Evans and Jewell R. Boyte Evans executed a deed conveying said real estate to Charles A. Petre, Sr. for the sum of $54,000.00, of which $13,000.00, was paid in cash and for the remaining $41,000.00 the purchasers executed a promissory note.

'Said promissory note was dated March 22, 1963, was in the principal sum of $41,000.00, was payable to 'Milton S. Evans et ux' and was signed by Charles A. Petre, Sr. and wife, Frances F. Petre. A. photostatic copy of said note is attached hereto as Exhibit 'B' and made a part thereof.

'All instruments in connection with said transaction were drawn by attorneys for the purchasers and forwarded to the sellers, and said Milton S. Evans did not have legal advice in connection therewith.

'It is further stipulated that all of the exhibits attached to the original bill are true and genuine and that they may be considered as having been put in evidence in the cause."

On January 17, 1967, the trial court filed a memorandum opinion. That opinion concluded that Milton s. Evans and his wife, Jewell B. Evans, took the promissory note as tenants by the entirety, with concomitant right of survivorship. Thus, the trial court determined that upon the death of Milton S. Evans, Jewell B. Evans became the sole owner of the note in question.

On February 18, 1967, a final decree was entered, declaring the ownership of the note in question to be vested in Jewell B. Evans.

Appeal has been timely perfected to this Court by Mrs. Earnest H. Zimmerlee, Kenneth Warran Evans, and Franklin D. Evans. It is admitted by these appellants that there is really only one question for decision by this Court, which is, as stated by them, as follows:

'Absent any evidence of intention, is a note payable to a man 'and wife' sufficient to establish tenancy by the entireties, notwithstanding the fact that the consideration for the execution of the note was property note so held?'

This Court, after a careful examination of the cases and text authority cited by both appellants and appellee, and much independent research, has concluded that the Chancellor correctly answered this question in the affirmative. The Chancellor, in his memorandum opinion, relied heavily upon the case of Smith v. Haire (1915) 133 Tenn. 343, 181 S.W. 161. That case establishes, beyond question, that a tenancy by the entirety may be created in this State in personal property,...