Fiske v. Grider

• Decision Date: 17 June 1937
• Parties: FISKE et al. v. GRIDER.
• Court: Tennessee Supreme Court

Page 553

106 S.W.2d 553

FISKE et al. v. GRIDER.

Supreme Court of Tennessee.

June 17, 1937.

Error to Circuit Court, Overton County; O. K. Holladay, Judge.

Proceeding by A. A. Fiske and others against Jim J. Grider to contest the will of Mrs. Mary C. Fiske Grider, deceased. A judgment for the contestant was affirmed by the Court of Appeals and the proponents bring certiorari.

Judgments of Court of Appeals and Circuit Court reversed, and case remanded to Circuit Court with directions.

B. H. Hunt and White & White, all of Livingston, for plaintiffs in error.

Andrew J. Doyle and Pearl Lesley Johnson, both of Nashville, and E. C. Knight, of Livingston, for defendant in error.

McKINNEY, Justice.

This is a proceeding by the next of kin of Mrs. Mary C. (Fiske) Grider to contest her alleged holographic will upon allegations that it is a forgery. It was admitted to probate in common form on November 21, 1935, and is as follows:

"I, Mary Fisk Grider, this day May 8, 1929, will all the property that I have at Hilham, Tennessee, including all house hold goods To my husband Jim J. Grider.

                                     "Mary C. Grider."
                

Defendant, as sole beneficiary under said will, on March 2, 1936, filed the oath provided for poor persons in due form, as authorized by section 8106 of the Code. Thereupon counsel for contestants filed the following motion:

"Comes the petitioner and move the Court to strike the oath filed in lieu of a $500.00 contest bond as the law requires both contestant and contestee to execute bonds with good and solvent sureties."

This motion was predicated upon the idea that in a will contest the statute providing for the execution of bond by both contestant and contestee was mandatory. The trial court construed the involved statutes to vest in him a discretion as to whether he would permit a will contest to be prosecuted in forma pauperis, and, exercising that discretion, declined to permit proponent to prosecute the suit on the pauper's oath, but ordered that he file a bond, with good sureties, within two days, or his suit would be dismissed. While he sustained the motion of contestants, he did not strike the oath, but ordered it filed and made a part of the record.

On March 3, 1936, A. A. Fiske, one of the contestants, filed an affidavit controverting the right of defendant to prosecute the case on the pauper's oath. In disposing of the motion the trial court based his action upon what he conceived to be a judicial discretion vested in him by law, and stated expressly that in the action taken he did not consider the Fiske affidavit.

On March 5, 1936, the defendant filed another affidavit setting forth in great detail the reasons why he could not execute a bond, and which contained all of the requisites of the oath in forma pauperis in lieu of a prosecution bond. In the order of March fifth the order of March third was amended so as to add thereto: "The affidavit will be taken into consideration, however, when and before the order is entered, if no bond is filed." This had reference to defendant's affidavit. The order of March 5, 1936, then provides:

"After due consideration of the entire record in the case, and especially said rule and the court being of opinion that the affidavit replying to the rule made upon the defendant, the beneficiary under the will is insufficient and so orders."

The court thereupon ordered the will set aside and the property of Mrs. Grider distributed and vested as the property of an intestate. The Court of Appeals construed the judgment of the circuit court to be a disposal of the case on the merits as to defendant's right to prosecute the case in forma pauperis. While the record is not clear upon this point, we interpret it differently, and feel that the defendant should have the benefit of any doubt, since section 9085, authorizing a dismissal upon a showing that the allegation of poverty is probably untrue, is to be liberally construed. Fort v. Noe, 144 Tenn. 337, 233 S.W. 516. The written opinion of the trial court was filed on March 3, 1936, was duly signed by him, and ordered to be made a part of the record. Our interpretation of his adjudication is predicated largely on said opinion, which clarifies the judgments entered without in any material manner varying or contradicting them. The statute just referred to is as follows:

"If it be made to appear to the court, at any time before the trial, by the testimony of disinterested persons, that the allegation of poverty is probably untrue, or the cause of action frivolous or malicious, the action may be dismissed. The burden shall be upon a pauper to justify his oath."

There is no suggestion that testimony of disinterested persons was heard as to defendant's allegation of poverty, and we are satisfied the court did not go into that matter further than to consider defendant's second affidavit in exercising what he conceived to be his judicial discretion.

This record presents the single question, therefore, as to whether the statute authorizing a will contest in forma pauperis is discretionary or mandatory. The sections of the Code upon which the trial court based his decision are as follows:

8104. "If the legatees or devisees, or any of them, be adults, and have notice that the probate of the will is contested, the court shall require them to enter into bond, with surety, in the penal sum of five hundred dollars, conditioned for the faithful prosecution of the suit, and, in case of failure therein, to pay all costs that may accrue thereon; but an adult legatee or devisee who makes known in writing, to be entered of record, to the court that he claims nothing under the will, and is willing that it be set aside, shall not be required to enter into bond."

8105. "If all the legatees or devisees are adults, and refuse or fail to enter into such bond, said will shall not be admitted to probate, but shall be held for naught, and the property of the supposed testator shall be distributed as the...