Fitzgerald v. Vestal

• Decision Date: 31 December 1856
• Citation: 36 Tenn. 258
• Parties: JESSE H. FITZGERALD v. AARON VESTAL, Executor, et al.
• Court: Tennessee Supreme Court

36 Tenn. 258

JESSE H. FITZGERALD

v.AARON VESTAL, Executor, et al.

Supreme Court of Tennessee.

December Term, 1856.

FROM MAURY.

This was a bill filed in the chancery court at Columbia, upon the facts fully given in the opinion. At the June term, 1856, Chancellor Ridley gave a decree against the complainant; from which he appealed to this court.

Myers, for the complainant; M. S. Frierson, for the defendants.

Caruthers, J., delivered the opinion of the court.

This bill was filed to test the validity of the sale of an expectancy.

On the 18th of October, 1850, James Fitzgerald made his will, which was proved and recorded after his death in July, 1853, and letters testamentary issued to defendant Vestal. He directed his estate, both real and personal, to be sold, and the proceeds to be divided equally between his children, including William and Amos B. Fitzgerald. These last legatees, on the 15th of October, 1850, sold their expectant interest in their father's estate to James E. Dodson, and executed the following writing, which was regularly proved and registered:

“We, William Fitzgerald and Amos B. Fitzgerald, have this day sold and do hereby convey to James E. Dodson, all of our undivided interest in our father's estate, both real, mixed and personal; moneys, or any other valuable thing which he is now seized or possessed of, or hereafter may be; and all increase of property, either money, land or slaves, or any other valuable thing; for which he has this day paid in hand to each $200. And we do authorize and empower him to execute and deliver all needful instruments and papers, whether under seal or otherwise; to institute and prosecute to final judgment and execution all process in law or equity; to defend all suits against us about the premises; to submit the same to referees, or to compromise the same; and to do and perform all such acts as he shall deem necessary in the premises. We do hereby respectfully submit the same this 15th October, 1850.”

Jesse H. Fitzgerald, who became a judgment creditor of his brother, Amos B., in 1851, filed this attachment bill against the said Amos. B., who lived in Texas, and the executor, to subject the interest of Amos B. under the will to the satisfaction of his debt. Whereupon, the executor filed his bill of interpleader against Dodson, who claimed the interest of Amos B. in his father's estate under the above contract, and the said Jesse and Amos. B.

The only question is whether the sale to Dodson was good in law, and passed the right which afterwards accrued as against the children of Amos. B....