Fleming v. Phoenix Trust Co.

• Decision Date: 10 June 1931
• Citation: 39 S.W.2d 277,162 Tenn. 511
• Parties: FLEMING v. PHOENIX TRUST CO. et al.
• Court: Tennessee Supreme Court

39 S.W.2d 277

162 Tenn. 511

FLEMING v. PHOENIX TRUST CO. et al.

Supreme Court of Tennessee.

June 10, 1931

Appeal from Chancery Court, Maury County; Thos. B. Lytle Chancellor.

Suit by Mrs. W. S. Fleming, Jr., administratrix, against the Phoenix Trust Company and others. From the decree rendered complainant appeals.

Affirmed.

COOK J.

The complainant, widow of W. S. Fleming, Jr., and the administratrix of his estate with the will annexed, brought this action seeking a construction of her husband's will and the direction of the court as to the distribution of proceeds of life insurance policies.

The guardian of John Dunnington Fleming, infant son of W. S Fleming, Jr., claims that its ward is entitled to a distributive share of the estate because pretermitted and not disinherited by the will of his father.

Testator died August 18, 1929, leaving complainant, his widow, and three children, to wit, W. S. Fleming, age fifteen, Algeo Fleming, age eleven, and John Dunnington Fleming, a little over eight years old. The will, executed about eight months before the birth of John Dunnington Fleming and about eight years before the testator died, reads:

"I, W. S. Fleming, Jr., hereby publish this as my last will and testament, revoking all other wills by me at any time made. I direct that all of my debts shall be paid out of the proceeds of my life insurance policies.

All of the remainder of my property after payment of my debts I give to my wife, Eugene Algeo Fleming.

I nominate and appoint my father as executor of this will and no bond shall be required of him as such."

The estate is insolvent. The proceeds of life insurance policies, which were payable to the estate and made subject to testator's debts under a provision of the will, amounted to $9,752.64. The guardian insists that John Dunnington Fleming is entitled to a distributive share of the life insurance as a pretermitted child, born after execution of the will, by force of section 3925 of Shannon's Code, free from the claims of creditors under section 4030 of Shannon's Code, which exempts the proceeds of life insurance, not disposed of in the life time of insured, from payment of debts. Section 3925, supra, provides:

"A child born after the making of a will, either before or after the death of the testator, not provided for nor disinherited, but only pretermitted in such will, and not provided for by settlement made by the testator in his lifetime, shall succeed to the same portion of the testator's estate as if he had died intestate."

This statute was not designed to diminish or annul the exercise of the father's testamentary power, but to supply an omitted intention in behalf of after-born children unintentionally excluded from participation in the estate.

It is to be supposed, nothing else appearing, that the father would not intentionally exclude children not in existence when his estate was disposed of by will from a share of the estate. The presumption of the lack of intention to exclude after-born children, some courts call it a presumption, arises only in cases where the testator's intention is not expressed, or is not to be necessarily implied from the will. If the will expressly or by implication discloses an intention to exclude children from a share in the estate, then the statute is not to be given effect. The statute which has been quoted is open to no other reasonable construction.

As said in Bowerman v. Burris, 138 Tenn. 220, 223, 197 S.W. 490, 491:

"The testator can dispose of his property as he wishes. He may give it all to one child, or divide it among them in such varying proportions as his judgment and affection may dictate. He may even pretermit one or more of his children, not even mentioning them in the will, and they cannot complain, or find

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