Gallatin Turnpike Co. v. Puryear

• Decision Date: 03 March 1906
• Citation: 92 S.W. 763
• Parties: GALLATIN TURNPIKE CO. v. PURYEAR.
• Court: Tennessee Supreme Court

92 S.W. 763

GALLATIN TURNPIKE CO. v. PURYEAR.

Supreme Court of Tennessee.

March 3, 1906.

Appeal from Circuit Court, Sumner County; B. D. Bell, Judge.

Suit in equity by the Gallatin Turnpike Company against D. B. Puryear. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Reversed.

J. W. Blackmore, for appellant. W. A. Guild and D. B. Puryear, for appellee.

NEIL, J.

On the 15th of January, 1904, a petition was filed by the plaintiff in the county court of Sumner county against the defendant. This petition contained the following allegations:

That John Byrns died intestate in Sumner county, Tenn., in the year 1841, and that at the January term of the county court of that county in the year 1842 administration was granted on his estate; that in January, 1903, 62 years after the death of said Byrns, the county court made an order appointing another administrator for said estate, viz., the defendant, D. B. Puryear, who, under color of this appointment, has as such administrator de bonis non brought suit against the petitioner in the chancery court of Sumner county.

It is alleged that this action of the county court is directly in opposition to the provisions of the Code upon the subject, inasmuch as none of the exceptions provided for in the statute existed in favor of the said estate.

The prayer of the petition was that the administration should be revoked.

A demurrer was filed by the administrator, making two points: First, that the statutory inhibition did not apply to administrators de bonis non, but only to original administrators; and, secondly, that the petitioner did not occupy such a relation to the estate as that it could question the appointment.

The county court sustained the second ground of demurrer and dismissed the petition. Thereupon an appeal was prosecuted to the circuit court of the county, and there both grounds of demurrer were sustained, and the petition dismissed. From this latter judgment an appeal was prayed and prosecuted to this court, and errors have been assigned here.

The statute referred to is Shannon's Code, § 3955.

This section, with its various subsections, reads as follows:

"3955. The time within which administration may be granted shall be as follows:

"(1) When deceased was entitled to a remainder not reduced to possession. Where a person dies entitled to a vested or contingent remainder, not reduced to possession in his lifetime, ten years after the termination of the life or other particular estate on which the remainder depends, shall be given to administer upon his estate in said remainder.

"(2) Administration may be granted at any time within thirty years from the death of the deceased to any person entitled to distribution who was an infant or married woman when the deceased died.

"(3) A special administration may be granted for the purpose of prosecuting any claim against the government of the United States, without any limitation of time.

"(4) But in no other case shall letters of administration be granted where the deceased died twenty years before application made for the same; and all letters testamentary or of administration granted after the said period of twenty years, to any other than a distributee who was such infant or married woman, shall be utterly void and of no effect."

In the brief of counsel for the defendant in error we are referred to the statutes and decisions of other states — the decisions referred to being Crossan v. McCrary, 37 Iowa, 684; Adams v. Richardson, 5 Tex. Civ. App. 439, 27 S. W. 29; Kempton...