Galloway v. Hardison

• Decision Date: 20 May 1933
• Citation: 60 S.W.2d 155
• Parties: GALLOWAY v. HARDISON et al.
• Court: Tennessee Supreme Court

60 S.W.2d 155

GALLOWAY v. HARDISON et al.

Supreme Court of Tennessee.

May 20, 1933.

Certiorari to Court of Appeals, Middle Division, on appeal from Chancery Court, Maury County; T. B. Lytle, Judge.

Suit by C. R. Galloway, individually and as surviving partner, against J. H. Hardison, executor of estate of Jesse Howell, and others. Judgment for defendants was reversed by Court of Appeals, and complainant appeals.

Reversed and remanded.

T. H. Peebles and J. C. Voorhies, both of Columbia, for complainant.

Sam Holding, of Columbia, for defendants.

W. B. GARVIN, Special Justice.

This suit was brought by Galloway, in his own right and as surviving partner of the firm of Galloway & Howell, against Jesse Howell, his deceased partner, his widow and children, and Columbia Bank & Trust Company, as trustee under the will of Jesse Howell, seeking a construction of the will of Howell and a decree holding the proceeds of certain life insurance subject to indebtedness from Howell to the partnership, on the theory that Howell, by the provisions of his will, had (1) so diverted said proceeds from the statutory course of descent and distribution as to make said proceeds assets available to creditors generally, and (2) that, in any event, the debts of Howell to the partnership were "personal debts" directed by the will to be paid from said proceeds.

The will reads as follows, item I being the clause particularly relied on to support this view:

"I, Jesse Howell, Jr., do hereby make and publish this my last will and Testament, hereby revoking any and all Wills by me heretofore made.

"Item I. I desire my Executor hereinafter named to pay all of my just debts out of the first money coming into his hands from my personal estate, exclusive of the proceeds from any insurance policies on my life, and should any of my personal debts, that is all debts except those arising from partnership transactions remain unpaid in whole or in part, after the exhaustion of my personal estate (exclusive of proceeds from life insurance), then my said Executor shall apply enough of the proceeds from my life insurance to finish the payment of my said personal and individual debts.

"Item II. I hereby give, devise and bequeath to my beloved wife, Maude Howell, for and during the term of her natural life or widowhood all of the real estate of which I die seized and possessed, and at her death or marriage said real estate shall vest in my children or the issue of any which may be dead at the time of my wife's death or marriage, share and share alike, the issue of any deceased child to take his or her share.

"Item III. I hereby appoint the Columbia Bank & Trust Company of Columbia, Tenn., as Trustee, and I hereby give said Trustee all of my personal estate left after the payment of my debts, as provided for in Item I above and direct said Trustee to loan or invest said funds according to its judgment looking to the best interest of the beneficiaries and to pay the proceeds from any loans or from investments semi-annually to my said wife during her life or widowhood and at her death or marriage to my children equally settling with each child as he or she becomes of age, and paying the share of any deceased child to his or her issue. The Trustee above named is hereby authorized and empowered to handle the trust funds without intervention or consent of any Court.

"Item IV. I hereby appoint J. H. Hardison as Executor of this my last Will and Testament and direct him, after settling my estate according to this Will, to pay over the remainder of my personal estate, including proceeds from Life Insurance, to the Trustee above named.

                  "Witness my hand this July 19, 1924
                               "[Signed] Jesse Howell
                

"We, the undersigned, have subscribed our names hereto at the request of the Testator as witnesses, this his last Will and Testament, which he signed and published as his last Will, in our presence, and we have signed in his presence and in the presence of each other.

                  "This July 19th, 1924
                                 "[Jurat] C. R. Galloway
                                 "[Jurat] W. H. Howell."
                

The chancellor was of opinion that (1) the provision made in item I for payment of a class of debts from the insurance fund in the contingency recited did not destroy the exemption in favor of the wife and...