Gamble v. Fulton

• Decision Date: 08 April 1933
• Citation: 59 S.W.2d 504,166 Tenn. 66
• Parties: GAMBLE v. FULTON et al.
• Court: Tennessee Supreme Court

59 S.W.2d 504

166 Tenn. 66

GAMBLE v. FULTON et al.

Supreme Court of Tennessee.

April 8, 1933

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

Suit by Mrs. Lillian Gamble, executrix of the estate of W. S Fleming, deceased, against H. O. Fulton, trustee, and others. From an ADverse decree, the executrix appeals.

Affirmed in part and reversed and rendered in part.

Pride Tomlinson and Fry & Woody, all of Columbia, for appellant.

Sam Holding, of Columbia, for appellees.

GREEN Chief Justice.

This appeal presents a contest between the personal representative of the late W. S. Fleming and his widow as to the right of the latter to homesteAD and dower. The chancellor decreed in favor of the widow and the executrix has appealed.

Mr Fleming left a will which contained the following provision for his widow:

"Item II. I bequeath to my beloved wife, Frances M. Fleming, the proceeds of my life insurance policy in the Volunteer State Life Insurance Company, being for $5,000.00, after deducting any indebtedness due the Company, and authorize and empower her to receive said proceeds from said Company and receipt therefor. I also bequeath to her my automobile.

I also devise to my wife my home place fronting 100 feet on West 6th Street, Columbia, Tennessee, running back between parallel lines about 240 feet to the Methodist Church property, and also the ell lying back of H. B. ADams lot on which the old frame stable is located.

The property bequeathed and devised to my wife in this Will is intended as her full share of my estate and in lieu of all she would take if I hAD died intestate, and is conditioned only on her surviving me."

Other items of the will dispose of specific articles of personalty, another policy of insurance was devoted to the payment of testator's debts, there was a statement that the proceeds of the policy given to his wife were so bequeathed in order that she might use the same to the extent necessary to clear the incumbrances on the home place, and the residuary clause divided the balance of the estate among the three daughters of the testator and the children of testator's deceased son. Other provisions of the will are not material to this inquiry.

Mr. Fleming died November 2, 1929. His estate appeared to be abundantly solvent at the time of his death. Most of his property, however, consisted of real estate, much of it was encumbered, and by reason of the decrease in value of such property within the last three years, the estate turns out to be insolvent. Not merely insolvent in a technical sense, but absolutely insolvent. It has been necessary to sell all of the testator's real estate. After discharging the incumbrances on said real estate, there remains on hand, as the proceeds of same, the sum of $7,960. It is stipulated that testator's remaining debts largely exceed that sum.

Upon the death of the testator, the widow retained possession of the home place, as she was entitled to do, until it became necessary to sell said place for the payment of debts. Wright v. Eakin, 151 Tenn. 681, 687, 270 S.W. 992; Smith v. Thomas, 82 Tenn. (14 Lea) 324. Up until the time the home place was sold, Mrs. Fleming received therefrom $1,600 in rents.

In ADdition to the $1,600 so received, the widow collected the proceeds of the policy in the Volunteer State Life Insurance Company, amounting to $5,000. Except for the rents collected as aforesaid, the devise of the home place to the widow failed when it became necessary to subject that property to the indebtedness of the estate.

To justify her claim for dower and homesteAD herein, the widow relies on subsection 2 of section 8358 of the Code, section 2404 of the Code of 1858. That section is as follows:

" Dissent From Will, and Endowment.--A widow may dissent from her husband's will:

(1) Where a satisfactory provision in real or personal estate is not mADe for her; in which case she shall, in writing, signify her dissent in open court, to be entered of record, within one year after the probate of the will.

(2) Where a provision in personal estate is mADe for her, but the whole of the husband's property, including the bequest, is taken for the payment of his debts; in which case, without any formal dissent, she may sue for her dower.

And in either case, she shall be endowed and provided for as if her husband died intestate, and shall be entitled to her distributive share as provided in section 8360."

This court undertook an exegesis of subsection 2 above in Jarman v. Jarman, 72 Tenn. (4 Lea) 671, and gave the subsection a liberal interpretation in favor of the widow. It was held that no formal dissent was required of the widow under subsection 2. It was said that the widow of a testator was entitled to presume that he owned and could give the property bequeathed to her in his will, and that if such bequest failed on account of the condition of his estate, she was entitled to the informal dissent conferred by subsection 2 by operation of law. It was apparently held that if a devise of real estate to the widow failed by reason of the indebtedness of the estate, she was entitled to this informal dissent provided by subsection 2, just as where a bequest of personalty failed for a like reason. The writer of the opinion (Judge Turney) said that in his opinion "even if after the payment of debts a portion of the bequest remained, but by comparison with the entire amount was inconsiderable, the widow's rights under the second division would not be embarrassed." The court finally observed:

"The obvious intention of the Legislature was that the indebtedness of the husband to utter insolvency should not cut off the wife from her rights of property under the general law simply because he hAD died testate insteAD of intestate. The purpose of the testator was to make a better provision for the wife by will than the law makes without it. Then, if in ignorance of his financial condition, and with an anxious

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