Grier v. Canada

• Decision Date: 29 June 1907
• Citation: 107 S.W. 970,119 Tenn. 17
• Parties: GRIER v. CANADA ET AL.
• Court: Tennessee Supreme Court

107 S.W. 970

119 Tenn. 17

GRIER v. CANADA ET AL.

Supreme Court of Tennessee.

June 29, 1907

Appeal from Chancery Court, Gibson County; John S. Cooper Chancellor.

Action by John M. Grier against W. R. Canada and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Harwood & Clark, for appellants.

Deason Rankin & Elder, for appellee.

McALISTER J.

The object of this bill is to establish complainant's title and right of possession to a tract of land situated in Gibson county and comprising about 130 acres.

Complainant John M. Grier, claims title to the land under the will of his grandfather, A. M. Grier, who died testate in Gibson county, Tenn., about the 17th day of December, 1885, leaving surviving him as his only heir at law James P. Grier, who was the father of the present complainant. The bill alleges that said will was duly and regularly probated before the county court of Gibson county, Tenn., and duly recorded. A copy of the will was filed as an exhibit to the bill.

The third item of the will of A. M. Grier is in the following language:

"That I give and bequeath unto my son, James P. Grier, as after all my just debts being settled, all my personal property and real estate, and at his death I direct that my real estate be divided equally among his bodily heirs."

It is alleged in the bill that the James P. Grier referred to in the clause of the will just quoted was the father of complainant, John M. Grier; that the said James P. Grier is dead, and that he died in the month of February, 1889; that the complainant, John M. Grier, is the only child and bodily heir of the said James P. Grier; and that complainant was born on the 19th of March, 1882, in Gibson county, Tenn. It is then alleged that under proper construction of said will James P. Grier, the father of complainant, took a life estate in the tract of land in controversy, and that complainant, as the only bodily heir of the said James P. Grier, was vested under said will with the remainder in fee in said tract of land, and that, said life estate having terminated in February, 1899, by the death of his father, James P. Grier, the complainant became then entitled to the immediate possession of the same; but that the defendants, S. L. Canada and her husband, W. R. Canada, are now and have been since February, 1899, in the possession of said land, exercising dominion over the same, and appropriating the rents and profits thereof to their own use and benefit.

Complainant further states to the court that he was 21 years of age on the 19th day of March, 1903, and the present bill was filed on the 20th of December, 1905, within three years after he attained his majority. The complainant shows to the court that defendants Canada and wife have claimed said tract under and through a deed executed to them by complainant's father, James P. Grier, on the 10th day of October, 1888; that said deed does not undertake to show what interest the said James P. Grier claimed in said land, but that the said W. R. Canada, at the date of said conveyance, well knew that the said James P. Grier only had a life estate in said property; that, while said conveyance recited the consideration of $750, the real consideration was much less, and merely a nominal sum; that James P. Grier (or James W. Grier, as the name erroneously appears in the deed) had only a life estate, and could convey no more, and did in fact convey only a life estate.

Complainant further charges that W. R. Canada became involved in debt on the 25th of October, 1889, and made a fictitious conveyance of said land to one J. T. Gordon; that the said J. T. Gordon held the same for some time for the benefit of the said W. R. Canada; that on October 22, 1891, the said J. T. Gordon executed a quitclaim deed to said tract of land to Mrs. S. L. Canada, wife of W. R. Canada; that S. L. Canada held said land until August 10, 1898, when she made some kind of conveyance of the same to her son. W. B. Somers; that the said W. B. Somers pretended to hold the said tract of land for some time, but in fact W. R. Canada and wife, S. L. Canada, were the real beneficiaries of the rents and profits during said time; that finally, on the 30th of January, 1905, the said W. B. Somers reconveyed said land to the defendant S. L. Canada, wife of W. R. Canada, and the defendants are now holding said land under that conveyance. The defendants demurred to the bill, assigning for cause that under a proper construction of the will of A. M. Grier, deceased, the said James P. Grier took the absolute fee in said tract of land, and not merely a life estate, as claimed by complainant in the bill. The chancellor overruled said demurrer, and on appeal the decree of the chancellor was affirmed by this court at the April term, 1906. It was adjudged by this court that under a proper construction of said will the said James P. Grier only took a life estate, and thereupon the cause was remanded to the chancery court of Gibson county for answer and further proceedings.

On June 6, 1906, defendants Canada and wife filed their joint and separate answers, in which they admitted the death of A. M. Grier and that James P. Grier was his only child and heir at law. Among other defenses interposed, defendants deny that A. M. Grier disposed of or undertook to devise said tract of land by will, or that he ever executed a will to convey real estate, or that he ever attempted to do so, or that the alleged will could form any link in complainant's alleged chain of title. Further answering on this point, respondents state that shortly after the death of said A. M. Grier said alleged will was attempted to be probated in the county court of Gibson county as a holographic will; but upon the proof the will was probated simply as a valid will of personal property, and the adjudication of the county court affirmatively shows that it was not and could not be probated as a holographic will, and, if a valid will at all for any purpose, these respondents deny that it was valid as a conveyance of real estate. The alleged probate of said will was made on March 1, 1886.

Since this averment of the answer is based upon the order of the county court probating said will March 1, 1886, it is well at this point to set out said probate order, as follows:

"A paper writing purporting to be the last will and testament of A. M. Grier, deceased, was this day produced in open court, and the handwriting of the said A. M. Grier proven by the oaths of W. J. R. Becton and H. J. Thomas, who, being duly sworn, depose and say that they are well acquainted with the handwriting of said A. M. Grier, and the signature thereto is in his handwriting.

Whereupon said instrument was admitted to probate as the last will and testament of W. A. Grier, deceased, and ordered put to record."

It will be observed that the specific objections to this order of probate is that it does not affirmatively appear that the handwriting of the testator was proven by three witnesses, nor does it appear from the testimony of three witnesses that said paper writing was wholly in the handwriting of the testator; but the probate only recites that two witnesses proved that they were well acquainted with the handwriting of the testator and that the signature to the instrument was in his handwriting. Further it appears that said instrument was admitted to probate as the last will and testament of W. A. Grier, deceased.

It is to be observed, however, that said order of probate opens the recital as follows: "A paper writing purporting to be the last will and testament of A. M. Grier, deceased," etc.

The answer further avers that at the December term, 1905, of the county court of Gibson county, and only a few days before the filing of complainant's bill, complainant, without notice to either of these defendants, went before said county court and undertook to re-probate said instrument as a holographic will. It is admitted that the last order or probate, made at the December term, 1905, of the county court, fully complies with all of the formalities required by law to probate a holographic will; but it is insisted on behalf of the defendants that the county court, having probated this will more than 20 years prior to this time, had no jurisdiction to set aside the former probate upon mere motion of the executor and re-probate said will. Further answering, defendants say that the last action of the county court is void, not only from want of jurisdiction, but because said will is not in the handwriting of A. M. Grier, deceased, unless it is the signature of the said instrument; and it is further charged that the re-probate was a fraudulent scheme upon the part of the complainant and the executor to recover the real estate in question from these defendants. It is then averred that no part of the statutory requirements with reference to holographic wills was ever complied with; that the paper writing was not in the handwriting of the testator, nor was the will found among his valuable papers, nor was the handwriting known to be the handwriting of A. M. Grier. It is further charged that the latter action of the county court was procured by fraud and misrepresentations as to the real facts touching the execution of said paper, and was taken by the county court upon ex parte proceedings, and is invalid so far as defendants are concerned.

Among other defenses pleaded were the statutes of limitation of 3, 6, 7, and 20 years, the defense of coverture, and a discharge in bankruptcy.

On the issues thus formulated proof was taken, and on the final hearing the chancellor decreed that complainant was entitled to recover possession of said tract of land from the defendants W. R. Canada and his wife, S. L. Canada, and...