Harris v. Bittikofer

• Decision Date: 09 August 1976
• Citation: 541 S.W.2d 372
• Parties: Nellie Gupton HARRIS, Appellant, v. Jawana Gupton BITTIKOFER, Appellee.
• Court: Tennessee Supreme Court

Page 372

541 S.W.2d 372

Nellie Gupton HARRIS, Appellant, v. Jawana Gupton BITTIKOFER, Appellee.

Supreme Court of Tennessee.

Aug. 9, 1976.

Walter S. Clark, Jr., Nashville, for appellant.

Charles Watson Cross, Nashville, for appellee.

OPINION

HENRY, Justice.

The question in this suit for the construction of a will is the nature or quantum of the estate acquired by Nellie Gupton Harris in certain property devised by her mother. The Chancellor, relying upon Whitfield v. Butler, 30 Tenn.App. 221, 204 S.W.2d 537 (1947), held that the will vested in the plaintiff 'a life estate with remainder to the defendant . . . or her heirs'.

While we are not in full accord with the learned Chancellor's reasoning and do not fully concur in the precise results he reached, we are in agreement with his conclusion that Nellie Gupton Harris took a life estate under her mother's will.

I.

The pertinent provision of the will of Angie Heflin Gupton reads as follows:

I . . . devise to my daughter, Nellie Alberta Gupton Harris, . . . all of the property of every character, kind and species, including real estate . . . of which I may die possessed. . . . To have and hold the same During her natural life, and her bodily heirs, if any, forever; provided however, that in case said Nellie Alberta Gupton Harris, Should die leaving no bodily issue, and her husband, James V. Harris, should survive her, then All I have bequeathed to her, shall revert to my granddaughter Jawana Sue Gupton or her heirs. (Emphasis supplied)

The case is before us on the technical record only and the pleadings are meager. Nellie Gupton Harris is alive; we infer she has no bodily issue from the fact that she is the sole plaintiff and the defendants are Jawana and her 'unknown and unborn heirs'. The record is silent as to Nellie's husband. The will was dated March 5, 1955. Jawana is an adult. Default judgment was taken against her so that we do not have the benefit of her responsive pleading. The pleading of the Guardian ad litem sheds no light on the circumstances of the parties. The result is that this will must be construed from its language and without resort to any extrinsic evidence.

The appellant (Nellie) insists that the will should be construed to create an estate tail with the result that § 64--102, T.C.A., abolishing estates tail, comes into play and operates to convert the devise to a fee simple estate.

The appellees, the unknown and unborn children of Jawana, insist that Nellie received a life estate and Jawana, and her heirs, received a remainder in fee.

II.

As a prelude to an orderly discussion of the questions presented by this controversy we examine and analyze the pertinent provisions of the will of Angie Heflin Gupton.

The opening sentence of the paragraph under consideration may be abridged and restated as follows:

I give to my daughter, Nellie, all of my property.

It will be noted that in the original form, and as restated, this sentence contains no emphatic or unequivocal words such as 'in fee simple', or 'absolutely' or 'absolutely and in fee simple forever', or any other equivalent wordage from which a clear and unambiguous intent to pass a fee simple title may be inferred. Under § 64--501, T.C.A., and universal decisional law, this language, standing alone, was sufficient to convey a fee simple title.

But, it does not stand alone.

The ensuing sentence, conched in the form of the habendum clause of a deed, completely alters its meaning and significance. These two sentences might be combined into a single sentence, which we abridge and restate as follows:

I give to my daughter, Nellie, all of my property, During her natural life and upon her death to her bodily heirs, if any, forever; provided, if Nellie should die leaving no bodily issue, and her husband, James V. Harris should survive her, all such property shall pass ¹ to my granddaughter, Jawana, or her heirs. (Emphasis supplied).

It should be noted at the very outset that the only interest actually identified in the will is a life estate. Any other estate must arise by construction of law, based upon an imputed intent on the part of the testator. The clause, 'during her natural life' is of critical and controlling significance.

III.

We first address the insistence of the appellant that Nellie took a fee tail estate convertible under § 64--102, T.C.A. to a fee simple interest.

To adopt this approach, it is necessary to hold that a fee tail estate may come into being under a conveyance specifically and initially limited to, a life estate. This we are not prepared to hold. Such a construction would be contrary to the massive weight of the decisional law of Tennessee.

Section 64--102, T.C.A. is a codification of the Tennessee statute, designed to abolish estates tail, and reads as follows:

64--102. Estates tail abolished.--Any person seized or possessed of an estate in general or special tail, whether by purchase or descent, shall be held and deemed to be seized and possessed of the same in fee simple, fully and absolutely, without any condition or limitation whatsoever, to him, his heirs and assigns, forever, and shall have full power and authority to sell or devise the same as he thinks proper; and such estate shall descend under the same rules as other estates in fee simple.

While there is authority contra, as will be pointed out, the greater weight of the better reasoned cases compel the conclusion that this statute has no application where the first taker takes only a life estate.

The early case of Kirk v. Furgerson, 46 Tenn. 479 (1869), stands for the proposition that a conveyance 'to A and his heirs', coupled with a gift over in default of issue, creates an estate tail convertible under the statute (now § 64--102) to a fee simple. This continues to be the law where the instrument shows facially that an Absolute estate was transmitted to the first taker.

In Skillin v. Loyd, 46 Tenn. 563 (1869), relied upon by the appellant and supportive of her position, where the devise was to Julia Frances Spring, 'and the heirs of her body, for her own sole and separate use during her natural life', the Court held that this language created an estate tail converted into a fee simple. This case is out of harmony with later cases and is one of the few cases we find wherein a devise of a life estate, accompanied by fee tail language, was held sufficient to create a fee tail estate.

The earliest case cited to us by appellee is Williams v. Williams, 57 Tenn. 566 (1873) which we discuss later in another context. (See Sec. IV, infra). There the language of the devise was:

I will and devise to my grandson Melville Williams, During his life, and then to the heirs of his body . . . and in the event of his death without such heirs, then to my residuary legatee and his heirs . . .. (Emphasis supplied). 57 Tenn. at 567.

In legal effect this language is precisely the same as that contained in the case at bar. Applying the statute (§ 64--103) abrogating the rule in Shelley's Case, the Court held that Melville Williams took a life estate and his heirs took a contingent remainder.

Appellant places strong reliance upon Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12 (1897). There the pertinent portion of the will, after the creation of a trust (all money), read:

The legacy to be held in trust for my said daughter, subject to the foregoing limitations and restrictions, For and during her natural life, and, in the event of her death without living children, her share of the estate to go to my sons (naming them) equally, and, in case either of them shall be dead, leaving living children, then to their child or children. (Emphasis supplied). 98 Tenn. at 195, 39 S.W. at 14.

Actually there were no limitations or restrictions on her spending the money while unmarried, and '(i)n the meantime the money is in her hands to use without limitation'. 98 Tenn. at 202, 39 S.W. at 14.

The Court held (1) that the term 'during her natural life', measured 'the duration of the trustee's, and not the duration of the daughter's estate', (2) that there was no valid executory devise since the first taker could defeat the limitation over and (3) that the daughter, upon the death of her father, took an absolute estate. It is evident that the Court's opinion was based, in substantial part, on the factual situation and the testator's intent.

We consider next two cases decided by the old Court of Chancery Appeals, that are cited by both sides in support of their respective insistences. The first of these is Stratton v. McKinnie, 62 S.W. 636 (Tenn.Ch.App.1900). After devises of certain properties to children and grandchildren, including an unqualified devise of a lot on Spruce Street to Mary McKinnie Hughes, the will provides:

The property herein devised to my several children is to remain their own During their natural lives, and to descend to their Bodily heirs, if any . . .. If any of my said children or grandchild B. McKinnie Stratton Should die without bodily heirs, then that portion . . . shall be equally divided among the living children . . .. (Emphasis supplied). 62 S.W. at 637.

In a most excellent opinion by Judge M. M. Neil, later Chief Justice of this Court, the Court recognized the applicability of Shannon's Code Section 3674 (now § 64--103 T.C.A.), abolishing the Rule in Shelley's Case, and the rule of construction that a subsequent clause must control a prior clause in a will, and held:

(W)e think it clear that the absolute estate apparently given . . . in the second item of the will must be cut down to a life estate, with remainder to her bodily heirs. . . . It results that . . . there was given to Mary McKinnie Hughes a life estate in the lot on Spruce Street, and with remainder to such persons as shall be her bodily heirs at the expiration of that life estate. 62 S.W. at 640.

Secondly, reliance is placed by the respective parties on Cook v. Collier, 62 S.W. 658 (Tenn.Ch.App.1901), another case wherein...