Hays v. Bright

• Decision Date: 30 September 1872
• Parties: Hays v. Bright.
• Court: Tennessee Supreme Court

58 Tenn. 325

Hays

v.Bright.

Supreme Court of Tennessee.

September Term, 1872.

FROM GREENE.

Appeal from decree of Chancery Court at Greeneville, February Term, 1872. H. C. SMITH, Ch.

ARNOLD, for Complainant.

Ingersoll, for defendant, said:

1. To enable a court of equity to entertain a bill for discovery where there is no other ground for equitable relief, the bill must allege that complainant is not able to prove the fact sought to be discovered otherwise than by defendant's admissions. Lindsley v. James, 3 Col., 477.

2. The County Court is vested with exclusive original jurisdiction of the probate of wills, from which appeal lies only to the Circuit Court for proof in solemn form. Code, 2169; Acts 1794, ch. 1, sec. 47; Car. & Nich., 708.

3. There is no statute in Tennessee requiring wills disposing of personalty to be signed by the testator, or in his handwriting. The will in this case is sufficient for its purpose. New Code, 2162, and authorities cited.

4. Even if the Chancery Court could make up an issue of devisavit vel non, this is no case for it, as the devisees are not all made parties.

5. The marriage contract clearly gives to Annie not only the right to sell during life, but to “dispose of” her property by will. The purpose is expressed to be to secure it to her “against any danger which might result from the matrimonial connection.” This is very different from the language employed in Brown's Adm'r v. Brown's Adm'r, 6 Hum., p. 127. There the intention was only to give her the control during life. Here the binding of the “heirs, executors and assigns” shows the purpose of entire relinquishment of the marital right by the husband, and, in this respect agrees more nearly with the case of Hamrico v. Laird, 10 Yer. 222.

6. Even if complainant could have any right in the premises, he is estopped from setting up claim to his wife's property by delivering up the same to respondent as her administrator, to be by him used and appropriated to the payment of debts, etc., in the process of administration.

The conclusion is, that complainant's bill must be dismissed on any of the three grounds above set out, viz., want of jurisdiction, want of title, and estoppel.

NICHOLSON, C. J., delivered the opinion of the Court.

In 1830, Joseph Hays intermarried with Annie Clark, after they had entered into a marriage contract by which she was authorized, through her father as trustee, to retain control and dominion over her property. They lived together until her death, in 1854. Before her death she executed a will, by which she disposed of various sums of money in special bequests, and gave to her daughter, Sarah McCurry, a certain chest with its contents. David Bright was a witness to the will, and one of her executors. Before the will was admitted to probate, David Bright renounced as executor, and was appointed and qualified as administrator of Annie Hays. Afterward the will, after a contest, was admitted to probate, but no executor or administrator with the will annexed was appointed or qualified. Bright proceeded, as administrator, to make out an inventory and to sell personal property. Joseph Hays surrendered to him certain articles of property, money, choses in action, etc., amounting to about $200; and Sarah McCurry, with the knowledge of Joseph Hays, took from the chest $118, which she claimed as a bequest under her mother's will.This bill was filed by Joseph Hays, alleging that by the terms of the marriage contract the property not disposed of by his wife during her life belonged to him by virtue of his right as surviving husband; that the property which was taken possession of by David Bright as administrator, and by Sarah McCurry as legatee under the will, belonged of right to him; praying for discovery and for an account, and that the will be set aside, etc. David Bright and Sarah McCurry, and Sarah McCurry and her husband, were made defendants. Joseph Hays and David Bright have both died, and the cause has proceeded by revivor in the names of their respective representatives.

Defendants demurred on several grounds, which were overruled, and then they answered, denying the right of Joseph Hays to the property, insisting that Annie Hays had the right, under the marriage contract, to dispose of the property by will, and relying upon the probate of the will as conclusive as to its validity. Bright admitted that he took possession of the property as administrator, and has held and administered it as such,--no one having been qualified as executor of the will.

The cause was referred for proof and report as to the value of the property, etc., and upon its coming on the Chancellor decreed in favor of complainant, and...