Henley v. Robb

• Decision Date: 03 March 1888
• Parties: HENLEY v. ROBB.
• Court: Tennessee Supreme Court

7 S.W. 190

86 Tenn. 474

HENLEY v. ROBB.

Supreme Court of Tennessee.

March 3, 1888

Appeal from chancery court, Sumner county; GEORGE E. SEAY Chancellor.

Action brought by the plaintiff, William M. Henley, to recover certain sums of money, which he claims as heir of an uncle and two aunts, but which the defendant, Mrs. W. M. Robb claims to have received under the will of her father, Martin Henley. Judgment below was for the plaintiff, and defendant appealed. The facts appear in the opinion.

Verbress & Verbress, for plaintiff.

Wilson & Sevaney and J. W. Blackmore, for defendant. Tenn.]

LURTON J.

The second clause of the will of Martin Henley, who died in Sumner county, Tennessee, directed that all of his real and personal estate, wherever situated, should be sold by his executors, and "that the proceeds of said sales and the money on hand I will and bequeath equally to my children Dorothea Wilson, Elizabeth, John, Martha, Julia, and James Henley, subject to the limitations hereafter made." " Third.--Should either of my children above named die without issue capable of taking by inheritance, then, and in that event, I give and bequeath the amount given to such child or children to their remaining brothers and sisters." Since the death of testator five of these legatees have died. Four of them died intestate and "without issue capable of taking by inheritance." The other, James Henley, left one child, the complainant, William M. Henley. The only survivor of the children of the testator is the defendant, Mrs. Dorothea Robb, formerly Wilson. These deaths occurred in the following order and time: (1) Mrs. Elizabeth Bowman, in 1860, childless and intestate. (2) John Henley, in 1860, leaving complainant, the only issue. (3) Mrs. Martha Hamblin, in 1864, childless and intestate. (4) James Henley, 1864, childless and intestate. (5) Mrs. Julia Rice, 1866, childless and intestate.

Upon the first death, that of Mrs. Bowman, her interest under the will undoubtedly passed equally to her five surviving brothers and sisters; and this by force of the will. Upon the death of the second child, his original share, it is admitted, went by inheritance, and not under the will, to his son, the complainant, and it is likewise agreed that the fifth of a share which had accrued to John Henley, by reason of the previous death of Mrs. Bowman, likewise went to complainant. The controversy is only over the other accrued shares. These five deaths all occurred before 1867, but owing to the disturbed condition of the country growing out of the war between the states, nothing was done towards winding up their estates until after the death of Mrs. Rice, in 1866. A large part of the share of each, under the will, had been paid over by the executors in the life-time of the parties, but a part of each share remained in the hands of the executors in 1866. Upon a settlement between the executors, the administrator's of deceased children, and Mrs. Robb, the only survivor, and the guardian of complainant, Col. J. J. Turner, which occurred in 1866 or 1867, there was paid over to the defendant, Mrs. Robb, the original shares bequeathed to the four children who had died without issue, and the accruments which had resulted from the antecedent deaths; that is to say, Mrs. Robb received not only the original share of one-sixth of the whole estate of her father, which had been the share of her sister, Mrs. Hamblin, but in addition to that she claimed and received one-fifth of the original share of her sister, Mrs. Bowman, who died before Mrs. Hamblin, claiming that the one-fifth which had accrued to Mrs. Hamblin by the predecease of Mrs. Bowman, likewise passed under the will of their father to her as survivor. Like claims were set up and sustained as to all the accruments which had resulted to her brother, James Henley, and her sister, Mrs. Rice. This settlement seems to have been made under the opinion, then entertained by the guardian of complainant, that, under the will, accrued shares, as well as original shares, passed to the survivor or survivors of the children. Complainant files the bill to recover from Mrs. Robb a part of the accruments thus received by her, basing his claim upon the proposition that the will does not provide for a second devolution of any share, but that accruments became the absolute estate of the child to whom they accrued under the will, and hence did not pass under the will a second time, but by the laws of descent and distribution. If this contention is sustained, then it follows that upon the death of each of the children, whose deaths occurred after the death of complainant's father, complainant, as a distributee under our statutes, would share with his aunt, the defendant, such accrued shares. The question then is, do accrued shares, under this will, pass with the original shares to the survivors? The general rule, under a long line of decisions, is that clauses disposing of the shares of the devisees and legatees, dying before a given period or without issue, or upon any other contingency, do not, without a positive and distinct indication of intention, extend to shares accruing under the clauses in question. 3 Jarm. Wills, 560; Pain v. Benson, 3 Atk. 80; Perkins v. Micklethwaite, 1 P. Wms. 274; Rudge v. Barker, Cas. t. Talb. 124. As stated by Lord HARDWICKE in Pain v. Benson in illustration, "as where a man gives a sum of money to be divided among four persons or tenants in common, and declares that if one of them die before twenty-one or marriage, it shall survive to the others. It one dies and three are living, the share of that one, so dying, will survive to the other three; but if a second dies, nothing will survive to the remainder but the second's original share; for the accruing share is as a new legacy, and there is no further survivorship." Is there, in the will now under consideration, any positive and distinct indication that the testator intended that accrued shares should survive? The language here used by the testator, concerning survivorship of shares, is that "in that event [the death of a child without issue] I give and bequeath the amount given to such child or children to their remaining brothers and sisters." The subject-matter thus surviving is " the amount given to such child." We do not find these precise words construed. In the case of Rudge v. Barker, the clause was, "and if any dies, to the survivors or survivor, share and share alike." It was held that there was no second survivorship of a survived share, but that the accrument went to the administrator of the child to whom the accrument came. In the case of Woodward v. Glasbrook, reported in 2 Vern. 388, but likewise reported in a note to Rudge v. Barker, the language was, "such...