Herrick v. Fowler

• Decision Date: 22 March 1902
• Parties: HERRICK et al. v. FOWLER et al.
• Court: Tennessee Supreme Court

67 S.W. 861

108 Tenn. 410

HERRICK et al. v. FOWLER et al.

Supreme Court of Tennessee.

March 22, 1902

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Suit by Sallie M. Herrick and others against Fannie H. Fowler and others for partition. A demurrer to the amended bill was sustained, and from the decree thereupon entered complainants appealed. The court of chancery affirmed the decree, and complainants again appeal. Affirmed.

Barthell & Keeble and Hickman & Hickman, for appellants.

Thos B. Johnson, for appellees.

WILKES J.

In this case there was an original bill, an answer, a cross bill, and amended bill, and to the latter there was a demurrer. This demurrer was sustained by the chancellor, and the will and deed in controversy were construed, fixing the rights of the parties among themselves, denying any relief to complainants and taxing them with the costs. They appealed, and the decree of the chancellor was affirmed by the court of chancery appeals, and complainants have appealed to this court, and assigned errors.

The question involved is the proper construction, effect, and execution of a power contained in the will of Harriet R Herrick, and a power somewhat similar, if not entirely so, in a deed from Mrs. Jane E. Rodes; the donee of the power in each case being F. C. Herrick, the husband of Harriet R. Herrick. Mrs. Harriet R. Herrick made her will on June 19, 1879, and died soon thereafter, leaving her husband, F. C. Herrick, the donee of the power, and their children, Henry Y., Isaac, and Fannie. Henry died May 16, 1891, leaving his widow, the complainant, and three minor children, who sue in this case by their mother, as next friend. Isaac died in 1894, but left no children; his heirs being the minor complainants and defendant Fannie, who has intermarried with Edward Fowler, and is the principal defendant in this case, being joined as such with her husband. Harriet R. Herrick died seised of a lot on the west side of Broad street, in the city of Nashville, fronting about 100 feet on that street; and it appears that she had no other property, real or personal, of any moment. The language of her will is as follows: "I will all my property real and personal of every kind to my beloved husband, F. C. Herrick, during his lifetime, so that he may have use and enjoy the income of the same; but neither the property, nor its rents nor income, to be subject or liable in any way to his debts, contracts, or liabilities. Item 2. Said husband at his death shall have power by will and testament to dispose of the property hereby willed to him, between my children, as he may see proper. He in the future will be better fitted, as time develops, to determine as to what proportions my children shall have said property. Therefore I give him full power to dispose of it, as between them, as he thinks best." This will was probated in Davidson county in March, 1880. At the time of her death, Henry and Isaac were alive, but both died before the father, leaving defendant surviving them; and Henry died, also, leaving a widow and children. After the death of the testatrix, Harriet, her husband, F. C. Herrick, on July 12, 1881, bought 50 feet of ground adjoining the first-named property from Mrs. Jane E. Rodes, and took title in his own name, coupled with powers and conditions fixed by the language of the deed as follows: "I, Jane E. Rodes, have this day bargained and sold to F. C. Herrick, and do hereby transfer and convey to F. C. Herrick, during his lifetime, with the privilege of the use and enjoyment of the same without its being liable for his contracts or liabilities, with the power to dispose of the same at his death, by will and testament, between the children of Harriet R. Herrick, and to the heirs of F. C. Herrick and Harriet R. Herrick, above designated, forever, for the consideration of $600," etc. F. C. Herrick, August 31, 1892, executed a will, which provides as follows: "I will to my daughter, Fannie McLelland Herrick, the house and lot 1711 Broad street, Nashville, Tenn., fronting 98 feet and eight inches on Broad street. It is my wish, however, that my family shall occupy the premises as their home so long as mutually agreeable and pleasant, and to the interest of my wife and daughter Fannie. I will to my wife, Ella Scott Herrick, everything else I may die possessed of, except $200 cash to be paid to my sister, Mrs. Lucy C. Smith, of Gilford, Indiana. A lot fronting on Broad street, adjoining our home place, and a cottage and lot, 100 by 120 feet, at Monteagle, Tennessee, are in my wife's name, and subject to her sole disposal." On July 2, 1899, he added a codicil as follows: "I, F. C. Herrick, being of sound mind and disposing memory, do make and publish this as a codicil to my last will and testament: Having amply provided for my son during his life, and having given him in money far more than I could now give my daughter, Fannie, I will and direct that the children of my said son, Henry, be paid by my daughter, Fannie, the sum of $100 in money. In other words, my daughter, Fannie, shall take the home place, 1711 Broad street, as described in my will, charged with $100 to be paid by my daughter, Fannie, to the children of my son, Henry; and my will in all other respects is to stand." This will was probated at the July term, 1899, of the county court of Davidson county.

The bill seeks, on the part of the children of Henry Y. Herrick, to set up an interest in the lot in their behalf, on the ground that the exercise of the powers conferred on F. C. Herrick by the will and deed referred to is void; and the contention is for a one-half interest in both tracts, and to have the same partitioned. We treat the matter only as it is presented by the amended bill and the demurrer, as other portions of the record are not properly before us.

The chancellor held that the will of F. C. Herrick was a valid execution of the power of appointment contained in the will of Harriet R. Herrick, except so far as it seeks to charge the property with $100 in favor of complainants, and as to this charge he was of opinion it was beyond the scope of the power and void, and it was set aside and for nothing held; but the remaining portions of the will were sustained and upheld, and it was decided that the property, No. 1711 Broad street, was the property of Fannie Herrick Fowler, under the wills of her mother and father. The decree further recites that the property conveyed to F. C. Herrick by Mrs. Jane E. Rodes is also the property of Fannie Herrick Fowler. It appears that, at the death of F. C. Herrick, 50 feet of the property mentioned in the will of Harriet R. Herrick had been sold off, and at that date No. 1711, now in controversy, embraced the balance of the lot devised by Harriet R. Herrick and the lot deeded by Mrs. Jane E. Rodes.

The court of chancery appeals affirmed the decree of the chancery court, under the holding of the majority, and complainants have appealed to this court, and assigned errors as follows (1) In holding that, under the will of Harriet R. Herrick, F. C. Herrick was empowered to leave all the real estate described in the amended bill as the property of Harriet R. Herrick to Fannie H. Fowler, to the exclusion of the children of Henry Herrick, deceased. (2) In holding that under the deed from Mrs. Jane E. Rodes, as set out in the amended bill, F. C. Herrick was empowered by this deed to leave all the property to Fannie H. Fowler, to the exclusion of the children of Henry Y. Herrick, deceased. (3) In holding that the Rodes property was worth only $600, and therefore a gift of $100 was not an illusory...