Hill v. Fly

• Decision Date: 04 March 1899
• Parties: HILL et al. v. FLY et al.
• Court: Tennessee Supreme Court

52 S.W. 731

HILL et al. v. FLY et al.

Court of Chancery Appeals of Tennessee.

March 4, 1899.

Appeal from chancery court, Williamson county; Morton B. Howell, Special Chancellor.

Action by Mrs. Sallie Hill and others against George W. Fly, as executor, and others. From a decree for plaintiffs, defendants appeal. Modified.

H. F. Fowlkes and J. H. Henderson, for appellants. Cook & Marshall and R. H. Crockett, for appellees.

BARTON, J.

The original bill in this case was filed on January 16, 1895, by the complainants, who claimed to be and are the residuary legatees of Jeremiah Hill, deceased. The bill is filed against George W. Fly, executor of Jeremiah Hill, and against him individually, and against his wife, Madeline Fly, individually. Jeremiah Hill died in 1892, and left a will, first executed in 1883, and afterwards republished in 1890, in which he devised to George W. Fly and his wife, Madeline Fly, a certain farm on which they were then living, and all of his household and kitchen furniture, and all the live stock and farming utensils, and all other real estate belonging to him; and he bequeathed the residue of his estate at that time (1883), recited as consisting of money, notes, accounts, and choses in action, to the complainants in this case, viz. Mrs. Sallie Hill, Emily Hill, Isabella James, Mary Holt, and Elizabeth Brown. Now these complainants filed this bill as residuary legatees under this will. In the bill it is alleged that the testator, for many years prior to his death, was old, and feeble in body and mind, and incapable of attending to his business; that he lived with Fly and wife; and that, during the lifetime of the testator, Fly took advantage of his enfeebled condition, and obtained possession of notes, money, and other personal property belonging to the testator, collected the same, and expended a large amount — at least the amount of $5,000 — in improvements on this place, which was to be willed to them, and in buying household and kitchen furniture, etc., with a view of depriving the residuary legatees of their interest; and that he also took advantage of the enfeebled physical and mental condition of Hill to obtain his money and other property, and convert it to his own use. It is alleged that in 1883, at the time when the will was first executed, it is doubtful whether he had mental capacity to execute the same; and that in 1890, when it was republished, he did not. But they say that, conceding the validity of the will, in any event, Fly took advantage of the weak physical and mental condition of Hill to obtain his notes, money, and other choses in action, and convert them to his own use; that after the death of Hill the will was probated; and that Fly had qualified as executor under the will, but had not, in his inventory, charged himself with large sums for which he was responsible to the estate by reason of having collected them, and failed to pay over and account for them to Hill. The bill prays that the executor be compelled to pass his accounts in this court, and file a complete statement of his acts and doings as the agent or manager of the affairs of the testator prior to his death, and also asks that a final and complete account of defendant Fly's acts be taken and stated by the clerk and master, and that an account be taken to show how much of the money and choses in action had been used by defendant Fly, and converted to his own use. A demurrer was filed, which was overruled; and defendants answered, and in the answer say that the defendant had filed a true inventory of all the property for which he was liable, and in general deny the equities of the bill. Proof was taken, and the cause heard before the Honorable Claude Waller, as special chancellor, who rendered a decree which adjudicated that for many years prior to his death the testator, Jeremiah Hill, was in a weak and feeble condition in body and mind, and that the defendant G. W. Fly took advantage of this, and had received and collected certain sums, with which he should be chargeable, and for which he had not accounted, and which he did not report in his inventory. Among other sums which the chancellor adjudicated should be charged against the executor was one note, known as the "Chrisman note," for $300; one note, known as the "Cunningham note," for $100; a note known as the "Elmore Hill note," for $300; and a balance on the note against one J. H. Wagner of $75.50. He held that the executor was not responsible on a note of $118, which was barred by the statute of limitations. He also ordered that the administration of the estate be removed from the county to the chancery court, and that Fly, executor, pass his accounts in this case. And the clerk and master was directed to take and state an account charging him with the items named, and such other items as the proof, on taking the account, might show he was responsible for. The master took the account ordered, and made a report showing a balance in the hands of the executor amounting to $1,128.68. In his account he included the charges for which the chancellor had held Fly liable. Exceptions were filed to this report, and the cause was again heard before the Honorable Morton B. Howell, as special chancellor, who overruled the exceptions, and adjudicated that Fly, executor, was liable to the complainants, as legatees, for the balance shown by the report, with interest, amounting at the time of the decree to $1,196.40, for which a judgment was rendered against him. From this decree G. W. Fly, as executor, prayed an appeal, but failed to perfect the same. But the cause was filed for writ of error on December 3, 1898, and is now before us on assignments of error on behalf of Fly, executor, which assignments we will proceed to examine and dispose of.

The first assignment is that the chancellor erred in overruling the demurrer. The demurrer was both on behalf of the wife, Madeline Fly, and the defendant, the husband, George W. Fly. We are of the opinion that the chancellor was in error in failing to sustain the demurrer as to the wife, Madeline Fly. No cause of action is set out in the bill as to her. It is charged that G. W. Fly appropriated the assets of the testator, but no such charge is made against her, and no relief is asked as against her. In the final decree no reference was made to her, and nowhere in the record does it appear that she was guilty of any wrong, or that any relief was sought as against her. It therefore becomes immaterial, so far as she is concerned, whether the demurrer be sustained or whether the bill be dismissed as to her on final hearing. We think it would have been proper for the chancellor to have sustained the demurrer, and dismissed the bill as to her. On behalf of Fly it is urged that complainants' remedy in securing a full inventory and proper settlement by the executor was full and adequate in the county court, and that the bill was prematurely filed on the part of the devisees or distributees, because the two years and six months allowed the representative had not expired; and it is said the pretense that a construction of the will was sought is a mere pretense, and afforded no ground of jurisdiction. We think it apparent that this last proposition is true. No question was indicated on which a construction of the will was asked, and, indeed, there was no room for doubt in regard to it. But, inasmuch as Fly, after the demurrer was overruled, came in, and submitted to the jurisdiction of the court, and took issue with the complainants on the merits, we think he has waived any question as to the prematurity of the suit, and that it would now be useless to decide this point. The bill was one in the nature of a bill to surcharge and falsify the reports and accounts of the executor, and for a settlement with the complainants as residuary legatees or distributees, and, the defendant Fly having waived, by his answer and defense, the defense that might have been properly made by plea in abatement, and gone into a trial on the merits of the suit, we are of the opinion that there is no merit now in this assignment of error.

The second and third assignments of error involve the general findings made by the chancellor in his decree, and the holding of the chancellor that the defense attempted to be made for the defendant Fly to the effect that he paid over certain sums in which it sought to charge him was not admissible on account of the position taken by him in his answer. These two assignments of error may be properly disposed of by us in a general finding of facts and a statement of the pleadings. We find that Jeremiah Hill was an old man, an uncle of the defendant George W. Fly, and was the owner of the farm on which he lived at the time of his death. He was an uncle of the defendant on his mother's side. In the winter of 1875, Fly and wife went to live with their uncle on this place. Before this time, Hill had nobody living with him except a negro. After this, Fly and wife remained on this place until the death of Hill, in 1892. Fly managed the place under the supervision of Hill. And Fly and his wife, as shown by the will of the testator, looked after his comfort, were devoted and kind to him, and rendered him every assistance and kindness that he needed. For this reason it appears that Hill made his will, devising all of his real estate, his stock, household, and kitchen furniture to Fly and his wife. At the time Fly and wife went to live with old man Hill he had considerable personal property, consisting of money, notes, accounts, etc. After that, considerable sums were collected, and considerable improvements were made on the place, but these improvements were all made with the knowledge and consent of Hill; and it does not appear that either Fly or his wife knew that this will had been made in their favor...