Johnson v. Patterson

• Citation: 81 Tenn. 626
• Parties: BESSIE M. JOHNSON, Administratrix, v. ANDREW J. PATTERSON, Administrator, et al.
• Decision Date: 30 September 1884
• Court: Tennessee Supreme Court

81 Tenn. 626

BESSIE M. JOHNSON, Administratrix,

v.ANDREW J. PATTERSON, Administrator, et al.

Supreme Court of Tennessee.

September Term, 1884.

FROM GREENE.

Appeal from the Chancery Court at Greeneville, H. C. SMITH, Ch.

J. T. & JNO. K. SHIELDS, A. B. WILSON and H. H. INGERSOLL for complainants.

ROBINSON & MALONEY and THOMAS CURTIN for defendants.

FREEMAN, J., delivered the opinion of the court.

This bill is filed to settle the estate of the late President, Andrew Johnson, who died July 31, 1875.

Soon after his death his widow administered on his estate. She, however, died in six or eight months, and then his only surviving son, Andrew Johnson, Jr., was appointed administrator de bonis non. After this, in March, 1879, Andrew Johnson, Jr., died, it being about three years after his appointment. He left complainant his widow and only distributee, and his two sisters, defendants, Mrs. Stover and Mrs. Patterson, as his heirs. His widow, the complainant, has been appointed administratrix of her husband, and Andrew J. Patterson, administrator de bonis non of his grandfather, Andrew Johnson, Sr.

On October 8, 1879, complainant filed this bill as administratrix of her husband, and in her own right for a settlement of the estate of Andrew Johnson, Sr., a general account of the same, and in addition, an assignment of dower in the lands in which her late husband died seized.

This case was before us two years since, when it was fully and ably argued, but the main questions were not then decided, the appeal being premature before a final decree. It comes now after a final decree, with a report of the Referees, to which exceptions are filed by both parties. We will first dispose of the matters raised by the exceptions on the two leading questions of law debated before us, to-wit, whether the “brick cotton factory” property is to be treated as personalty or realty in the distribution of the estate, and whether the Henderson farm given to Mrs. Patterson is to be treated as an advancement, and be accounted for as such or not? We need not state the terms of the exceptions, as the points raised will readily be seen from the statements of this opinion.

A short statement of facts in reference to each will serve to raise the points to be decided. When Andrew Johnson, Sr., died, he had a debt on one Prather, due by note for the sum of $10,000, bearing interest at the rate of ten per cent. per annum for money loaned to start and carry on a cotton manufacturing establishment. This debt was secured by a deed of trust to Thomas Maloney, conveying the brick cotton factory with the two acres of land on which it stood, with all the machinery and fixtures of all kinds in said cotton factory, consisting of six spinning frames and attachments necessary to operate the same, etc., with all appurtenances connected with or belonging to said cotton factory, with power to sell on default as is usual in such cases.

Some additions were probably made to the machinery by Prather after making the deed, but this is not deemed important on the questions presented.

During the administration of Andrew Johnson, Jr., default having been made in paying the debt secured or interest provided for, he required the trustee to proceed with the execution of his trust, and sell the property conveyed to him in order to realize the debt secured. This, no doubt, was concurred in by all the parties. Maloney advertised and sold the property in accord with the provisions of the trust deed, and the same was bought by the three heirs-- Andrew, Jr., Mrs. Patterson and Mrs. Stover, for the sum of $10,500, leaving after deducting expenses of the sale something over $500 of the debt then due, unpaid. Maloney conveyed the property so sold to these purchasers, by a deed referring to the deed of trust of Prather for a fuller description of the same--and they went into possession of the same, and remain in possession, except Andrew, who is dead, but he was in possession until his death.

On these facts substantially it is claimed in the bill, and urged in argument that the purchase was made by these three persons as heirs of Andrew Johnson, not as an investment, but as a means of realizing the debt due the estate--not with the purpose of converting the debt into real estate--and it is therefore maintained the said real estate so purchased is to be treated as personalty for the purposes of distribution.

In addition it is said argumentatively in the bill, that much of the “property was and is strictly personal property, and does not come within the definition of real estate, the whole having been purchased as a security for said debt.”

The principles may be assumed as correct that a personal representative has no power to convert personalty into realty; and if he does so, it will be considered in equity as personalty and distributed accordingly: Roberts v. Jackson, 3 Yer., 79, and cases cited. But we are unable to see how the facts of this case come within the principles cited. It was not a purchase by the administrator at all, but by himself and his two sisters, who were the heirs and distributees, to whom the debt would have gone in process of distribution, had it been collected in money, as it is, they have bought the property as tenants in common, and as such took the title and hold it. They owe the money, as on a joint purchase, and would have to account for it in distribution of the estate--but as they are each entitled to the amount they owe, the settlement can be made in this way without actual payment, as this case stands--there being a large surplus for distribution. But had the money been needed for the payment of debts, or there had been other distributees not joining in the purchase--they would have been compelled to pay the entire price in the one case, and in the other sufficient pro rata, to make up the interest of the other legatee, as it is the matter can be settled by a charge and discharge in taking the account of distributive share of each of the parties.

As to the point suggested in the bill, that much of the property was strictly personalty, and not realty; alluding as we learn from argument of counsel to the machinery making up a part of the cotton factory conveyed, we need say but little. The complainant stands in the shoes of her deceased husband in asserting the position that the machinery making part of the cotton factory is personalty. It is beyond question, that he and the co-purchasers purchased the whole property as one property, and treated it as such. The intent was to either use it permanently as such, and as a whole, or to sell it as a whole. Most certainly the parties did not intend to become owners as tenants in common of the brick house erected for the purpose of the enterprise, and to hold the machinery as personalty, with the right to divide it among them as such. It would probably, if not certainly have been impossible for them so to divide it, without rendering it useless for all practical purposes. Modern authorities all agree, that the most controlling test of the question, whether property connected with real estate is to be deemed realty or a mere chattel, removable at pleasure of owner, is the intention and purpose of the erection: See McDavid v. Wood, 5 Heis., 98;Saunders v. Stalling, 5 Heis., 72; Connor [Cannon] v. Hare, 1 Tenn. Ch., 25; Wait's Act. & Def., vol. 2, 369, and cases cited. But the intent and the nature of the property taken as a whole, as the parties purchased it, and treated it, concur in making it a part of the freehold, and stamping it as realty, and it must so be held.

The next question to be determined is, whether a certain tract of land, known as the Henderson farm, containing about five hundred acres, valued in assessing for taxation, as since improved, at upwards of $11,000, and for which the intestate paid in 1867, $17,000, is to be treated as an advancement, and charged as such.

This land was conveyed by Andrew Johnson, Sr., in the adjustment of his estate, to his eldest daughter, Mrs. Patterson, February 18, 1873, she having been placed in possession of it in March, 1869.

The conveyance on its face simply shows that it was made “for the love and affection I entertain for my daughter, Martha J. Patterson, I do hereby give, transfer and convey to her, her heirs and assigns,” etc. No further purpose is expressed, and the question is to be decided on the rules of law established in such cases, and the legal evidence to guide us as to the intention of the donor when he made the gift.

An advancement is defined by the authorities to be, “an irrevocable gift, by a parent, who dies afterwards intestate, of the whole or a part of what it is supposed the child will be entitled to on the death of the parent making the advancement”: See Yancey v. Yancey, 5 Heis., 357; Meigs' Dig. by Milliken, vol. 1, p. 74, sec. 11, and Wait's Act. & Def., vol. 1, 205, sec. 1, and cases cited. A shorter definition is, a gift by a parent in presenti, of a portion or all of the share of his child in his estate which would fall to such child at the parent's death by the statute of distribution or descent.

It is seen from this definition that the fact that there is a gift and conveyance of the title does not exclude the idea of an advancement, but that a gift and the title conveyed is an essential feature of it. In order to exclude the idea of an advancement, there must be shown not only a gift, but something additional--a gift, with a purpose that the property so given shall go to that child as something over and above the share of the other children of the donor. The purpose must be made out by satisfactory and affirmative testimony, such as the nature of the case will naturally demand, and if the fact be so, will naturally supply.

In view of our statute law on this subject, as well as on sound principles, it is settled that when a gift is shown by parent to a child the presumption of law is that it is intended as an...