Jones v. National Bank of Commerce in Memphis

• Decision Date: 09 October 1951
• Parties: JONES v. NATIONAL BANK OF COMMERCE IN MEMPHIS. 29 Beeler 126, 193 Tenn. 126, 244 S.W.2d 430
• Court: Tennessee Supreme Court

Page 430

244 S.W.2d 430

JONES v. NATIONAL BANK OF COMMERCE IN MEMPHIS.

29 Beeler 126, 193 Tenn. 126, 244 S.W.2d 430

Supreme Court of Tennessee.

Oct. 9, 1951.

Rehearing Denied Dec. 14, 1951.

Wils Davis, Charles L. Neely, John Leake, Earl P. Davis, Memphis, Cecil B. Nance, Marion, Ark., for complainant.

Frank J. Glankler, John S. Montedonico, Canale, Glankler, Little, Boone & Loch, J. C. Kincannon, Memphis, G. B. Segraves, Osceola, Ark., John A. Fogleman, Marion, Ark., for defendants.

TOMLINSON, Justice.

In August 1949, the Probate Court of Crittenden County, Arkansas, admitted a certain paper writing to initial or original probate in common form as the last will of L. H. Carruth. The order of probate adjudged Carruth to have been a resident of that county at the time of his death. Carruth died the owner of considerable land in that county, and of considerable personal property in Shelby County, Tennessee.

An ancillary probate in common form of that will was had in September 1949, in the Probate Court of Shelby County, Tennessee under the provisions of Code, Sections 8114-8115 of the Tennessee Code, and it was recited in the order so admitting it to such probate that Carruth was domiciled in Crittenden County, Arkansas at the time of his death. The National Bank of Commerce in Memphis was issued letters of administration c/t/a.

The sole heir at law of the alleged testator is Mary Carruth Jones. She had no notice of either of the two above mentioned probates of her father's will.

In November 1949, this sole heir, Mary Carruth Jones, filed a petition in the Probate Court of Shelby County and therein alleged that her father was of unsound mind at the time of executing this paper writing and was unduly influenced to execute it by one Frank G. Barton, a beneficiary therein. She alleged that her father was a resident of Memphis at the time of his death. The prayer of her petition, as amended, was (1) that the previous order of the Shelby County Probate Court admitting said will to ancillary probate in Shelby County be reformed so as to eliminate the provision finding that Carruth was a resident of Crittenden County, Arkansas, at the time of his death; and (2) that this petitioning daughter be permitted to contest the will on the grounds above stated, and that when the issues are made up there be included therein, if necessary, the question of whether deceased was a citizen and resident of Shelby County, Tennessee at the time of his death.

The alleged will of Carruth satisfied all requirements of the law of Tennessee and of Arkansas with reference to the devise of real estate and the bequest of personalty. Therefore, the only relief that was or could in any event be had by the daughter of decedent in the proceedings instituted by her petition to contest the will was a determination by a trial in the Circuit Court of Shelby County as to whether Carruth at the time of the execution of this will was unduly influenced by Barton or was of unsound mind at that time.

The administrator c/t/a moved the Probate Court to dismiss the petition to contest on the ground that the Probate and Circuit Court of Shelby County were without jurisdiction in that the proceedings in the Arkansas Court were conclusive and precluded a contest devisavit vel non in the Tennessee Circuit Court.

The Probate Court of Shelby County was of the opinion that the question of domicile in the initial or original probate of a will is a jurisdictional question and that the decision, therefore, of the Arkansas Court as to the domicile of the decedent at the time of death was not binding upon the Courts of Tennessee as to personal property of decedent in Tennessee.

The Probate Court further concluded that it had the authority (1) to revoke its previous finding that decedent was a resident of Arkansas at the time of his death if the proof should show that decedent was in fact a resident of Shelby County, Tennessee at the time of his death; and (2) to then certify the record to the Circuit Court for contest if in fact Shelby County is found to have been the residence of the decedent. The Probate Judge, after hearing proof, further found that decedent Carruth was in fact a resident of Shelby County at the time of his death.

It was assigned as error in the Court of Appeals that the Probate Court erred in holding (1) that Carruth was domiciled in Shelby County at the time of his death, and (2) in denying the motion of the administrator c/t/a to dismiss Mrs. Jones' petition to contest the will of her f...