King v. King
| Decision Date | 18 April 1933 |
| Citation | 59 S.W.2d 510,166 Tenn. 115 |
| Parties | KING v. KING et al. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Williamson County; J. C. Hobbs Chancellor.
Suit by Patti King, by next friend, against W. H. King and others. From decree for complainant, defendant appeals.
Reversed and bill dismissed.
See also 164 Tenn. 666, 51 S.W.2d 488.
R. H Crockett, of Franklin, for defendant appellant.
E. W. Eggleston, of Franklin, and M. P. Estes, of Nashville, for complainant appellee.
H. B. Talley, of Murfreesboro, for defendants appellees.
This cause turns upon the application, construction, and effect of section 2193 of the Code of 1858, carried into Shannon's Annotated Code as section 3925 and reADing as follows:
"A child born after the making of a will, either before or after the death of the testator, not provided for nor disinherited, but only pretermitted in such will, and not provided for by settlement mADe by the testator in his lifetime, shall succeed to the same portion of the testator's estate as if he hAD died intestate."
The bill in the cause prays for a sale for partition of three contiguous parcels of land, forming one tract of about 124 acres situated in Williamson county, which were owned in fee simple by Fannie G. Paschall, wife of Dr. George C. Paschall, at the date of her death in December, 1918. Mrs. Paschall left a last will and testament, bearing date December 6, 1905, which was ADmitted to probate in the county court of Williamson county at its May term, 1929. Omitting formal parts, said will reADs as follows:
"Item 1. I will and devise to my husband George C. Paschall, for and during the period of his natural life, the use of my lands (describing them by references and being the lands sought to be sold for partition).
Item 2. I will and devise my lands, after the termination of the life estate given to my husband George C. Paschall to my brother W. E. King, if he is then living, and if he be deAD, then said lands shall go to his children, share and share like, the child or children of any deceased child to take the share the parent would have taken, if living.
Item 3. I appoint my husband, George C. Paschall, executor of this my will. Witness my hand this the 6th day of December, A. D.
"Fannie G. Paschall."
The testatrix was survived by her husband and by a son, George C. Paschall, Jr., who was the only child ever born to her. The child was born April 6, 1906, four months after the date of his mother's will.
Dr. Paschall found the will shortly after his wife's death among her valuable papers in the bank in Franklin where she was accustomed to transact her banking business, and filed it in the county court, but declined to ask that it be probated or to claim under it, and gave notice to W. E. King and his children that he would contest it and that he claimed curtesy in the land. Thereafter Dr. Paschall occupied and used the land until his death in September, 1926. Upon his death, the son, George C. Paschall, Jr., took possession of the land and occupied and used it until his death in May, 1929. This was without interference from W. E. King, who, however, did not by any affirmative act relinquish or surrender any interest he hAD in the land. Upon the death of George C. Paschall, Jr., King caused the will to be probated in common form in the county court of Williamson county at its May term, 1929, and it has remained uncontested. The lands included in the will were all the real estate owned by Mrs. Paschall. Her personal property upon her death passed to Dr. Paschall, jure mariti.
George C. Paschall, Jr., left a holographic will by which he bequeathed $500 to one Toon and wife, but otherwise he died intestate. He was never married, and, if he took title to the land left by his mother, it descended upon his death to her heirs at law. These are (1) said W. E. King, who is a brother of Mrs. Paschall of the whole blood, (2) a brother and four sisters of the half blood, being children of Mrs. Paschall's father by a former marriage, and (3) the complainant, child and only heir at law of another half-brother, who survived Mrs. Paschall and died intestate in 1924. The complainant and the other heirs at law, except W. E. King, claim that under the section of the Code of 1858 above quoted the land did so descend, and that its proceeds should be divided accordingly. W. E. King, in pleADings which need not be set out, claims the lands as sole owner under his sister's will and denies that his right is in any way affected by the Code provision.
The facts are not in dispute. Those which have hereinbefore been stated appear from the pleADings and from a stipulation of facts mADe by the parties. Other facts appearing in the stipulation will be referred to further on. On the trial, under a right reserved, each side excepted to certain parts of the stipulation, but the chancellor overruled all of the exceptions, and upon consideration of all the facts he sustained the bill and ordered a reference. From this decree the defendant prayed and was allowed an appeal.
In this court he has mADe numerous assignments of error, which need not be stated in detail but which may be summarized as follows:
I. That the chancellor erred in sustaining jurisdiction of the cause. The ground of this assignment is that the probate of the will in common form was conclusive and is not subject to be attacked collaterally, but only upon an issue of devisavit vel non.
While the bill does aver that the probate of the will was a nullity, it is evident that by this the complainant meant to say only that the will, though ADmitted to probate, hAD no effect under the Code provision upon the rights of George C. Paschall, Jr., or those claiming under him. The chancellor hAD jurisdiction to determine this question, and this assignment is not well mADe.
II. That the chancellor erred in holding that the Code provision applies to and includes a testatrix as well as a testator.
This provision of the Code was drawn from chapter 28 of the Acts of 1823, which expressly dealt with the case of a child born to a father after the latter hAD mADe his will. Both the act and the subsequent Code provision were manifestly intended for the benefit of after-born children, and not for that of the parent. At the time of the passage of the act, however, a married woman was without power to dispose of her estate by will, and therefore it was unnecessary to make provision in the act for the case of a married woman making a will and leaving an after-born child, because in the then state of the law such a case could not arise. But by chapter 180 of the Acts of 1851-52 the power to dispose of real estate by will was conferred, albeit to a limited extent, upon married women. Such was the situation when the Code of 1858 was ADopted. In section 50 of the Code it was provided, under the heAD of definitions, that words of the masculine gender include the feminine and neuter, and in section 2193 the Act of 1823 was re-enacted, but with a change of the word "father" to "testator."...
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