Lassiter v. Travis

• Decision Date: 06 March 1897
• Citation: 39 S.W. 226
• Parties: LASSITER et ux. v. TRAVIS et ux.
• Court: Tennessee Supreme Court

Page 226

39 S.W. 226

LASSITER et ux. v. TRAVIS et ux.

Supreme Court of Tennessee.

March 6, 1897.

Appeal from chancery court, Rutherford county; Walter S. Bearden, Chancellor.

Bill by James Lassiter and wife against Newton Travis and wife to charge an estate with costs and attorney's fees incurred in a suit to probate a will. A decree for complainants was reversed by the court of chancery appeals, and complainants appeal. Reversed.

Palmer & Ridley, B. L. Ridley, and P. P. Mason, for appellants. McLemore & Richardson and C. A. Sheafe, for appellees.

CALDWELL, J.

Mrs. Tassey died, leaving two children, now Mrs. Lassiter and Mrs. Travis. After her death a paper writing, purporting to be her last will and testament, was probated in common form, in the county court of Rutherford county. This instrument divided the property of Mrs. Tassey between her two daughters, that given to Mrs. Lassiter, who was named as executrix, being of greater value by $1,000, than that given to Mrs. Travis. In due season Mrs. Travis instituted a contest; whereupon the probate was set aside by the county court, and appropriate certification was made to the circuit court. There an issue of devisavit vel non was made up and tried, Mrs. Lassiter, the nominated executrix, appearing as proponent, and Mrs. Travis as contestant. After a mistrial, a second jury returned a verdict against the alleged will, and judgment was so entered. Subsequently Mrs. Lassiter filed the present bill against Mrs. Travis, to charge the estate of their mother, to them descended, with the court costs and reasonable attorney's fees incurred by her, as the nominated executrix, in the effort to probate and sustain the alleged will. The chancellor granted the relief sought, but the court of chancery appeals reversed his decree and dismissed the bill. The latter court found, as a fact, that Mrs. Lassiter, "in good faith, believed she had the right to propound the will for probate upon the contest"; but held, nevertheless, as a matter of law, that her bill must fail because she "was the only person in the world to be benefited by sustaining the will." We are unable to concur in this conclusion of law; for to our minds good faith, rather than pecuniary interest, on the part of the acting executor, is the controlling question in such a case. Being named as executrix in what seemed to be a valid will, it was the legal duty of Mrs. Lassiter to produce the instrument, if in her possession, and, after having done that, there rested upon her the further legal duty of having the supposed will probated, or of renouncing the executorship (Pritch. Wills, § 30); and these duties were in no way affected by the fact that the will benefited her alone, in the sense that it gave her more and her sister less of their mother's estate than they would receive, respectively, in the absence of the will and as heirs at law. Pecuniary interest under a will is no disqualification for the office of executor, nor does it diminish or enlarge the duties of the person nominated to fill the office. The complainant could undoubtedly have waived her advantage, and avoided the will altogether, by agreement with the defendant, they being the only persons interested in the subject-matter; but she chose not to do that, and having made that choice, as she had the right to do, her duties with respect to the supposed will were the same in legal contemplation as they would have been if the defendant, instead of herself, had been given the larger share. Having elected to have the will probated in common form, as is usual, and to assume its trusts, Mrs. Lassiter was a "formal and necessary party" to the contest proceedings instituted by Mrs. Travis (Cornwell v. Cornwell, 11 Humph. 487); and, being so brought before the court, was compelled to propound the will, or to surrender what she "in good faith believed" to be her right, and tacitly...