Lewis v. Glass

• Decision Date: 15 December 1892
• Parties: Lewis et al. v. Glass.
• Court: Tennessee Supreme Court

20 S.W. 571

92 Tenn. 147

Lewis et al. v. Glass.

Supreme Court of Tennessee.

December 15, 1892

Appeal from chancery court, Franklin county; Thomas M. McConnell Chancellor.

Bill by H. L. Lewis and others against F. A. Glass for an injunction to restrain defendant from taking possession of the land on a leasehold of his deceased wife, or from assuming control or custody of her children. From so much of the decree as gave defendant the right of curtesy in the leasehold, and a recovery for certain rents and personal property complainants appeal. Reversed, and injunction made perpetual.

Lea, J.

H. L Lewis, testamentary guardian of the minor children of Mrs. F A. Glass, and the children by their next friend, Mrs. A. M. Lewis, their grandmother, filed the bill in this cause against F. A. Glass, alleging the death of the mother of the children, Mrs. F. A. Glass; that they were minors, and had been living with their uncle and grandmother for several years in Texas, where their mother had died; that she made a will giving the custody and guardianship of the children to H. L. Lewis, their uncle, and by said will, which was duly probated in Texas, giving the children her interest in a house at Sewanee, built by her own means, upon a lot leased by her from the University of the South; that the defendant, F. A. Glass, was threatening to forcibly take possession of said house, and to take said children from the custody and possession of their uncle and grandmother; and prayed for an injunction, which was issued, enjoining the defendant from taking possession of the house, or from assuming control and custody of the children. The defendant answered the bill, admitting that the children were minors, and alleging that he, as father, was entitled to the possession and care of the children, and that he was entitled to the dwelling for his life, as tenant by the curtesy; admitting that his wife leased the land upon which the house was built from the University of the South, and that the house was built by the means of his wife, derived from her father's estate. Much proof was taken as to the separation of F. A. Glass and his wife, and as to the place of her domicile at the time of her death, and as to whether it was to the interest of the children to remain with their uncle and grandmother or with their father. Upon the hearing the chancellor decreed that he declined to make any order as to the children who were past the age of 14 years, who had expressed a preference to remain with their grandmother and uncle, but gave the youngest to its grandmother as the most suitable custodian; and decreed that the defendant was entitled to a life estate in the house as tenant by the curtesy, and gave him a recovery against H. L. Lewis and Mrs. A. M. Lewis for the amount of the rents of the house while in possession of complainants since the death of Mrs. Glass; also for the personal property of Mrs. Glass,-rendering a decree for about $1,604. From so much of the decree as adjudged defendant to be entitled to an estate in the house as tenant by curtesy, and from so much as adjudged the defendant was entitled to recover for the personal property of Mrs. Glass, and for the use and occupation of said house and personal property, the complainants, Mrs. Lewis and H. L. Lewis, have appealed; and assign, among other assignments of error- First, that the decree adjudging an estate for life in said house as tenant by curtesy was erroneous, for the reason that the house was built upon leased ground, and there cannot be an estate by the curtesy in a leasehold; second, because there could not be a decree for the personal property, or the value of its use, because such a decree would grant affirmative relief under an answer without there being any cross bill filed.

Both of these assignments of error are well taken. A husband derives his right to the tenancy by curtesy alone from the common law. It is admitted in argument that at common...