McGavock v. Pugsley
| Decision Date | 31 December 1874 |
| Citation | 59 Tenn. 689 |
| Parties | D. T. McGavock et al. v. Louisa A. Pugsley et als. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM DAVIDSON.
From the Chancery Court of Davidson County, October Term, 1873. W. F. COOPER, Ch.EAST & FOGG for Complainants.
JOHN TRIMBLE and JAMES TRIMBLE for Defendants.
This bill and amended bill were filed by a portion of the heirs of Charles Pugsley deceased,--grand children, and some of them perhaps great grand children.
The complainants seek to enforce their right to property left by said Chas. Pugsley, against Louisa A. Pugsley, one of his daughters.
The facts necessary to be stated are as follows:--
On the 26th of April, 1830, Chas Pugsley made his will. He died some time in the year 1831. His widow, who was nominated as his executrix, proved the will and entered upon the discharge of her duties.
By the second clause of this will, the testator provided:--“To my beloved wife, Eliza Pugsley, I give and bequeath all the remainder of my estate, of whatsoever kind, real and personal, to be used and enjoyed by her during her natural life, hereby authorizing her to sell or dispose of the same in any way she may deem necessary for the convenience and support of herself and our two daughters, Caroline E. Pugsley and Louisa A. Pugsley; and if, at the death of my said wife any part or portion of my property or effects shall remain, the same to be equally divided between our said daughters, or their representatives.”
On first of November, 1830, the testator purchased a house and lot in the city of Nashville, part of lot No. 86, from John Dwyer, situated on Summer street, for the sum of $8,000, expressed on the face of the deed to have been paid in cash, and on the same day he executed a mortgage to John B. Carter, of Davidson, on this lot, to secure the payment of three notes made by him amounting to about $4,500.
On the back of this mortgage, is the following release, or relinquishment of the right of Carter under the mortgage:--
“Nashville, July 28th, 1831.
I hereby acknowledge that I have received payment of the within specified notes, and hereby relinquish my mortgage to the within described property.
+-------------------------------+
¦Attest: ¦Jno. B. Carter.¦
+---------------+---------------¦
¦J. W. Bacon, ¦ ¦
+---------------+---------------¦
¦Jno. P. Erwin.”¦ ¦
+-------------------------------+
This release, it will be seen, was given in the lifetime of the testator.
It is true that there is some question in the argument as to whether the year of the date is legible, so as to be certainly fixed at 1831. But upon an examination of the original paper, which, by consent of counsel, is made part of the record, as well as from the circumstances appearing in the record, we are satisfied this is the true date.
It is clear, as is conceded in the argument, that as the law stood in 1832, at the death of the testator, this real estate did not pass by his will, having been acquired after its execution.
Our statute changing this rule was passed many years after this.
On the 28th of April, 1831, Chas. Pugsley conveyed this house and lot to Robert Woods and Daniel Graham, in trust for himself and wife Eliza Pugsley during their natural lives, and upon the death of both said Charles and Eliza, then the trustees or their survivors, or the executor or administrator of such survivor, was to convey the premises, in fee, in common, to such children of the said Charles and Eliza as should be living, or to the descendants of any child or children, such descendants taking their parents' proportion; and the same as to any rents and profits that might be in the hands of said trustees. In default of any child or descendants, or such surviving, then the property was to be conveyed as said Charles Pugsley might direct in his will.
There can be no question but that this property is controlled by this conveyance, and that the rights of the children or descendants are under the same.
It is insisted, however, that the $4,500 in the mortgage to Carter, was borrowed to pay for the lot to Dwyer, and this is probably true.
It is further insisted that Mrs. Pugsley paid this money, and took up the notes secured, out of money belonging to her as her separate estate.
We find no satisfactory evidence of this claim.
It is true, the notes were found among her papers after her death, in 1863; but as she was the executrix of her husband, this was the...
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