McGhee v. Henry

• Decision Date: 29 October 1921
• Citation: 234 S.W. 509
• Parties: McGHEE v. HENRY et al.
• Court: Tennessee Supreme Court

Page 509

234 S.W. 509

McGHEE v. HENRY et al.

Supreme Court of Tennessee.

October 29, 1921.

Certiorari to Court of Civil Appeals.

Suit by James McGhee against Rosa Henry and others. From a judgment of the Court of Civil Appeals affirming a decree giving plaintiff one half of the proceeds of the sale of certain lands and defendants the other half, defendants bring certiorari. Affirmed and remanded.

Charles M. Roberts, of Knoxville, for James McGhee.

John A. Huff, of Knoxville, for Rosa Henry and others.

L. D. SMITH, Special Justice.

This is a partition proceeding. The complainant, James McGhee, claims that he owns a one-half undivided interest in the two certain tracts of land described in the original bill, and concedes that the defendants own the other one-half. The defendants claim that the complainant owns only a one-sixth undivided interest, while they themselves own a five-sixths undivided interest.

James McGhee is the child and only heir at law of Emma L. McGhee Henry, deceased, and the defendants are the only children and heirs at law of Robert H. Henry, deceased. Emma L. McGhee Henry and Robert H. Henry were married some time prior to the 8th of April, 1910. One of the tracts of land sought to be partitioned was conveyed to Robert Henry and wife, Emma L. McGhee Henry, on April 8, 1910; the other was conveyed to them on the 7th of December, 1910. They owned these tracts or lots of land by the entirety at the time of their deaths. They died simultaneously on the 13th day of January, 1919, by being burned up in a building which was burned down over them at Lonsdale, W. Va.

The chancellor, upon a reference, decreed that the lands were not susceptible of partition in kind and ordered a sale of the lands for division of the proceeds. He decreed that the complainant, as the only heir of Emma L. McGhee Henry, the wife, was entitled to one-half of the proceeds, and that the defendants, the children and only heirs at law of Robert H. Henry, the husband, were entitled to the other one-half. From this decree of the chancellor the defendants appealed to the Court of Civil Appeals. The latter court affirmed the action of the chancellor. The case is now before this court upon a petition for certiorari by the defendants, who claim that each of them is entitled to a one-sixth of the entire proceeds and that the complainant is entitled to only a one-sixth instead of one-half as decreed by the chancellor.

There is no question in this record but that Robert H. Henry and his wife, by virtue of deeds executed to them, owned the property in question as tenants by the entirety. Neither is there any question as to whether the husband or the wife survived the other; it being stipulated that they died simultaneously in a disaster.

An estate by the entirety is one limited to the lifetime of the husband and wife; indeed, it is one limited to the continuance of the relationship of husband and wife. It is an estate which can be ended by the joint conveyance of husband and wife. It is like a joint estate, in that each is entitled to an equal interest and to take the whole upon the death of the other. It is unlike a joint estate, in that neither can separate his interest from the other except by the joint action of both or by operation of law. This result is based...