McGinness v. Chambers

• Decision Date: 04 February 1928
• Parties: McGINNESS v. CHAMBERS et al.
• Court: Tennessee Supreme Court

Page 1015

1 S.W.2d 1015

McGINNESS v. CHAMBERS et al.

Supreme Court of Tennessee.

February 4, 1928.

Appeal from Chancery Court, Smith County; W. R. Officer, Chancellor.

Bill by H. B. McGinness, executor of James Chambers, deceased, against Bob Chambers and others, for construction of the will and for advice. Decree for complainant, and the widow appeals. Affirmed.

Walter S. Faulkner, of Lebanon, for appellant.

H. B. McGinness, of Carthage, in pro. per.

GREEN, C. J.

This bill was filed by the Tennessee executor of James Chambers for a construction of his will and advice. Chambers died in Oklahoma, May 15, 1926, being a citizen and resident of that state at the time of his death. He left a will which was duly probated in Oklahoma, June 26, 1926, by which he disposed of his property in Oklahoma and certain land owned by him in Smith county, Tenn. A duly authenticated copy of this will was filed and recorded in the county court of Smith county, July 5, 1926, under the provisions of Thompson's-Shannon's Code, § 3916.

Shortly after the will of James Chambers was probated in Oklahoma, it appears that his widow formally entered her dissent thereto by proper proceedings under the laws of that state and in the proper forum of that state. The bill in this case was filed August 29, 1927, more than a year after the will had been recorded in this state. The widow had not, at the time the bill was filed, signified her dissent in any court of this state to its provisions.

The question presented is whether, having failed to signify her dissent from her husband's will in the manner prescribed by Tennessee law in a Tennessee tribunal within one year after the will was recorded here, the widow is now entitled to claim dower in the lands which her husband owned in Tennessee at the time of his death. The chancellor decided against the widow, and she has appealed from this decree. The case below was heard on bill and answer and no controversy of fact appears.

Section 4146 of Thompson's-Shannon's Code, is as follows:

"A widow may dissent from her husband's will:

"(1) Where a satisfactory provision in real or personal estate is not made for her; in which case, she shall signify her dissent in open court, within one year after the probate of the will.

"(2) Where a provision in personal estate is made for her, but the whole of the husband's property, including the bequest, is taken for the payment of his debts; in which case, without any formal dissent, she may sue for her dower.

"And in both cases, she shall be endowed as if her husband had died intestate."

The effect of the statute quoted has been stated by this court as follows:

"In looking at the language of the Code, it will be seen that it involves the idea necessarily that the widow is prima facie bound by the will of her husband, but that a privilege is conferred on her by which she may avoid its provisions as to herself, and she may dissent from it. She is not required to assent to the will, but the will is binding and conclusive on her as to its dispositions, unless she shall signify her dissent in open court within one year after the probate of the will. In other words, the will is a perfected act, vesting rights and fixing title as to the widow, which may be defeated and rendered nugatory, so far as she is concerned, by dissent, signified in open court within the twelve months after probate of the will. These principles have been repeatedly held by this court, and such is the plain meaning of the statute. It is even held, and conclusively settled as the law, that if the widow fails to dissent within the time allowed by law, it will be presumed conclusively that the provisions are satisfactory to her, and she having thus, by failure to dissent from the will, elected to take under it, can not be allowed to share in the estate of which her husband died intestate, and can only receive the property given to her by the will." Waterbury v. Netherland, 53 Tenn. (6 Heisk.) 512.

The statute was again considered in Walker v. Bobbitt, 114 Tenn. 700, 88 S. W. 327, and the same construction given thereto and this construction was again approved in Battle v. Claiborne, 133 Tenn. 286, 180 S. W. 584. It is true that these earlier cases considered the effect of the failure of a resident widow to...