McGinness v. Chambers
Decision Date | 04 February 1928 |
Parties | McGINNESS v. CHAMBERS et al. |
Court | Tennessee Supreme Court |
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.
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:
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...
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Bish v. Bish
... ... dower. Roessle v. Roessle, 1914, 163 A.D. 344, 148 ... N.Y.S. 659; Rannells v. Rowe, 8 Cir., 1908, 166 F ... 425; McGinnis v. Chambers, 156 Tenn. 404, 1 S.W.2d ... 1015, 82 A.L.R. 1492; Brinkerhoff v. Huntley, 223 ... Ill.App. 591 ... The ... appellant cites ... ...
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