Miller v. Miller

• Citation: 261 S.W. 965,149 Tenn. 463
• Parties: MILLER ET AL. v. MILLER.
• Decision Date: 22 May 1924
• Court: Supreme Court of Tennessee

261 S.W. 965

149 Tenn. 463

MILLER ET AL. v. MILLER.

Supreme Court of Tennessee.

May 22, 1924

Appeal from Chancery Court, Knox County; Chas. Hays Brown Chancellor.

Suit by Sarah C. Miller, executrix of the estate of R. T. Miller deceased, and others, against Rufus Jewell Miller. From a decree dismissing the bill, complainants appeal. Reversed.

Green Webb & Cowan, of Knoxville, for Sarah C. Miller and others.

Fowler & Fowler, of Knoxville, for Rufus J. Miller.

HALL J.

This cause involves the constitutionality of chapter 29 of the Public Acts of 1923, which is an act concerning and regulating declaratory judgments.

If the act be held constitutional, then another question arises, and that is, the proper construction of the will of R. T. Miller, deceased.

Mr. Miller, the testator, died at his residence in Knox county on September 14, 1921, leaving a last will and testament, which, among other clauses, is clause 3, which reads as follows:

"Third: I will and devise to my loving wife, Sarah C. Miller, all of my real estate of every kind and description that I die seized and possessed of for and during her natural life, or widowhood, the same to be managed, used and controlled by herself, for the use and benefit of herself and my children; my said wife, Sarah C. Miller has the power if she deems necessary for the support and use or benefit of herself and children to sell any part or portion of said estate and make a good warranty title for the same, in the event if it becomes necessary in her judgment to sell a portion of said real estate for the use of any one of my said heirs, the same shall be deducted from his or her portion of my estate when the same is divided.

At the death of my said wife, Sarah C. Miller, or at the expiration of her widowhood the estate is then to be divided equally between my bodily heirs, share and share alike; but if the estate or a portion of the same cannot be divided in kind the same is to be sold and the proceeds equally divided between my heirs."

This is the clause which it is sought to have the court construe. The complainant, Mrs. Sarah C. Miller, is the widow of the deceased testator, and is the executrix of his will. The other complainants are the adult children of the testator. The bill was filed against the defendant, Rufus Jewell Miller, the only minor child of the testator, seeking a construction of the foregoing clause of his will.

It is the contention of complainants that the complainant, Mrs. Sarah C. Miller, has the right, under the foregoing clause of said will, whenever, in her discretion, she thinks it necessary for the support and use or benefit of herself and children, to sell any or all of the real estate of which the testator died seized and possessed, and that this discretion is absolute and not subject to review or control by the courts; and that a deed executed by her to said real estate would pass a good and valid title.

The bill alleges that complainant, Mrs. Sarah C. Miller, has several times contracted to sell portions of the real estate of which the testator died seized and possessed, but when the proposed purchaser came to examine the title the question of her right to make a good title was questioned, and on two occasions sales have not been consummated on this account.

The bill alleges, and the answer of the guardian ad litem admits, that the testator owned a number of pieces or parcels of real estate situated in the city of Knoxville and Knox county at the time of his death which passed under his will.

There is no present actual controversy in the sense of threatened litigation as to the widow's right to sell said real estate under the clause of the will above quoted. The jurisdiction of the court is predicated entirely upon our Declaratory Judgment Act.

The defendant answered the bill by his guardian ad litem, and admitted all of its allegations, but does not admit that complainant's construction of the will is correct, and defends upon the ground that the Declaratory Judgment Act is unconstitutional for the following reasons:

(1) Because the bill seeks to have the court adjudicate future rights, and that there are no existing facts upon which the court can base a decree, and that its opinion would be a mere abstraction.

(2) Because the Declaratory Judgment Act violates section 1, art. 6, of our Constitution, which provides, in substance, that the judicial power of the state shall be vested in one Supreme Court, and in such circuit, chancery, and other inferior courts as the Legislature shall from time to time ordain and establish.

(3) Because said act is repugnant to section 8, art. 1, of our Constitution, which provides that no man shall be deprived of his life, liberty, or property but by the judgment of his peers or the law of the land.

It is conceded by counsel for defendant that if the act is not violative of article 6, § 1, of our Constitution, then it is not repugnant to article 1, § 8. Harbison v. Knoxville Iron Co., 103 Tenn. 431, 53 S.W. 955, 56 L. R. A. 316, 76 Am. St. Rep. 682.

The cause, having been set down for hearing on bill and answer, was heard by the chancellor, who declared the act unconstitutional and dismissed complainants' bill. From this decree complainants have appealed and assigned the action of the chancellor for error.

The act involved reads as follows:

"An act concerning and regulating declaratory judgments and decrees and to make uniform the law relating thereto.

Section 1. Be it enacted by the General Assembly of the state of Tennessee, that courts of record within their respective jurisdictions shall have the power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.

Sec. 2. Be it further enacted, that any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

Sec. 3. Be it further enacted, that a contract may be construed either before or after there has been a breach thereof.

Sec. 4. Be it further enacted, that any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto:

(a) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or

(b) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

(c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

Sec. 5. Be it further enacted, that the enumeration in sections 2, 3 and 4 does not limit or restrict the exercise of the general powers conferred in section 1, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

Sec. 6. Be it further enacted, that the court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

Sec. 7. Be it further enacted, that all orders, judgments and decrees under this act may be reviewed as other orders, judgments and decrees.

Sec. 8. Be it further enacted, that further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

Sec. 9. Be it further enacted, that when a proceeding under this act involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

Sec. 10. Be it further enacted, that in any proceeding under this act the court may make such award of cost as may seem equitable and just.

Sec. 11. Be it further enacted, that when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

Sec. 12. Be it further enacted, that this act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal

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