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