Mitchell v. Chattanooga Sav. Bank

• Decision Date: 23 November 1912
• Parties: MITCHELL v. CHATTANOOGA SAVINGS BANK et al.
• Court: Tennessee Supreme Court

150 S.W. 1141

126 Tenn. 669

MITCHELL v. CHATTANOOGA SAVINGS BANK et al.

Supreme Court of Tennessee.

November 23, 1912

Appeal from Chancery Court, Hamilton County; T. M. McConnell Chancellor.

Bill by M. F. Mitchell, administrator of Mrs. Arthur E. Vale deceased, against the Chattanooga Savings Bank and others. Judgment for defendants, and complainant appeals. Affirmed.

Allen Hitzfeld and M. F. Mitchell, both of Chattanooga, for appellant.

Williams & Lancaster and Wheeler, Martin & Trimble, all of Chattanooga, for appellees.

GREEN J.

The bill in this case was filed by the administrator of Mrs Arthur E. Vale, to recover from the administrator and distributes of Arthur E. Vale certain personalty, or its value, formerly the property of Mrs. Vale.

During their married life, Mr. Vale gave his wife various sums of money, amounting to several thousand dollars, which she deposited in a bank in Chattanooga to her own credit. She died, and Mr. Vale took charge of this money, the bank turning it over to him without question, and no objection was made by any one during Mr. Vale's life. About two years after the death of his wife, Mr. Vale died. He never administered on his wife's estate. After his death, at the instance of Mrs. Vale's relatives, an administrator was appointed for her estate, and this suit is brought by this administrator for the purpose aforesaid.

The case is before us on bill and demurrer. Without undertaking to quote the language of the bill, it is sufficient to say that we find therein direct averment of the gift of this money by the husband to the wife; but we find no averment of any clear or distinct expression of the husband, at the time of this gift or afterward, that he intended to surrender his right of survivorship with respect to his wife's separate estate so created by him.

A demurrer was interposed, which pointed out the absence of an averment of any distinct expression on the part of the husband indicating an intention to cut off his right of survivorship respecting this money, and the demurrer was sustained by the chancellor. Complainant has appealed to this court.

Complainant insists, regardless of any definite expression in a gift of personalty from a husband to his wife, indicating that he intended to part with his right to administer upon and appropriate the personalty so given at her death, that by force of the gift itself he should be held to have parted with his entire jus mariti in the subject of the gift, his rights during coverture, and his rights after coverture.

He certainly, by such gifts, surrendered all his rights with respect to the funds during coverture, and created a separate estate in same in his wife. Barnum v. Le Master, 110 Tenn. 638, 75 S.W. 1045, 69 L. R. A. 353; Snodgrass v Hyder, 95 Tenn. 575, 32 S.W. 764; Carpenter v. Franklin, 89 Tenn. 142, 14 S.W. 484.

It has, however, long been the settled law in Tennessee that, in the absence of some particular words used in the creation of a separate estate indicating clearly an intention to cut off after coverture the husband's rights therein, such rights are held to be suspended merely during the period of coverture, and again attach after the death of his wife to the property so given her.

In the case of Hamrico v. Laird, 10 Yerg. 222, a marriage contract was executed between the parties, in which the intending husband agreed to relinquish all claim he had, or ever could have, to the property therein settled to the separate use of his wife. It was held that the agreement to release all interest the husband ever could have to this property cut off his marital rights entirely.

In Brown v. Brown 6 Humph 127, though, it was said:

"By marriage, the sole and absolute property of the wife's chattels vests in the husband, and if there be a marriage contract, whereby this right is abridged, it is taken away only to the extent stipulated in the settlement. When the settlement makes no disposition of the property in the event of the wife's death, and provides only for her dominion over it during coverture, the right of the husband as survivor is a fixed and stable right, over which the court has no control, and of which he cannot be divested."

In construing a marriage contract, and discussing the husband's right to administer upon his deceased wife's separate estate, in Loftus v. Penn, 1 Swan, 445, this court said:

"To determine this question, we must examine the contract of the parties, and ascertain what was their intention in reference to the ultimate disposition of the property; for, if by the contract the husband parted with all claim to the property

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