Myers' Estate, In re

• Decision Date: 27 July 1965
• Citation: 55 Tenn.App. 195,397 S.W.2d 831
• Parties: In the Matter of ESTATE of L. H. MYERS, Deceased. Claims of Grady GAMMON, Bertha Bullington and E. E. Easterly. 55 Tenn.App. 195, 397 S.W.2d 831
• Court: Tennessee Court of Appeals

Page 831

397 S.W.2d 831

In the Matter of ESTATE of L. H. MYERS, Deceased.

Claims of Grady GAMMON, Bertha Bullington and E. E. Easterly.

55 Tenn.App. 195, 397 S.W.2d 831

Court of Appeals of Tennessee, Eastern Section.

July 27, 1965.

On Petition to Rehear Aug. 13, 1965.

Certiorari Denied by Supreme Court Dec. 6, 1965.

[55 TENNAPP 198]

Milligan, Silvers & Coleman, Greeneville, for estate of L. H. Myers, appellant.

Maupin & Curtis, Greeneville, for appellee Grady Gammon.

Fred L. Myers, Newport, for appellee Bertha Bullington.

McAMIS, Presiding Judge.

This case originated in the County Court of Greene County where Bertha Bullington, Grady Gammon and E. E. Easterly filed separate claims against the estate of L. H. Myers, deceased, aggregating in excess of $200,000.00. After consolidating for trial the three claims and a full hearing, the County Judge overruled all exceptions to each of the claims. The Administratrices have appealed and assigned errors.

The County Judge allowed the following claims of Bertha Bullington: (1) a note for $4,318.50 dated February 8, 1957, (2) a note dated September 5, 1961, for $11,110.00, (3) a note dated May 31, 1958, for $17,500.00 and (4) a claim in the amount of $3,250.00 for personal services claimed to have been rendered at a livestock auction comapny owned by the deceased at Rogersville. company owned by the deceased at Rogersville. to the claim of Grady Gammon based upon a note in the sum of $10,000.00, dated April 4, 1962, and an uncashed check for $200.00.

[55 TENNAPP 199] The Easterly claim, also allowed, consists of 2 notes, one for $65,000.00, dated December 31, 1960, and the other for $48,500.00, dated December 30, 1961.

L. H. Myers died intestate, January 6, 1963, survived by two daughters, Mrs. Carpenter and Mrs. Clemmer, who qualified and have acted as Administratrices of the estate.

Mr. Myers was a substantial farmer and property owner. He owned, in partnership with Robert Britton, livestock auction yards at Greeneville and Morristown, and also owned and operated individually another livestock auction at Rogersville. In addition, he dealt extensively on the commodity and stock markets. Claimant Bertha Bullington, for many years, acted as his secretary and handled the bookkeeping and check writing at all three of the stockyards. Claimant Grady Gammon was also employed at stockyards and engaged in dealing in livestock. Claimant E. E. Easterly was a friend of Mr. Myers and frequently loaned him money.

Counsel for the Estate insist that all of these claims are to be considered against the background of the habit of the deceased to sign and leave lying around his office notes for large amounts with the name of the payee left blank and that three such notes were delivered to them by Miss Bullington when they called upon her for deceased's records following his death. In support of this insistence a handwriting expert testified that the notes of all three claimants appear to have been executed about the same time. As we understand, it is not now contended that the signatures appearing on the check and notes here in question are not the genuine signatures of the deceased.

[55 TENNAPP 200]

THE BULLINGTON CLAIM

Miss Bullington testified that the note for $4,318.50 was for borrowed money advanced to the deceased. She filed as an exhibit to her testimony a check, in the amount of the note dated the same date, to L. H. Myers, bearing his endorsement. There seems no serious doubt that the note represents a loan and there is no proof of payment. It is insisted, however, that the Court erred in not holding the note barred by the statute of limitations of six years.

The dates material to this question are these: The note is dated February 9, 1957, and is payable one day after date. Mr. Myers died January 6, 1963. The personal representatives qualified January 14, 1963. The claim was filed April 29, 1963. If the death of the maker tolled the statute it was filed in time.

T.C.A. Sec. 28-111 provides:

'Suspension pending administration of estate.--The time between the death of a person and the grant of letters testamentary or of administration on his estate, not exceeding six (6) months, and the six (6) months within which a personal representative is exempt from suit, is not to be taken as a part of the time limited for commencing actions which lie against the personal representative.'

We think the statute saves that note from the bar of the statute.

'The statute of limitations of six (6) years does not run against the creditors of a decedent, either during the six (6) months immediately after the administration is granted, or during the period, not exceeding six (6) [55 TENNAPP 201] months, actually elapsing between the decedent's death and the granting of administration on his estate.' Bright v. Moore, 87 Tenn. 186, 10 S.W. 356.

Miss Bullington testified that the note for $11,110.00 represented a combination of smaller notes previously executed by Mr. Myers for borrowed money.

As to the note for $17,500.00, Miss Bullington testified that in the spring of 1951 she bought a herd of cattle from Ralph Ingle for $17,800.00, and after two or three of the cattle died she re-sold them to Mr. Myers for $17,500.00, the amount of the note,--that the note represents the purchase price of the cattle sold to Mr. Myers. Ralph Ingle testified that Miss Bullington paid him $17,800.00 for the cattle and filed as an exhibit a paid check by Miss Bullington in that amount. He further testified that Mr. Myers later told him that he got the cattle from Miss Bullington.

The claim for services rendered at the Rogersville stockyards represents $25.00 per day for the number of weeks Miss Bullington went to Rogersville to attend to the bookkeeping and write checks at the weekly auction sales there. This was the same amount received by other girls for the same services. Mr. Britton testified he heard deceased say Miss Bullington was to be paid for this service.

It is true Miss Bullington did not mention to the Administratrices when they called on her for the deceased's records that she had any claim against the estate. However, it appears relations between the parties had become somewhat hostile and claimant's failure to mention her claim at that time may have been due to her desire to avoid unpleasantness.

[55 TENNAPP 202] It is also shown that in listing her assets in a financial statement to the Greene County Bank, Miss Bullington failed to list her claims against Mr. Myers. We do not know the circumstances or reasons for this statement. It lists real and personal property valued at $23,300.00 and a net worth of that amount. This may have been thought sufficient for the line of credit desired.

The argument earnestly pressed upon us that the notes were all executed, in the opinion of an expert on handwriting, at about the same time and, therefore, were in some way related to unsigned blank notes found after Mr. Myers' death and to some sort of conspiracy among the claimants is legitimate argument. We find, however, that it is based on conjecture rather than upon any facts appearing in the record. The three blank notes are all dated in 1953 and there is no proof that Mr. Myers ever repeated this careless practice thereafter.

T.C.A. Sec. 47-124 provides:

'Every negotiable instrument is deemed prima facie issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.'

The record shows Miss Bullington to be a person of good reputation and character. The County Judge after observing her on the witness stand chose to accredit her testimony and we can not say the proof offered by the Estate overcomes the presumption afforded under the statute, supported as it is by the testimony of Miss Bullington and the corroborative proof above outlined. The assignments complaining of the Court's action in overruling the exceptions to this claim must be overruled.

[55 TENNAPP 203]

THE CLAIM OF GRADY GAMMON

There seems to be no serious question about the check for $200.00. As to the note for $10,000.00 dated April 4, 1962, Gammon testified that in the years 1957, 1958, 1959 and 1960 he loaned money to Mr. Myers as a result of which he held notes and checks totaling $10,000.00 and that the note here in question represented a combination of these notes without accrued interest; that the deceased told him to figure up the accrued interest and he would pay it.

The record shows that claimant Gammon earned a substantial salary, engaged in trading and habitually carried large sums of money in his pocket book. He never kept a bank account and paid cash for everything he bought, including automobiles. His good character and reputation are sustained by the record. We do not think the record supports the insistence that he could not have made loans aggregating $10,200.00.

It is insisted, however, the court erred in allowing this claimant by amendment to sign the sworn proof of claim after the expiration of the 9 months allowed by T.C.A. Sec. 30-510 for filing claims against decedent estates.

The County Court Clerk of Greene County testified that Gammon brought the check and note to his office; that he filled out the claim, attaching copies of the two instruments to the proof of claim; that he then swore the claimant to the claim but through inadvertence failed to have him sign it. When these facts were made to appear the County Judge after the lapse of the nine months period allowed the amendment.

The statute is designed to afford a simple and somewhat informal method of filing claims. It dispenses [55 TENNAPP 204] with formal pleadings and is to be liberally construed and applied. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308; Cooper's Estate v. Keathley, 27 Tenn.App. 7, 177 S.W.2d 356.

No harm resulted, so far as we can see, from this inadvertence. The Administratrices received a copy of the defective claim and filed their exceptions...