Overton v. Lea

• Decision Date: 11 May 1902
• Citation: 68 S.W. 250,108 Tenn. 505
• Parties: OVERTON v. LEA et al.
• Court: Tennessee Supreme Court

68 S.W. 250

108 Tenn. 505

OVERTON v. LEA et al.

Supreme Court of Tennessee.

May 11, 1902

Appeal from chancery court of Davidson county; H. H. Cook Chancellor.

Action by John Overton, trustee, against Rebecca S. Lea and others. From a decree in favor of plaintiff, defendant Lea appeals. Reversed in part.

John J Vertrees and C. D. Berry, for appellant.

J.M Anderson and Preston Vaughn, for respondent Mrs. Bessie Leake. Baxter & Hutcheson and W. A. Buntin, for respondent Overton.

McALISTER J.

The questions propounded for our determination upon this record involve the construction of two wills. Robert B. Lea, a citizen of Tennessee, died at Geneva, Switzerland, on the 8th January, 1895, while temporarily sojourning abroad. He left surviving him a widow, Rebecca Salmons Lea, and two children, John McCormick Lea, Jr., and Bessie Lea, who intermarried with Dalton Kelly, and upon his decease was united in marriage with J. O. Leake. Mr. Robert B. Lea, during his life, had come into the possession of an estate estimated to be worth $200,000, half of which he owned absolutely and the remaining half as life tenant. At his death he left a last will and testament, which is now the subject of construction, and is copied herein as follows, to wit: "This is my last will and testament. I appoint my brother Overton Lea as executor and trustee of my estate, no security to be required from him in either office. I give my personal property to my wife, Rebecca S. Lea. The said trustee will collect rents, make repairs, pay taxes, insurance, etc., on the property, and annually pay over to my wife, Rebecca S. Lea, for and during the period of her natural life, the sum of five thousand ($5,000) dollars, and the remainder of income, or as much of it as may be necessary, shall be expended in the education and maintenance of my two children, John M. Lea, Jr., and Bessie Lea, and, should there be an overplus of income, the same is to be invested for their benefit. My entire real estate, subject to the annual charge of five thousand ($5,000) dollars for the benefit of my said wife for and during her natural life, I give to my said two children equally; but the share given to my said daughter is given to her for her sole and separate use. I appoint my said wife and my father, John M. Lea, as guardian to superintend the education of my said children. Should my said brother decline to act as executor and trustee of my estate, he is hereby authorized and requested to appoint as executor and trustee such person or persons, or corporation, as he may see fit, and it is left to his discretion whether or not security shall be taken from such appointee. Witness my hand this 19th day of April, 1893. Robt. B. Lea. Signed by us as witnesses, in the presence of the testator and at his request, and in the presence of each other: Luke Lea, C. L. Keith, Witnesses."

It will be observed that the testator bequeathed all his personality to his widow. It transpired that at the death of Mr. Lea in 1895 he left only a small personal estate, not exceeding $10,000 in value, consisting of household furniture at Nashville, statuary, silver plate, etc., and several thousand dollars in money. The executor applied a portion of this money in payment of debts of the estate and the balance towards the annuity of the widow. The court of chancery appeals concurred with the chancellor in holding, viz., that the money owned by Robert B. Lea at the time of his death was subject to the payment of his debts, and did not pass to and become the property of Mrs. Rebecca S. Lea; that said sums were rightly used in the payment of his debts; and that the real estate devised by the said Robert B. Lea is not subject to charge in favor of Mrs. Rebecca S. Lea, for reimbursement or payment of said sums of money owing by said Robert B. Lea at his death. Mrs. Rebecca S. Lea assigns as error this holding of the court of chancery appeals. It is insisted that the bequest of all his personal property by the testator to his widow was part of the pecuniary provision which he made for his widow, and was in lieu of her dower and distributive share. The contention made on Mrs. Lea's behalf is that the personal property, including the money, should have been paid to her in preference to any and all other bequests or devises, and that the testator's debts should have been paid out of his real estate. It is, moreover, insisted that, in the event the executor is permitted to use the personalty in payment of debts, the widow becomes subrogated to the rights of the creditors against the real estate. The main contention under this assignment is that the legacy of the personalty and the provision for an annuity for the widow were in lieu of her dower in the realty and distributive share in the personalty, and that she therefore occupied the relation of a purchaser for value, and that her rights under the will were superior to the other legatees and devisees. It is then insisted that, her bequest of the personal estate having been appropriated by the executor to the payment of the debts, she should be reimbursed from the other property of the estate. The court of chancery appeals, after a review of the authorities, was of opinion that the legacy of the personalty and the annuity were bequeathed to the widow in lieu of dower, and that she took said bequests as purchaser. This conclusion was based on two grounds: First. It must be presumed that husband and wife both had knowledge of the existence of our statute giving to the widow one year within which to dissent from the will, if not satisfactory to her. It is then said that the provisions made for Mrs. Lea in this will must be viewed in the light of an offer from her husband, which she might accept in lieu of dower and distributive share, or reject, and avail herself of the provisions of the statutes made for the benefit of widows. It is then stated that Mrs. Lea not only failed to dissent, but from time to time accepted payments on the annuity.

The conclusion is then stated that by this conduct she distinctly accepted the offer made to her in the will. Second. It is then said that the provisions made in favor of the wife and children are inconsistent with any claim of dower on her part. Hence it must be inferred from the face of the will itself that the provisions made for her were intended to be in lieu of her dower and distributive share.

It is upon this line of reasoning that the court of chancery appeals holds that Mrs. Lea occupied the attitude of a purchaser with reference to her husband's will, and that her position is necessarily superior to that of other persons who are mere objects of the testator's bounty, whether that bounty be put in the form of a general or specific legacy or devise. But that court concludes that, since the testator made no provisions in his will for the payment of his debts, he understood that the personal property so bequeathed to his wife must be such as would be left after the payment of his debts, and that the widow must be presumed to have had the same understanding of the meaning of the offer, and to have accepted the bequest accordingly. It is further stated by that court that this view is strengthened by the consideration that the provisions made in the will for the widow were probably worth more to her than dower and a distributive share of the personalty, in view of the debts which must be paid out of the personal estate and the unimproved condition of a large part of the realty, which would have produced no income, but, on account of tax charges, would have been a burden. The first question presented to this court for determination is whether the widow is a purchaser for value under the will of her husband in such sense that she must be reimbursed for her general legacy which was appropriated by the executors in payment of debts. This question, so far as we are advised, is res integra in this state, or, at least, no reported decision of this court on the subject has been brought to our attention. Mr. Pomeroy, in his work on Equity Jurisprudence (volume 3, § 1141) says, viz.: "It is the settled rule of equity independent of statutes, that among general legacies there is no precedence,--no exemption from pro rata or complete abatement,--in favor of legacies to a wife, child, or other near relative of the testator." In the next section (1142) the same author says: "One exception to the general rule of abatement has always been admitted by courts of equity: A general legacy given for a valuable consideration, as, for example, to a widow in lieu and satisfaction of her dower, or to a creditor in payment or discharge of a debt, has priority, and does not abate with the other legacies, provided the dower right or the debt still exists at the testator's death." The author cites a large number of cases as authority for the text. Among the cases cited is Borden v. Jenks, 140 Mass. 562, 5 N.E. 623, 54 Am. Rep. 507, in which the syllabus is as follows, to wit: "A pecuniary legacy to the testator's widow, accepted by her, must be paid, not only in preference to general legacies, but, if the abatement of those proves insufficient, in preference, first, to specific bequests, and, second, to specific devises." The opinion says: "The widow is a purchaser for value in accepting the provisions of the will, and is not treated as a gratuitous object of the testator's bounty. By relinquishment of her dower, the estate acquires a valuable right of property. Whether the provision be more or less, so far as the testator, the widow, and all pure beneficiaries under the will are concerned, it is the right of the testator to affix what consideration he pleases for the relinquishment of dower, and for the widow to accept or reject it. Whether, as...