Pinkerton v. Turman

• Decision Date: 21 May 1954
• Citation: 268 S.W.2d 347,32 Beeler 448,196 Tenn. 448
• Parties: PINKERTON v. TURMAN et al. 32 Beeler 448, 196 Tenn. 448, 268 S.W.2d 347
• Court: Tennessee Supreme Court

Page 347

268 S.W.2d 347

PINKERTON v. TURMAN et al.

32 Beeler 448, 196 Tenn. 448, 268 S.W.2d 347

Supreme Court of Tennessee.

May 21, 1954.

J. Paul White, Union City, Henderson & Henderson, Franklin, for appellants.

Wirt Courtney, Jr., and R. L. Richardson, Jr., Franklin, Henry C. McCall, Jr., Columbia, Thos. G. Watkins, Nashville, James R. Brown, Centerville, for appellees.

NEIL, Chief Justice.

The bill in this cause was filed in the Chancery Court of Williamson County, Tennessee, by Joe Pinkerton, Substituted Trustee under the will of J. T. Morton deceased against all of the heirs at law and next of kin of the said Morton and his wife, Mary Ellen Morton, also deceased, seeking a sale of the real estate owned by J. T. Morton, and for the construction of his will.

The defendants were very numerous. Many of the heirs at law and next of kin of J. T. Morton filed answers in which they deny that the heirs and next of kin of Mrs. Mary Ellen Morton take any part in the estate. The answers of defendants, who are the heirs and next of kin of Mrs. Morton, claim that under the doctrine of equitable conversion the residuary estate of J. T. Morton, effective as of his death, is to be treated as cash, and administered as such, and that with the exception of certain specific legacies, his entire estate passed to his surviving widow under the Statute of Distribution; that the same should be administered as part of her estate and distributed under the provisions of her will among her nieces, nephews and representatives of such. Answers were filed by guardians ad litem for minor defendants and all unknown parties.

The cause was heard by the Chancellor on bill and answer who held in effect that under the doctrine of equitable conversion the entire estate of the testator was converted into personalty for the purpose of intestate succession and that at his death his entire estate passed under the Statute of Distribution to his next of kin subject to the widow's life estate and the payment of special legacies, but since she did not dissent from her deceased husband's will she took nothing by inheritance from her husband; that her devisees and next of kin cannot be allowed to share in that part of the estate of her husband which was not specifically disposed of by his will. All of the foregoing is a statement of the case as appears from the brief and assignments of error of appellants, who were granted an appeal from the Chancellor's decree. It is substantially correct; the facts were not controverted.

The pertinent parts of the will of J. T. Morton deceased provide: Item 2, a life estate in the homeplace on the Boyd Mill Turnpike, consisting of 13 1/2 acres, together with all personal property, such as household and kitchen furniture and farming implements, with the right of the widow to have the same sold and the proceeds invested in First Mortgage Land Notes 'and the interest thereon turned to my wife for her own use.'

Item 4 authorized the Executors to encroach upon the corpus if necessary for the wife's comfort and support. Item 5 directs the Executors to collect his life insurance of $5,000 and pay to his widow the sum of $4,000 'to do as she so desires with.'

Item 6: 'At the death of my beloved wife, Mary Ellen Morton, I direct that my real and personal estate be sold and all moneys collected and I hereby authorize, empower and direct my executors to invest same and hold intact for a period of three years after the death of the last one of us, Mary Ellen Morton, and John T. Morton, at which time I direct that my Executors pay to my nephew, Tom Morton, son of W. F. Morton, the sum of $500.00 and to my wife's nephew, Robert Ernest Nichol, whom we have raised $3000.00, to Morton Nichol my wife's nephew, the son of Gill Nichol the sum of $500.00.'

Item 7: 'I have a sic leg cherry dining table that was formerly owned by Joseph Bizwell, grandfather of Walter Bizwell, and I bequeath Walter Bizwell this table.'

Item 8: 'In the event any of my sister's nephews or nieces should die before three years after cease I hereby revoke any amount herein devised to them and the same shall remain as a part of the corpus of my estate.'

Item 9: 'Lastly I hereby nominate and appoint the Harpeth Trust Company, a corporation doing business in the Town of Franklin, as my sole Executor of this my last will and testament.'

'In testimony of all of which witness my hand on this 4th day of August, 1931.

(signed) J. T. Morton'

The testator, J. T. Morton, had no children and left surviving him his widow, Mrs. Mary Ellen Morton, and a number of nieces and nephews, all of whom are made defendants to the bill. The testator's widow did not dissent from the will. She died testate in Obion County, Tennessee, in 1950, and by the terms of her will all her estate with the exception of $500 was devised and bequeathed to her nieces and nephews, some twenty-five or more in number. At the time of J. T. Morton's death he owned real and personal property in Williamson County, all of which by agreement and by order of the court was sold by the Trustee at auction. According to the Chancellor's opinion the personal estate of J. T. Morton deceased, when the bill was filed, was valued at about $15,000, while the real estate, sold at auction, brought the sum of $36,760, and was later confirmed by the court.

The only assignment of error is as follows:

'The Court erred in decreeing as follows:

'It is further considered by the Court that Mary Ellen Morton, not having dissented from said will, elected to take the benefits provided her thereunder. Having taken such benefits under the will, she took nothing further by inheritance, and her heirs at law and next of kin are bound by her election.'

The argument advanced by appellants for a reversal of the Chancellor's decree may be summarized as follows: (1) that a reasonable construction of the entire will of J. T. Morton fully justifies the conclusion that he did not intend to exclude his wife from participating in his residuary estate; (2) that she was not required to dissent from the will; and (3) under the will, by operation of law, the remainder interest vested in the widow, who was his only next of kin, and that in reality she was the cestui que trust under the trust created by the will.

The appellees, in support of the decree, contend that there is nothing appearing in the will to even suggest that the testator intended that his widow should have any part of the residuary estate; that she, having elected to take under the will and having accepted benefits under its express provisions until her death, her heirs at law and next of kin take no part of the property by inheritance.

The foregoing was the holding of the Chancellor, and he decreed accordingly.

It is clear from an examination of the whole will that the widow was devised only a life estate in the property owned by her husband, except $4,000 bequeathed to her to do with as she pleased. While the will made provision that the executor was authorized to sell property, if necessary, for her support, none was sold for that purpose. It is conceded that she was given no power to sell and convey, which would have had the effect of converting her life estate into a...