Ragsdale v. Hill

• Decision Date: 26 March 1954
• Citation: 37 Tenn.App. 671,269 S.W.2d 911
• Parties: RAGSDALE et ux. v. HILL et al.
• Court: Tennessee Court of Appeals

Page 911

269 S.W.2d 911

37 Tenn.App. 671

RAGSDALE et ux. v. HILL et al.

Court of Appeals of Tennessee, Middle Section.

March 26, 1954.

Rehearing Denied April 29, 1954.

Certiorari Denied by Supreme Court July 23, 1954.

Denney, Leftwich & Glasgow, Hume, Howard, Davis & Boult, Nashville, for plaintiff in error.

Courtney, Covington & Courtney, Franklin, for defendant in error.

FELTS, Judge.

This appeal presents a contest of the validity of a paper-writing propounded as the last will and testament of Newman H. Hill, deceased. The principal question is whether this instrument was 'attested' as prescribed by the applicable law so as to entitle it to be probated as the will of the deceased.

He was a resident of Davidson County, Tennessee, unmarried, childless, and had no kin except his mother, Mrs. Ophelia Hill, and some cousins, one of whom was proponent Walter D. Ragsdale. He and Ragsdale were about the same age and had been intimate friends since childhood; and he and his mother had spent much time in Ragsdale's home where they had both been treated with great consideration and kindness.

He was a veteran of World War I and was a patient in the Veterans' Hospital at Biloxi, Mississippi, where he executed this instrument on July 14, 1948. He called two of the hospital employees, Mrs. Ruth R. Merritt and Frank E. Baker, a notary public, to his room, and read over this paper, which had already been prepared in typewriting, declared it to be his will, and signed it in the presence of these two witnesses. But they did not subscribe their names to it, though Baker took Hill's acknowledgment and affixed his name and seal to it as a notary.

By this paper he gave all of his personal effects to his mother, if living, otherwise to proponents Walter D. Ragsdale and wife, Mattie Sue, and he gave the rest of his property in trust to the Nashville Trust Company as trustee for the use of his mother during her life, and provided that the trust should cease at her death and the balance of the fund should go to Walter D. Ragsdale and wife. He also appointed the Nashville Trust Company his executor.

He had a bank account with the Nashville Trust Company, and that concern was already acting as trustee in a small trust which he had set up for the use of his mother. After executing this paper as above stated, he sent it by mail to the Nashville Trust Company. On receiving it the trust officer failed to note that it was notarized instead of being subscribed by two witnesses. It was kept by the company in Hill's file and is now sent up in the original.

A week or so after receiving this paper the Nashville Trust Company received notice of the death of Newman H. Hill, which death occurred about the 22nd of July, 1948. On August 13, 1948, the company's trust officer took this paper to County Judge Hickman, who stated that it could not be probated. But it was marked filed and kept in the Clerk's office. The trust officer was appointed administrator of the estate of Newman H. Hill, deceased, and proceeded with its administration.

About a year later Walter D. Ragsdale learned for the first time that Newman H. Hill had executed the paper in question, and then went to see it in the office of the County Court Clerk. On September 30, 1949, the County Judge entered an order denying probate of it because it was not witnessed by two subscribing witnesses as required by the Acts of 1941, Chapter 125, § 4, now 1950 Tenn.Code Supp. § 8098.4.

On February 4, 1950, Walter D. Ragsdale was permitted to withdraw this paper from the files of the County Court Clerk, and on February 7, 1950, the witnesses Frank E. Baker and Mrs. Ruth R. Merritt signed and swore to an attestation on a separate sheet of paper which was physically attached to the will.

This attestation stated that Frank E. Baker and Mrs. Ruth R. Merritt 'witnessed the execution of the annexed and foregoing instrument by Newman H. Hill, on the date same bears date, to-wit: July 14, 1948, as and for his last will and testament, at his request, in his presence and in the presence of each other and we now sign as subscribing witnesses thereto.' This attestation was dated February 7, 1950, and signed by these two witnesses.

At the same time also was attached an affidavit by both of them, the substance of which was as follows:

On July 14, 1948, about a week before the death of Newman H. Hill, affiants were called to his room to witness his will. He read over the paper, which he had already caused to be prepared, and stated it was his will and he wished to sign it in their presence and have his signature properly attested. He did sign it but both he and they thought it should be signed and attested before a notary public under the notary's seal, and not by the signatures of two attesting witnesses.

Affiant Baker thereupon took the acknowledgment of the testator to the will and affixed the notary seal, as it now appears on that paper; but neither of affiants signed the paper as witnesses, though both were qualified to do so. They further stated that, by the 'instrument hereto attached,' they signed as witnesses to said last will and testament 'as of this date.' It was further stated that the testator was of sound and disposing mind and memory.

On March 28, 1950, Walter D. Ragsdale and wife commenced the present proceeding by filing their petition in the County Court of Davidson County, exhibiting the paperwriting and the papers attached thereto, and prayed that said writing be admitted to probate as the last will and testament of Newman H. Hill, deceased.

Mrs. Ophelia Hill, the Nashville Trust Company as her guardian, she having been adjudged of unsound mind, and Overton Thompson, Jr., administrator of the estate of Newman H. Hill, were made defendants to the petition. They demurred to it upon the grounds that the alleged will was not executed in accordance with the law of Tennessee or the law of Mississippi, and that the former order denying probate of it was res judicata and a bar to the petition.

The County Court sustained the demurrer and dismissed the petition. Petitioners appealed to the Circuit Court, that court overruled the demurrer, and defendants answered. Mrs. Ophelia Hill died and the cause was revived as to the beneficiaries named in her will. The case was tried before the Circuit Judge, without a jury, and he decreed the paper was a valid will, and remanded the cause to the County Court for further proceedings. Defendants appealed in error to this Court and have assigned errors.

Petitioners have moved to dismiss this appeal in the nature of a writ of error, upon a number of grounds.

First, it is urged that the 1950 supplement to the Code, section 10622, provides that all cases, both actions at law and suits in equity, tried without a jury 'shall be reviewed upon a simple appeal, as now provided in equity cases;' that the only mode of review in all non-jury cases is now an appeal; and that this Court has no jurisdiction of an appeal in the nature of a writ of error in such a case as this one.

The 1932 Code, section 9059, provides that any party to a decree in equity shall have the right to take an appeal in the nature of a writ of error from such decree, upon the same terms as an appeal. That is, both modes of review were 'provided in equity cases' when section 10622 was enacted in its present form. Gibson's Suits in Chancery, 4th Ed., sec. 1266.

It may well be doubted whether this earlier section was repealed by the later one. But it is not necessary to decide this question. The distinction between an appeal and an appeal in error is not rigorously observed, and under our liberal practice we may properly treat this appeal in error as a simple appeal. Gibson's Suits in Chancery, 4th Ed., sec. 1266; Webster v. Trice, 23 Tenn.App. 365, 366, 133 S.W.2d 621; Burns v. Duncan, 23 Tenn.App. 374, 378, 133 S.W.2d 1000.

Second, petitioners contend that this appeal in error was not perfected within 30 days after the judgment, as required by Code section 9047. The judgment was entered February 19, 1953; defendants' motion for a new trial was filed February 24, and overruled March 23; and this appeal was granted and the appeal bond filed March 23, 1953. That is to say, the appeal was perfected 32 days after the judgment, counting the time while the motion for a new trial was pending.

Under the long established rule, however, the filing of this motion for a new trial, within 30 days after the judgment, suspended the judgment and preserved the Trial Judge's jurisdiction until he disposed of the motion; and when he overruled it he could then grant an appeal or an appeal in error and allow time for perfecting it and for filing a bill of exceptions, for these purposes the judgment being regarded as entered at the time of overruling the motion for a new trial. Code Supp. §§ 8820, 9047; Waller v. Skeleton, 31 Tenn.App. 103, 109, 212 S.W.2d 690; Eldridge v. Rively, 175 Tenn. 74, 76, 132 S.W.2d 204, and cases there cited.

But petitioners insist that this rule has been changed in non-jury cases; that Code Supplement section 10622, above cited, provides that 'no motion for a new trial shall be necessary' in such cases; that this makes such a motion unnecessary and ineffective to suspend the judgment; and that the motion in this case was ineffectual and the judgment after 30 days passed beyond the power of the Trial Judge and became final so that no appeal could be prayed or granted therefrom.

We think this argument is unsound. A motion for a new trial serves two purposes, viz.: (1) to suspend the judgment so that the Trial Judge may have time to correct his errors by the grant of a new trial; and (2) to specify the error as a ground and prerequisite to an appellate review where such error depends upon a bill of exceptions. Memphis Street Railway Company v. Johnson, 114 Tenn. 632, 88 S.W. 169; Savage v. Spur Distributing Company, 33 Tenn.App. 27, 35, 228 S.W.2d 122, and...