Richmond v. Richmond

• Decision Date: 10 February 1950
• Citation: 195 Tenn. 704,227 S.W.2d 4,31 Beeler 704
• Parties: , 195 Tenn. 704 RICHMOND v. RICHMOND.
• Court: Tennessee Supreme Court

Page 4

227 S.W.2d 4

31 Beeler 704, 195 Tenn. 704

RICHMOND v. RICHMOND.

Supreme Court of Tennessee.

Feb. 10, 1950.

H. B. McGinness, Carthage, J. B. Gore, Carthage, for plaintiff in error.

Russell Wright, Hartsville, James Donoho, Hartsville, for defendant in error.

WILLIAMS, Special Justice.

This record presents a will contest filed by a son, Wiseman Richmond, to avoid the joint will of his mother, Darthulia M. Richmond, and his father, T. W. Richmond. The cause was heard below by the circuit judge sitting without a jury. He held for the will, and on appeal the Court of Appeals affirmed that judgment. We granted certiorari and brought the case here for disposition.

The assignments of error present no issue of disputed fact nor is there any serious difficulty in understanding what the testators intended to do. In our view the question is one of law, namely whether the plan pursued by the testators in appointing their property is a permitted method of testamentary disposition.

The paper offered for probate is as follows:

'Know all men by these presence that we, T. W. Richmond and wife, Darthulia M. Richmond, being of sound mind do this day make and publish our last will and testament.

'1st. After our death we desire that our funeral expense be paid as soon as possible together with any other indebtedness we may owe at our death.

'2nd. It is our will that each of our children share equally in our property alike when both of us are dead and buried, and that a nice double monument be erected to our graves when both of us are laid away, not too costly say $150.00, or there about, by our executor to be set out and named later.

'We have along and along paid out lots of money to some of our children and we feel like it will be right for them to be charged up of any advancement thats been made to them heretofore.

'3rd. We are agreed to nominate Norman Richmond, our youngest son, our executor to this will and empower him to sell all our property both real and personal at our death and make deed to purchaser of our lands. We desire that the land be sold for one third cash, balance one and two years with note and approved security interest bearing notes. As to personal property if one of us should die our desire is to sell all of that the one left will not need, such as stock, tools or such household not needed by the one that is left.

'The executor shall make a reasonable bond for his faithful service as to money going in his hands and he is to make prorates to brothers and sisters as the money accumulates in his hands along and along.

'4th. The executor to have the entire use of all the lands left by us rent free except the insurance and taxes. Should either one of us die the other is to be cared for as a father or mother should be treated with all kindness that a son or daughter that are due to treat father or mother and he is to keep the lands in as high state of cultivation as possible and the buildings and fence in good repair. Should he falter of duty that is in reason he relenkis (sic) his rights as executor and moves off and let another be qualified to fill his place.

'5th. When we are both dead and buried, the executor is to advertise all the lands we died in possession of in four or five places in Trousdale County, also in county papers as to date of sale and also sell balance of personal property to highest bidder. Personal to be sold under $5.00 cash, balance note with two good securities six month credit and when everything is sold he will pay to his brothers and sisters equally less the amounts advanced by us to them as follows: Kate Gregory Richmond $406.34, Wiseman Richmond $1866.00, Norman Richmond $784.50, Budie Richmond, $6450.07. At the death of Darthulia M. Richmond the life policy No. 156327 in Phoenix Life Insurance Company is to be collected by the executor and divided equally to the heirs that are entitled to the division or any money might be left by either of us at our death. The said Norman Richmond executor at the death of either of us is to move in our home and care for the one that is left until his or her death and is to use our land rent free stated and carried out as to above. This August 7th, 1942.

'T. W. Richmond

'D. M. Richmond.'

It was stipulated that upon the death of Mrs. D. M. Richmond on August 21, 1942, the plaintiff Norman Richmond probated the paper writing here in contest in common form as the will of Mrs. Richmond and that upon the death of T. W. Richmond on February 11, 1949, the same paper writing was offered for probate as the will. The contest was then instituted.

It was further stipulated that the testators, prior to the time of the death of Mrs. Richmond, had separate and individual bank accounts and no joint account. At the time of the death of Mrs. Richmond her bank balance was about $1055.66 and that of her husband about $2,000. At the time of his death he had on deposit to his individual credit the sum of about $4,000. Mrs. Richmond owned individually a tract of land of about fifty acres and her husband owned two tracts of land amounting to about one hundred twelve acres. Sixty additional acres were held by entireties. At the time of their respective deaths Mrs. Richmond was seventy-six years of age and Mr. Richmond eighty-eight. Eight children survived the parents.

Joint wills, as the term is now generally understood, 69 C.J., Wills, p. 1295, are recognized in Tennessee. Popejoy v. Peters, 173 Tenn. 484, 121 S.W.2d 538; Seat v. Seat, 172 Tenn. 618, 113 S.W.2d 751; Epperson v. White, 156 Tenn. 155, 299 S.W. 812, 57 A.L.R. 601. In fact, the division that was long thought to exist among the authorities upon the validity of such instruments appears to have derived largely from semantic difficulties. Thus, when Sir Edward Williams asserted that in the very nature of things there could not be a conjoint will, Williams on Executors, 7th Amer.Ed., pp. 9-10, he was employing the word 'joint' in the narrow and technical sense common in the law of contractual obligations but which conventionally now does not follow over into the law of wills. Where it is considered that the characteristic quality of a joint instrument prevents its revocation without the concurrence of the joint makers, courts have sometimes accepted the dictum that because a will 'cannot be the will of more than one person, it cannot be joint.' Rood on Wills, par. 70. It is worth noting that the same textwriter whose sweeping assertion is here quoted proceeds immediately to say, 'There is no reason why several persons may not execute the same paper as expressing the...