Roberts v. Chase

Decision Date16 February 1942
Citation166 S.W.2d 641,25 Tenn.App. 636
PartiesROBERTS v. CHASE et al.
CourtTennessee Court of Appeals

Certiorari Denied by Supreme Court December 5, 1942.

Appeal from Chancery Court, Davidson County; James B. Newman Chancellor.

Suit by Mary Rice Roberts, widow and ancillary administratrix of M S. Roberts, deceased, against Irvine G. Chase and others to set aside a deed by which the deceased conveyed certain mortgages and securities. From a decree for defendants plaintiff appeals.

Reversed and remanded.

J. G. Lackey and R. C. Boyce, both of Nashville, and Elmore Cohen, of West Palm Beach, Fla., for appellant.

Samuel N. Harwood, of Nashville, for appellees.

FELTS Judge.

Mary Rice Roberts, widow and ancillary administratrix of M. S. Roberts, deceased, filed the bill herein to set aside a deed by which he conveyed to M. S. Roberts, Jr., and Rena Roberts Donnell, his children by a former marriage, $40,000 of mortgages recited to be in the hands of his agent, Irvine G. Chase; and to have an accounting by the agent. E. B. Donnell, husband of Rena Roberts Donnell, was also joined as a defendant.

M. S. Roberts died October 4, 1933, at his home in West Palm Beach, Florida. He was survived by his widow, the complainant, and their two children, Jack Rice Roberts and James Benton Roberts, and his two children by his first marriage, defendants M. S. Roberts, Jr., and Rena Roberts Donnell. Excluding the securities in dispute, the only property he left was his residence worth about $4,000, a farm worth about $3,000, shares in Gray and Dudley Company worth $2,700, and some lots worth $300 or $400. He left a will dated April 22, 1924, the same day the deed was signed. The will directed the payment of his debts, gave the rest of his estate equally to his wife and their two children, and named M. S. Roberts, Jr., as executor and trustee without bond.

Both the will and the deed of the $40,000 of securities to M. S. Roberts, Jr., and Rena Roberts Donnell were written by her husband, Judge E. B. Donnell, son-in-law and attorney of M. S. Roberts. Both documents were signed at the attorney's office in the presence of him, Mrs. Donnell and M. S. Roberts, Jr., and witnessed by two young ladies employed in the office. The deed was also acknowledged to be recorded, but was never recorded and was kept a secret from the wife and younger children of M. S. Roberts for nine and one-half years and until after his death.

After his funeral Judge and Mrs. Donnell and M. S. Roberts, Jr., brought the will to complainant's home and read it, but said nothing about the deed. M. S. Roberts, Jr., executor and trustee, then went through his father's personal papers, and took away such as he desired. A day or two later he came back and told complainant that for want of money she would have to stop her older son from school; and, on being asked about the $40,000 her husband had invested in Nashville, he said that belonged to Mrs. Donnell and himself. But it was not until after she had come to Nashville and had two or three meetings with Chase and M. S. Roberts, Jr., that she finally learned about the deed. It was as follows:

"Whereas, M. S. Roberts of Palm Beach County, Florida, is the owner and holder of certain mortgages amounting in the principal sum of Forty Thousand ($40,000.00) Dollars now in the possession of his agent, Irvine G. Chase, in Nashville, Tennessee, and is the owner and in possession of other property both personal and real and wishes to be relieved of the necessity of handling personally the said mortgages in the sum of Forty Thousand Dollars held by said Irvine G. Chase and wishes to make some division of his property and estate and to secure certain services from his son, M. S. Roberts, Jr., of Nashville, Tennessee, and his daughter, Rena Roberts Donnell of Palm Beach County, Florida, and
"Whereas, said M. S. Roberts, Jr., is in a position to personally look after and supervise the interest collections on said mortgages and to supervise the investing of any funds derived from the payments of said mortgages and the said M. S. Roberts, Jr., and Rena Roberts Donnell are willing to pay the agreed price for said mortgages and to perform the services hereinafter named,
"Therefore, Know All Men by These Presents, that M. S. Roberts of Palm Beach County, Florida, hereinafter called Grantor does on this the 22nd day of April, A. D. 1924, for and in consideration of the sum of One Dollar and other good and valuable considerations to him in hand paid, the receipt whereof is hereby acknowledged, and for the further consideration of love and affection and the services hereinafter set out, grant, bargain, sell, release and assign unto M. S. Roberts, Jr., and Rena Roberts Donnell, hereinafter called the Grantees, all of those certain mortgages, securities and investments in the sum of Forty Thousand Dollars share and share alike now held in the care of Irvine G. Chase of Nashville, Tennessee. A list and statement of said mortgages are hereto attached marked Exhibit 'A' and made a part of this contract and agreement.
"The sale, conveyance and assignment made by these presents is made subject to the following conditions and provisions, to-wit:
"1st: The grantees shall keep the said principal sum invested in good, safe first mortgage securities and shall account to the Grantor on each interest payment period the net interest of not less than

six per cent. per annum realized from said mortgage and securities during the life time of the Grantor. It is understood and agreed that it is the desire of the Grantor that the said principal sum shall be handled by the Grantees through Irvine G. Chase in substantially the same manner that it has been handled heretofore by the Grantor.

"2nd: It is understood and agreed that at the death of the Grantor the trust under this deed is released and ceases to bind the Grantees and the said property, mortgages and securities herein conveyed shall at that time be free of all restrictions and trusts.

"3rd: It is understood and agreed that no portion of the principal sum of the mortgages and securities herein conveyed shall be used during the period of this trust agreement for any purpose whatsoever save to invest as herein provided.

"The parties hereto do by these presents bind themselves, their assigns, successors, legal representatives, executors and administrators.

"In Witness Whereof the parties hereto have set their hands and seals on the day and year first above written.

"(Signed) M. S. Roberts (Seal)
"(Signed) M. S. Roberts, Jr. (Seal)
"(Signed) Rena Roberts Donnell (Seal)
"Signed, sealed and delivered in the presence of:
"(Signed) Sadie Porter
"(Signed) Margaret Baggs
"State of Florida
"Palm Beach County
"Before the undersigned, a Notary Public, personally came M. S. Roberts, Sr., M. S. Roberts, Jr., and Rena Roberts Donnell to me well known to be the individuals described in and who executed the foregoing instrument, and they did acknowledge before me that they executed the same for the purpose therein expressed and asked that it be recorded.
"In Witness Whereof I have hereunto set my hand and official seal this the 22nd day of April, A. D. 1924.
"(Signed) Sadie Porter

Notary Public

"My commission expires Feb. 7th 1925."

Just after signing this deed, M. S. Roberts executed the will, which was as follows:

"State of Florida
"Palm Beach County
"Know All Men by These Presents: That I, M. S. Roberts of Palm Beach County, Florida, being of sound mind and retentive memory, do on this the 22nd day of April, A. D. 1924, make this my Last Will and Testament, revoking all former wills and codicils by me made and direct the following disposition of my property:
"First Item: I direct that all of my just debts be paid out of the first funds realized from my estate.
"Second Item: All the balance, remainder and residue of my estate I give, devise and bequeath unto my wife, Mary Rice Roberts, and to my two children, Jack Rice Roberts and James Benton Roberts, share and share alike. It is well understood by my two oldest children, M. S. Roberts, Jr., of Nashville, Tennessee, and Rena Roberts Donnell of Palm Beach County, Florida, that I have made other provisions for them and that they are not forgotten in this will, but are especially not intended to take anything under this will.
"Third Item: I name and appoint my son M. S. Roberts Jr., of Nashville, Tennessee, as Executor and Trustee of my estate and direct that he be not required to give bond.
"Fourth Item: I direct that my Executor and Trustee hold in tact as nearly as it may be done the whole of my estate until my youngest child shall become twenty-one years old. At that time the aforesaid distribution shall be made. My Executor and Trustee is given full power and authority to manage and handle my estate, but no power and authority to sell and transfer real estate. He shall deliver to my wife, Mary Rice Roberts, all of the net earnings of my estate until the distribution is made as herein provided.
"In Witness Whereof I hereunto set my hand and seal on the day and year first above written declaring this to be my Last Will and Testament.
"(Signed) M. S. Roberts (Seal)
"We, Sadie Porter and Margaret Baggs in the presence of each other and in the presence of the Testator, M. S. Roberts, and at his request, have hereunto signed our names as witnesses to this instrument containing two typewritten pages, which instrument the said M. S. Roberts declared to us to be his Last Will and Testament.

"(Signed) Sadie Porter

Name

West Palm Beach, Fla.

Address

(Signed) Margaret Baggs

Name

West Palm Beach, Fla.

Address."

M. S Roberts, Jr., executor and t...

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