Rogers v. Colville

• Decision Date: 13 February 1922
• Citation: 238 S.W. 80,145 Tenn. 650
• Parties: ROGERS v. COLVILLE.
• Court: Tennessee Supreme Court

238 S.W. 80

145 Tenn. 650

ROGERS v. COLVILLE.

Supreme Court of Tennessee.

February 13, 1922

Certiorari to Court of Civil Appeals.

Proceedings by Charles W. Rogers to contest the will of J. C. Biles deceased, against Frank Colville, executor. Judgment of circuit court for plaintiff was reversed, and the contest was dismissed by the Court of Civil Appeals, and the plaintiff brings certiorari. Decree of Court of Civil Appeals reversed and that of circuit court affirmed, and cause remanded to the circuit court, with directions.

I. W Smith, of McMinnville, and Seth M. Walker, of Lebanon, for defendant.

L. D. SMITH, Special Justice.

The controversy in this cause arises upon the petition of the plaintiff to contest the will of J. C. Biles, deceased, and involves only the question of whether he may do so. The right of the plaintiff to contest said will is challenged in this court upon the ground that the plaintiff is estopped by reason of having become the purchaser of a house and lot at a sale thereof made by the executor under the power conferred upon him by the will sought to be contested.

In 1915 J. C. Biles made a will by which he devised all of his property to his wife, Nellie Biles. Mrs. Biles died before the testator. On April 27, 1920, Mr. Biles executed the will sought in this cause to be contested, and by which he devised all of his property to his executor, the defendant Frank Colville, with power to sell and with direction to pay out the proceeds to certain legatees therein named.

The petition of contest alleged that at the time of making this last will the testator was mentally incapacitated to make a will, and by reason thereof the property of which he died the owner passed under the first will to the petitioner, who is the son by a former marriage of Mrs. Nellie Biles and her only heir at law.

When the contest came on for hearing in the circuit court it was agreed that, for the purpose of trying the preliminary question of whether Charles Rogers had the right to contest the will of J. C. Biles, the matter should be tried before the circuit judge upon the petition filed by said Rogers, the answer filed by the executor, and that the special plea of estoppel should be made a part of the answer, and that the only pleadings necessary to determine the issue last referred to should be said petition and the answer thereto as amended. It was further agreed that the facts set forth in the petition were substantially true, except that it was not admitted that J. C. Biles was mentally incapacitated at the time he executed the alleged will, but all other facts alleged in the petition were admitted. It was further agreed that the facts set forth in the answer as amended and the facts relied on as constituting an estoppel to contest the alleged will were substantially true, and that the facts set forth in the petition and in the answer should be considered as all the evidence introduced on the trial of the issue of the right of the plaintiff to contest.

The agreed facts upon which the only question involving the right of the petitioner to contest are:

"At the time of his death, said J. C. Biles owned in fee simple, and which became a part of his estate for sale by the executor and distribution of its proceeds as a part of his general estate, a house and lot of land situated on West Main street in the town of McMinnville, Tennessee, and which was the home place of the said J. C. Biles, and which the executor was required to sell under the said last will and testament, for the aforesaid purpose, dated April 27, 1920, and probated in the county court of Warren county, Tenn., July 22, 1920, and which house and lot was first advertised for sale by the executor at the date suggested by the said Charles W. Rogers, the terms of the sale being one-third cash and the remainder in three equal installments, due 6, 12, and 18 months, for which deferred payments notes were to be executed by the purchaser bearing interest. The sale was advertised in a newspaper published in McMinnville, for October 29, 1920, the advertisement being made October 5, 1920. On the day of the sale so advertised, the said house and lot was offered for sale on said premises by the executor when the said Charles W. Rogers thereupon became the purchaser of said house and lot for the sum of $10,250, for which consideration he gave a short-term note to the executor for the cash payment and also executed his three several promissory notes, due in 6, 12, and 18 months, dated October 29, 1920, in equal amounts and payable to said executor and delivered to him, whereupon, on October 30, 1920, said executor executed and delivered to said Rogers a deed conveying to him in fee simple said house and lot, and thereafter, on December 10, 1920, without having made any intimation to the executor that he (said Rogers) proposed to contest said will, said Rogers paid to the executor $2,000 on said cash consideration, and later, January 10, 1921, said Rogers paid to said executor $4,751.50 in satisfaction of the remainder of said cash consideration, the second due of said notes, interest thereon, and $1,000 due on said note, making a grand total of $6,751.50 paid by said Rogers to said Colville on the purchase price aforesaid. A few days before this last payment, said Rogers stated to Colville that he was going to contest said will, and said last payment was made on the same day, just immediately before or just after the said petition was filed. Said Rogers visited said J. C. Biles a short time after said will was made, and at the time of the sale and purchase of the aforesaid house and lot was cognizant of the mental condition of the said J. C. Biles when he made said will. At the time the said Rogers purchased the said house and lot he knew the contents of the will which he is now seeking to contest, and which will was at the time of record in the county court of Warren county and had been probated; and that Frank Colville, the executor, deeded said house and lot to said Rogers, and warranted the title to said property.

Defendant admitted that the paper

writing referred to in the petition as having been probated on July 22, 1920, was so probated as the last will and testament of J. C. Biles, averred that at the time of the execution of said paper writing J. C. Biles was of sound mind, competent to make a will, that the contents of said paper writing were known to him, and that said paper writing was the true, valid, last will and testament of the said J. C. Biles. He admitted that he was nominated as executor in said paper writing, and that he had qualified and was acting as such; admitted that the legatees and beneficiaries mentioned in said paper writing were correctly set out in the petition, and averred that, since his qualification, he had paid a legacy of $1,000 to Joe R. Biles; admitted that he had in his possession the alleged will of 1915; that Mrs. Nellie Biles was made the residuary legatee and devisee under said will; neither admitted nor denied that said will of 1915 was regularly executed, but averred that, however that might be, the will of 1915 was superseded and annulled by the will probated on July 22, 1920. He admitted the death of J. C. Biles, and that Mrs. Nellie Biles died about two months before the death of the testator; that she was the mother of the petitioner, and that the petitioner was her only heir and distributee, and the executor denied that the contestant had any interest whatever in the estate of J. C. Biles."

The chancellor held that the plaintiff was not estopped from making the contest by reason of the facts above set forth and pleaded in the answer as constituting an estoppel. The Court of Civil Appeals reversed the chancellor and dismissed plaintiff's contest. The action of that court is now before us for review upon petition for certiorari by the plaintiff below.

A preliminary question is raised, and that is that the Court of Civil Appeals should have dismissed the appeal of the defendant to that court because he made no motion in the circuit court for a new trial. This question was not raised in the Court of Civil Appeals by the plaintiff until after the court had disposed of the case on its merits and the opinion had been filed. It was raised thereafter in a petition to rehear filed within the time prescribed by the rules of that court for filing petitions to rehear. The petition to rehear raising this point was dismissed upon two grounds: First, that it was not necessary for the defendant to make a motion for new trial in order to have the judgment of the circuit court reviewed on appeal; and, second, that the plaintiff had waived his right to raise the question by his failure to make it until after the court had passed upon the case on its merits.

Railroad v. Egerton, 98 Tenn. 543, 41 S.W. 1035, and other cases along the same line, Cyc. and R. C. L. announce the rule followed, and are relied upon as authority for the first ground of the court's action. These authorities are in conflict with the latter cases decided by this court. Road Comms. v. Railroad, 123 Tenn. 257, 130 S.W. 768; Shelton v. Wade, 139 Tenn. 685, 203 S.W. 253; Seymoor v. Railroad, 117 Tenn. 102, 98 S.W. 174; Barnes v. Noel, 131 Tenn. 126, 174 S.W. 276; Bostick v. Thomas, 137 Tenn. 101, 191 S.W. 968.

In this case the court based its decision upon the facts of the case which were stipulated, holding as a matter of law thereunder that the plaintiff was entitled to prosecute the contest. The stipulation appearing on the minutes does not make a case where the court's action appears as a part of the technical record so as to take the case out of the rule of cases which "harmonizes the practice in all cases coming to this court from the common-law courts." 123...