Royston v. McCulley

• Citation: 59 S.W. 725
• Parties: ROYSTON v. McCULLEY et al.
• Decision Date: 10 September 1900
• Court: Supreme Court of Tennessee

59 S.W. 725

ROYSTON v. McCULLEY et al.

Court of Chancery Appeals of Tennessee.

September 10, 1900.

Appeal from chancery court, McMinn county; T. M. McConnell, Chancellor.

Suit by M. T. C. Royston, administrator of Miriam McCulley, against George M. McCulley, administrator with the will annexed of Joseph McCulley, and others. There was a decree for less than the relief demanded, and both sides appeal. Decree reversed, and bill dismissed.

Gaston & Madison, G. G. Williams, and Mayfield Son & Aiken, for complainant. Allen & Ivins, for defendants.

WILSON, J.

This bill was filed May 15, 1899, by complainant, as the administrator of Miriam McCulley, deceased, against George M. McCulley individually and as administrator with the will annexed of Joseph McCulley, and the sureties on his bond as administrator, to hold them liable for a large sum growing out of the alleged wrongful conduct and dealings of George M. McCulley and Joseph P. McCulley in relation to the estate of Joseph McCulley, deceased. The chancellor granted in part the relief sought under the bill, and both sides appealed.

We state these preliminary facts appearing in the record and not disputed:

George M. McCulley was a brother of Joseph McCulley, deceased. Defendant Joseph P. McCulley is a son of George M. McCulley and a nephew of Joseph McCulley. Miriam McCulley was the wife of Joseph McCulley. Joseph McCulley died in McMinn county, January 12, 1896. Miriam McCulley, his widow, died two years after he did. Soon after the death of Joseph McCulley, the defendant George M. McCulley presented to the county court of McMinn county a nuncupative will of his deceased brother, Joseph. It was probated as his will in common form before that court. After the death of Miriam McCulley, the complainant, as her brother and one of her heirs, had the probate of the alleged nuncupative will of Joseph McCulley before the county court set aside, and the paper certified to the circuit court for an issue to be made up to test its validity. The will was set aside in the circuit court. Under this alleged will defendant Joseph P. McCulley was sole legatee. Before the death of Joseph McCulley he had deeded all his land, or the greater part of it, to Joseph P. McCulley, reserving, however, an estate in it during his life and that of his wife, Miriam. Defendant George M. McCulley and family were living with Joseph McCulley at the time of the latter's death, and had been for a year or more before. Joseph P. McCulley, at the time of the death of his uncle, Joseph, was living in Florida, and had been for some time. After the death of his uncle, Joseph P. took charge of his personal property, and cultivated the land, or had it cultivated, with the assent of his aunt, Miriam. The bill alleges that, the alleged will of Joseph McCulley being in fact no will, he died intestate, and that his wife, Miriam, took all his personalty, and that upon her death it passed, or should have passed, to her administrator, the complainant. It further avers that George M. McCulley, having qualified as administrator of Joseph with the will annexed, took charge of the personalty, and filed an inventory before the county court showing the assets that came into his hands. A copy of this inventory is made a part of the bill as an exhibit thereto. It is alleged that in this inventory George M. charges himself with a sum which, with interest, amounts to some $3,500, and it is insisted that he is liable to account for this sum to complainant as the administrator of Miriam McCulley. It is further alleged in the bill that George M. did not charge himself in said inventory with near all the assets that came or ought to have come into his hands. It is charged that Joseph McCulley had on hand at his death a large quantity of wheat, a lot of hogs, horses, mules, cattle, sheep, farming utensils, machinery, blacksmith tools, and other things not embraced in said inventory; and that, in addition, the farm went into the hands of defendants George M. and Joseph P.; and that they should account for its products from the death of Joseph to the death of Miriam, his wife, a period of two years. It is further alleged that, although George M. filed the inventory in the county court soon after he qualified as administrator, as aforesaid, in February, 1896, he has never made any report or settlement before said court, and that there is nothing to show what he has done with the estate; and the charge is made that he had turned over a large portion of it to the defendant Joseph P., the beneficiary named in the alleged nuncupative will of Joseph, which was set aside as before stated; that he had taken no refunding bond from Joseph P.; that George M. and Joseph P. had wrongfully and fraudulently converted said property to their own use for the purpose of depriving complainant, as administrator of Miriam, and her heirs, of the same; that these parties are still covering up and concealing the amount and character of the property of Joseph McCulley, deceased, for the same purpose, and with the same fraudulent intent; that complainant, soon after his appointment and qualification as administrator of Miriam, called on said defendants for all the effects of said Miriam, when the defendant George M. turned over a few articles to him of the value of $36.27, stating that these articles were all the estate of Miriam, so far as he knew; that, since the contest over the alleged nuncupative will was settled, complainant had called on George M. and Joseph P. McCulley to settle and account for all the effects, etc., of said Miriam, and that they had refused to do so. Joseph P. is sued as a nonresident of the state, and it is asked that he be held liable as surety on the bond of George M. to the extent of the penalty of the bond, and individually for property received by him belonging to the estate of Miriam in excess of said penalty. It is alleged that Joseph P. owns two tracts of land in McMinn county, which are described, and it is asked that they be attached, and held subject to sale to satisfy the recovery sought under the bill. The bill prays for all necessary orders and references to ascertain the properties, etc., of Miriam McCulley, deceased, that went into the hands of the defendants, or either of them, or that should have gone into the hands of George M. McCulley, and what estate or effects of Joseph McCulley, deceased, had gone into the hands of Joseph P. McCulley, and what rents properly going to Miriam during her lifetime had been unaccounted for by the defendant. The bill prays that the further administration of the estates of Joseph and Miriam McCulley, deceased, be transferred from the county to the chancery court for final settlement. It also prays for general relief.

An attachment issued under the prayer of the bill, and was levied upon the real estate of Joseph P. McCulley referred to in the bill. Joseph P. and George M. McCulley filed separate answers and cross bills. W. N. Russell, a defendant, and surety on the bond of George M. McCulley as administrator of Joseph McCulley, deceased, with the will annexed, first answered the bill, and thereafter filed a cross bill. Joseph P. McCulley, in his answer, after admitting his relationship to the parties alleged in the bill, and the setting aside of the nuncupative will, and that George M. McCulley returned an inventory of the estate of Joseph McCulley, deceased, avers that at the time of the death of his uncle, Joseph, he was a resident of Florida, and has since resided there, and therefore that he is not very familiar with the actions of his father as administrator; that his father, George M., as administrator of Joseph McCulley, is not chargeable with $3,500, nor half that amount; that George M. can best answer as to the inventory he filed, but that said George M., his father, in fact returned in said inventory a large amount of property or assets that did not belong to Joseph McCulley, and that did not come into his hands as administrator. He denies that there was a large amount of wheat, hogs, mules, horses, cattle, sheep, farming utensils, etc., or any other articles, owned by Joseph McCulley at his death, that came into his hands. He further answers and avers that George M. McCulley by mistake reported in his inventory certain certificates of deposit made by Joseph McCulley in the Bank of Charleston, amounting in the aggregate to $2,000. He alleges that these certificates of deposit and the sum collected thereon belong to him, and that he did not receive them or claim them as a legatee under the alleged will of Joseph, but as a gift from him before his death. He denies that he has wrongfully converted any of the estate of Joseph, or that he is liable to complainant in any sum. In his cross bill he sets up his claim to the certificates of deposit in the Bank of Charleston aforesaid, and asks that his rights thereto be declared. He also sets up a claim to a note for $250 against one A. H. Rice, reported by his father, on the ground that the note was given for mules which belonged to him, and hence that he should not be held for the proceeds of said note. He further avers that his father, in making out said inventory and filing the same, through ignorance, inadvertence, and an erroneous idea as to the law and facts, made various mistakes, and included items therein that did not belong to the estate of Joseph McCulley, and that, before liability is declared against him as surety or a principal, it should be purged of said mistakes. George M. McCulley, in his answer and cross bill, takes the same position advanced in the answer and cross bill of Joseph P. McCulley. He avers, in addition, that, acting under said alleged will of Joseph, which provided that the widow, Miriam McCulley, should be liberally supplied, he expended large sums, amounting to $____, in caring for her in her feeble condition, and a credit is asked for these expenditures. He also avers that, in...