Scruggs v. Mayberry

• Decision Date: 09 August 1916
• Parties: SCRUGGS ET UX. v. MAYBERRY ET AL.
• Court: Tennessee Supreme Court

188 S.W. 207

135 Tenn. 586

SCRUGGS ET UX. v. MAYBERRY ET AL.

Supreme Court of Tennessee.

August 9, 1916

Certiorari to Court of Civil Appeals.

Bill by Edward Scruggs and wife against Lucinda Mayberry and others to review a decree of the Court of Civil Appeals, affirming decree of the Chancellor for complainants, defendants Katherine Reid Scruggs and Harry S. Stokes bring certiorari. Modified and affirmed.

J. T Miller, H. S. Stokes, and T. T. McCarley, all of Nashville for appellants.

Pitts & McConnico, of Nashville, for appellees.

NEIL C.J.

William Scruggs died in 1859, after having made his will, which, so far as necessary to quote, reads:

"I give * * * to my wife, Margaret, one-half of my landed estate during her natural life. * * * The half of land not given to my wife, I give to Edward Scruggs, son of William and wife Sarah G., * * * and the part my wife has while she lives, after her death, to him, said Edward and the heirs of his body, and if he should die without heirs, then the land I have given him to go to his sister, Lucinda, and her heirs, that is, the heirs of her body."

In the year 1878 Edward Scruggs executed a deed, which, so far as necessary to reproduce, is as follows:

"For and in consideration of the love and affection I have for my wife, Alice Scruggs * * * and the additional consideration of $1.00 to me, Edward Scruggs, paid, I have granted and conveyed to my wife, Alice Scruggs, the following real estate [describing a tract of 300 acres]. I likewise grant and convey to my wife, Alice Scruggs, a tract of 54 acres lying in Williamson county. * * * Likewise I grant and convey to my wife, Alice, my remainder right and title to 354 acres. * * * Mrs. Margaret Bright [formerly Margaret Scruggs, widow of testator in the above-mentioned will] has a life estate in both these tracts. I, Edward, have the remainder title, which is hereby conveyed to my wife, Alice. * * * This conveyance is made to my wife, Alice, with the following limitations: I, Edward, am to retain the use and possession of said property, the right and power to cultivate, rent, or lease said property in such manner and for such uses and purposes as I may think proper, but neither Alice or myself shall have the right to sell the said property. In the event of my death, my wife surviving, then she, the said Alice, is to take the control and management of said property, and apply the usufruct, rents, crops, etc., to her and my children's support and maintenance. In the event of Alice's death, I being dead, then the property thus conveyed to be divided equally among all my children, and their heirs. In the event of my wife becoming a widow and afterwards marrying, then all the property thus conveyed shall belong [to] and be divided among my children and their representatives. In the event of my wife dying leaving me surviving, then this conveyance shall be void and the title thus conveyed shall reinvest in [me] the said Edward Scruggs."

The bill alleges that complainant Edward Scruggs, the maker of the deed just copied, has four living children, that one of these is Edward G. Scruggs, and that the wife of the latter by proceedings in the Third circuit court of Davidson county, had obtained a divorce from him, and had secured a decree for alimony. So much of this decree as should be recited reads:

"That the defendant Edward G. Scruggs is the owner of a one-fourth vested remainder interest in a tract of land (describing the Scruggs' lands); * * * that the petitioner should recover of the defendant alimony and (the court) allows as alimony in this case a one-half of the vested remainder interest owned by the said defendant Edward G. Scruggs in the above-described tract of land, and a one-half in any other property or estate of the defendant. It is by the court ordered, adjudged, and decreed that the said one-half interest in the aforesaid land of the said Edward G. Scruggs, and a one-eighth in the entire estate, subject to the life estate of the father, be and the same is hereby divested out of the said Edward G. Scruggs, and vested in Mrs. Katherine Reid Scruggs, in fee simple to her sole and separate use, and free from the debts, contracts, or control of any husband she may ever have."

There was in said case also a fee of $600 allowed to Mr. Harry S. Stokes, the solicitor for Mrs. Katherine Reid Scruggs, and it was--

"therefore adjudged that the said Harry S. Stokes have and recover the sum of $600 of the defendant Edward G. Scruggs, and to secure and make certain the payment of said sum of money, the amount is declared a lien upon the remaining one-eighth interest of the said Edward G. Scruggs, in said property, and will so remain until the same is paid and discharged."

So it is that the Third circuit court of Davidson county decreed absolutely to the wife of Edward G. Scruggs one undivided half of what she claims is, or was, his undivided one-fourth vested interest in remainder in the lands described dependent on the life of his father, and decreed a lien in favor of her solicitor for $600 on the other half. She claims that his interest under the deed made by his father was a vested remainder in an undivided one-fourth of the land.

The complainants in the present bill, Edward Scruggs and wife, Alice, the father and mother of the defendant Edward G. Scruggs, claim in the bill that the legal effect of the deed above mentioned--

"was to vest the title, right of possession, and control of said land in the said Alice for her life only upon the condition and contingency that she should survive the grantor, complainant Edward Scruggs; and that no title or interest of the children or heirs of complainant Edward Scruggs in said land could vest in them, except upon the same condition and contingency, that is, the death of complainant Edward in the lifetime of complainant Alice; and such contingency not yet having happened, that no interest has vested in said children or heirs, and none may ever vest under said deed."

After setting out the decree for divorce and alimony above mentioned, it was charged that Edward G. Scruggs was never at any time vested with any interest in the said lands, in any form whatsoever, and that the decree for alimony created a cloud on complainants' title; that defendant Katherine Reid Scruggs and her representatives are threatening to sell or mortgage the supposed one-eighth interest, and thus further complicate matters. It was therefore prayed that the will of William Scruggs, and the deed made by Edward Scruggs, be construed, the rights of the parties declared, and that it be adjudged that Katherine Reid Scruggs acquired no interest in the land by the clause referred to, that that decree be declared void, and removed as a cloud, and that on final hearing she be perpetually enjoined from claiming any interest in the land mentioned under the decree above referred to.

The defendant Katherine Reid Scruggs and Harry S. Stokes filed a demurrer to the bill, and upon that being overruled, answered, insisting upon their construction of the deed of Edward Scruggs which we have already stated, and in addition that even under the will of William Scruggs, the said Edward took only a life estate, with the remainder to his children, and that under that instrument Edward G. Scruggs was entitled to a vested undivided one-fourth interest in remainder in the lands.

The chancellor held against both contentions of the defendants Katherine Reid Scruggs and Mr. Harry S. Stokes, and decreed in favor of the complainant. An appeal was prosecuted to the Court of Civil Appeals, and there the decree of the chancellor was affirmed. The case was then brought to this court under the writ of certiorari.

We are of opinion that under the will of William Scruggs there was devised to Edward Scruggs, directly, in fee the half of the lands not incumbered by the life estate of the wife. The same result must follow as to the remainder in the half interest incumbered by the wife's life estate, if the words "heirs of the body" occurring in that devise be technically construed, since a devise to A. and his bodily heirs would create an estate tail at common law ( Middleton v. Smith, 1 Cold. [ 41 Tenn.] 144; Kirk v. Furgerson, 6 Cold. [ 46 Tenn.] 479; Wynne v. Wynne, 9 Heisk. [ 56 Tenn.] 308), and by our statute (1784, chapter 22, § 5; Shan. Code, § 3673; Speight v. Askins, 118 Tenn. 749, 102 S.W. 74), all such estates are turned into estates in fee simple. Nor is the fee-simple estate in the present instance, if it be such, impaired by the clause, "and if he should die without heirs," then to Lucinda, since under the rule of construction and of property that obtains in this state, these words would import a death in the lifetime of the testator (Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119; Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937), and it appears that Edward Scruggs survived the testator.

It is insisted by defendants, in opposition to this construction, that the words, "heirs of the body" should be interpreted to mean "children." Let this be assumed, would the result be changed? The language of the will under consideration in Frank v. Frank, supra, was:

"Should any of my sons die without issue, his or their share shall also revert to my children then living, their heirs and assigns forever."

The court held that this language fell within the rule quoted from Jarman on Wills:

"If there is an immediate gift to A., and a gift over in case of his death, or any similar expression implying the death to be a contingent event, the gift over will take effect only in event of A.'s death before the testator."

In Katzenberger v. Weaver, supra, it was held that the following language was covered by the rule:

"In case any of my...