Smith v. Harrison

• Decision Date: 31 December 1870
• Citation: 49 Tenn. 230
• Parties: Harrison Smith v. Alexander Harrison et al., Alexander Harrison et al. v. Harrison Smith et als.
• Court: Tennessee Supreme Court

49 Tenn. 230

Harrison Smith

v.Alexander Harrison et al.,Alexander Harrison et al.

v.Harrison Smith et als.^a1

Supreme Court of Tennessee.

December Term, 1870.

FROM WARREN.

This cause was tried before BARCLAY M. TILLMAN, Ch., at McMinnville. Decree for complainants in the cross bill. The defendants appealed.

S. H. Colms, for complainant, cited 1 Jarman, 72; 3 Hum., 278, 282;2 Cold., 74;1 Swan, 437;11 Hum., 433;7 Hum., 388, 393;3 Head, 662. L. B. Waters, with him, cited, in addition, 10 Yer., 84, 93;8 Hum., 390, 400; 1 Johns. C. R., 402; 3 Ib., 351; 6 Ib., 87, 479; 2 Am. Ch. Dig., 138, 155, 505, 509 sec. 185; 2 Hay. 342.

A. S. Colyar cited in addition, 1 Story Eq. Jur., secs. 64, k, 71, 252, 257; 1 Head, 594;6 Paige, 47;Russell v. Clark, 7 Cranch, 69.

An anonymous brief, on the same side cites, further, 2 Swan, 162; 2 Sneed, 678.

J. H. Savage, for respondents, cited, on capacity of testator, 8 Yer., (8 Hum.,?) 145; Mod. Prob., 122, 132; 2 Greenl., 688, n. 1. On undue influence, 1 Jarm., 39, 45, 46; 7 Hum., 333; 3 Lead. Cas. in Eq., 127, 145, 148 to 150. Insisted that a court of chancery could not set up a will without an issue, 2 Danl. Ch. Pr., 29; 2 Spence Eq. Jur., 19; that in John v. Tate, this question was tried by jury; cited 1 Clinton's Dig., p. 525, sec. 191. This is not a will lost, destroyed or suppressed, as in Buchanan v. Matlock. 8 Hum., 390.

Thos. B. Murray, with him. Devisavit vel non a proceeding in rem., 1 Yer., 349; 2 Meigs' Dig., 1158; 2 Cold., 74, 75; 5 Ire. Law, 79; 6 Ib., 215; 7 Hum., 320. Criticised John v. Tate, 7 Hum., 388.

SNEED, J., delivered the opinion of the Court.

The controlling question in this case, is, as to the jurisdiction of a court of equity. in reinstating the probate of a will alleged to have been set aside upon an issue devisavit vel non, upon a fraudulent combination between the proponent and the contestants to procure that result; and whether the facts present such a case as will demand the exercise of that jurisdiction.

The testator, Audley Harrison, had been twice married, and left his wife, Elizabeth, and fifteen children, surviving him; ten of whom were the offspring of the first marriage, and five of the latter. On the 28th of November, 1852, and in his last illness, he caused his will to be written, which was witnessed and published on the succeeding day; and on the 30th of November, 1852, the testator died. His wife, Elizabeth, and his son, George Harrison, were nominated in the will as executors.

At the December Term, 1852, of the County Court of Warren county, where the testator resided at the time of his death, the last will and testament was duly probated and entered of record, and the executor and executrix named therein, accepted said trust, and were duly qualified. When the will was submitted for probate, no opposition was made to said probate. The children of the testator's second and last marriage are Alexander, Audley, Thomas, Julia and Mary. The other legatees and devisees are his widow, and the children of the first marriage. At the April Term, 1853, of the County Court, a portion of the latter petitioned for a re-probate of the will, with a view to contesting the same; and the cause was regularly transferred to the Circuit Court for probate, in solemn form, upon the issue devisavit vel non. At the June Term, 1853, of said Circuit Court, said issue was submitted to a jury, and there was a verdict and judgment against the will. The executor, George Harrison, then took out letters of administration upon his father's estate; and at the time of his death, in 1859, had nearly closed his said administration. He left a last will and testament, of which Harrison Smith was his executor.

The present litigation had its origin in a bill filed on the 20th of August, 1865, by Harrison Smith, executor of the last will and testament of George Harrison, deceased, against Alexander Harrison, Audley Harrison and others, the heirs of Audley Harrison and Elizabeth Harrison, both then being dead. The bill alleges that Audley Harrison died intestate, in 1852, seized and possessed of a large real and personal estate; that a few years after his death, by a judicial decree, the homestead and six hundred acres of land were publicly sold, and that George Harrison, the administrator and the testator of complainant, became the purchaser, and the title was duly vested by decree, “leaving the residue of dower land unsold;” that George Harrison, before his death, in 1859, sold the said homestead of six hundred acres to Elizabeth Harrison, the widow of his intestate, for the sum of $5,000, for which she and the defendant, Alexander Harrison, executed two notes, the one for $3,000, and the other for $2,000, and that said George Harrison executed a deed for the benefit of the said Elizabeth and her five children, Alexander, Julia, Audley, Mary and Thomas; that afterwards, at the September Term, 1859, of the Chancery Court at McMinnville, said contract was presented for confirmation, and was confirmed, and that $3,000 of said money was thus invested for and belonged to defendants, Audley, Mary and Thomas, leaving the second note unpaid; that said Elizabeth and Alexander were placed in possession and have held the same ever since. The bill prays for the sale of the land, or so much thereof as may be necessary to enforce the vendor's lien for the unpaid note of $2,000.

In the decree of confirmation referred to in said bill, it appears that Elizabeth Harrison was the guardian of her said children, Audley, Mary and Thomas Harrison, and that the $3,000 paid was the money of her said wards.

The bill is answered by Audley and Alexander Harrison, separately. The former answers on the 2d of September, 1865, admitting the charges of the bill to be true, alleging that his brother and co-defendant, Alexander, had for many years, had possession of the land, enjoying the rents and profits, and committing waste thereon, and closes with a prayer for an account thereof. Alexander Harrison answered on the 6th of January, 1866, alleging that the proceeding by the complainant was but a continuation of a series of frauds, beginning in the fraudulent devises by which the probate of his father's will had been set aside, and he and his brothers and sisters of the whole blood, defrauded and swindled out of the estates devised to them under said will; that the land for which the note was executed was his own land, and that at the time of the execution of said note he was young, and ignorant of the facts and unconscious of his rights; that the complainant's testator, George Harrison, who had assumed the trust as executor of his father's will, had combined with the other parties, and, by threats and intimidation, had coerced his mother to consent to a verdict against the validity of said will; that he, at the time said issue was submitted to the jury, was only fourteen years of age, his brother Audley, ten years of age, and his brother Thomas, six years of age, and with no guardian or protector to look after their rights.

On the 8th of January, 1866, the said Alexander, for himself, and as next friend of his brother Thomas, who was yet under age, filed his original and cross bill, in which Audley Harrison joins as complainant against the complainant in the original bill, and all others, the heirs and distributees of Audley Harrison, deceased, in which these charges are more fully elaborated. The bill charges that the complainants, who were all of tender years when their father's will was set aside, have but lately come to a knowledge of their wrongs; that the complainant, Audley, in making his answer to the original bill of Harrison Smith, executor, had been induced to admit the charges thereof in ignorance of his rights, and by the assurance of complainant that it would be better for him to answer in that way; that the same solicitor who drew his answer, also prepared the original bill against him. The said Alexander, for himself and his co-complainants, avers that the said Audley is of imbecile mind, and the said Thomas of tender years, and the easy victim of imposture; and asks the protection of the Court against all interference with them by defendants, pending this litigation.

The bill assumes to give a historical narrative of the wrongs suffered by complainants, since the death of their father at the hands of their brothers and sisters of the half blood, and calls for a discovery and answer to its charges. It avers that their father was of sound and disposing mind at the time of the making of the will; that the said will was, in every respect, valid; that the same was regularly, and without objection, submitted to probate; that soon thereafter the defendants “set about devising means to destroy the will, and knowing that complainant's mother was the only person interested in the will who could or would stand in the way of their purpose, they commenced a war upon her, threatening to kill her and burn her house if the will was established;” that they finally drove her, a good but weak and irresolute woman, into a compromise, by which it was agreed that the will should be set aside, and that the property devised and bequeathed to complainants should revert to the estate, to be divided under the laws of descent and distribution; that when the hour for the will case arrived, it was ascertained that the will was suppressed or destroyed, and a copy was substituted by consent; that though all parties were present at the trial, and the witnesses for the will were present ready to sustain it, yet no testimony was adduced; and the judgment, thus obtained by fraud, was rendered, setting aside the will; that George Harrison, “the leader in these frauds,” became administrator; that the whole estate had been sold and bought by the very persons most active in procuring said fraudulent verdict and judgment; that the said George Harrison, though the administrator procuring the order for the sale of said...