Spencer v. Stanton

• Decision Date: 04 December 1959
• Citation: 333 S.W.2d 225,46 Tenn.App. 688
• Court: Tennessee Court of Appeals
• Parties: Sam SPENCER et al., Complainants-Appellants, v. Mrs. Stanley STANTON et al., Defendants-Appellees.

Page 225

333 S.W.2d 225

46 Tenn.App. 688

Sam SPENCER et al., Complainants-Appellants, v. Mrs. Stanley STANTON et al., Defendants-Appellees.

Court of Appeals of Tennessee, Middle Section, at Nashville.

Dec. 4, 1959 Certiorari Denied by Supreme Court Feb. 5, 1960.

Clark Leech, Dickson, for appellants.

Robert S. Clement, Dickson, Val Sanford, Nashville, for appellees.

CARNEY, Judge.

This litigation involves the title to two tracts of land in Dickson County, Tennessee, in which Lipe Henslee, now deceased, held a life estate under the will of his father, Pitt Henslee. He remainder interest in said tracts was vested under the will in the 'heirs' of Lipe Henslee.

Pitt Henslee died in June, 1923, leaving surviving him one son, Lipe Henslee, and a widow, Susie Henslee, who died February 14, 1956. Lipe Henslee was the only child of Pitt Henslee and Susie Henslee and he died testate on January 21, 1958. Lipe Henslee left no children, natural or adopted, and his property was devised to non-relatives and is not involved in this litigation.

The nearest relatives of Lipe Henslee on his mother's side are the children and grandchildren of six deceased brothers and sisters of his mother, Mrs. Susie Henslee. Complainants-appellants, Sam Spencer, John Spencer, Edgar E. Spencer, William A. Spencer and Gilbert F. Tidwell, are all related to Lipe Henslee on his mother's side.

The nearest relatives of Lipe Henslee on his father's side are the three defendants, appellees, Mrs. Stanley Stanton, Mrs. J. M. Wynns and Mrs. Lester Rogers, half-sisters of Pitt Henslee, deceased.

The remaining children and grandchildren of the deceased brothers and sisters of Mrs. Susie Henslee were made parties defendant to the complainants' original bill. Some suffered a pro confesso to be entered against them and others answered and adopted the allegations of the complainants as to ownership of the lands in controversy.

The complainants' original bill alleged ownership in said two tracts of land and sought a sale for partition and division. By consent of all the parties the real estate has been sold and the sale price of $49,000 paid into the registry of the Chancery Court awaiting final determination of the true owners. The Chancellor held 'that said two tracts of land, or the proceeds of the sale thereof, pass as ancestral property under section 31-101, Sub-sections (3)(d) Tennessee Code Annotated, and the will of Pitt Henslee, to his three half sisters, Mrs. Stanley Stanton, Mrs. J. M. Wynns, and Mrs. Lester Rogers, in equal interests, they being the heirs of Lipe Henslee, on his father's side, and that the Complainant, and other defendants, have no interest in said property.'

Complainants' four assignments of error all assail the correctness of the Chancellor's holding that they did not receive any interest in the property under the will of Pitt Henslee. There is no dispute as to the facts; only a dispute as to the proper interpretation of sections seven and fifteen of the will of Pitt Henslee.

We quote said two sections as follows:

'Seventh: I give and bequeath to my son, Lipe Henslee, and any other children I may leave at my death the portion of the property known as the Goat Ranch lying on the north of the Yellow Creek Pike for the terms of their natural life and at their death to their heirs.'

'Fifteenth. I further direct and instruct the executors or the guardian herein named to invest five thousand ($5000.00) dollars out of the money going to my children in farm property somewhere in Dickson County, taking a deed thereto giving my said children a life estate only in same and to their heirs at their death.'

The Goat Ranch property referred to in Item Seven of the will was purchased by Pitt Henslee by warranty deed on March 7, 1910. The second tract of land involved in this litigation known as the Golf Club property was purchased by S. G. Robertson, trustee, under the terms of Item Fifteen of the will and conveyed to Lipe Henslee for life by deed of Robertson, trustee, of date May 18, 1925. Both the granting clause and the habendum clause from Robertson, trustee, to Lipe Henslee conveyed the property to Lipe Henslee for the term of his natural life and then to his heirs. The deed also recites that the conveyance was made by Robertson as trustee with the intention of carrying out the terms of Pitt Henslee's will.

The Rule in Shelley's Case has been abolished by statute, T.C.A. § 64-103, as follows:

'64-103. Rule in Shelley's Case abolished.--Where a remainder is limited to the heirs or to the heirs of the body of a person, to whom a life estate in the same premises is given, the persons who, on the termination of the life estate, are heirs or heirs of body of such tenant, shall take as purchasers, by virtue of the remainder so limited to them. (Code 1858, § 2008 (deriv.Acts 1851-1852, ch. 91, § 1); Shan., § 3674; Code 1932, § 7600.)'

Thus it clearly appears that under the will of Pitt Henslee, Lipe Henslee, his only son, took a life estate in both tracts of land and that his 'heirs' took a remainder in fee as purchasers.

We think the Chancellor very aptly crystallized the question by saying, 'In order to determine the issue involved in this proceeding, it is necessary to determine who are the 'heirs' of said Lipe Henslee as that word is used in the will of Pitt Henslee.'

Appellees insisted and the Chancellor agreed, correctly we think, that the meaning of the word 'heirs' as used in a will is depend upon the type of property involved.

In the case of Swanson v. Swanson, 1852, 32 Tenn. 446, a bill had been filed in the Chancery Court to settle and distribute the estate of James Swanson, Sr. who had died intestate leaving a large amount of personal and real property. He left a widow and several natural sons and daughters who had been born out of wedlock. Two of these children had been legitimated by a private act of the Legislature and two of the children had been legitimated by a court order under a general act of the legislature. The private act recited that the two children, naming them, were legitimate and 'they are hereby enabled to inherit in the same manner as if they had been born in lawful wedlock.'

The general statute under which the other two children were legitimated by court decree recited that the court was authorized to declare 'that said person, made legitimate as aforesaid, has become heir or joint heir of the person petitioning.'

In the Swanson case the right of the legitimated children to take the real estate was not seriously questioned but it was seriously contended that under neither of the statutes were they entitled to receive personal property as 'heirs.' Our Tennessee Supreme Court in upholding their right to share in both the real and personal property of the deceased made this statement:

'But this consideration aside, we take it to be a correct principle that the same rule of construction applicable, in this respect, to a will or other instrument, should be applied in the construction of a statute, whether public or private. And, with respect to a will, it is well settled that when the word 'heirs' is used to denote succession or substitution, it may be understood to mean such persons as would legally succeed to the property according to its nature and quality. Thus, a legacy of personal property to A, and in case of his death before the testator, to his heirs, was decreed to belong to the next of kin of A, who died before the testator. 2 Williams on Ex. 950. Such is the settled rule with respect to the personalty, whenever it clearly appears that the testator has employed the term 'heir,' not in its strict and proper acceptation, but in a lax sense, as descriptive of the person appointed by law to succeed to property of this description. 2 Jar. on Wills, 22. So, under the description of personal estate, the freehold has been held to pass, where it was clear, from the face of the will, that the testator meant, not what is technically understood by the words used, but the real property over which he had an absolute power of disposition. 2 Williams on Ex. 925.'

In the case of Alexander v. Wallace, 1881, 76 Tenn. 569, the will provided as follows:

'I direct that the remainder of my estate, both real and personal, be divided among my heirs according to the laws of the State of Tennessee now in force, none preferred and none discriminated against.'

The Supreme Court, in an opinion by Judge Cooper, held that the heirs of the testator as provided by the statute of descent would take the land and that his next of kin would take the personal property as prescribed by the statute of distribution.

'The legal meaning of the word heirs is the class of persons upon whom descent is cast by the statutes of descent. But, is used in wills, the word is flexible according to the nature of the property given. When applied to real estate, the word will be given its legal meaning; when used as to personalty, it will be held to mean next of kin.' Phillips' Pritchard on Wills, Section 435, page 382.

In the case of Forest v. Porch, 1898, 100 Tenn. 391, 45 S.W. 676, the testator had devised certain lands to his widow for her life and provided 'to have and to hold as long as she lives. At her death said land is to be divided between my heirs at law.' It was held that the will created a contingent remainder and that the heirs of the testator were to be determined as of the date of the death of the widow according to the statute of descent. In holding that the heirs would take per stirpes and not per capita our court said:

'* * * When the testator directed that the land should be divided among his heirs at law, he meant that the persons falling within the designation should take as heirs at law would take. The phrase 'heirs at law' indicates who shall take, and how they shall take. 'Heirs at law' means the same as 'heirs general.' They are the kindred by blood of a deceased intestate, who inherit his land,--those...