Stephens v. Stephens
| Decision Date | 14 November 1944 |
| Citation | 185 S.W.2d 915,28 Tenn.App. 58 |
| Parties | STEPHENS et al. v. STEPHENS et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court February 3, 1945.
Appeal from Chancery Court, Monroe County; T. L. Stewart Chancellor.
Suit by Rebecca Stephens and others against Benjamin H. Stephens and others to establish named plaintiff's homestead and dower rights in deceased husband's property and the rights of other plaintiffs as pretermitted children of decedent. From an adverse decree, plaintiffs appeal.
Decree reversed and modified in part and in part affirmed and cause remanded.
Grimm & Tapp, of Knoxville, for appellants.
C. S Harris and Witt & Bratton, all of Madisonville, for appellee.
This case presents a contest between the surviving second wife of H. C. Stephens and four daughters of that marriage complainants herein, and the defendants below, children of a former marriage. Rebecca Stephens, the widow, seeks to establish homestead and dower rights and the four daughters to establish their rights as pretermitted children of H. C. Stephens, deceased.
The Chancellor held that the widow had waived her homestead rights but was entitled to dower in the proceeds of realty to be sold for partition. The other complainants, daughters of the second marriage, were held entitled to share equally with brothers and sisters of Charles W. Stephens, a devisee under the will, but not entitled to share in the estate of their father as pretermitted children. Other disputed matters involve an accounting between the widow and her step-sons which are disposed of in a portion of this opinion not for publication. Only the complainants have appealed.
On January 28, 1902, H. C. Stephens, then a widow with eight living children, six sons and two daughters, made a will devising all of his real estate to his six sons upon condition that they pay $250 to each of the two daughters. (This provision was fully complied with after the death of H. C. Stephens.) On July 12, 1904, more than two years after the execution of the will, H. C. Stephens married the complainant Rebecca Stephens and to this union four daughters, complainants herein, were born, the youngest on February 12, 1910. The daughters were living with their mother and father on what is known as the Sink Place at the death of the father in 1921 and continued to reside there for various periods of time. All had moved away, however, when the bill was filed and the widow was living in Polk County, Tennessee.
The proof shows that D. B. Stephens, a half-brother of the testator, drew or assisted in drawing the will. From the date of its execution it remained in the possession of D. B. Stephens, named as executor of the will. It was never in the possession of the testator. There is no proof that he ever gave the will further thought and, on the contrary, there is some proof that he was under the impression that the daughters of the second marriage would share in his estate under the laws of descent and distribution.
The will was probated shortly after the death of H. C. Stephens and, on August 31, 1923, apparently at the instance and request of the executor and the sons of the first marriage, the widow entered into the following agreement:
'Citizens Bank & Trust Company Tellico Plains, Tenn.,
I, Rebecca Stephens, widow of the late H. C. Stephens, deceased, agree to take one-third of all rents raised on the farm where the late H. C. Stephens died, and the farm where J. M. Stephens now lives on Cane Creek, for my homestead and dower rights and allow the sons of the said H. C. Stephens to take charge of the farms and work or rent said lands to the best interest of all concerned.
The said sons, Milton, Anderson H., Ben H., H. Clay, and Sam E. Stephens are to furnish the said Rebecca Stephens a reasonable amount of barn room, in the barn on the home place, if she should need the room.
Should the said sons wish to sell the farm on Cane Creek, they agree to pay Rebecca Stephens a reasonable amount, such as the parties may agree upon for her dower rights on that farm.
Further, the said Rebecca Stephens assumes the payment of one-third the taxes on said farms.
Sam E Stephens, D. B. Stephens, Administrators.
James G. Mitchell, a Notary Public.
Subscribed before me this August 31, 1923.
(Seal)
James G. Mitchell, Notary Public'.
The proof is that the only farm owned by H. C. Stephens in its entirety was the Cane Creek farm on which J. M. Stephens, a son-in-law, was living at his death. He owned a three-fourths undivided interest in the Sink farm and he and his wife each owned an undivided one-half interest in the farm known in the record as the Akin Farm. It thus appears that the only property out of which the widow could claim homestead was the Cane Creek farm and the Chancellor held that the language of the above-quoted instrument was sufficient to amount to a waiver or release of homestead rights in that farm. We turn first to this question.
As already noted, after the death of her husband, Mrs. Stephens entered into the agreement above quoted. Apparently this was done at the instance of the executor and her step-sons. Or, as we find the facts, Mrs. Stephens was at least relying upon advice from the executor and we think, under the circumstances, and especially the circumstance that the instrument was drawn by the executor, any ambiguity should be resolved in her favor. Another principle having application is that in order to make out a case of abandonment or waiver of a legal right there must be a clear, unequivocal and decisive act of the party, showing such purpose, or acts amounting to an estoppel on his part. See Prewitt v. Bunch, 101 Tenn. 723, 50 S.W. 748; Masson et al. v. Anderson, 62 Tenn. 290.
With these principles in mind we find ourselves unable to agree with the conclusion of the learned Chancellor with respect to the homestead rights of the widow. We think the writing contemplates nothing more than an arrangement whereby the two farms might be operated to the mutual advantage of the widow and the heirs. The language, to say the least, is not appropriate for an absolute divestiture of the homestead right and a year or two after this instrument was executed the parties entered into an agreement in parol to the effect that the widow was to receive, in lieu of rents on the Cane Creek farm, the sum of $25 annually. The farm was shortly thereafter sold and Mrs. Stephens joined in the execution of that deed without receiving anything for her homestead though she continued to receive $25 annually from the heirs. This deed was not recorded until shortly before the filing of the bill and Mrs. Stephens says she has no recollection of having executed it. Doubtless, however, she did execute the deed as she did other instruments without questioning the good faith of the executor or of her step-sons. It is agreed by all parties to this suit that the purchaser of the farm will not be disturbed in his title or possession and that the parties will litigate the matter between themselves.
We do not think there should be read into this agreement a sale of the homestead right in the absence of appropriate language. It should be construed as in the nature of a lease of the homestead to 'allow the sons of the said H. C. Stephens to take charge of the farms and work or rent said lands to the best interest of all concerned.' We think this is clearly one permissible construction of the contract and being the one most favorable to the widow, under the principles of construction above referred to, the ambiguity should be resolved in her favor. Treating the agreement as in the nature of a lease contract, there being no time stipulated for its duration, we think it should be construed as running from year to year and...
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