Stooksbury v. Pratt

• Decision Date: 09 December 1950
• Citation: 234 S.W.2d 845,27 Beeler 451,191 Tenn. 451
• Parties: , 191 Tenn. 451 STOOKSBURY v. PRATT et al.
• Court: Tennessee Supreme Court

Page 845

234 S.W.2d 845

27 Beeler 451, 191 Tenn. 451

STOOKSBURY v. PRATT et al.

Supreme Court of Tennessee.

Dec. 9, 1950.

W. P. O'Neil, Knoxville, T. R. Chadwick, Clinton, for complainant.

Walter E. Fischer, Clinton, for defendants.

TOMLINSON, Justice.

James Stooksbury died in February of 1949 leaving a will which provided this:

'Second, I nominate as my Executor, Elijah Melton, and appoint him to act as the executor of my estate without bond. I direct my executor to sell all of my real and personal property, at public or private sale as he may think best, and after paying all of my just debts, I direct that he pay the balance in my estate to my children, share and share alike.'

The question for decision is whether, in view of this provision of the will, a son of the testator, W. M. Stooksbury, can maintain a partition bill for a sale of the land of the testator, and, incident thereto, enjoin the Executor named in the above provision of the will from his proposed public sale of this land.

The Chancellor, being of the opinion that the son could not maintain such partition suit, dismissed his bill. This appeal follows.

By Code Section 9165 et seq. it is provided that any tenant in common of an estate of inheritance in land is entitled to maintain a suit for sale and division of proceeds when the land is incapable of division in kind. It is the insistence of the appellant son that this code section gives him the right to maintain this bill because the above quoted provision of his father's will is not a devise to the executor for sale, but only a direction that the executor shall sell; hence, the executor is without legal title and may not, therefore, says the appellant, prevent a tenant in common from asserting the right given such a tenant by Code Section 9165 to maintain a partition suit.

Appellant relies upon Rogers v. Marker, 59 Tenn. 645; Daniel v. Dayton Coal and Iron Co., 132 Tenn. 501, 178 S.W. 1187, and Fowler v. Plunk, 7 Tenn.App. 29. It is held in those cases that where there is a mere testamentary direction for the named executor to sell the land for division of proceeds after payment of debts the title to the land is in the testamentary beneficiaries rather than the executor; or, as Fowler v. Plunk, supra, puts it 'the title is in the beneficiary or heir until the sale'. (Emphasis supplied.)

Rogers v. Marker, and Daniel v. Dayton Coal and Iron Co., supra, involved the question of the right of possession, while Fowler v. Plunk dealt with the question of whether the interest given by the will to the beneficiaries could be levied upon by a judgment creditor or conveyed by the deed of beneficiary. There is not involved in either of those cases the question of whether Code section 9165 may be allowed to defeat the testator's clear intention and positive direction that his executor sell his land, pay his debts, and distribute the balance to designated persons.

Nor is there anything in Code section 9165, the partition statute that gives or purports to give to a beneficiary under the will the right to deprive an owner of land the power to...