Taylor v. Smith

• Decision Date: 25 January 1896
• Citation: 36 S.W. 970
• Parties: TAYLOR v. SMITH.
• Court: Tennessee Supreme Court

36 S.W. 970

TAYLOR v. SMITH.

Court of Chancery Appeals of Tennessee.

January 25, 1896.

Appeal from chancery court of Lewis county; E. D. Patterson, Chancellor.

Bill by Robert B. Taylor against Eliza B. Smith, executrix of the estate of Byron M. Smith, deceased, on a judgment against deceased, in favor of complainant, in the state of Minnesota. From a judgment for defendant, complainant appeals. Reversed and rendered.

W. C. Whitthorne, Fussell & Wilkes, and G. T. Hughes & Son, for appellant. E. S. Fowler, for appellee.

WILSON, J.

This bill was filed January 13, 1893, by the complainant, a citizen of the state of Minnesota, against the defendant, a resident of Lewis county, Tenn., to recover on a judgment for $2,848.86, and the costs thereof, rendered September 17, 1888, by the district court of Hennepin county, Minn., against her husband, Byron M. Smith. A transcript of the record from the court in Minnesota is exhibited with the bill, and it is averred that Byron M. Smith is dead, and that he left a will making the defendant, his wife, his executrix, sole legatee, and devisee. The main purpose of the bill is to reach, and subject to sale for the payment of the judgment sued on, certain lands of Byron M. Smith, in Lewis county, devised to his widow, on the ground that there is no personal property of the judgment debtor with which to pay the claim. The defendant answered, first individually, and thereafter as executrix of her husband. The acting chancellor heard the cause, October 29, 1895, upon the pleadings and proof, including the laws of Minnesota, as embodied in its Code, in the sections specified in his decree, and article 4, § 1, of the federal constitution, all of which were read in evidence. He dismissed the bill, holding that there was no sufficient evidence or proof of a valid judgment in the state of Minnesota. Complainant prayed and obtained an appeal to the supreme court, and has assigned errors. A statement of the averments in the pleadings and the facts appearing in the record, including the law of the state of Minnesota, relative to the subject-matter of the suit, is necessary, to present the respective contentions of the parties, and to furnish the basis for a correct determination of the difficult and interesting legal questions involved. We will make the statement as brief as is consistent with clearness.

The bill avers: (1) That the complainant, September 17, 1888, recovered a judgment for $2,848.86, and $7.97 costs, against Byron M. Smith, in the district court, Fourth judicial district, county of Hennepin, state of Minnesota, and that a perfect transcript of the record from said court is exhibited with the bill, as a part thereof. (2) That said judgment is unpaid, and still the property of complainant. (3) That said Smith died in the latter part of 1888, leaving a will, which had been probated in Hennepin county, Minn., and a copy thereof entered of record in Lewis county, this state. (4) That by his will he devised and bequeathed all his property to his wife, the defendant. (5) That no one had ever administered on his estate, in the state of Minnesota, or in this state. (6) That most, if not all, the estate be possessed when he died was in Lewis county, Tenn., and consisted of real estate. (7) That he had but little personalty, and what he did have was taken possession of by the defendant, and that it was wholly insufficient to pay his indebtedness. (8) That the defendant — his widow, and the beneficiary under his will — had taken no steps to have his estate administered, either in Minnesota or Tennessee. (9) That he had done all he could to induce the defendant to settle his judgment, and that she had often promised, through her attorney, to pay it, and had, within six months, through her son and agent, agreed to do so, out of the proceeds of lands in Lewis county, a sale of which he was then negotiating. (10) The bill then mentions a number of tracts of land in Lewis county which belong to Byron M. Smith. (11) That, if said Smith left personalty sufficient to pay his debts, it went into the hands of defendant, and that she is liable for the same, to creditors, as executrix de son tort; and in this aspect of the case an account is asked. (12) That if he left no personalty, or an insufficient amount with which to pay debts, complainant has the right to subject the real estate in Lewis county, described in the bill, to sale for the payment of his claim. (13) That although the defendant has been a resident of Maury county, and recently of Lewis county, Tenn., almost continuously since the death of her husband, she has never qualified as executrix or administratrix of her husband's estate in Lewis county, and no one else has been procured to do so, nor have any steps been taken to wind up the estate and pay the debts thereof. (14) The bill asks that the public administrator of Lewis county, or an administrator ad litem, be appointed to wind up the same and pay debts, inasmuch as no one has been or can be procured to act. (15) The bill prays for a decree against the defendant, as to the personalty received by her, if she received any, liable for the debts of her husband, and for the sale of the Lewis county lands to pay his claim, in the event no personal assets went into the hands of defendant, available to that end, and for special and general relief.

This bill was filed against the defendant individually. The defendant answered the bill April 23, 1893, admitting — First. That she was the widow of Byron M. Smith, deceased, and that he had made a will giving her all of his property, real and personal; that he had but little of the latter; and that most of his estate was situated in Lewis county, Tenn. Second. That she knew nothing about the judgment sued on in the bill, and averring that she was no party to the proceedings in which it was rendered, and had no notice of its pendency at the death of her husband. Third. Averring that he died September 6, 1888, before said judgment was rendered, September 17, 1888. Fourth. That she had duly qualified as executrix of her husband in the county of Hennepin, state of Minnesota, and that said cause had never been revived against her as such, and hence the judgment, being against a dead man, was void, and the complainant could not recover thereon in this suit. Fifth. That she did not know whether said judgment had ever been paid; that she had never paid it, and that she was informed and believed that it was not a just judgment, and that her husband never owed complainant the amount of it at the time of its rendition; but that as complainant is seeking a recovery simply on the judgment, and not on the original consideration, she will not go into the latter in her answer. Sixth. That no one had qualified as administrator of her husband in Lewis county, or any other county in this state; that this neglect to administer was not to evade the payment of debts, or to delay creditors, but was upon advice that no administration was needed, inasmuch as her husband left no personalty to be administered. Seventh. That she is still of opinion that no administration is needed in Lewis county, but that if an administrator be deemed by the court necessary, to enable the complainant to have his rights, she claims the right to be appointed as administratrix, to defend the suit. Eighth. That she never promised to pay the judgment sued on, nor did she ever authorize any one to promise to do so for her; that she had been informed that her son had made certain promises concerning the payment of this judgment, under a misapprehension of the facts, but that he had made no promise binding upon her, even if he had possessed authority to make it. Ninth. It is admitted that her husband died possessed of the lands mentioned in the bill, and that by his will he left them to her, and that they are liable for all his just debts, as there is no personal property to pay them. Tenth. It is insisted, however, that these lands are not liable for this void judgment. Eleventh. That the complainant in this action has no right to call her to account with respect to the personalty received by her from her husband's estate, that she is in no way liable in this action, and that complainant cannot recover against the estate of her husband on the void judgment sued on.

The foregoing is a full statement of the contentions, as presented in the original bill, and the individual answer thereto of the defendant. The sole defense presented in the answer, that is a defense of itself, is that the judgment sued on was rendered against Byron M. Smith after his death, and is therefore void. After her answer aforesaid the defendant qualified as executrix of her husband, before the county court of Lewis county, and, as his executrix, March 18, 1894, answered the original bill. In this answer she states: (1) That her husband died September 6, 1888, leaving a will naming her as executrix; that the will was duly probated in Hennepin county, Minn., and a copy of the same filed in Lewis county, Tenn.; that she qualified in Hennepin county, Minn., but did not in Lewis county, this state, being advised that she need not do so. (2) That she knows nothing of the judgment sued on, that her husband was dead at the date it purports to have been rendered, and that she had no notice of the same, or of the pendency of the suit. (3) She does not admit that the judgment was rendered, and demands strict proof thereof. (4) She insists that, if rendered, it was after the death of her husband, and hence is absolutely void, and that complainant is not entitled to recover thereon. (5) That if said judgment was rendered, as charged in the bill, it was procured by fraud and collusion and without giving notice to her husband, in his lifetime, of the pendency of the suit, or to his legal representative, or any of his family, after his death. (6) That, at the time the transcript exhibited with the bill shows the...