Townsend v. Townsend

• Decision Date: 30 April 1867
• Citation: 44 Tenn. 70
• Parties: P. Townsend, Jr., et als. v. J. W. H. Townsend, Ex'r, et als.
• Court: Tennessee Supreme Court

44 Tenn. 70

P. Townsend, Jr., et als.

v.J. W. H. Townsend, Ex'r, et als.

Supreme Court of Tennessee.

April Term, 1867.

FROM TIPTON.

This cause was heard at the _______ Term, 1866, before Judge GEORGE W. REEVES, presiding by interchange, when there was a decree in favor of the complainants. From which respondents appealed.

JOHN W. HARRIS & CALVIN JONES, for Complainants.

WM. H. STEPHENS & H. R. BATE, for Respondents.

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

This bill presents one of those unfortunate family contests growing up between near relatives in the division of their ancestor's estate, in which it often happens, the darkest features of our nature are presented. Peter Townsend, Sr., as the record discloses, was the owner of a considerable estate in Sumner County, where he lived and died, consisting principally, of land and negroes. He had been twice married, and at his death, he left his widow, Lucretia, and four children surviving him. George W. W., the eldest, was the issue of the first marriage, and Joseph W. H., Elizabeth H., and Peter, Jr., of the second. The father, Peter Townsend, died in March, 1825, and his son, George W. W., by his first wife, soon after, in May following, without leaving wife or children.

At the August Term of the County Court of Sumner County, 1825, letters of administration were regularly granted on his estate, to the widow, Lucretia, and John Lauderdale, who qualified according to law, and took upon themselves the duties of the trust. And at the same time, John Lauderdale and John Booker, were appointed guardians of the three surviving children, who were, at the time, infants of tender years. Soon after, at the November Term of the Court, a division of the slaves was ordered, by which one-fourth in value, was allotted and set apart to the widow; and about the same time, her dower in the real estate assigned to her. The distribution of the personal estate, and partition of the lands, among the heirs, did not take place until some short time afterwards, when the whole estate appears to have been wound up and settled under the administration.

But, prior to this time, in August, 1862, John Booker, one of the guardians of the minor children, had intermarried with the widow, Lucretia, and as husband of the administratrix, and one of the guardians of the minor children, with John Lauderdale, his associate guardian, who was also his wife's co-administrator, he may be presumed to have exercised a controlling influence on the estate.

But, no dissatisfaction appears, at that time, to have been manifested. The guardianship of Booker and Lawrence was wound up, as was also the administration of Lucretia and Lauderdale, and all the property, real and personal, divided among the heirs and distributees, without murmur or complaint.

The record shows that the parties all resided in the same neighborhood, in Sumner County, until about the year 1845, when they began to remove to Tipton County; and in two or three years thereafter, the whole family were settled in the latter county.

John Lauderdale, one of the guardians of the minor children, and co-administrator with the widow of Peter Townsend, Sr., died in 1848; and in June, 1858, ten years thereafter, John Booker, the husband of the widow Townsend, and associate guardian of the infant children, also died, after having first made and published his last Will and testament, which was duly proven and admitted to record, in the County Court of Tipton County.In December following, 1858, a paper purporting to be the last Will and testament of Peter Townsend, Sr., deceased, was produced, and offered for probate in the County Court of Sumner County; and after being duly proven by one of the subscribing witnesses, was ordered to be recorded as the last Will and testament of Peter Townsend, Sr., deceased.

This Will is copied into the record, and it appears from its provisions, that the testator, after providing for his son George W. W., by his first wife, devised to his wife, Lucretia, the remainder of his real and personal estate, during her natural life, or widowhood, with power to lend certain slaves, and other specified articles of personal property, to the testator's children by his second marriage. But the use and enjoyment of the slaves and chattels thus loaned, are limited to the life or widowhood of his wife; and at her death, or on her marriage, the whole of the property so loaned, is to be brought together and sold, and the proceeds equally divided among the three children by the second marriage.

There are other provisions in this Will, which we deem it unnecessary to notice, further than to remark, that the testator's wife, Lucretia, and his son, George W. W., are named as the executrix and executor of the Will.

The son, George W. W., being dead at the time the Will was propounded for probate, and the executrix declining to qualify, Peter Townsend, Jr., was appointed administrator cum testamento annexo, and gave bond as such, in the County Court of Sumner County, and in one month thereafter, brought this bill in the Chancery Court of Tipton County, in the double aspect of a bill for an account, if, in the opinion of the Chancellor, the probate of the Will in Sumner County was valid after a lapse of time; and if not, to set up the Will of Peter Townsend, Sr., deceased as a “lost or spoliated Will, in the Chancery Court.”

The bill charges, that the widow, Lucretia, prior to her second marriage with John Booker, suppressed, and fraudulently concealed the Will of her first husband, Peter Townsend, Sr., deceased, and after her second marriage, the same was suppressed and fraudulently concealed by her husband, John Booker, up to his death, in 1858.

The parties in interest, were all regularly brought in by process, and join in a demurrer to the bill. The grounds of demurrer assigned, are:

1st, Want of jurisdiction, in a Court of Equity, to set up and enforce the execution of the paper exhibited in the bill as the last Will and testament of Peter Townsend, Sr., deceased.

2d, Want of jurisdiction in the County Court of Sumner County, to admit the alleged Will to probate, and to grant letters testamentary, after the lapse of thirty-four years from the death of the testator; and also, want of jurisdiction in the County Court to appoint Thomas W. Winn, administrator of Elizabeth H. Winn, in 1858, she having been dead upwards of twenty years.

3d, Want of equity on the face of the bill, because it shows the whole estate of Peter Townsend, Sr., deceased, had been wound up and distributed more than thirty years before the filing of this bill. And,

4th, The remedy, if any, is full, adequate and complete at law.

The Chancellor overruled the demurrer, and the defendants answer, and deny the fraudulent suppression of the Will, and exact proof of its execution. Most of them deny all knowledge of its execution, until after the death of John Booker; and J. B. and W. J. Turner aver, in their answer, after first denying all fraudulent concealment of the Will, that the paper now attempted to be set up as Peter Townsend's last Will and testament, was in the actual custody of the complainant, Peter Townsend, Jr., some years before the death of John Booker.

The facts are very voluminous, and tend to show, that shortly after the death of Peter Townsend, Sr., John Booker and John Lauderdale, were examining and assorting the old man's papers, and they divided them into two parcels, one of which was marked “valuable,” and the other “worthless.” The attention of the widow, Lucretia, was called to the parcel marked as worthless, and she was told that she might burn or destroy them--and Booker and Lauderdale carried off the other. She did not destroy the package pointed out to her, but, as it is alleged, retained the possession of it for many years.

The widow is shown to be unable to read or write, but as the evidence tends to show, she placed a mark upon the Will, by which she was enabled to recognize it; and that the complainants had knowledge of its existence, some years before the death of John Booker. This fact, however, is contested, and the subsequent steps in the cause render it of little value, in the present aspect of this record, to the determination of the question raised on this record.

After the testimony was taken and the cause ready for hearing before the Chancellor, on application of the defendants' solicitor, the following inquiries of fact were submitted to a jury, viz:

“1st, The complainants affirm that Peter Townsend, Sr., made such a last Will and testament as is alleged in the bill.”

2d, That Lucretia Townsend, before her marriage with John Booker, fraudulently concealed and suppressed said Will.

3d, That John Booker, after his marriage with Lucretia Townsend, continued fraudulently to conceal and suppress said Will.”

These several averments were formally traversed, and under the instructions of the Chancellor, tried by a jury, and found in favor of the complainants. A motion for a new trial was made and overruled, and a decree pronounced in accordance with the finding of the jury.

The Chancellor declared the execution of the Will of Peter Townsend, Sr., in 1825, to have been regular and valid, and that it was fraudulently concealed and suppressed by his widow, from the death of the testator to the time of her inter-marriage with John Booker, and afterwards by him suppressed and concealed, until the Fall of 1858. when it was discovered, and shortly thereafter, duly and legally admitted to probate and record, in the County Court of Sumner County, and the complainant, Peter Townsend, Sr., lawfully appointed and qualified as administrator, with the Will annexed.

The decree also directs an account, which, as it seems, was taken, and confirmed, fixing the liability of the defendants at $51,269.88.

Under this state of facts, various questions are presented and pressed in argument, with much zeal and ingenuity. One of which...