Trowell v. Carraway
| Decision Date | 30 April 1872 |
| Citation | 57 Tenn. 104 |
| Parties | Thomas J. Trowell v. Wm. Carraway. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM FAYETTE.
Appeal from the decree of the Chancery Court at Somerville. JOHN W. HARRIS, Ch.
E. H. SHELTON for Complainant.
Frederick Harwell died in Fayette county, Tenn., in 1865, seized and possessed of a large real and personal estate, which he disposed of by will, appointing Wm. Carraway and Wm. Trusdale his executors, the former of whom alone qualified as such. Among the assets which came to his hands were several notes, amounting in the aggregate to about $15,000, most of which were payable on their faces to Thos. J. Trowell, and the others were payable to Frederick Harwell, and by him endorsed to Thos. J. Trowell.
This bill was filed by Trowell, claiming that he was the owner of these notes, and also claiming that he was the owner of half of the proceeds of twenty-nine bales of cotton, raised on the farm of Frederick Harwell in 1864, and sold by the executor. Trowell claims these notes as a gift made to him by Harwell, and he claims the proceeds of the cotton under contract for services in the year 1864.
The executor admits the possession by him of the several notes, an??l that they were all either payable to or endorsed to complainant, but he repels the claim set up by complainant, and insists that he found them among the assets of his testator, that they had never been delivered to complainant, that they belonged to the estate of his testator, and passed by the will to his residuary legatees. As to the claim to one-half of the twenty-nine bales of cotton, he denies that any contract was made between complainant and his testator whereby complainant was entitled thereto.
The Chancellor sustained both of the claims of complainant, and decreed accordingly, but he decreed against complainant as to an amount of gold belonging to the testator which the executor alleged had come into complainant's hand, and had not been accounted for. Both parties appealed from the decree.
The first question in the case is, whether the gift of the notes by testator to complainant was perfected by delivery. The proof shows that Frederick Harwell, being a man of large wealth, without children and advanced in years, about the year 1811 took into his family the complainant, who was then two or three years old, and treated and raised him as his adopted son, not, however, having actually adopted him. Testator and his wife manifested the strongest affection for him, raised him as a son, educated him, and when he grew up confided the business of the farm to him, on which he labored until he was about twenty-three years of age.
Testator manifested his attachment to complainant by frequent declarations of his purpose to provide liberally for him out of his estate. Testator was a man of cash capital, and was in the habit of lending his money at interest. In 1854, when complainant was about fifteen years of age, he commenced lending his money, and either taking the notes of borrowers payable to complainant, or taking them payable to himself and endorsing them to complainant, but still holding them in his own possession, and collecting and reinvesting the money in the same way, telling the makers of the notes that the money so loaned belonged to complainant. Testator kept up this mode of investing his money until the amount of the notes so taken reached about $15,000, they being the notes now in controversy.
The proof is abundant that testator declared the money so invested and the notes so taken to be the property of complainant during a period of six or eight years, during all which time complainant lived with testator, managed much of his business, enjoyed his unbounded confidence, collected portions of the notes with the approval of testator, although testator seems to have kept the actual possession of the notes until some time during the war, probably in 1862 or 1863. About that time, testator being uneasy as to the safety of his gold and silver, as well as the notes in possession, fearing that the Federal soldiers who were in the country might make raids upon him and rob him of his money and notes, placed the same in the hands of complainant to be concealed in different places for safety.
It is in proof that the notes in controversy were placed in a wooden box and concealed under a pile of bricks. While so situated a witness proves that he was staying at testator's house one night, sleeping in the room with complainant, when testator came to the room, roused complainant out of bed, told him he was uneasy about an apprehended raid of the soldiers, advised him to go and get his (complainant's) notes and put them in some other place of security; that complainant accordingly went out and brought in the box of notes, placed them on the table, when testator told him they were his notes, to take them and hide them; that testator then left, when complainant and witness took the box and concealed it in a closet in the house where it remained until after the death of testator.
It was proven by Trusdale, one of the executors, that a short time before testator's death he told witness that he had given complainaant his notes and complainant's notes to hide to prevent the Federals from getting them.
A nephew of testator proved that testator told him that these notes belonged to complainant, that he had given these notes to complainant, and that was all he intended to give him of his estate, and he thought it was enough. This conversation took place in March, 1865, and testator died in June afterward.
By reference to the list of notes on file it appears that nearly all of them were dated or endorsed to complainant at times antedating the period at which, according to the proof, complainant arrived at his majority.
One witness proves that in 1860 he borrowed $750 of testator and executed his notes to complainant; that in 1862 complainant, on his way to his command in the army, called on him for $230, stating he left the note with testator, as he did not want to carry it with him to the command, but he would give him a receipt; the money was paid and the receipt given, and afterward testator entered a credit on the note for the amount.
Trusdale, one of the executors, proves that in April before testator's death in June, testator told him he had given complainant enough to set him up in any business. At the same time witness said testator told him he had given his notes to complainant--he had given them to him to conceal them from the Federals. He said one Harris owed testator a note, when he came to pay it testator told him he had to wait until complainant should come to get it--he said it was complainant's note. In speaking of the notes testator had given complainant to conceal, witness understood him to speak of complainant's notes and his own. On the day of testator's burial witness heard complainant tell Carraway, the executor, that he had some notes there that testator had signed over to him, that they were in the bottom of the stair steps in the house. The executor afterward got the notes in controversy from that place. Complainant told the executor he put them there.
For the purpose of rebutting and overturning this evidence, defendant proves that about eight months before testator died he lost his wife, and...
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