Walker v. Bobbitt

• Citation: 88 S.W. 327,114 Tenn. 700
• Parties: WALKER v. BOBBITT et al.
• Decision Date: 24 June 1905
• Court: Supreme Court of Tennessee

88 S.W. 327

114 Tenn. 700

WALKER v. BOBBITT et al.

Supreme Court of Tennessee.

June 24, 1905

Appeal from Chancery Court, Henry County; A. G. Hawkins, Chancellor.

Suit between T. B. Walker, as executor of Mrs. Henry Bobbitt deceased, and James Bobbitt and others, and from the decree the latter parties appeal. Affirmed.

Farabaugh & Rye, for appellants.

Lamb & Marr, Quintin Rankin, and W. S. Coulter, for appellee.

BEARD C.J.

One Henry Bobbitt died intestate in Henry county, Tenn., in the year 1890. He left surviving him a widow, Jane Bobbitt, but no lineal descendants. While the owner of some personal property, the only real estate in which he had an interest at the date of the making of his will or at any time thereafter was in a tract of 100 acres lying in that county, which had been conveyed to him and his wife, and of which they owned the estate by entirety.

In the first clause of his will the testator provided for the payment of his funeral expenses and his debts, and by the third clause he nominated his wife, Jane, as executrix. The second clause of the will is as follows: "I give and bequeath to my beloved wife, Jane Bobbitt, all of my estate both real and personal for and during her natural life, and at her death, I will and bequeath two-thirds of whatever may remain to the Hopewell Presbytery, of the Cumberland Presbyterian Church, to be used by said Presbytery in any way they may see proper." By a codicil to the will, duly executed, the two-thirds interest given in this clause to Hopewell presbytery was changed so as to give it to the trustees of the Cumberland University for the endowment of the theological department. It will be observed that the testator made no disposition of the other one-third remainder interest in either his real estate or personal property.

Upon his death, his wife, surviving him, took upon herself the execution of the will, and at the same time accepted its benefits. From sources not disclosed in the record she received as executrix $6,168.81 from personalty belonging to the estate. From this she paid to the trustees of Cumberland University the sum of $2,000, which was received by them in full satisfaction of the residuary legacy given to them by the codicil. This payment left in her hands the sum of $4,168.81, derived from the personal estate of the testator. She also sold the tract of land of which mention has been made, and received therefor the sum of $4,000. Subsequently she died, leaving a will by the terms of which she gave all of her estate to certain of her collateral kindred. A controversy having arisen between these legatees and the distributees of Henry Bobbitt as to the ownership of these two funds, the present bill was filed by the executor of Mrs Bobbitt's will, asking the chancery court to fix and determine the rights of the respective claimants to these funds.

As has already been stated, the testator, Henry Bobbitt, died intestate as to one-third of his estate, and no provision was made in his will for the contingency which subsequently occurred of the remaindermen, the trustees of the Cumberland University, taking a part for the whole of the two-thirds given to them. As to the balance thus left upon this settlement, it is clear that it also constituted a portion of his estate undisposed of by his will.

Upon these facts the chancellor held that, surviving her husband, Mrs. Bobbitt took the entire interest in the tract of land of 100 acres, and that her right of survivorship was not affected by the doctrine of election invoked by the distributees of Henry Bobbitt, and further that, her husband having died intestate as to the portions of the personal estate, she took them under the general statute of distribution; the whole passing to the legatees named in her will. From his decree so holding the heirs and distributees of Henry Bobbitt have appealed and assigned errors.

We agree with the chancellor that the doctrine of election neither as to the land in question nor its proceeds can be invoked by the appellants. This doctrine properly arises where a testator manifests a clear intention to dispose of property not his own, and by other parts of his will from his own estate confers benefits upon the owner of that property. Dashwood v. Peyton, 18 Vesey, 41. In such case the owner is put upon his election, and if he accepts the benefits he is excluded or estopped from asserting claim to the property so disposed of. But as we understand, this rule or doctrine is not applied save in a case of property in which the testator has no interest. If he has some interest of his own (more than mere possession) in the thing disposed of, bequeathed by him, he will be deemed by his use of general terms to have intended only a bequest or a devise of his interest, and the owner will not be put to an election between maintaining his former title and claiming the new benefits provided by the will. McGinnis v. McGinnis, 1 Ga. 496; Havens v. Sackett, 15 N.Y. 365; Leonard v. Steele, 4 Barb. 20.

That the testator, Henry Bobbitt, had an interest in this realty at the time he made his will, is well settled. This continued in him until his death. This interest might ripen into a full and complete ownership upon the death of his wife leaving him surviving. We think the existence of this interest, upon principle as well as the authority of the cases cited, would preclude the application of the rule in question. This interest was a valuable one which his creditors might have reached and subjected by execution. Mfg. Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000, 30 L. R. A. 315, 49 Am. St. Rep. 921. But the event which made the will operative (that is, his death) was the same which carried the whole estate in this land into Mrs. Bobbitt, by reason of the fact that she, of the two, was the longer liver.

The question as to the devolution of the personal estate of which Henry Bobbitt died intestate is now to be considered. In doing this it is necessary to examine the older statutes, as well as the Code provisions with regard to the distribution of the estate of persons dying intestate, and the cases in which some or all of these have been construed and applied.

At common law a devise to the wife by her husband did not prevent her from setting up claim to dower unless it was so expressed in or arose by implication from the terms of the will too strong to be resisted; otherwise she could take both her dower and her bequest. This, however, was changed...