Waller v. Martin
| Decision Date | 02 February 1901 |
| Citation | 61 S.W. 73 |
| Parties | WALLER et al. v. MARTIN et al. |
| Court | Tennessee Supreme Court |
Appeal from chancery court, Wilson county; J. S. Gribble, Chancellor.
Suit by Llewellyn Waller and others against T. A. Martin and others. From a decree in favor of complainants, defendants appeal. Affirmed.
Cantrell & McMillan, for appellant Martin. McClain & McClain, for appellees Mrs. Omohundro's children.
The question in this case is to determine the rights of R. J. Omohundro to a homestead in certain real estate in controversy. The contest arises between the heirs at law of his wife, Mary E. Omohundro, and a creditor of the husband, who had levied upon the interests of the husband in the land and sold it, upon the theory that he had a life estate in it as tenant by the curtesy. The present proceeding is by the heirs of Mrs. Omohundro to enjoin further proceedings to set apart such homestead, upon the theory that upon the death of Mrs. Omohundro the property descended to them, and that Mrs. Omohundro had but a life estate in the premises, and her surviving husband could not have, therefore, any estate as tenant by the curtesy in them. The chancellor held that the husband had no estate by curtesy in the land, and the court of chancery appeals affirmed this holding, and enjoined the proceedings to set aside homestead, vacated the sale, and declared and adjudged the children of Mrs. Omohundro to be the owners of the land in fee simple, and removed the clouds created by the condemnation and sale proceedings from the title. The creditor has appealed to this court.
If Mrs. Omohundro had only a life estate in the land, with remainder to her children, her entire interest in the land would cease with her death, and there would be nothing in which the husband could have an estate by curtesy. Beecher v. Hicks, 7 Lea, 207, 214; Alexander v. Miller, 7 Heisk. 81; 2 Kent, Comm. 134; Bigley v. Watson, 98 Tenn. 353, 358, 39 S. W. 525, 38 L. R. A. 679; Stovall v. Austin, 16 Lea, 700, 706. The title of Mrs. Omohundro was derived under the will of her father, which contained this clause: It is insisted that such a power of disposition is given to Mrs. Omohundro by this will as must vest in her an absolute estate in the land. We think this position is not...
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