Weaver v. Hughes

• Decision Date: 03 July 1943
• Parties: WEAVER et al. v. HUGHES.
• Court: Tennessee Court of Appeals

173 S.W.2d 159

26 Tenn.App. 436

WEAVER et al. v. HUGHES.

Court of Appeals of Tennessee, Middle Section.

July 3, 1943

Certiorari Denied by Supreme Court April 10, 1943.

Appeal in Error from Circuit Court, Rutherford County; T. L Coleman, Judge.

Proceeding between Theoter Tucker Weaver and others against Mrs. Beulah O. Hughes, administratrix, with respect to an issue of devisavit vel non upon a writing propounded by second named party as the will of a decedent. From an adverse judgment Theoter Tucker Weaver and another appeal in error.

Affirmed.

A. B Collins and G. S. Ridley, both of Murfreesboro, and C. H. Rutherford, of Nashville, for plaintiff in error.

George S. Buckner, C. C. Jackson, and Barton Dement, Jr., all of Murfreesboro, for defendants in error.

FELTS Judge.

This is an issue of devisavit vel non upon a writing propounded by Mrs. Beulah O. Hughes as the will of William Fletcher, deceased, and contested by his collateral kin, Theoter Tucker Weaver and others. There was a verdict and judgment in favor of the will; and two of the contestants, Theoter Tucker Weaver and Leverter Tucker Mallard, appealed in error.

The writing appears to have been signed by William Fletcher and attested by two subscribing witnesses, Richard Beard and W. R. Smith, on May 29, 1917. It gave all of the land and personalty of William Fletcher equally to his wife, Sallie Fletcher, and his niece, Melissa Fletcher, but provided that the share of the one that died first should go to the survivor. Melissa was named as executrix.

They were persons of color. Since about 1904 William had been receiving a pension as a federal soldier in the War between the States. He had no child. He, his wife, Sallie, and his niece, Melissa, lived in Rutherford County, on a tract of about 32 acres of land, which he purchased from W. M. Rogers in 1908. His niece, Melissa, died in 1920 and he died in 1927. It does not appear that he left any personalty or owed any debts. His widow, Sallie, continued to live on the land, but she never had the will probated. Mattie Wallace, another negress, lived with her from 1931 to 1941.

One of the subscribing witnesses, Mr. Richard Beard, had been a captain in the Confederate Army and was a prominent lawyer in Murfreesboro. It seems that he prepared the writing and, after it had been signed and attested, kept it in his office until his death, which occurred about the same time as the death of William Fletcher. Some time after Captain Beard's death this paper was found in his office by Mr. John Hancock, another member of the Murfreesboro Bar, who also died some years ago. Mr. Hancock delivered the paper to Mr. Tom McCaig and he gave it to Sallie Fletcher some time in 1937 or 1938. She then consulted Mrs. Beulah O. Hughes about it. Mrs. Hughes was postmistress of Murfreesboro and had been assisting her in getting her pension checks cashed, looking after her affairs, and taking care of her. Mrs. Hughes, thinking the land was already hers under a deed of 1930, advised her that it was unnecessary to probate the paper as the will of William Fletcher.

It seems that the original deed of 1908 had been lost and in 1930 the land was still assessed in the name of W. M. Rogers. Mrs. Hughes had an attorney for Sallie search the records of the register's office for the deed. Failing to find any record of it, this attorney had W. M. Rogers execute a deed conveying the land to Sallie Fletcher in September 1930, which deed was then recorded. So knowing these matters and thinking the land had passed to Sallie Fletcher under the deed of 1930, Mrs. Hughes advised her in 1937 or 1938 that the paper need not be probated.

Sallie Fletcher died in April 1941, without issue. She left a will devising the land to Mrs. Hughes and Mattie Wallace. Her will was upheld against a contest by some of those who are parties to the present contest. Mrs. Hughes purchased Mattie Wallace's share in the land and now claims the whole tract. She and Mattie Wallace have been in adverse possession of it ever since the death of Sallie Fletcher.

After their unsuccessful contest of Sallie Fletcher's will, some of the present contestants found that the deed of 1908 had been recorded and had conveyed the land to William Fletcher alone; and, claiming as his heirs at law, they filed a bill against Mrs. Hughes to sell the land for partition. She thereupon sought to avail herself of his will as a muniment of title and as a defense against their claim; and for that purpose she presented the writing in the county court for probate as his will. That court probated it in common form and appointed her as his administratrix, with the will annexed. Then the present contest ensued, with the result above stated.

Contestants contend that her appointment as his administratrix, being more than ten years after his death, is "utterly void," Code, sec. 8167 (4); and that, having no right to act as administratrix and not being a legatee or devisee of William Fletcher, she has no right to offer his will for probate.

We think this contention is not sound. In the first place, her appointment as administratrix is not open to collateral attack in this proceeding. Rice, Adm'r, v. Henly & Carter, Ex'rs, 90 Tenn. 69, 15 S.W. 748; Turnpike Co. v. Puryear, 116 Tenn. 122, 92 S.W. 763; Louisville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138; see James v. Williams, 169 Tenn. 41, 49, 82 S.W.2d 541, 544. In the second place, if such attack could be made, it would be immaterial. The question of the right of Mrs. Hughes to propound the will does not depend upon her being administratrix. She is not asserting any right or claim as administratrix. She seeks not to take possession or to recover anything, but only to set up the will as a link in her chain of title, to defend her title and possession against the claim of contestants as heirs at law of William Fletcher.

Where a will names an executor, it is his duty to offer the will for probate; but if he declines, or if there is no executor, then any legatee, devisee, or other person interested may offer the will for probate. Ford v. Ford, 26 Tenn. 91, 7 Humph. 91; Patton v. Allison, 26 Tenn. 320, 7 Humph. 320; Winters v. American Trust Co., 158 Tenn. 479, 14 S.W.2d 740; Sizer's Pritchard on Wills, secs. 30, 316. If Mrs. Hughes' title derived directly from the will, if she was a devisee under it, she could propound it. Is the case different because her title comes indirectly from it, because she is a devisee of the devisee of the will? We think not. We have no statute which defines the quantum of interest that one must have to entitle him to propound, or to contest, a will. Our cases say generally anyone "interested" may do this; and in Winters v. American Trust Co., supra, where a son died pending his contest of his mother's will, it was held that his widow and devisee could carry on the contest in her own right. If, as there held, a devisee of a distributee succeeds to the latter's right to contest the will, it would seem that a devisee of the devisee of the will would likewise succeed to the latter's right to probate the will.

In other jurisdictions one succeeding to the interest of a devisee or legatee of the will, such as a grantee, assignee, or creditor of such devisee or legatee, has been held entitled to have the will probated. Morgan v. Bass, 25 N.C. 243 (approved on another point in Fransioli v. Podesta, 175 Tenn. 340, 348, 134 S.W.2d 162, 165); Stebbins v. Lathrop, 21 Mass. 33; In re Rankin's Estate, 164 Cal. 138, 127 P. 1034; Hanley v. Kraftczyk, 119 Wis. 352, 96 N.W. 820; Page on Wills (3rd Ed.), Vol. 2, sec. 591.

Hanley v. Kraftczyk, supra, is quite in point. There the testator died in 1872, having devised his land to his widow. She presented his will in the county court for probate; but for some reason not shown no action was taken by the court. In 1882 she, jointed by her second husband, deeded the land to Joseph Kraftczyk. He held possession of it until 1899, when he petitioned the county court to probate the will. The testator's heirs at law resisted his petition. It was held that he had a right to have the will probated. Said the Supreme Court:

"It is claimed that the defendant [proponent] has no interest in the proceedings nor standing in court. A will is a muniment of title, but in this state, and some others, in order to 'be effectual to pass either real or personal estate,' it must be 'duly proved and allowed in the county court.' Section 2294, Rev.St.1898. When so admitted to probate, it relates back to the time of the death of the testator, and is to be treated as speaking from that moment. Flood v. Kerwin, 113 Wis. [673], 680, 89 N.W. 845, and cases there cited. There is no ground for claiming that the failure of the county court to act upon the petition of the widow, filed November 30, 1872, is a bar to the action taken in 1899. 'A will devising lands may be admitted to probate at any time after the death of the testator.' Haddock v. Boston & M. R. Co., 146 Mass. 155, 160, 15 N.E. 495, 4 Am.St.Rep. 295. In that case the will was not admitted to probate until more than 60 years after the death of the testator. That case followed a former case, wherein it was said that, 'if a will can be found, it may be proved in the probate office at any time, in order to establish a title to real estate.' Shumway v. Holbrook, 1 Pick. [Mass.] 114, 117, 11 Am.Dec. 153. So it has been held in that state that 'whoever has a right to offer a will in evidence, or to make title under it, may insist on having it proved.' Stebbins v. Lathrop, 4 Pick. [Mass.] 33, 42. The defendant, claiming title by deed from the devisee named in the will and her husband, certainly had a right to insist on having the will admitted to probate." 96 N.W. 821

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