Winters v. American Trust Co.

• Decision Date: 16 March 1929
• Citation: 14 S.W.2d 740,158 Tenn. 479
• Parties: WINTERS v. AMERICAN TRUST CO.
• Court: Tennessee Supreme Court

14 S.W.2d 740

158 Tenn. 479

WINTERS v. AMERICAN TRUST CO.

Supreme Court of Tennessee.

March 16, 1929

Appeal in Error from Circuit Court, Davidson County; A. B. Neil Judge.

Proceeding by the American Trust Company, as executor, to probate the will of Mrs. Emily C. Winters, in which Jesse T. Winters and another filed their petition resisting the probate, and the record was certified to the circuit court. After the death of Jesse T. Winters, Mrs. Adra Winters, individually and as executrix of the will of her deceased husband, offered her petition, asking that she be permitted to become a party, and to contest the will. From a judgment denying her petition she appeals in error. Reversed and remanded.

Pitts McConnico & Hatcher and Ferriss C. Bailey, all of Nashville for plaintiff in error.

Bass, Berry & Sims and John E. Fisher, all of Nashville, for defendant in error.

SWIGGART J.

In July, 1927, the American Trust Company, as executor, instituted proceedings in the county court of Davidson county to probate in solemn form the will of Mrs. Emily C. Winters, who died June 3, 1927, tendering with its petition the original will, in which the American Trust Company was named as executor.

The petition for probate disclosed that Mrs. Winters was survived by two sons, Jesse T. Winters and William M. Winters, and by two daughters of a deceased daughter; said four persons constituting her heirs at law and next of kin. The will devised real and personal property to the American Trust Company, as trustee, for the benefit of the children of the testatrix for life, with remainder to the grandchildren of the testatrix.

In August, 1927, William M. Winters and Jesse T. Winters filed their petition in the county court, resisting the probate of the purported will, upon grounds of undue influence and testamentary incapacity, and asked that the record and purported will be certified to the circuit court of Davidson county for trial upon an issue of devisavit vel non.

Pursuant to the petition and notice of contest filed by Jesse T. and William M. Winters, the purported will and record of the county court were certified to the circuit court of Davidson county in September, 1927.

The minutes of the circuit court recite that on March 19, 1928, the death of Jesse T. Winters was suggested and admitted. This order further recites that Jesse T. Winters died without issue, and that he was survived by a widow, Adra Winters, who had duly qualified and was acting as executrix of the will of Jesse T. Winters, which had been probated in the county court of Davidson county.

On March 31, 1928, Mrs. Adra Winters, individually and as executrix of the will of her deceased husband, Jesse T. Winters, offered her petition in the circuit court, reciting the facts hereinabove stated, and asking that she be permitted to become a party to the cause, both individually and as executrix, etc., and that she be permitted to contest the will of Emily C. Winters.

The petition of Adra Winters shows the date of the death of Jesse T. Winters as February 2, 1928, subsequent to the certification of the county court record to the circuit court. It exhibits a certified copy of the will of Jesse T. Winters, in which Adra Winters, the petitioner, was named as sole legatee and devisee of all the property of Jesse T. Winters.

The petition avers that William M. Winters has five living children, who would share in the distribution of the estate of Emily C. Winters at the termination of the trust, and that, since the death of Jesse T. Winters, William M. Winters has concluded not to resist the probate of the will of Emily C. Winters, and that the executor now proposes to probate the will in solemn form, without objection of any party to the cause.

It is averred that, if this is done, petitioner will be concluded, and thereby deprived of her asserted right to one-third of the estate of Emily C. Winters, which would go to her deceased husband if the will of his mother should fail of probate.

The petition of Adra Winters further recites an earlier will of Emily C. Winters, wherein Jesse T. Winters was given one-third of her estate in fee; the same interest which he would take as heir and distributee if Emily C. Winters had died intestate.

The petition prays that petitioner be permitted to present this will of Emily C. Winters for probate as the true last will and testament of Emily C. Winters.

This prayer of the petition could not have been granted by the circuit court, since the county court has exclusive jurisdiction of a petition for the probate of a will in the first instance. Murrell v. Rich, 131 Tenn. 378, 397-404, 175 S.W. 420; Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576.

On March 31, 1928, an order was entered on the minutes of the circuit court, again reciting the death of Jesse T. Winters on February 2, 1928, leaving no children or issue surviving him, and that the executor then moved that the cause be abated as to Jesse T. Winters; that at the same time Adra Winters, widow of Jesse T. Winters, individually and as executrix of his will, moved that the cause be revived as to Jesse T. Winters, and also presented her petition, above referred to, asking permission to file it for the purpose of reviving the cause, and also for the purpose of individually and as executrix being made a party defendant in order that she may contest the proposed will of Mrs. Emily C. Winters.

The circuit court overruled the motion of Adra Winters, denied her motion to be allowed to file her said petition, sustained the motion of the executor to abate the suit as to Jesse T. Winters, and ordered that the cause should "stand for trial with William M. Winters as the sole defendant in said cause."

From this action of the circuit court Adra Winters prayed and was granted an appeal in the nature of a writ of error to this court.

Although the case is still pending in the circuit court of Davidson county, for the probate of the will in solemn form, no question has been made as to whether the appeal was properly taken and granted. It has been ruled that the right of a contestant to resist the probate of a will is a preliminary matter, presenting a separate and distinct issue from the issue of devisavit vel non, and that an appeal in the nature of a writ of error may properly be taken and granted from a judgment sustaining or denying the right to contest. Napier v. Church, 132 Tenn. 111, 177 S.W. 56; Shaller v. Garrett, 127 Tenn. 665, 156 S.W. 1084; Cowan v. Walker, 117 Tenn. 135, 96 S.W. 967; and Bozeman v. Naff, 155 Tenn. 126, 290 S.W. 981, seems to authorize the appeal in error, notwithstanding the pendency of the cause in the circuit court as to other parties.

For the defendant in error, the executor named in the proposed will, it is contended that the right to contest the validity of the will or to resist its probate was a right personal to Jesse T. Winters, which did not survive his death, nor pass by his will or otherwise to his widow, a stranger in blood to the testatrix, Emily C. Winters, for which Ligon v. Hawkes, 110 Tenn. 514, 75 S.W. 1072, is cited.

It is next contended that the order of abatement as to Jesse T. Winters was proper and necessary, because the right of revivor is controlled by Shannon's Code (all editions) §§ 4568, 4569, 4575, which sections were construed by this court in Posey v. Posey, 113 Tenn. 588, 83 S.W. 1, as authorizing a revivor only in cases in which the cause of action survives, and requiring an order of abatement as to a deceased plaintiff in all other cases. In other words, it is contended that the holding in Ligon v. Hawkes, that the right to contest

the validity of a will is a personal right which does not survive the death of a party possessing it, and the holding in Posey v. Posey, that no action commenced can be revived unless predicated upon a cause of action which survives the death of a party, are conclusive of the correctness of the action of the circuit court herein.

We are not able to conclude that the rights of the plaintiff in error are controlled by the authorities cited.

The executor, named in the proposed will, instituted the proceeding for its probate in conformity with a duty imposed by law, which it could only avoid by renunciation of the appointment in the county court. Harris v. Trust Co., 128 Tenn. 573, 579, 162 S.W. 584, 49 L. R. A. (N. S.) 897, Ann. Cas. 1914C, 885. Notice of contest having been entered in the county court by one "interested," and the proceedings having been certified to the circuit court for trial on the issue devisavit vel non, it is required by public policy that the case proceed to a determination of that issue, and the contestants would not be permitted to withdraw or abandon the contest, over the objection of the proponent, and thereby prevent the determination of the issue. Larus v. Bank of Commerce & Trust Co., 149 Tenn. 126, 147, 148, 257 S.W. 94, citing Collins v. Collins, 125 N.C. 98, 34 S.E. 195. Nor should the proponent be permitted to withdraw or give his consent to an abandonment of the contest, and so terminate the proceeding in the circuit court save for good cause, addressed to the discretion of the court, when there has been no previous probate in the county court in common form. "Public policy demands that the court should shorten, as far as possible, litigations, lest the estate should be more or less absorbed as a result of expensive court costs and other expenses of litigation." Lillard v. Tolliver, 154 Tenn. 305, 315, 285 S.W. 576, 579.

Although the proceeding is instituted in the county court, and is certified to the circuit court after contest is entered, the proceedings in the circuit court are original and not merely appellate. The probate, after contest, is in...