Wright v. Eakin

• Decision Date: 18 April 1925
• Citation: 270 S.W. 992,151 Tenn. 681
• Parties: WRIGHT v. EAKIN ET AL.
• Court: Tennessee Supreme Court

270 S.W. 992

151 Tenn. 681

WRIGHT v. EAKIN ET AL.

Supreme Court of Tennessee.

April 18, 1925

Certiorari to Court of Civil Appeals.

Bill by George J. Wright against Mrs. Elizabeth R. Eakin and others. The chancellor's decree was affirmed in all but one particular, and complainant and certain defendants bring certiorari. Writ denied in each case.

A. G Ewing, Jr., and Baxter Cato, both of Nashville, for Wright.

Bass Berry & Sims, of Nashville, for Mrs. Eakin.

GREEN C.J.

Ann P Trabue died in 1894, the owner of certain real estate in Nashville. She was supposed to be intestate, and left surviving her husband, Henry Trabue, and a daughter, Ann Porterfield Trabue. Henry Trabue died March 27, 1902. Meanwhile Ann Porterfield Trabue had married one Robert Meeks. In 1905 Ann Porterfield Trabue and her husband, Robert Meeks, conveyed the real estate formerly owned by Ann P Trabue to Lusky & Lowenheim for a valuable consideration. By mesne conveyances said land became the property of Mrs. Elizabeth R. Eakin, and on October 11, 1911, Mrs. Eakin conveyed said land to complainant George J. Wright by warranty deed for the sum of $1,300.

As heretofore stated, all parties supposed that Ann P. Trabue had died intestate. Many years after her mother's death, Ann Porterfield Trabue seems to have found a will executed by her mother March 9, 1891, duly witnessed. This will was discovered in a box at the Union Bank & Trust Company under circumstances that are not made clear on this record. By the will all the property of Ann P. Trabue was given to Ann Porterfield Trabue for life, and at her death "to the heirs of her body then living." It was further provided that, if Ann Porterfield Trabue died without leaving bodily heirs, the remainder should go to the heirs of the body of one Sam Mason. This will was probated by Ann Porterfield Trabue August 26, 1913. There were born to Ann Porterfield Trabue during her marriage to Robert Meeks two children, still minors. Robert Meeks died, and Ann Porterfield Trabue later became the wife of one Seymour, by whom, however, she has no children.

From the foregoing statements it will be noted that the will of Ann P. Trabue was not probated until 19 years after her death; that 11 years after the death of Ann P. Trabue, nothing having transpired to remove the presumption of intestacy, her heir at law conveyed the real estate involved to an innocent purchaser, and the present complainant became an innocent purchaser of said land 17 years after the death of Ann P. Trabue, nothing still having transpired to remove the presumtion of her intestacy.

This bill was filed by the complainant. Wright, setting out the probate of the will of Ann P. Trabue in 1913, and averring upon information that it was the intention of the Meeks children, upon the death of their mother Ann Porterfield Seymour, to bring suit to recover the remainder interest in said real estate devised to them by the will of their grandmother, Ann P. Trabue. The bill prayed that the complainant be decreed to hold said land as an innocent purchaser, free from the claims of said Meeks children, and that said claims be removed as a cloud upon his title, or, in the alternative, if the relief first prayed was not possible, that the complainant be decreed a recovery against Mrs. Eakin upon the covenants in his deed.

To this bill Mrs. Eakin, Ann Porterfield Seymour, her Meeks children, and the unknown heirs of the body of Sam Mason were made parties. A demurrer was interposed by Mrs. Eakin, a guardian ad litem was appointed, and filed a formal answer for the Meeks children, and a pro confesso was taken against Ann Porterfield Seymour and her husband and against the unknown heirs of the body of Sam Mason. Upon the hearing the chancellor sustained the demurrer of Mrs. Eakin, and later upon a further hearing dismissed the entire bill, without any proof taken, and permitted the guardian ad litem to take an appeal.

The Court of Civil Appeal affirmed the decree of the chancellor in all particulars, except that it held that the chancellor erroneously decreed against the Meeks children without proof taken. The case was accordingly remanded for proof before final decree as to them.

The case is here upon petition for certiorari of the guardian ad litem of the Meeks children, and upon petition for certiorari of complainant Wright. Wright questions the action of the Court of Civil Appeals in taxing him with costs.

The serious question is the one presented by the petition of the guardian ad litem. Are the rights of an innocent purchaser from the heir of Ann P. Trabue superior to those of the remaindermen under her will, filed for probate after the land was acquired by an innocent purchaser?

In many of our cases, which it is not necessary to review, it is said that a will speaks for the death of the testator, although it be not probated until a much later date. In none of these cases, however, were the rights of an innocent purchaser, who bought from the heir between the death of the ancestor and the probate of the will, involved.

The exact question here presented appears not to have arisen previously in this jurisdiction. Analogy and principle, however, compel a conclusion in favor of the innocent purchaser under such circumstances.

In Pinkerton v. Walker et al., 4 Tenn. (3 Hayw.) 221, an administrator was qualified under the supposition that the deceased was intestate. The administrator sold the slaves of the deceased, and later it was found that deceased left a will, and this will was probated. A controversy arose between the purchasers of the slaves and those entitled to them under the will. This court said:

"As to those defendants who are vendees of the personal estate, or part of it, claimed by the plaintiffs, they ought to be protected; if letters of administration were granted by the county court of Wilson to the widow of Mitchel, * * * and if the purchases were made from her and her husband, after the date of them, all acts done under such letters between their date and the

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