Burris v. McConnell ( 1947 )

The original bill herein was filed by the appellees, mother and son, against the appellants, daughter and sister, for partition of a farm left the parties by the father and husband Alfred McConnell, when he died intestate in 1932.

As to whether or not the farm was divisible in kind was a controverted matter. The Chancellor determined the farm not divisible in kind and ordered a sale of the farm in two tracts. The appellant and her husband eventually became the purchasers of both tracts for $10,000. Before the order confirming the sale was entered, an order of reference was entered ordering among other things that the Clerk and Master hear proof and determine:

"What is the interest of the complainant, Mrs. Iva McConnell, in said land and what would her said interest be worth in dollars and cents based upon her life expectancy according to the Wigglesworth Mortality Table; the parties having agreed to the use of said table?"

He reported in answer to the above quoted query:

"Mrs. Iva McConnell, as shown in Item I of this report, owns a dower and life estate in this tract of land, and taking into consideration the value, $5,000.00, as shown by the proof in this cause, and according to the Carlyle Table would be $1,347.01."

On June 5, 1946, a decree was entered confirming the sale, vesting and divesting title, fixing attorney fees and adjudging costs. This decree concluded with the following paragraph:

"Upon payment of all the costs of the cause, the Master will distribute said funds in accordance with his report on reference heretofore made and confirmed."

On September 23, 1946, the parties entered into a stipulation which provides in part as follows:

"That the said Alfred McConnell left surviving him a widow, Iva McConnell, and two children, namely, William A. McConnell and Daisy McConnell Burris. That the said Iva McConnell made application, by petition, in October, 1937, to the County Court of Monroe County, Tennessee, to have said Court to set aside her homestead and dower interest in said land, and pursuant to said application the said County Court of Monroe County did, on the 21st. day of October, 1937, by Commissioners duly appointed and qualified, set apart to her as homestead the entire 104 acres of land heretofore referred to, being the land of which the said Alfred McConnell died seized and possessed on the 1st. day of October, 1932. Said Commissioners filed a report on the 21st. day of October, 1937, showing that, in their opinion, the tract of land was of less value than $1,000.00, and that they therefore allotted the whole of said tract to Iva McConnell as homestead and allotted no dower.

"The parties hereto being in disagreement as to the amount of money to be distributed in this cause to the said Iva McConnell as the cash value of her interest in said land, and the Clerk and Master having made application to the Court for instructions in the matter of calculating the cash value of said homestead and dower of the said Iva McConnell, the parties have agreed to thisstipulation of facts and to a submission to the Court of the question of the interest of the said Iva McConnell. It is agreed and stipulated that this stipulation constitutes the entirefacts necessary for the determination and adjudication of the basis upon which the homestead and dower interest of the said Iva McConnell may be calculated. It is further agreed that as a part of this stipulation the parties may rely upon, and the Court may look to, all necessary and pertinent parts of the record in this cause, particularly the portions herein referred to, and the exhibit attached to this stipulation.

"It is further stipulated and agreed that this matter may be submitted to the Court, at Chambers, in the Town of Athens, McMinn County, Tennessee, before the Honorable T.L. STEWART, Chancellor, on the 23rd day of September, 1946, at 1:00 o'clock P.M., Central Standard Time." (Italics those of the Court.)

On the day this cause was heard on the above stipulation the Chancellor entered a Chambers decree in which he found that the widow "is entitled to a life estate in the entire proceeds of the sale of said land" less costs. The amount is then calculated according to the mortality tables for one of her age and the amount fixed. A vigorous petition to rehear was filed to this decree which was denied and the cause appealed here.

Assuming that the Chancellor had authority to act and determine the cause on this stipulation he is correct in his conclusion. This question is settled by our case of Hutcheson v.Hutcheson, 176 Tenn. 468, at page 473, 143 S.W.2d 886, 887, where it is said:

"The fund realized from sale represents the land itself; itstands in place of the land. Could it be doubted that had the Authority found it necessary to acquire the whole of the 200 acre tract, the allotted homestead right of the widow would have attached to the consideration paid therefor? We think it clear that on a sale of homestead lands, where the entire fee and homestead estate are passed by deed or decree, that the whole of the fund realized from the sale represents the homestead. . . .

"In the instant case, homestead had been set apart to the widow. Code, section 8357. When assigned, it became an absolute estate for life, with right to use or sale. Carey v. Carey,163 Tenn. 486, 43 S.W.2d 498; Grier v. Canada, 119 Tenn. 17, 107 S.W. 970. Thus the whole fund realized from the sale was impressed with the widow's homestead right." (Italics those of the Court.)

This holding is based on sound reasoning. We see no reason to in any way question what is so logically herein held. This reasoning applies to the instant case with equal force.

In the case now before us the life tenant, widow, with whole property assigned to her as homestead, joined in the bill as a party complainant asking that her interest be sold and the proceeds therefrom paid to her in gross. The Chancellor granted her request. This is proper under Code, sections 9209 and 9211.

Assignment of errors III and IV are pressed with much force. They are:

"The Court erred in failing to hold that the interest of the complainant, having been adjudicated in this cause by a reference to the Master which was unexcepted to and unappealed from, and of which complainant had ample notice, was res adjudicata, could not be disturbed, and the computing of complainant's interest on the excess of the net purchase price of $5,000.00 was a clerical duty to be performed by the Master according to the principles and method already employed by him and confirmed by the Court.

"The Court erred in failing to hold that the complainant was estopped to set up any greater claim to the fund in this cause than her proportionate part as determined by the statutes and as approved by the Court in the order confirming the Master's report on reference."

We cannot agree with the propositions here stated. The Master in answering the reference found that the two children "each own a one-half undivided interest in the above described tract of land subject to the life estate, consisting of homestead and dower of Mrs. Iva McConnell, . . ." He found in answer to query three (III), as above quoted. This answer to query three (III) does not show how he arrived at the figures therein set forth. On their face they are erroneous in view of the facts here stipulated. His conclusions were based on a problematical valuation before sale. There is nothing in the report or record before us to show whether or not he knew the whole of the real estate had been assigned to her. It is definitely stipulated now that this was a fact which should be considered by the Master.

The Master was unable to determine just how he should make his computation. This being true the parties stipulated and agreed to the facts upon which this computation should be made. They agreed that the Master should have the advice of the Chancellor in making this computation, each party setting forth his theory of computation in the stipulation. As hereinbefore set forth, the Chancellor followed the correct theory under the facts which was the theory of the appellees (complainants below).

In thus acting the Chancellor was not again adjudicating something he had theretofore adjudicated at a former term. He was merely, by consent, aiding the Master in carrying out his computation. And too, it cannot be said this widow is estopped. It is true she did not aver in her bill that she owned a life estate in the whole by reason of the assignment of the land to her as homestead but the proof showed this fact as is shown by the stipulation. This being true it was the duty of the Court to make distribution according to the facts under the applicable law. It seems clear too, that the Chancellor, had the right and duty he here exercised under Code, sections 8721 and 8722. These sections are as follows:

"8721. Any court of record may, at any time within twelve months after final judgment or decree, and while the cause is still in such court, amend any clerical error, mistake in the calculation of interest, or other mistakes or omission in the judgment or decree, where there is sufficient matter apparent on the record, the papers in the cause, or entries of a presiding judge by which to amend."

"8722. Every mistake apparent on the face of the record may be corrected by the court at any term after final judgment, at the discretion of the court."

It is very obvious from what has been heretofore said that it was apparent to the Chancellor from the record and the papers on file an error had been committed. He merely rectified this from what was apparent on and in the record. Both parties were present and had notice.

For the reasons assigned all assignments are overruled and the decree below affirmed.

All concur.