Summar v. Owen , 62 Tenn. 26 ( 1873 )

Nicholson, C. J.,

delivered the opinion of the Court.

Complainants in these consolidated causes are judgment creditors of B. L. Owen, and file their bills to subject his interest in the estate of his father, Fountain Owen, deceased, to the satisfaction of their judgments. Fountain Owen died in Cannon County, in July, 1866, having made his will, which was duly proven and recorded. He was the owner of a large real estate, most of which he divided among his children by deeds executed about the time he made his will. Among his children was defendant, R. L. Owen; and to his wife for life, with remainder to the children of his son, he conveyed 250 acres of land. The deed was executed in the presence of two subscribing witnesses, who proved it soon after his death, when it was admitted to registration. Several of the children of Fountain Owen, being dissatisfied with the division of his estate, made by his will and several deeds, filed their bill in the Chancery Court at Woodbury, against R. L. Owen and his wife, and another son-in-law and his wife, alleging that it was the wish and purpose of their father to make an equal division of his estate, but that, under the undue influence of his wife, Re was induced to make his will, and the several deeds, and thereby to do injustice to a portion of his children, and praying that the will and deed be set aside, and his estate be divided equally. After this bill was filed, all the children, including the wives of his sons and his widow, except a minor daughter, entered into an arrangement, by which the will and deeds were to be set aside, advancements ascertained for the lands and other property sold, and the proceeds divided equally among them, giving to the widow a child’s part, and settling R.' L. Owen’s share on his wife and children.

This agreement was to be made the decree of the Court. It was spread upon the minutes of the Court, but no decree ratifying it, or making it the decree of the Court, was rendered. Complainants insist in their bills, that by virtue of this agreement, and its entry on the minutes of the Court, it became a decree thereof, by which the will and deeds were annulled, and that thereupon Fountain Owen’s estate descended to his children, by which means R. L. Owen became entitled to a distributive share, subject to their judgments, and that so much of the agreement and decree as settled the portion which would fall to R. L. Owen, on his wife and children, was fraudulent as against his creditors.

The Chancellor so held, excluding the deed made to R. L. Owen’s wife and children, as evidence, on the ground that it was not stamped, and also because it was not properly proved for registration. The children of' R. L. Owen were not parties to the bill filed to set aside the will and deeds, nor to the agreement for setting them aside, nor are they parties to the bills filed by complainants.

Upon these facts, did R. L. Owen have such an interest in the estate of Fountain Owen as could be reached by the bill of complainants. They are creditors of R. L. Owen, not of Fountain Owen. It was, therefore, immaterial to them whether the deed made by Fountain Owen to the wife and children of R. L. Owen was properly registered or not. But the certificate of the Clerk is in substantial conformity with the law to authorize its registration. The witnesses say that it was acknowledged by the grantor in their presence, for the purposes therein stated. This was sufficient to make it evidence in the cause. The will was properly probated and recorded, and no exception is taken to the regularity of the proceedings.

The agreement entered into by the children, except the minor daughter, was signed by the daughters-in-law, but no privy examination was had. It is clear that as to the wife and children of R. L. Owen, the agreement was a nullity, and it derives no force or efficacy from the fact that it was spread upon the minutes of the Court, nor would it have been of any more validity if it had been ratified as the decree of the Court. It shows on its face that it was signed by R. L. Owen’s wife, without her privy examination. It need not be stated that the will of Fountain Owen could not be set aside by such proceeding. It follows, that as to anything that 'appears in this, the will of Fountain Owen is yet in full force, and so also is the deed made by him' to R. L. Owen’s wife and children, and, consequently, that R. L. Owen has no interest subject to attachment.

The decree of the Chancellor is reversed, and the bills dismissed with costs.