Duncan v. Peebles , 28 Tenn. App. 592 ( 1945 )

I feel obliged to dissent in this case.

It is true, as the Chancellor said in his opinion, that the agreement of September 5, 1905, was inartificially drawn, but its meaning is clear. It is in the nature of a family agreement between Daniel Kurtz and his wife, Lida G. Kurtz, on the one part, and their favorite niece, Bessie Eberwine, on the other whereby Kurtz and his wife agreed that Mrs. Kurtz was to have the house and furnishings, and his stocks and bonds, and the jewels which Kurtz had given her, for her lifetime, and that on her death, "all the above are to be given in full, to have and to hold or dispose of as she may see fit to my niece Bessie Kurtz Eberwine, of Evansville, Ind., who has so lovingly helped to care for and comfort me, during my last illness." It thus appears from the instrument itself that it was made during the last illness of Daniel Kurtz and in contemplation of his death and in consideration of the services rendered by the niece at the time when both Kurtz and his wife so needed her loving care and comfort. The language used was appropriate language to vest a life estate in the property, real and personal, in Mrs. Kurtz with a remainder in fee in the niece, Bessie Eberwine. Although he had previously given the jewels to his wife, and they were hers absolutely, her joinder in the agreement was an acquiescence in the limitation of the gift to her to a life estate and a gift of the remainder interest therein to Bessie.

The Chancellor held that the agreement did not create a present gift of the property, but was merely a promise to give which was not binding because there was no consideration for it; and that he made a different disposition of it by his will. To this I cannot agree. It appears from the agreement itself that Daniel Kurtz realized that he would never recover from his illness and he was winding up his earthly affairs. There are no words indicating a promise to make a gift in the future, but a present agreement on the part of himself and his wife that Mrs. Kurtz should have the property for life and that Bessie should have the remainder interest therein. Bessie's services constituted an ample consideration for the gift. It was not necessary that the agreement should be supported by a consideration equivalent in value. The services rendered and her loving care and comfort during his illness constituted a sufficient consideration for the agreement. 12 Am. Jur., Contracts, sec. 80.

In the prevailing opinion it is said that "there is no contention that a consideration passed from the complainant to either Daniel Kurtz or his wife, Lida G. Kurtz." But as we have already shown the instrument on its face shows that it was made in consideration of the niece's loving care and comfort to Kurtz during his last illness. And the proof shows the strong bond of affection that existed between Bessie and her uncle and aunt which lasted not only during the lifetime of the uncle, but until the death of the aunt some forty years later; and of all the sisters and nephews and nieces of Daniel Kurtz mentioned in his will, this niece is the only one shown to have visited in his home or done anything for his comfort during his illness. The complainant who lived in Evansville, Indiana, made five or six long visits to them, and during her uncle's last illness she was there for three or four months hoping to nurse him and doing what she could to comfort and help in caring for him.

It is also said in the prevailing opinion that "There was no delivery, actual or constructive, of the property mentioned in the agreement of September 5, 1905." The delivery of the agreement itself was a constructive delivery of the property described in it. The agreement by its terms vested a life estate in the stocks and bonds, the real estate and the jewels in Mrs. Kurtz for life with remainder to Bessie. It is not disputed that Mrs. Kurtz had the possession and enjoyment of it during her lifetime. It was not necessary that Bessie should have possession during Mrs. Kurtz's lifetime.

"The possession of the life tenant is the possession of the remainderman where a legacy is to one for life with remainder to another. Voluntary distribution of a chattel for life also inures to the benefit of the remainderman, so that upon the termination of the life estate the title and right to possession vest absolutely in the remainderman without any action on the part of the executor or administrator." 33 Am. Jur., Life Estates, Remainders, etc., sec. 221.

Notwithstanding the provisions of her husband's will in her favor, Mrs. Kurtz recognized Bessie's rights under the agreement and reaffirmed it years later after her marriage to Billingsley. Mrs. Duncan was not entitled to the property during Mrs. Billingsley's lifetime but was entitled to it immediately after her death and asserted her claim thereto promptly after her death.

It is said in the majority opinion that Daniel Kurtz's interpretation of the agreement was not that Bessie had a vested remainder interest in the property because he remained in possession and control until his death and by his will left the property in fee to his wife and made another provision for the complainant. This is to say that he ignored entirely the solemn agreement that he and his wife made after the execution of the will and expressly for the complainant's benefit. I find nothing in the record to support the statement that he had possession or exercised any control over the property after the execution of the agreement. The will was not effective as to this property because it was not a part of the testator's estate at the time of his death, and the bequest to Mrs. Kurtz was revoked by the agreement. 68 C.J., Wills, sec. 543; 28 R.C.L. Wills, secs. 341, 343. As said by Chancellor Kent in Re Sprague's Estate 125 Mich. 357, 84 N.W. 293, 295: "The cases have been investigated and discussed with the utmost research and ability by the courts of law and equity, and the principle against and again recognized and confirmed that, by a conveyance of the estate devised, the will was revoked, because the estate was altered, though the testator took it back by the same instrument, or by a declaration of uses. The revocation is upon the technical ground that the estate has been altered or newly modeled since the execution of the will. The rule has been carried so far that, if the testator suffered a recovery for the purpose of confirming the will, it was still a revocation, for there was not a continuance of the same unaltered interest."

But even granting that the will was effective, even though it antedated the agreement, complainant's rights were not destroyed thereby because Mrs. Kurtz was a party to the agreement and agreed to accept a life interest only in the stocks and bonds which were given her absolutely in the will, as well as in the jewels which her husband had given her, and had agreed that complainant should have the remainder interest therein.

But it is said that the parties are bound by the interpretation which they themselves placed upon the agreement, and that Mrs. Billingsley understood that she had an absolute title as indicated by the fact that she conveyed the real estate to her second husband, though she obtained a reconveyance of it, and disposed of some of the bonds in her lifetime, and made a different disposition of some of the jewels in her will, and that Mrs. Duncan acquiesced in this construction of the agreement. I find no proof in the record that Mrs. Duncan acquiesced in Mrs. Billingsley's conveyance of the real estate or bonds, or in her bequest of a part of the jewels. So far as appears Mrs. Duncan had no knowledge of her aunt's conveyance or the sale of the bonds. It does appear that in some way it was brought to Mrs. Billingsley's attention that Bessie was asserting her rights under the agreement, and this is doubtless the reason why she obtained a reconveyance of the real estate from her husband; and she explained that "George" had stolen seven of the water bonds, and assured Bessie that she would get the real estate back and will it to her.

Mrs. Duncan is not to be held to have acquiesced in these transactions about which she knew nothing until after they had occurred.

Mrs. Duncan had the right to require her aunt to give security for the delivery of the property in which she had a remainder interest, but she is not to be held to have waived her rights in the property which remained in her possession at the time of her death. The courts are anxious to safeguard the rights of holders of future interests in personalty, and where the property is of a liquid nature security will be required. 33 Am. Jur. sec. 223; Barmore v. Gilbert, 151 Ga. 260, 106 S.E. 269, 14 A.L.R. 1060 and note at page 1066 et seq.; Cook v. Collier (Tenn. Ch. App.), 2 S.W. 658; 101 A.L.R. 266 and note at page 271 et seq.

The complainant has not sued to recover from the estate the value of the property which her aunt had disposed of in her lifetime, or even the diamond ring which she bequeathed to her niece Mary Lee Billingsley under the fourth item of her will; she merely sues to recover the property which remained in her aunt's possession at the time of her death, namely, the household goods, etc., in the house on Pontotoc Street the State Savings Bank stock and the jewelry, all of which rightfully belonged to her under the 1905 agreement. Under the holding in the case of Cook v. Collier, supra, I think she would have been entitled to maintain her action against the executor for the value of all of the stocks and bonds which came into her aunt's possession, and to have delivered to her the household goods and the bank stock and jewelry on hand at the time of her aunt's death.

As I see it, complainant's rights are determined by the question whether the agreement of September, 1905, was a valid and binding agreement. If it was a valid agreement the residence and the stocks and bonds were not a part of the Daniel Kurtz estate and she was not estopped by her acceptance of the legacy of $2,000 left her under his will. There is nothing in the record to indicate that the provision made for her under the agreement was in lieu of the bequest to her under his will. She was therefore not required to elect whether she would claim under the agreement or under his will, and the question of estoppel does not arise.

The devise of the Pontotoc Street place to complainant under the will of Mrs. Billingsley is not inconsistent with her rights to it under the agreement, but was in furtherance of it; so the complainant was not required to elect whether she would claim the place under the will or under the agreement. As I view it, the question of estoppel does not arise in the case. Mrs. Duncan is not attempting to defeat any other provisions of the will by the acceptance of the devise of the real estate; she is merely asserting her right to the property in which Mrs. Billingsley had only a life estate and which could not pass to the residuary legatee under her will.

The court in the prevailing opinion did not pass upon the appellant's eleventh assignment of error which was based upon the action of the Chancellor in excluding the testimony of complainant as to the genuineness of the signature of Daniel Kurtz and Lida G. Kurtz to the agreement of September 5, 1905. This testimony was competent. The question of the genuineness of these signatures relates to an independent fact and not to a conversation or transaction with the decedents, so the provisions of section 9780 of the Code have no application. Klein v. York,149 Tenn. 81, 257 S.W. 861, 31 A.L.R. 452; Minnis v. Abrams,105 Tenn. 662, 58 S.W. 645, 80 Am. St. Rep. 913. The genuineness of these signatures is not denied by a plea of non est factum on this appeal, so the question may not now be material; but such a plea might be filed in the event of a remand of the case; and in such event the complainant should not be bound by what seems to me to have been a clearly erroneous ruling of the chancellor on this trial.

For the reasons stated I respectfully dissent from the conclusion reached by the majority. In my opinion the agreement of September, 1905, was a valid and binding agreement and the decree of the Chancellor should have been reversed and a decree rendered here in favor of complainant at the cost of the executor.