Acuff v. Daniel

387 S.W.2d 796, 215 Tenn. 520, 19 McCanless 520, 1965 Tenn. LEXIS 629
CourtTennessee Supreme Court
DecidedMarch 4, 1965
StatusPublished
Cited by8 cases

This text of 387 S.W.2d 796 (Acuff v. Daniel) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acuff v. Daniel, 387 S.W.2d 796, 215 Tenn. 520, 19 McCanless 520, 1965 Tenn. LEXIS 629 (Tenn. 1965).

Opinion

Mr. Chief Justice Burnett

delivered the opinion of the Court.

The bill in this cause was filed by the appellants, Basil Acuff and others, seeking a declaratory' judgment as to the validity of the widow’s year’s support set apart to G-race Acuff, widow of Prior H. Acuff, deceased, by the Commissioners appointed by the County Court of Grainger County, Tennessee. The appellants are the children of Prior H. Acuff by a former marriage, which was terminated by the death of their mother. The ap-pellees are the children of Prior H. Acuff and Grace Acuff. Grace Acuff died on January 1, 1964, without having been paid to her the amount of the award allotted to her by the Commissioners for a widow’s year’s support. After her death, she having previously qualified as Administratrix of Prior H. Acuff’s estate, Creed A. Daniel was appointed Administrator de bonis non of the estate of Prior H. Acuff.

Prior H. Acuff died testate in Grainger County, Tennessee, on June 4,1963, leaving a holographic will with no [522]*522personal representative nominated or designated. Grace Acuff qualified as Administratrix with the will annexed on June 7, 1963. The decedent left a granddaughter one dollar and gave the remainder of his estate to his widow and six' children equally. This estate consisted of 185 acres of land, located in Grainger County, and' several promissory notes, the unpaid balance of which was in the aggregate of eighty-four hundred ($8400.00) dollars, and certain other inconsequential tangible personal property. Subsequent to the appointment of Grace Acuff as Ad-ministratrix, she dissented from the will of the deceased and applied for the appointment of the Commissioners to allot her a widow’s year’s support. These Commissioners were duly appointed by the Judge of the County Court having jurisdiction of the matter, and they in turn made the necessary investigation and filed their report which was approved by the court on September 16, 1963, in which they said insofar as is here pertinent:

“No cash on hands, but do have $8400.00 in notes. We alot to her $4500.00 to be paid to her when collected in.”

Prior to the death of Grace Acuff on January 1, 1964, and subsequent to the Commissioner’s report, above referred to, she had collected certain notes and rents in excess of .$3,000.00 and had only paid out thirty odd dollars of this sum for expenses. She never paid to herself any part of the widow’s year’s support under this award. After her death the appellee, Creed A. Daniel, was appointed Administrator, as above set forth, on January 22, 1964. This action was filed on May 18, 1964, or some eight months after the Commissioners had made their report allotting the award in the figures and language above quoted. No exception, protest or appeal, or anything'else, was taken to the report of the Commissioners [523]*523in the action in which, their report was made. No complaint thereof was registered by anyone until the present action was filed, even though this report was approved by the County Judge in September, 1963, and was spread upon the minutes of that court at that time.

On August 13, 1964, the Chancellor found that the Commissioners improperly set aside the year’s support, but even though they were incorrect in the way it was done their act was not void but voidable and that the bill in this cause is in the nature of a collateral attack on this report and the report cannot be disturbed. It was from such a holding that this appeal has been perfected, briefed, and ably argued before this Court.

There is one assignment of error, which is that the Chancellor erred in holding that the report was voidable and not void and could not be disturbed by declaratory judgment because it is argued that the report of the Commissioners is in contravention of the statute providing for a year’s support, and it is therefore a nullity and utterly void and unenforcible.

The widow of an intestate or a widow who dissents from her husband’s will is entitled to a year’s support out of properties pursuant to the language of sec. 30-802, TO A, which in effect provides that upon her application Commissioners shall be appointed, sworn to act impartially and “shall set apart so much of the crop, stock, provisions, moneys on hand or due, or other assets, as may be necessary for the support of such widow and her family until the expiration of one (1) year after the decease of her husband.”

The argument, of course, here is that the Commissioners making the year’s support in the language used [524]*524by them, “no cash on bands, bnt do have $8400.00 in notes. We alot to ber $4500.00 to be paid to ber when collected in” is contrary to tbe language just quoted from tbis statute, and it shows on its face that tbe allotment was not on band and was not set apart to tbis widow out of “moneys due” and was not out of specific notes or obligations. It is said, as is true, that these Commissioners derived their authority from tbis statute and cannot go beyond its provisions, tbe argument being that when they do so their action is a mere nullity. Tbe very able and proper argument is made that tbe reason such an award is a nullity is that tbe award must be of specific identifiable personal property and cannot be set aside in cash in such form that tbe personal representative of tbe deceased spouse’s estate is burdened with collecting and paying tbe allowance tbe same as a claim against or a debt of tbe estate, and that tbe report of tbe Commissioners must be in such a form that tbe allowance or award can be physically and presently delivered or paid to tbe widow. In support of such an argument Pritchard on Wills and Administration of Estates, 3rd Ed., Phillips, sec. 636, page 508, and the cases of Bayless v. Bayless, 44 Tenn. 359; Rocco v. Cicalla, Admr., 59 Tenn. 508, 509; and Crenshaw v. Moore, 124 Tenn. 528, 137 S.W. 924, are cited.

Tbis certainly is tbe correct reasoning under tbis statute, but it must be remembered that these statutory provisions must be, and are, liberally construed in favor of the right of tbe widow, and a strict construction will not be enforced to defeat a year’s support. Rhea v. Greer, 86 Tenn. 59, 5 S.W. 595; Graham v. Stull, 92 Tenn. 673, 22 S.W. 738, 21 L.R.A. 241, and others that may be found by Shepardizing these cases. Tbe language used by tbe Commissioners and tbe requirement of them to make [525]*525the award more definite do not make sneh an award void, bnt make it voidable only. Of coarse, if tbe judgment was void, that is, acquired in a court that did not have jurisdiction to enter the award, or for other reasons, then such a judgment has no validity anywhere and could be attacked collaterally, or in the case wherein such judgment was rendered. A void judgment is a dead limb upon a judicial tree, which may be cut off at any time, but when it is not thus void but is voidable a collateral attack may not be had upon said judgment. This Court in Mullens v. Mullens, 161 Tenn. 165, 29 S.W.2d 261, held that the action of the County Court cannot be challenged by collateral attack except upon the showing of jurisdictional defects on the face of the record, such as would of themselves render the proceeding void. Mr. Freeman in his work on Judgments, Yol. 1, 5th Ed., at page 743, makes this very pertinent statement:

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Bluebook (online)
387 S.W.2d 796, 215 Tenn. 520, 19 McCanless 520, 1965 Tenn. LEXIS 629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acuff-v-daniel-tenn-1965.