Alexander v. Kelso

62 Tenn. 311

• Court: Tennessee Supreme Court
• Decided: December 15, 1874
• Status: Published

Opinion

Nicholson, C. J.,

delivered the opinion of the Court.

Complainants are creditors of Henry Kelso, who died in September, 1868, and on whose estate J. D. Til-man administered in January, 1869. Some time before his death Henry Kelso loaned to J. C. Kelso, his nephew, three or four thousand dollars in gold, to be used for an indefinite time, and if not returned before Henry Kelso’s death, then to be paid over to his widow. At the time this loan was made, Henry Eelso was heavily indebted, probably to insolvency. After the death of Henry Eelso, and before any administration on his estate, J. C. Eelso paid over to the widow of Henry Eelso about $4,100, in pursuance of his agreement; he paid, also, $300 to Jefferson Eelso, on a note of Henry Eelso, on which J. C. Eelso was surety.

In 1871, 'W. M. Alexander brought suit in the Circuit Court of Lincoln County against J. C. Eelso, to make him responsible as executor de son tort of Henry Eelso, by reason of his having paid over the $4,100 to the widow and the $300 to Jefferson Eelso. Upon the trial of the cause, under the charge of the Circuit Judge, the jury found that J. C. Eelso was not executor de son tort. Alexander appealed to the Supreme Court, and while the cause was pending in that Court, Tilman, as administrator of Henry Eelso, and J. C. Eelso, entered into a compromise, by which J. C. Eelso agreed to pay to Tilman $1,500 in the event he gained the case in the Supreme Court, and Tilman agreed, for that consideration, to release him from further liability to Henry Eelso’s * estate.

The Supreme Court affirmed the judgment of the Circuit Court, whereupon Alexander, and other creditors of Henry Eelso, filed this bill against J. C. Eelso and T. D. Tillman, to set aside the compromise made between them, alleging that it was fraudulent in law, if not in fact, and seeking a decree against J. C. for the amount of money borrowed of Henry Eelso, but asking no decree against Tilman. Chancellor Marks held that complainants were without equity, and dismissed their bill.

Tilman was required to answer on oath as to the compromise made with J. C. Kelso; he did so, state-ing that he had no knowledge or information of the transaction between J. C. and Henry Kelso, or of the payment of the $4,100 to the widow of Henry Kelso, until the facts were disclosed in the suit of Alexander, in 1874. After the case had been decided against Alexander, and was pending in the Supreme Court, he was satisfied it was prudent in him to make the compromise, as he had no means of the estate to carry on an expensive suit,. and he believed there was real doubt as to his ability to make J. C. Kelso liable. He fully acquits himself of any imputation of fraud or improper conduct in making the compromise. Ho doubt can be entertained as to his right to compromise a doubtful case, and in that way to promote the interest of his estate. If Tilman had the power to make the compromise, it would operate as a release of J. C. Kelso from further liability to the estate, unless it should appear that it was procured by fraudulent means.

lYe concur with the Chancellor in the conclusion that the complainants have failed to make out such a case of fraud as entitles them to relief. The decree is, therefore, affirmed, with costs.