Brown v. Brown

86 Tenn. 277

Opinions

M. M. Reil,

Footnotes

•

* Sp. J.

In June, 1858, John Brown died in Maury County, leaving a widow and two children, a son and daughter, surviving him. He was the owner of a very large estate. Tie left a will, which was duly probated in July, 1858. After providing for the payment of his debts, the comfort of his widow, and the maintenance of his children during the minority of his son, this will proceeds:

“ Item 4. Upon the coming of age of my son, and after the division and allotment to my wife, as aforesaid, shall have taken place, I will and direct that the residue of my real and personal estate be equally divided between my two children.

* * ■ * * * * * * * *

“Item 5. I will and direct that the property, real and personal, which my children shall take tinder this will shall, upon the death of either of them without leaving a child or children, or the issue of such child or children, living at his or her death, go to the survivor of them; and should both of my children die without leaving a child or children living at their death, then, and in that event, I direct that the property given to them as hereinbefore provided, embracing that which they may get as survivor, shall go over to and be equally divided among the children of my deceased sister, Elizabeth Stewart,, and of my brother, Hamilton Brown, taking per capita; and in case any of said children should be dead, but leaving children then living, such child or children shall represent the deceased parent, and take such interest as said parent would have taken if alive.”

The controversy arises on these two items.

Testator’s daughter died in 1858 without issue. March 1st, 1878, testator’s son, John P. Brown, filed his original bill in the Chancery Court of Maury County, asking a construction of the said fourth and fifth' items of his father’s will, insisting that the limitations over, contingent upon the death of his sister and himself without issue living at that time, were void, and claiming the whole estate. This bill was filed against H. A. Brown and his two children, Thomas and Hamilton, citizens of Maury County, and James Stewart, Jane Collett, Ann Pointer, and others, the children and grandchildren of Elizabeth Stewart, deceased. H. A. Brown is the son of Hamilton Brown, mentioned in the fifth item of the will. Process was issued and served upon him and his two children. Publication was made for the non-residents, save two omitted by mistake. II. A. Brown answered the bill, raising a single issue, denying the construction placed upon. the will by the bill, insisting that the limitations over were valid. Guardian ad litem was appointed for Thomas and Hamilton Brown, and he answered, making the same issue. An order was entered purporting to appoint a guardian ad litem for all such of the non-resident defendants as might he minors, hut no names of such were given in that order. The guardian ad litem so appointed filed his answer making the same issue. An order was entered directing judgment fro confesso against all the non-resident defendants save such as might he minors.

In this state of the pleadings the cause came on for hearing, and the Chancellor decreed in defendant’s favor, construing the fifth item of the will as creating a valid executory devise in favor of the children of Elizabeth Stewart and Hamilton Brown, and dismissed the bill. The complainant, John P. Brown, appealed to this Court. This was in Uo-vember, 1878. Pending this appeal, the General Assembly passed the Act of March 25th, 1879,'en-titled “An act to relieve the dockets of the Supreme Court of Tennessee of the great number of cases now encumbering them, and for the appointment of a special commission,” commonly known as the Commission Court. On the first Monday in October, 1879, this cause was heard before the Commission Court, and held under advisement until 'the 20th of January, 1880, on which day a decree was rendered by that Court, whereby the decree of the Chancellor was declared to be erroneous, and was reversed. The decree of the Commission Court set forth and construed the fifth item of the will, and declared void the executory devises of that item to the children of Elizabeth Stewart and Hamilton Brown, and adjudged the complainant, John P. Brown, to he the absolute owner in fee-simple of all the property and estate devised and bequeathed by the will to himself and his sister. This decree was certified by the Commission Court to this Court for approval, and was approved in ordinary course as other causes certified from that tribunal.

Pending this suit John P. Brown married, and one child was born to him. This child died in October, 188L On the first day of January, 1882, John P. Brown died without issue living at his death, but leaving surviving him his wife, Maggie C. Brown. He left a will under which his widow and his nephew, Hoy Alexander, and his niece, Mamie Cole, are claiming the estate; and in this will Wiley J. Embry was nominated executor, and was duly qualified; and all these parties are properly represented in the record. It is not necessary to the settlement of the questions arising in this cause to notice the will of John P. Brown -in terms more particular.

On the 9th day of March, 1882, J. T. Stewart, and all others entitled in the Elizabth Stewart interest, presented their petition to this Court, in which, along with other grounds of relief not necessary now to notice, they sought to have the decree of January 20th, 1880, opened under the provisions of the Code, §§ 4379-4381 (New Code, §§ 5122-5124), providing for a three years’ saving in behalf of non-resident defendants not served with process. This application was refused, on the ground that the granting such relief in that form would involve the .exercise of original jurisdiction; and it was further held that the redress secured by these provisions should be sought in the Court of original jurisdiction.

At the April term, 1882, of the Chancery Court of Maury County these same parties presented their petition to that Court, reciting the foregoing facts, and others not now necessary to notice, insisting that, under a proper construction of the said fifth item of the will, they were entitled to the estate, and asking to have the decree opened under the sections of the Code above cited, and accompanied the petition with bond for costs, and prayed leave of the Court to file it. Thereupon, the Court ordered the .petition, exhibits, and bond to be filed, subject to all lawful defenses and exceptions, including the right of the persons made defendants thereto to move the Court to take the petition from the files; and further ordered that process issue, as prayed for in the petition, against Wiley J. Embry, executor of John P. Brown, Maggie C. Brown, his widow, the nephew, Roy Alexander, and his guardian, E. IT. Hatcher, and likewise against Mamie Cole, returnable on the first Monday in October, 1882, that being the first day of the next ensuing term.

The petition was filed on the 27th day of April, 1882, and the process was duly issued and executed. At the October term, 1882, Wiley J. Embry, ex- editor, Maggie C. Brown, and E. II. Hateher, guardian, moved tlie Court to strike the petition from the files. This motion was sustained by the Chancellor. The petition was accordingly stricken from the files of the Court. The petitioners prayed an appeal to this Court. The cause was tried before the Referees. Their report was filed May 4th, 1885. Both sides exeept, and the whole case is open.

The sections of the Code under which the questions made in this case arise are as follows. After providing for suits brought by attachments of property, the Code proceeds:

“ Section 4379. In all other cases a decree against a defendant, without personal service of process, who does not appear to defend, is not absolute for three years from the decree, unless a copy of the decree is served upon the defendant, in which case it becomes absolute if the defendant fails to come forward and make defense within six months after service.”

Section 4380 is not important in the present inquiry.

“ Section 4381. The original defendant, his heir, representative, or assignee, claiming under him by virtue of any act done before the commencement of the suit, may, within six months after service of a copy of the decree, or. within three years after the decree, be admitted to answer the bill, upon petition showing merits and giving security for the payment of costs; and witnesses on both sides may be examined, and such other proceedings may be had thereon as if the cause were then newly begun.”

Many grounds were assigned in support of the motion to dismiss in the Chancery Court, and the same grounds are relied on here. Leaving out of view for the present the fourth and seventh ground, the others may be summarized as follows: That a final decree having been rendered in this cause in the Chancery Court in November, 1878, and appeal having been prosecuted to the Supreme Court, and final decree entered in the Supreme Court, there was and could be, when the petition was filed, no such cause in the Chancery Court as John P. Brown v. H. A. Brown et al. — this cause — and that this petition was unknown to the forms of law; that the petition was an effort to re-instate or rehear a cause finally disposed of both in the Chancery and Supreme Courts; that it was an effort to review the decision of the Supreme Court on a question of law; that the decree of the Supreme Court was a decision on the merits, and a final adjudication between the parties in matters both of law and fact, and could not be again inquired into in this form; that the petition failed to show any other or additional fact not fully passed upon and adjudicated already by both the Chancery Coui-t and the Supreme Court; that the petition was an effort to attack the decision of the Supreme Court, and this could only be done by original bill; that being professedly a proceeding under §§ 4379-4882 of the Code, the petition should be accompanied by an answer showing merits, and that not being so accompanied the omission was fatal; that the petition was not filed in time, more than three years having elapsed since the final decree in the Chancery Court.

"We are of opinion that, although a final decree had been entered in this cause in the Chancery Court more than three years before the presentation of the petition, and an appeal had been prosecuted by the complainant from that decree to the Supreme Court, and judgment final had passed in the Supreme Court, the petition was properly presented to the Chancery Court within three years of the final decree in the Supreme Court. We reaffirm the ruling heretofore made when the petition was presented to this Court: That to allow a petition under these sections of the Code to be presented to this Court would be to invoke the exercise of original jurisdiction by this Court, whereas it has only appellate jurisdiction. 6 Bax., 95; 9 Lea, 21. Hence, if the non-resident has no remedy in the infei’ior Court, the statute would be a dead letter, for the reason that the resident litigant could, by appealing to this Court, always place the decree in a condition, where it could not be disturbed. He could reply to the non-resident’s application: “You have no standing in the Supreme Court, because that Court cannot exercise original jurisdiction; you have no standing in the Chancery Court, because the decree is vacated by the appeal, and there is nothing there to act upon.” The statute offers substantial relief to persons who need protection — defendants who have not been served with process — and we are of opinion that it cannot be whittled away in this fashion.

Nor is it in any aspect an effort to review the action of the Supreme Court. It is not a proceeding for the correction of errors in any sense. But where the case provided for in the statute is made out, then the condition that by operation of law inheres in every decree against non-residents not served with process and not legally appearing in the cause, emerges; and where a petition in proper form is presented to the proper court, and contains the averments required by the section of the Code referred to, a way is at once opened for the judicial ascertainment of the status which renders the decree null by reason of the infirmity that inheres in it through the implied condition imposed by law; and where the Court adjudges that the petition is in proper form, and contains the matters of substance required by the sections named, then, by the allowance of its unconditional filing, ex vigore 'statuti, the decree before entered is annulled, and the original status is restored.

Nor do we think it necessary that the petition should be accompanied by an answer. The language of the statute is that the non-resident “may be admitted to answer the bill upon petition showing merits and giving security for the payment of costs.” He is first to acquire his status by the presentation of a petition, and if tlie petition shall he adjudged good and sufficient, then he is admitted to answer.

The fourth ground presents the point that the original hill was a suit against a class of persons having a common right of defense, and that a decree against the representatives of the class before the Court would he binding on the whole class; and hence that the case would not fall under the sections of the Code cited. Not deciding the point that such a case would or would not, as to the non-residents, fall under the statute, on inspection of the original hill we find that the persons made defendants therein are not proceeded against as a class of persons. This is indispensable in order to invoice the operation of the chancery rule on that subject: “Where it is attempted to proceed against two or three individuals as representing a numerous class, it must be alleged that the suit is brought against them in that character.” Lanchester v. Thompson, 5 Madd. Ch. Rep., 15, 16. In the case at bar the defendants were proceeded against individually under the license given in subsections 1, 4, and 5 of Section 4352 of the Code, and no attempt whatever was made to fix upon any of them a representative character, either within the letter or spii’it of the chancery rule.

The seventh ground assigned for dismissing the petition makes the point that the petition shows no merits. This necessitates a construction of the fourth and fifth items of the will above quoted. We are of opinion that by the terms of these items of the will the testator intended to give to his son, John P. Brown, and to his daughter, each, one-half of his estate in fee, hut on the death of either without issue then living, then to the survivor in fee; and on the death of such survivor without issue living at his or her death, then per capita to the children of Hamilton Brown and Elizabeth Stewart; and in case any of said children of Hamilton Brown or Elizabeth Stewart should at that time be dead, leaving children, then such last' mentioned children to represent their immediate ancestor, and take the estate such immediate ancestor would have taken in case he or she had survived testator’s son and daughter.

It is insisted that this operates to create a perpetuity; that it is, in effect, a devise to the “unborn child of an unborn child,” or may, per possibility, result in that, and hence is void. We concede the point that for the purposes of this construction the will must be looked to as matters stood at the dea/th of testator, when it went into effect, and that subsequent evénts cannot he noticed in aid of the construction; and that if, on a fair construction of the will as matters then stood, it is open to the legal possibility of producing a result violative of the settled policy of the law, it must he declared void. It is conceded that a devise eo nomine, to the “unborn son of an unborn son,” would he void for remoteness, and he in violation of .the rule against perpetuities. It is con tended, liowever, that although there he no such devise" in terms, yet if such a result may happen under the provisions of the will, then the will is void, as violative of the law against perpetuities. It is conceded that such a result might happen under this will; as, that Hamilton Brown might have a son after the death of testator, and that son might have a son who would be living at the death of the survivor of the first taker without issue then living, and that if this last-mentioned son should take under the will, then that would be the case of an unborn son of an unborn son taking the devise.

The misapprehension arising out of this circumstance will be cleared up by a consideration of the rule that “a devise to the unborn son of an unborn son is invalid” in connection with the broad general rule governing this class of inquiries, wherein it will be seen that the rule just quoted presents but a particular aspect, as it were, of the general rule, and -is, so to say, but a corollary of it.

“To constitute a valid executory devise, the contingency upon which it is to take effect must occur within a life or lives in being and twenty-one years and a fraction of a year afterward.” Booker v. Booker, 5 Hum., 508; 4 Kent, 295 and 317; 1 Jarmon on Wills, 518; 2 Redfield on Wills, 845; 1 Wash. on Real Prop., p. 97, Sec.- 57.

This is the fundamental and controlling rule underlying the doctrine against perpetuities, and is to be applied to the will at the death of testator; and if at that time the devise shall be too remote, it is fatal, and the limitation over is void. 2 Wash, on Real Prop., 676, 678; 2 Redfield on Wills, 849; 1 Jarmon on Wills, 519; Barnum v. Barnum, 26 Md., 119; 90 Am. Dec., 95.

Mr. ' Washburn e says: “As will be shown hereafter, it has become an imperative and unyielding rule of law * * * that no estate can be given to the unborn child of an unborn child.” 1 Wash, on Real Prop., p. 97, Sec. 57. “The rule already mentioned is one of universal application that a limitation to the issue of an unborn person would be, under all circumstances, too remote, and void if he is to take as a purchaser.” 2 Wash., p. 667, Sec. 8.

This rule is laid down strongly also in Brudenell v. Elwes, 1 East, 452, 454; Jackson v. Brown, 13 Wend., 442, 443; and see 2 Wash., 539; and, thus broadly enunciated, seems to sustain .complainant’s contention. But we apprehend there is a distinction. Lord Kenyon, who delivered the opinion in Brudenell v. Elwes, said in Long v. Blackwell, 7 Term Rep., 102: “ It is an established rule that an executory devise is good if it must necessarily fiap: pen within a life or lives in being and twenty-one years and the fraction of another year, allowing for the period of gestation.” In Wilkinson v. South, 7 Term Rep., 558, the same learned Judge again says: “ The rule respecting executory devises is extremely well settled, and a limitation by way of executory devise is good if it must take place after a life or lives in being and within twenty-one years and the fraction of another year after-wards.” And see Cadell v. Palmer, 10 Bing., 147.

“Indeed, it is clear, from Cadell v. Palmer, that even a long succession of estates for life to unborn persons and-their issue is valid, if subjected to the restriction that in order to take they must come into existence during lives in being and twenty-one years afterward.” 1 Jarmon on Wills, 548.

“ It seems to be settled that a devise to an unborn person will be valid if the will provides that in order to take they must come into being during the continuance of lives in existence and twenty-one years.” 2 Bedfield on Wills, 850, Sec. 19.

“Whatever may be the number of limitations after the first executory devise or limitation by deed by way of springing or shifting uses of the whole interest, any one of them which is so limited that it must take effect, if at all, within twenty-one years after the period of a life then in being, may be good'in event that no one of the preceding executory limitations which would carry the whole interest happens to vest.” ‘ 2 Washburn on HettL Prop., 354 (margin).

In the case of Coster v. Lorillard, 5 Paige, 172, the devises were of this character: “To trustees in fee, in trust to receive the rents and profits, and pay over and divide the same equally between twelve nephews and nieces, and the survivors and survivor of them, during their lives, respectively; and after the death of all the testator’s nephews and nieces, remainder in fee to tire children of the twelve nephews and nieces living, and to the children of such as may then he dead, per stirpes.”

Chancellor Kent, in commenting on this case, says: “ The will would have been good under the English law, and the law of Hew York as it stood before the Revised Statutes of 1830.” 4 Kent, 272, note b.

In this case some of the devisees might have been the unborn children of unborn children, as matters stood at testator’s death.

In the Matter of Ryder, 11 Paige, 185, rents, and profits, and income of real and personal property, were devised and bequeathed to a feme-covert for life, for her separate use, free from the control of her then husband, or of any future husband, with remainder to her surviving children, and to the issue of such of her children as should have died leaving issue at the time of her death.

“ Here,” the Court says, “ the children have only a contingent interest, even in the capital of the estate; and the extent, even of that contingent interest, cannot be ascertained while the mother is alive and is capable of bearing children; for the afterborn children are equally entitled with those who are in esse at the death of testatrix. And such of the children as may happen to die in the lifetime of their mother will have no right to the estate, even if they should leave issue, for the estate, -in that event, is given to the issue, and not to them,”

These limitations were recognized and treated as of undoubted validity.

The distinction resides in this: A devise to the unborn child of an unborn child, eo nomine, is void, because it may not take effect within a life or lives in being, and twenty-one years and the fraction of a year thereafter.; but when by the express terms of the devise the limitation over must take effect within the life or lives of persons in being, then the reason supporting the objection fails, and the limitation is good.

The opinions in the Eden will' case, reported in 2 ' Cowan, 333, do not involve the present controversy. By the terms of that will the testator’s brother and sister were to take his property in the event that his two sons, the first takers, should both die without lawful issue. The ulterior devise was held void, because limited upon a contingency too remote — the indefinite failure of issue of the two previous devisees. And see Waring v. Jackson, 1 Pet., 570.

This objection cannot be urged against the will now under consideration. Here, by the express terms of the will, the limitations over are to take effect immediately upon the death of the survivor of testator’s two children, lives in being at the date of the will and at the death of testator; hence, the contingency upon which the estate is to. vest cannot, by any possibility, be for a longer time than a life or lives in being, and twenty-one years and the fraction of a year thereafter, and under all the authorities must be held good.

In truth, the estate devised to John Brown’s children was a fee, determinable upon their dying without issue living at their death. On the general principles governing contingent estates, it would seem that no estate could be limited to take effect after a fee-simple; but under the doctrine of uses and executory devises this is often done. 1 Washburn on Meal Prop., p. 76, § 76.

“ A devise in these words, ‘ I give unto my three sons — A., B., and C., — all my other lands, etc.; also, my will is, that if either, or any, of them should die without children, the survivor, or survivors, to hold the interest or share of each, or any, of them so dying without children, as aforesaid,’ passes an estate in fee-simple, determinable on the contingency of their dying without issue, and on that contingency vesting in the survivor, or survivors, by way of executory devise.” Richardson v. Noyes, 2 Mass., 56.

By one clause of a will an absolute estate in land was vested in testator’s son; by a subsequent clause it was provided that if the son should die without heirs, the land should be divided between testator’s three daughters. It was -held that the latter clause raised an executory devise over in favor of the daughters, upon the contingency of the son dying without heirs or children; that if the contingency happened, the limitation over took effect; if it did not happen, the absolute gift to the first taker remained undisturbed. Cowan v. Wells, 5 Lea, 683, 684.

In the case now in judgment the contingency happened, and we have seen that the limitations over do not violate any principle of law.

So we conclude that II. A. Brown and the children of Elizabeth Stewart took a valid estate in fee, per capita, on the death of John P. Brown; and that the places of such of Elizabeth Stewart’s children as are dead are filled by their children; and in showing this in their petition the. nonresidents showed merits under the statute.

But here we are met by the objection that the merits required in the statute must be some new fact not passed upon by the Court before, and that it cannot be an issue of law. We do not agree to this view. The purpose of the statute was to place the non-resident who comes within its saving in the same plight as if the cause were then .newly begun — when he presents his petition and is admitted to defend; that is, to place him in the same status as if the cause were just standing for defense. It is obvious that by this construction he could make an issue of either law or fact. Any other construction would be but to offer a benefit with one hand, and withdraw it with the other.

We are, however, confronted with the case of Ledgerwood v. Miller, (MSS., Knoxville,) and it is pressed upon our attention as an authority oppos ing tliis view. We do not understand that case as being in necessary conflict. In that proceeding application to open the cause was made by affidavit, which failed to show any merits whatever, either of law or fact; and this point was specially alluded to and relied upon by Deaderick, Cl J., in the opinion; and what was said on the subject of the answer was not necessary to the decision of the question involved. However, if that case could be properly construed as in conflict with the principles herein settled, we should not hesitate to overrule it as being unsound and mischievous in its consequences.

II. A. Brown’s rights stand on a different footing. He has had his day in court. He now joins in the petition with these non-residents, and seeks with them to have the decree opened, to be again allowed to litigate the issue. He alleges certain special grounds of relief, impeaching the proceedings of the Commission Court. We express no opinion as to the questions made by him on the decree of the Commission Court. We hold that he cannot make these questions by joining in a petition with non-residents seeking to have tlie benefit of the statutory saving, and certainly cannot have the relief vouchsafed to non-appearing defendants only. If he has any rights left, which we do not decide, he should have presented them by an original bill.

The decree of the Chancellor is accordingly affirmed in so far as it dismisses the petition as to II. A. Brown, and is reversed in all other respects, and the report of the Referees is confirmed; and the cause is remanded to the Chancery Court of Maury County, to he proceeded in as to the nonresident petitioners “just as if the cause were newly begun.”

Judge M. M. Neil, of the Trenton bar, was appointed by the Governor, on the 18th of January, 1888, to serve during the temporary absence of Judge Caldwell.