Cobb v. Stewart

463 S.W.2d 693, 225 Tenn. 85, 1971 Tenn. LEXIS 280
CourtTennessee Supreme Court
DecidedJanuary 4, 1971
StatusPublished
Cited by5 cases

This text of 463 S.W.2d 693 (Cobb v. Stewart) 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
Cobb v. Stewart, 463 S.W.2d 693, 225 Tenn. 85, 1971 Tenn. LEXIS 280 (Tenn. 1971).

Opinions

OPINION

CHATTIN, Justice.

The original bill in this case was filed by Mrs. Alice M. Cobb seeking an adjudication by the Chancellor of her rights and interests in certain personal property of her deceased husband, Jesse T. Cobb, who died testate on January 15, 1968.

The defendants named in the bill are Dr. David E. Stewart, Jr., Executor of the will; B. W. Cobb, a brother of deceased; and certain legatees named in the will, David Stewart, Lynn Cobb, B. W. Cobb, Jr., and Elise Stewart,

Prior to the filing of the bill, the widow, complainant, dissented from the will. A year’s support and the exempt property were set aside to her.

The bill was filed on May 9, 1969, and it was the insistence of appellant her deceased husband died intestate as to a great part of his personal property; and that she was entitled to same under the provisions of T.C.A. Section 31-201. She, also, prayed her Attorneys be paid from the general estate for their services in her behalf.

Answers were filed by all defendants.

The Chancellor heard the matter on the bill, answers and a stipulation of facts.

He filed a memorandum opinion in which he held the testator died testate as to all his personal property and the widow was only entitled to one-third of all deceased’s personalty. He allowed a fee for her Attorneys as a general charge against the estate.

Both complainant and the executor have appealed.

The stipulation of facts shows deceased left no child surviving him. He was survived by one brother, B. W. Cobb, as his sole and only heir at law.

The will was executed on May 30, 1953. At that time he owned only the real estate devised in the will. On the date of his death, he owned other real estate which was not devised by the will. He, therefore, died intestate as to this realty. However, the real property is not involved in this lawsuit.

On January 15, 1968, the date of his death, he and R. E. Stewart were partners in a business known and operated under the name of Cobb and Stewart Oil Company.

Deceased’s interest in the partnership, other than the cash, credit card accounts and bank accounts, was sold by the executor. The excluded items were divided between R. E. Stewart, Jr., and the estate of deceased. The sale and division of the excluded items netted the estate the sum of $65,790.88.

[695]*695He, also, owned on the date of his death certain checking and savings accounts in different-banks, stocks, a note and other personalty. The value of this personalty approximated $90,000.00.

Appellant has assigned as error the action of the Chancellor in decreeing deceased died testate as to all his personalty enumerated above and his widow was only entitled to one-third of his personalty since she dissented from the will as provided by T.C.A. Section 31-606.

A consideration of the determinative terms of the will is appropriate. Deceased’s will, after specific bequests of personalty to his wife and realty to his wife and brother, B. W. Cobb, by Item VI thereof, which is the basis of this lawsuit, provides:

“I direct that all my interest in any business or partnership which I may own at the time of my death, and all of my personal property shall be sold, and all of my debts paid from the proceeds; I will and bequeath one-fourth of the amount remaining after the payment of my debts, to my wife, Alice Cobb; the remaining three-fourths shall be used by my executor hereinafter named in the purchase of real estate, the title to which real estate shall be taken in the name of my wife, Alice Cobb, for and during her natural life, with the remainder interest therein vested equally in the children of my brother, B. W. Cobb, namely, B. W. Cobb, Jr., and Lynn Cobb, and the children of my sister, Edna Earl Stewart, namely, Elise Stewart and David Stewart.”

Appellant argues deceased owned bank accounts and other personal property other than his partnership business. That he merely directed his partnership business and all his personal property be sold; that is, the sale of which was necessary to reduce it to cash. That the items of cash, checking and savings accounts, were equivalent to cash; and, therefore, not necessary to be sold.

We think this case presents the application of two well settled rules of will construction. The first, when a controlling or predominant purpose of the testator is expressed, it is the duty of the court to effectuate that purpose, and to construe all subsidiary clauses so as to bring them into subordination to such purpose. Moore v. Neely, 212 Tenn. 496, 370 S.W.2d 537 (1963); Williamson v. Brownlow, 219 Tenn. 464, 410 S.W.2d 878 (1967).

The second is: “When a decedent dies testate, a strong presumption arises that he intended disposition of his entire estate; or, stated otherwise, he intended no partial intestacy.” Williamson v. Brown-low, supra.

The surrounding circumstances in the light of which we must read the will, are the testator at the time of the execution of the will had a wife and no children. He had a brother and the nieces and nephews named in Item VI of the will.

It is obvious the predominant purpose of the will was to devote the greater portion of his estate for the care of his wife during her natural life, the remainder to go to his brother, named .in Items III and IV, and his nieces and nephews named in Item VI of the will.

To carry out the predominant purpose of his will, the testator by Item I of the will directed his executor to pay his debts as soon as practicable. By Item II he bequeathed to his wife all household furniture and his car. By Items III and IV he devised to his wife specific real estate for and during her life and the remainder to his brother. By Item V he devised to his brother specific real estate in fee simple. We have quoted Item VI, the last item of the will.

We agree with the Chancellor the phrase “all my personal property” includes cash on hand and in checking and savings accounts. The word “all” is inclusive and embraces all personal property unless excepted therefrom by descriptive words.

[696]*696We are of the opinion when Item VI is read in the light of the entire will that it was the intention of deceased to reduce all of his personalty, other than that bequeathed to his wife by Item II, to a liquid state for the payment of his debts, one-fourth of the balance to go to his widow. The remaining three-fourths to be used by his executor to purchase real estate the title to which was to be taken in her name during her natural life and the remainder to his nieces and nephews.

T.C.A. Section 32-301 provides:

“A will shall be construed, in reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator * *

Thus, it is clear we must construe Item VI of the will as including all personal property owned by the testator on the date of the will, other than that bequeathed in Item II, as well as that thereafter acquired.

In the case of Fry v. Shipley, 94 Tenn. 252, 29 S.W. 6 (1895), the court quoted with approval the following rule which is germane to the question here:

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Bluebook (online)
463 S.W.2d 693, 225 Tenn. 85, 1971 Tenn. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-stewart-tenn-1971.