Cromwell v. Dobbins

231 S.W.2d 577, 191 Tenn. 92, 27 Beeler 92, 1950 Tenn. LEXIS 548

• Court: Tennessee Supreme Court
• Decided: June 9, 1950
• Status: Published

Opinions

Mr. Justice Gailor

delivered the opinion of the Court.

The hill in this cause was filed by Daisy Cromwell, executrix of the estate of Lena McKnight, who died testate in Hardin County, January 14, 1948, against Mrs. Mollie Dobbins, who is a sister of complainant and deceased, and who had filed a claim against the estate in the County Court of Hardin County.

The complainant probated the will and qualified as executrix on January 14, 1948, and under Chapter 175 of the Public Acts of 1939, as amended by Chapter 137 of the Public Acts of 1947, publication for claims against the estate was made on January 30, 1948. On February 28, 1948, the defendant filed her claim against the estate for board and lodging alleged to have been furnished deceased, in the sum of $324, and although, he was required to do so by Chapter 137 of the Public Acts of 1947, the Clerk of the County Court gave complainant no written notice of the filing of the claim, and furnished her no copy of the claim filed. The pertinent part of the amendment of 1947 is: “ ‘ The Clerk of the Court, within five days after the filing of a claim and the entry thereof in the claim book as provided above, shall give written notice to the personal representative of the filing of the claim, by mailing him a true and correct copy of said claim.’ ”

The bill further avers that the first actual notice that complainant had of the filing of the claim was on February 11, 1949, after the time for filing exceptions to the claim in the County Court had elapsed, and when the County Judge had no authority to extend the time and permit the filing of exceptions. Warfield v. Thomas’ Estate, 185 Tenn. 328, 206 S. W. (2d) 372, 374.

In this situation the complainant filed the original bill in the Chancery Court, seeking to contest the validity of the claim on grounds stated in the bill. The defendant filed a demurrer which the Chancellor overruled, and the present appeal by the defendant has resulted.

The only question presented by the appeal is whether the action of the Chancellor in overruling the demurrer was proper. In the decree overruling the demurrer, the Chancellor found:

“The court finds from the bill, on the hearing of the demurrer, that the five days’ notice provided by Chapter 137, section 2 of the Acts of 1947, of the filing of the claim by defendant against the estate of Lena McKnight, deceased, was not given by the Clerk of the County Court of Hardin County, to the complainant as executrix of said estate, the court being of opinion that the provision of the statute that five days’ notice of the filing of the claim must have been given by the Clerk to the executrix is mandatory, and so adjudges and decrees.

“The Court being further of opinion, and adjudges and decrees that after the time had expired, as required by statute, for the filing of exceptions by complainant to the claim of defendant, the executrix was without remedy to file her exceptions to said claim except by her bill in this cause.

“It is, therefore, ordered, adjudged and decreed by the Court that the demurrer of the defendant, be, and the same is overruled and disallowed.”

We think that the Chancellor’s construction of Section 2 of Chapter 137 of the Public Acts of 1947, as being mandatory, is clearly correct. Use of the word “shall” without some contextual matter which modifies the word, compels that construction. There is no such matter in the context here.

On the contrary, since this Court, in Wilson v. Hafley, Tenn. Sup., 226 S. W. (2d) 308, 312, said: “The filing of this claim was the equivalent to the commencement of an action,” it must follow that omission of the written notice required of the Clerk by the amendment of 1947, was an omission of an essential element of due process.

Since the executrix avers in her bill that she had no actual notice, written or other, of the filing of the claim until after the time allowed her to file exceptions, had elapsed, it is not necessary on this appeal for us to decide whether the means of notice prescribed by Section 2 of Chapter 137 of the Public Acts of 1947. was or was not exclusive. Payne v. State, 158 Tenn. 209, 12 S. W. (2d) 528.

In accord with the opinion of this Court in Warfield v. Thomas’ Estate, snpra, 206 S. W. (2d) at page 375, where the text of Higgins Administration of Estates in Tennessee, Section 126-a, p. 97, is quoted and approved, we think the following facts stated in the bill validly pleaded grounds f'or equitable relief:

(1) That the Clerk did not give the notice or send complainant a copy of the claim as required by the Act of 1947.

(2) That until time for filing exceptions had elapsed, complainant had no actual notice of the filing of the claim, and was led by statements of the defendant to believe that no claim had been filed.

(3) That the claim was not valid and that complainant had a good and equitable defense to said claim.

Accordingly, for the reasons stated, the decree of the Chancellor is in all respects affirmed.

All concur.