First National Bank v. Lewis

441 S.W.2d 71, 59 Tenn. App. 444, 1967 Tenn. App. LEXIS 264
CourtCourt of Appeals of Tennessee
DecidedDecember 14, 1967
StatusPublished
Cited by2 cases

This text of 441 S.W.2d 71 (First National Bank v. Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank v. Lewis, 441 S.W.2d 71, 59 Tenn. App. 444, 1967 Tenn. App. LEXIS 264 (Tenn. Ct. App. 1967).

Opinion

CARNEY, J.

On October 13, 1967, this Court announced an opinion reversing the action of the lower court and remanding the cause. The appellees, Mrs. Frank N. Lewis and Walter P. Armstrong, Jr., guardian ad litem for DeWitt M. Shy, Jr., a minor, have filed a petition to rehear in which they have called our attention to two erroneous statements. On page 3 of our original opinion we erroneously stated that “If the widow be dead, the corpus under Trust B is to be distributed to Mary Page Lewis as follows: One-fourth when she reaches age twenty-one; one-third of the remainder when she reaches age twenty-five; one-half of the remainder when she reaches age thirty; and all of the remainder of the corpus when she reaches age thirty-five.” We confused the provisions of the will providing for the [447]*447payment of the corpus of Trust B with the provisions of the will relating to the payment of the corpus of Trust A for the benefit of testator’s stepson, DeWitt M. Shy, Jr. The statement is erroneous. We should have said, “After the death of the widow, Mrs. Frank Lewis, the corpus of Trust B is to be paid as follows: One-fourth to Mary Page Lewis when she reaches the age of twenty-five and one-third of the remainder when she reaches age thirty, making a total of fifty percent of the corpus to be paid to Mary Page Lewis. The income from the remainder, the other fifty percent of the corpus, is to be paid to Mary Page Lewis for the remainder of her life and on her death the remaining corpus is to be paid to her children in equal shares and if there be no children then it is to be paid to the testator’s brother, T. Walker Lewis, Jr., if he be alive and if not, then in equal shares to his children.”

Also at page 9 of our opinion we made the following erroneous statement: “The other one-half of his estate he wanted to go to his nearest blood kin, his teen-age daughter, ultimately in fee but charged with a portion of the annual support of his widow.” We should have said, “The other one-half of his estate he wanted to go to his nearest blood kin, that is, his daughter, Mary Page Lewis, and her children, the testator’s grandchildren, but charged with a portion of the annual support of his widow.”

The petitioners insist that our misconception of the undisputed provisions of the will referred to above resulted in an erroneous conclusion as to the testator’s dominant intention and that we should reverse our former holding and affirm the action of the Chancellor below. They further insist that this court’s construction [448]*448of Item VI(n) favors the testator’s natural child, Mary Page Lewis, to the prejudice of his stepson, DeWitt Shy, Jr. With these insistences we respectfully disagree. We have reviewed the will of the testator in the light of the corrections mentioned above. We think we reached the correct result in our former opinion.

The petition to rehear will be sustained and the erroneous statements in our former opinion are withdrawn and corrected as above set out. The decree heretofore entered of record in this cause reversing the decree of the lower court and remanding the cause will remain in full force and effect. In the interest of clarity our opinion of date October 13, 1967, in this cause is recalled. We substitute therefore as a part of this opinion sustaining the petition to rehear the following corrected opinion:

The First National Bank of Memphis, Tennessee, trustee under the will of Frank N. Lewis, deceased, and James M. Maniré, guardian ad litem for Mary Page Lewis, Beverly Lewis, and Clayton Lewis who are beneficiaries under Trust B created under the will, have appealed from a decree of the Chancery Court construing the will of Mr. Lewis. The testator created two trusts: A and B. He made provision for encroachments in favor of his widow, Mrs. Florence Lewis, the appellee, in each trust. The widow has received encroachments totalling $14,250 of which $12,500 was charged by the trustee entirely against the corpus of Trust A and $1,725 was charged one-half to Trust A and one-half to Trust B. The corpus of each trust before encroachments was approximately $225,000. The net annual income from each trust is about $9,000.

After making the advances to the widow, Mrs. Lewis, at her request, First National Bank filed its original bill in [449]*449this cause maHng parties defendant all beneficiaries under the will, both vested aud contingent, and prayed for a construction of the will. His Honor tbe Chancellor held that all encroachments upon the corpus of the trust estate either under A or under B in favor of the widow, Mrs. Frank N. Lewis, must be charged one-half against Trust A and one-half against Trust B under the express terms of the testator’s will. The beneficiaries under Trust B were dissatisfied with the Chancellor ’s construction and have appealed. Only the portions of the will relating to encroachments are in controversy.

The will was executed November 28,1961. The testator died January 26, 1962, and his will was admitted to probate in the Probate Court of Shelby County on February 2, 1962. Living in the household of the testator in Memphis, Tennessee, at the time of his death were the widow, Mrs. Florence Lewis, and her 18-year-old son by a former marriage, DeWitt M. Shy, Jr. The testator had a daughter by a former marriage, the appellant, Mary Page Lewis, also aged 13, who was living with her mother, Mrs, Patricia Adams Faill, in Wilmington, Delaware. The testator had no other children except Mary Page Lewis.

The will provides that the total net income from Trust A shall be paid over to the widow, Mrs. Florence Lewis, for her life and she is given the unlimited power of appointment by will at her death. If she fails to exercise the power of appointment, then the income and ultimately the corpus from Trust A is to be paid over to the stepson, DeWitt Shy. Under Trust A the widow, Mrs. Lewis, is given an absolute and unlimited right of encroachment upon the corpus of Trust A.

[450]*450Under Trust B the trustee is directed to pay from the annual net income the sum of $150 per month for the support and maintenance of the minor daughter, Mary Page Lewis, until she reaches the age of twenty-one or marries after which the $150 per month is. to be paid directly to her. The trustee is authorized to use an additional portion of the net annual income from Trust B for the education of the daughter provided that the total amount for support and education shall not exceed fifty percent of the net annual income. The remaining fifty percent of the net annual income under Trust B and all income not used for support and education of Mary Page Lewis is to be paid to the widow, Mrs. Florence Lewis, for her lifetime;

During the lifetime of the widow the trustee has authority to encroach upon the corpus of Trust B for the support of Mary Page Lewis only upon the written consent of the widow. However, after the death of the widow all income from Trust B may be spent in the sole discretion of the trustee for the support and education of Mary Page Lewis if she is under twenty-one. It must be paid to her if she is over twenty-one. Also after the death of the widow, the trustee has the sole discretion to encroach upon the corpus of Trust B for the support and maintenance of the daughter, Mary Page Lewis. After the death of the widow, Mrs. Frank Lewis, the corpus of Trust B is to be paid as follows: One-fourth to Mary Page Lewis when she reaches the age of twenty-five and one-third of the remainder when she reaches age thirty, making a total of fifty percent of the corpus to be paid to Mary Page Lewis.

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Related

Estate of Robison v. Carter
701 S.W.2d 218 (Court of Appeals of Tennessee, 1985)

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Bluebook (online)
441 S.W.2d 71, 59 Tenn. App. 444, 1967 Tenn. App. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-lewis-tennctapp-1967.