Fox v. Commerce Union Bank

209 S.W.2d 1, 186 Tenn. 181, 22 Beeler 181, 1948 Tenn. LEXIS 534
CourtTennessee Supreme Court
DecidedFebruary 28, 1948
StatusPublished
Cited by4 cases

This text of 209 S.W.2d 1 (Fox v. Commerce Union Bank) 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
Fox v. Commerce Union Bank, 209 S.W.2d 1, 186 Tenn. 181, 22 Beeler 181, 1948 Tenn. LEXIS 534 (Tenn. 1948).

Opinion

Me. Justice Tomlinson

delivered the opinion of the Court.

This is an appeal from the decree of the Chancellor sustaining a demurrer to complainant’s bill. We state as facts the material allegations of that bill.

The County Court of Davidson County granted to the Commerce Union Bank, appellee here, letters of administration on the estate of Harry Walters. The children of Harry Walters, who are the appellants here, unsuccessfully contested the appointment of the bank as administrator on the ground that they, or some of them as next of kin, were under the statute- entitled to the appointment. Upon their appeal to the Circuit Court it was held that the County Court erred in appointing the bank. The bank appealed and has since “continued to act as administrator.” In so far as this record discloses, that appeal has never been determined.

[184]*184Harry Walters at the time of his death was engaged in a business which had a very substantial amount of money on deposit in the appellee hank. G. Jack Walters, the father of Harry Walters, was associated with his son in some capacity in this business. After the death of Harry Walters, this father, acting on the theory that the business was a partnership in which he owned an interest, appointed this hank liquidating agent to wind np that business. In the course of doing so, this bank has collected quite a substantial sum of money, and has sold the business for another substantial sum.

Within approximately three months after the death of Harry Walters the father, G. Jack Walters, died testate and the County Court of Davidson County appointed this same hank executor of his estate.

The hill in this case was filed hy the children of Harry Walters as his next of kin. It makes the Commerce Union Bank a defendant in its individual capacity, as administrator of the one estate, as executor of the other, and as liquidating agent of this business.

The bill alleges that the bank as administrator of the Harry Walters’ estate paid excessive fees to lawyers for services rendered and paid to itself out of the assets of this estate various items of compensation to which it was not entitled. It is sought to have a decree declaring the extent to which such fees and compensations are excessive and an order that the bank be required to refund such excess to the estate. The demurrer to the effect that this was an unauthorized attempt to have the Chancery Court usurp the duties and authority of the County Court was properly sustained. The question of the propriety of these fees and compensations and the amount thereof is solely a matter originally for the Probate Court when the administrator bank makes its settlement in that Court, as [185]*185required by law. Code Section 8244 et seq.; In re Love’s Estate, 176 Tenn. 704, et seq., 145 S. W. (2d) 778.

Another item of relief sought by the bill is that the bank reveal in this suit exactly what the assets and liabilities of this business were when it became liquidating agent on March 24,1944, and the profits realized from its operation of the business through April 19, 1944. This likewise is an attempt to make an unauthorized intrusion upon the original jurisdiction of the County Court by seeking to require the administrator to state an account of the assets which came or should have come into its hands in a Court other than that in which the estate is by authority of law being administered. When the bank comes to make its settlement in the County Court it will necessarily have to show what assets from this business came into its hands as administrator. We know of no authority under the allegations of this bill, nor are we cited to any, which permits a distributee of that estate, pending the administration, to bring the adminstrator into a different Court and require such administrator in such second Court, pending administration, to show what assets have come into its hands as administrator. The Chancellor correctly sustained the demurrer insisting that such sought for relief was an unauthorized intrusion upon the jurisdiction of the County Court where the administration of the estate is pending. What is here said equally applies to the prayer that the administrator be required to show the election made by it under Code Section 7881 with reference to the continuation of this business from March 24,1944, the death of its intestate, through April 19,1944.

The final relief sought in the bill is that the Chancellor “appoint an administrator ad litem of the estate of Harry G. Walters in order that said administrator may represent the said estate fairly and impartially, and that he be [186]*186authorized to take all steps necessary to protect- the estate. ’ ’ It was successfully insisted by the demurrer that this likewise amounted to an effort to usurp the duties and functions of the County Court in its right to control, within the law, the administration of this estate.

The allegations of the bill force the conclusion that this broad prayer seeking the appointment of an administrator ad litem, so called, was not an inadvertence upon the part of the pleader. The bill, in referring to the administration, the executorship and the liquidating agent, alleges that “these offices involve duties which made it improper for all three to be held by the same person.” It also alleges that if the bank administrator “continues to fill both offices it may find itself” etc. Again it charges that “upon the foregoing facts complainants charge that it is the duty of the defendant bank to divest itself of the administration of one of the estates,” etc.

We are not aware of any authority which would permit the Chancery Court to appoint an administrator ad litem to represent generally an estate being administered in the County Court, as sought by this prayer. The granting of such broad relief would violate and defeat code section 10225, providing that “the county court has original jurisdiction in . . . (2) The granting of letters ... of administration, and the repeal and revocation thereof. (3) All controversies in relation to the right of executorship or of administration.” Bellenfant v. Am. Nat. Bank et al., 184 Tenn. 50, 195 S. W. (2d) 30.

This brings our consideration of this case, in the condition of the pleadings, to its final question. Considered as a whole, the bill should properly be construed to allege, in substance, that the estate of G-. Jack Walters is not an equal partner in the business heretofore referred to, if, in fact, it owns any interest therein. It is then asserted [187]*187that it is'the duty of the bank, as administrator of Harry Walters’ estate to ascertain, in so far as it. can, whether G. Jack Walters owned any interest in this business, and if so, the extent thereof, and that it is within the power of this bank to ascertain that important fact, because this business did for years do its banking with this bank and, therefore, within the possession of this bank are the checks and records which it is alleged will disclose the interest, if any, of the G. Jack Walters estate in this business. It is then alleged that the bank, executor of the estate of.G. Jack Walters, refuses or neglects to make the investigation which would establish the respective interests of the two estates in this business. The allegation is that the interest of the bank as executor of the G. Jack Walters estate is adverse to its interest as administrator of the Harry Walters estate and, therefore, it is not in a position to fairly represent the Harry Walters estate.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bishop v. Young
780 S.W.2d 746 (Court of Appeals of Tennessee, 1989)
Browne v. Browne
547 S.W.2d 239 (Tennessee Supreme Court, 1977)
Ferguson v. Moore
348 S.W.2d 496 (Tennessee Supreme Court, 1961)
City of Springfield v. Stevens
216 S.W.2d 450 (Supreme Court of Missouri, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
209 S.W.2d 1, 186 Tenn. 181, 22 Beeler 181, 1948 Tenn. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-commerce-union-bank-tenn-1948.