Chapter 1
Executors and Administrators

Part 1
General Provisions

30-1-101. Letters testamentary or of administration required.

No person shall presume to enter upon the administration of any deceased person's estate until the person has obtained letters of administration or letters testamentary.

Code 1858, § 2201 (deriv. Acts 1715, ch. 48, § 4); Shan., § 3933; Code 1932, § 8143; T.C.A. (orig. ed.), § 30-101.

Cross-References. Administrators ad litem, § 30-1-109.

Appointment of administrator at request of commissioner of revenue, § 67-8-405.

Bond required, § 30-1-201.

Definitions in § 31-1-101 applicable to this title, § 30-1-150.

“Executor” defined, § 1-3-105.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Next of kin suing for debts due decedent's estate in their own names, § 30-2-714.

Public administrators, guardians, and trustees, title 30, ch. 1, part 4.

“Representative” defined, § 1-3-105.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 33, 34, 489, 493, 521, 535.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-703, 4-706, 4-804.

Law Reviews.

Attorney v. Client — Privity, Malpractice, and the Lack of Respect for the Primacy of the Attorney-Client Relationship in Estate Planning, 68 Tenn. L. Rev. 261 (2001).

Confused by tax reforms? Follow these 10 key rules for better estate planning in Tennessee (Dan W. Holbrook), 37 No. 8 Tenn. B.J. 12 (2001).

Ethics — Petty v. Privette: Exclusion of Attorney Liability in the Area of Estate Administration, 23 Mem. St. U.L. Rev. 687 (1993).

Symposium: The Role of Federal Law in Private Wealth Transfer: A Fresh Look at State Asset Protection Trust Statutes, 67 Vand. L. Rev. 1741 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Federalizing Principles of Donative Intent and Unanticipated Circumstances, 67 Vand. L. Rev. 1931 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Is Federalization of Charity Law All Bad? What States Can Learn from the Internal Revenue Code, 67 Vand. L. Rev. 1621 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, The Stored Communications Act and Digital Assets, 67 Vand. L. Rev. 1729 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff, 67 Vand. L. Rev. 1665 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Disclaimers and Federalism, 67 Vand. L. Rev. 1871 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Federal Visions of Private Family Support, 67 Vand. L. Rev. 1835 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: In Search of the Probate Exception, 67 Vand. L. Rev. 1533 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: The Creeping Federalization of Wealth-Transfer Law, 67 Vand. L. Rev. 1635  (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769 (2014).

NOTES TO DECISIONS

1. Personal Representatives.

Appointment of administrator with will annexed by county court after one of the executors named in will refused to serve and other executor was silent may have been voidable but was not void and until remaining executor came into court and set the order aside it was valid. Baldwin v. Buford, 12 Tenn. 16, 1833 Tenn. LEXIS 5 (1833).

Letters not void when granted to one of inferior right. Wilson v. Frazier, 21 Tenn. 30, 1840 Tenn. LEXIS 20 (1840).

2. —Rights Prior to Appointment.

Whoever gets possession of the personal property of an intestate can hold it against any person except the administrator or creditors. Thurman v. Shelton, 18 Tenn. 383, 1837 Tenn. LEXIS 41 (1837); Brown v. Bibb, 42 Tenn. 434, 1865 Tenn. LEXIS 85 (1865); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

Until the qualification of the administrator or the executor, the title of the personal estate of a decedent is in abeyance and in the custody of the law. Richardson v. Cole, 32 Tenn. 100, 1852 Tenn. LEXIS 26 (1852); Ward v. Bowen, 34 Tenn. 58, 1854 Tenn. LEXIS 13 (1854); Fay v. Reager, 34 Tenn. 200, 1854 Tenn. LEXIS 33 (1854); Mitchell v. Kirk, 35 Tenn. 319, 1855 Tenn. LEXIS 64 (1855); Brown v. Bibb, 42 Tenn. 434, 1865 Tenn. LEXIS 85 (1865); Killebrew v. Murphy, 50 Tenn. 546, 1871 Tenn. LEXIS 112 (1871); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

An executor can take an estate in possession for its protection and preservation until he can probate the will and qualify. Killebrew v. Murphy, 50 Tenn. 546, 1871 Tenn. LEXIS 112 (1871).

3. —Necessity for Appointment.

Administration is necessary for the protection of the estate of a decedent for the creditors and distributees; but, if there are no creditors, the necessity is merely technical in the suit of the distributees for the recovery of the debts and assets for distribution. Christian v. Clark, 78 Tenn. 630, 1882 Tenn. LEXIS 231 (1882).

A creditor of a decedent cannot, without administration upon the decedent's estate, proceed directly against a debtor of the deceased. Smiley v. Bell, 8 Tenn. 378, 1828 Tenn. LEXIS 15 (1828).

4. —Qualification.

One cannot act as administrator or executor until he takes the oath and files a bond. Martin v. Peck, 10 Tenn. 298, 1829 Tenn. LEXIS 13 (1829); Baldwin v. Buford, 12 Tenn. 16, 1833 Tenn. LEXIS 5 (1833); Drane v. Bayliss, 20 Tenn. 174, 1839 Tenn. LEXIS 37 (1839); Robertson v. Gaines, 21 Tenn. 367, 1841 Tenn. LEXIS 20 (1841); Feltz v. Clark, 23 Tenn. 79, 1843 Tenn. LEXIS 22 (1843); Fay v. Reager, 34 Tenn. 200, 1854 Tenn. LEXIS 33 (1854); Killebrew v. Murphy, 50 Tenn. 546, 1871 Tenn. LEXIS 112 (1871); Crozier v. Goodwin, 69 Tenn. 125, 1878 Tenn. LEXIS 60 (1878); Nelson v. Trigg, 3 Shan. 733 (1877).

Where administrator appointed by court served as administrator for a period of five years without filing a bond the probate court was in error when it denied the application of nephew of deceased for appointment as administrator and Supreme Court remanded case to probate court with instruction to grant letters of administration to nephew unless the prior administrator filed a bond. Feltz v. Clark, 23 Tenn. 79, 1843 Tenn. LEXIS 22 (1843).

A corporation empowered by legislative act to serve as administrator may act as executor. Union Bank & Trust Co. v. Wright, 58 S.W. 755, 1900 Tenn. Ch. App. LEXIS 50 (1900).

An attorney at law, who is obligated to carry into effect an agreement which would divest large amounts from the ordinary channel of administration, is ineligible for appointment as administrator. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

Where state bank named as executor consolidates with national bank, the national bank may administer but must first properly qualify. First Nat'l Bank v. Harry E. Chapman Co., 160 Tenn. 72, 22 S.W.2d 245, 1929 Tenn. LEXIS 76 (1929).

5. —Powers.

Purchasers of personal property sold at public sale by administrators without court order but with written approval by sole distributee could not rescind contract or enjoin the collection of notes given for the purchase money. Kelso v. Vance, 61 Tenn. 334, 1872 Tenn. LEXIS 381 (1872).

The appointment of a personal representative operates to vest in him, for the time being, title to the general personal estate of the decedent in which the decedent distributees could have no interest, the latter being entitled only to the residue of such estate after due administration. Union Planters Nat'l Bank & Trust Co. v. Beeler, 172 Tenn. 317, 112 S.W.2d 11, 1937 Tenn. LEXIS 81 (1938).

6. —Suits By and Against.

Person or persons named in will as executor cannot be sued as an executor until they qualify and are appointed as executor by the court. Ward v. Bowen, 34 Tenn. 58, 1854 Tenn. LEXIS 13 (1854); Fay v. Reager, 34 Tenn. 200, 1854 Tenn. LEXIS 33 (1854).

Decedent's wife did not have the authority or standing to file a notice of appeal after a third-party complaint was dismissed for failing to substitute a party for a decedent after a suggestion of death was filed, and the wife's act of petitioning for appointment as administrator ad litem and hiring herself as counsel came too late to save the appeal. At the time of the final judgment, the wife had not obtained letters of administration or letters testamentary. Dry v. Steele, — S.W.3d —, 2014 Tenn. App. LEXIS 30 (Tenn. Ct. App. Jan. 28, 2014), cert. denied, 190 L. Ed. 2d 291, 135 S. Ct. 405, — U.S. —, 2014 U.S. LEXIS 7016 (U.S. 2014), review denied and ordered not published, — S.W.3d —, 2014 Tenn. LEXIS 386 (Tenn. May 14, 2014).

7. — —Pleadings.

Actions against rightful and wrongful executors are always in the same form, and are both described in the pleadings as executor. Cobb v. Lanier, 5 Tenn. 296, 5 Tenn. 297, 1818 Tenn. LEXIS 9 (1818); Partee v. Caughran, 17 Tenn. 460, 1836 Tenn. LEXIS 86 (1836).

The replication to the special plea of retainer, when the defendant is not the rightful executor, would be that he was an executor of his own wrong, and the burden rests upon the defendant to prove his plea by producing his letters testamentary. Partee v. Caughran, 17 Tenn. 460, 1836 Tenn. LEXIS 86 (1836).

If a party sued as executor fails to plead he was never such but relies upon other defenses, it is an admission that he is executor, but where defendant pleads that he was never executor, and puts in various other pleas in addition thereto, he does not by such pleading commit himself as an executor of his own wrong, where no such acts were proved against him as in law constitute a wrongful executorship. Alexander v. Kelso, 60 Tenn. 5, 1872 Tenn. LEXIS 467 (1872).

8. — —Parties.

Distributees of estate of a deceased legatee seeking to recover legacy of deceased must proceed through a personal representative of legatee. Clark v. Clark, 4 Tenn. 23, 1816 Tenn. LEXIS 8 (1816); Puckett v. James, 21 Tenn. 565, 1841 Tenn. LEXIS 71 (1841); Alexander v. Espy, 25 Tenn. 157, 1845 Tenn. LEXIS 51 (1845); Trafford v. Wilkinson, 3 Cooper's Tenn. Ch. 449 (1877); Brandon v. Mason, 69 Tenn. 615, 1878 Tenn. LEXIS 145 (1878).

Distributees have no right to compromise a suit prosecuted by the administrator without his consent. Lewis' Ex'rs v. Brooks, 14 Tenn. 167, 1834 Tenn. LEXIS 60 (1834); Railroad v. Acuff, 92 Tenn. 26, 20 S.W. 348, 1892 Tenn. LEXIS 47 (1892).

Distributees or legatees cannot without administration maintain a suit, either at law or in equity for the recovery of personal property and assets of decedent, for distribution among the distributees, or for satisfaction of legacies due legatees if the estate of deceased is indebted. Thurman v. Shelton, 18 Tenn. 383, 1837 Tenn. LEXIS 41 (1837); Pennington v. McWhirter, 27 Tenn. 130, 1845 Tenn. LEXIS 152 (1847); Brown v. Bibb, 42 Tenn. 434, 1865 Tenn. LEXIS 85 (1865); Brown v. Brown, 82 Tenn. 253, 1884 Tenn. LEXIS 125, 52 Am. Rep. 169 (1884).

The rule that distributees cannot, without administration, sue for the assets of decedent is not changed by the fact that from lapse of time the right to obtain a grant of administration is barred by statutory limitation. Brown v. Bibb, 42 Tenn. 434, 1865 Tenn. LEXIS 85 (1865); Trafford v. Wilkinson, 3 Cooper's Tenn. Ch. 449 (1877).

Where the personal representative, by collusion with the debtor, refuses to sue for the recovery of a debt due to the deceased, in consequence of which the debt is about to be lost, and the representative is insolvent, the parties ultimately entitled as creditors, distributees, or legatees may, in equity, proceed against both the debtor and representative to enforce their rights by the proper decree. Mason v. Spurlock, 63 Tenn. 554, 1874 Tenn. LEXIS 304 (1874); Haywood v. Currie, 68 Tenn. 357, 1878 Tenn. LEXIS 24 (1878); Kelley v. Kelley, 83 Tenn. 194, 1885 Tenn. LEXIS 41 (1885).

Distributees are entitled to proceed in own names to recover assets of estate if there is no objection to mode of proceeding and there are no creditors. Brandon v. Mason, 69 Tenn. 615, 1878 Tenn. LEXIS 145 (1878); Smith v. Gooch, 74 Tenn. 536, 1880 Tenn. LEXIS 288 (1880); Hurt v. Fisher, 96 Tenn. 570, 35 S.W. 1085, 1896 Tenn. LEXIS 9 (1896).

A widow has the right to compromise a suit filed against the railroad if filed by her as widow, but she cannot compromise suit if it is filed by administrator. Holder v. Nashville, C. & St. L.R.R., 92 Tenn. 141, 20 S.W. 537, 1892 Tenn. LEXIS 58, 36 Am. St. Rep. 77 (1892).

9. Intermeddlers.

One obtaining possession of the personal estate and assets of an intestate without administration is an executor de son tort. Thurman v. Shelton, 18 Tenn. 383, 1837 Tenn. LEXIS 41 (1837); Brown v. Bibb, 42 Tenn. 434, 1865 Tenn. LEXIS 85 (1865); Hurt v. Fisher, 96 Tenn. 570, 35 S.W. 1085, 1896 Tenn. LEXIS 9 (1896).

The policy of the law is decidedly against the unauthorized intermeddling with the estates of decedents, and no wrongful interference should be to any extent permitted. Mitchell v. Kirk, 35 Tenn. 319, 1855 Tenn. LEXIS 64 (1855).

The law recognizes no such person as an administrator de son tort, and, where a person is sued in such character, it will be presumed that he was so sued by oversight, and the suit will be treated as against him as executor de son tort. Hutchinson v. Fulghum, 51 Tenn. 550, 1871 Tenn. LEXIS 204 (1871).

10. —Liability.

Where the fraudulent grantee of personal property reduces it to possession after the grantor's death, he may be treated as the grantor's wrongful executor, and the grantor's creditors may sue him as executor de son tort. Russel v. Lanier, 5 Tenn. 289, 1818 Tenn. LEXIS 4 (1818); Cobb v. Lanier, 5 Tenn. 296, 5 Tenn. 297, 1818 Tenn. LEXIS 9 (1818); Simpson v. Simpson, 26 Tenn. 275, 1846 Tenn. LEXIS 124 (1846), questioned, Daly v. Sumpter Drug Co., 127 Tenn. 412, 155 S.W. 167, 1912 Tenn. LEXIS 39 (1912); Tubb v. Williams, 26 Tenn. 367, 1846 Tenn. LEXIS 139 (1846); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

A bill in chancery does not lie to recover a debt from an executor de son tort, unless the bill is filed in behalf of all creditors for a pro rata distribution of the funds in the hands of such wrongful executor. Sharp v. Caldwell, 26 Tenn. 415, 1846 Tenn. LEXIS 146 (1846).

A party who has wrongfully intermeddled with the goods of a decedent in another state and brings the goods into this state is liable as executor de son tort in this state. Caruthers v. Moore, 1 Shan. 60 (1851).

Where a person innocently receives the goods of a decedent from an executor de son tort, such receiver is not liable as an executor of his own wrong, but it is otherwise, if he acted in collusion with such third person. Caruthers v. Moore, 1 Shan. 60 (1851).

Where the widow, without administering upon the estate of her deceased husband, pays his debts out of the assets of his estate, she and the creditors receiving such payments are intermeddlers, and are both liable to the rightful personal representative. Mitchell v. Kirk, 35 Tenn. 319, 1855 Tenn. LEXIS 64 (1855); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

If a distributee, without obtaining a grant of administration, takes possession of the goods of the decedent, he will be held as executor de son tort. Brown v. Bibb, 42 Tenn. 434, 1865 Tenn. LEXIS 85 (1865).

If money is deposited with a party to be held for the depositor, and after the depositor's death, the party pays it to anyone except his rightful personal representative, he renders himself liable as executor de son tort. Alexander v. Kelso, 60 Tenn. 5, 1872 Tenn. LEXIS 467 (1872).

11. —Defenses.

A suit commenced against the deceased may be revived against an executor de son tort, to which he may plead, as a defense, fully administered, payment to the creditors or rightful administrator, or any other defense accruing to him. Russel v. Lanier, 5 Tenn. 289, 1818 Tenn. LEXIS 4 (1818); Cobb v. Lanier, 5 Tenn. 296, 5 Tenn. 297, 1818 Tenn. LEXIS 9 (1818); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

An executor de son tort has no right to retain, for his own debt, the assets of the decedent so wrongfully obtained and possessed by him. Partee v. Caughran, 17 Tenn. 460, 1836 Tenn. LEXIS 86 (1836); Sharp v. Caldwell, 26 Tenn. 415, 1846 Tenn. LEXIS 146 (1846); Hutchinson v. Fulghum, 51 Tenn. 550, 1871 Tenn. LEXIS 204 (1871); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871); Boyce v. Stanton, 83 Tenn. 346, 1885 Tenn. LEXIS 59 (1885).

An executor de son tort is liable only to the extent of the goods and assets of the decedent in his hands, and a plea fully administered, found in his favor, relieves him from personal liability. Gadsby v. Donelson, 18 Tenn. 371, 1837 Tenn. LEXIS 38 (1837); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

A rightful administrator collecting assets in another state under an administration granted there and bringing them into this state, is not liable to be sued here as executor de son tort. Caruthers v. Moore, 1 Shan. 60 (1851).

When one is sued as executor de son tort his right of defense of payment of the funds, assets, or money to the creditors of the deceased will not be allowed to prevail so as to evade, defeat, or interfere with the principles of our laws regulating the ratable distribution of insolvent estates, but such defense will not be defeated unless the insolvency has been suggested and adjudicated. Mitchell v. Kirk, 35 Tenn. 319, 1855 Tenn. LEXIS 64 (1855); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

12. —Judgments.

An execution issued upon a judgment against a rightful personal representative of a decedent cannot be levied upon personalty fraudulently conveyed by the decedent in his lifetime and held by the fraudulent grantee as executor de son tort as against the grantor's estate. Cobb v. Lanier, 5 Tenn. 296, 5 Tenn. 297, 1818 Tenn. LEXIS 9 (1818).

A creditor of a decedent cannot, after obtaining a judgment against a person as executor de son tort of his deceased debtor, by a bill in chancery, reach the distributive share of the deceased debtor in another estate, although such wrongful executor is the rightful administrator of that estate, and as such has the distributive share in his hands. Gadsby v. Donelson, 18 Tenn. 371, 1837 Tenn. LEXIS 38 (1837); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

A judgment against a person as an executor de son tort does not bind the estate. Gadsby v. Donelson, 18 Tenn. 371, 1837 Tenn. LEXIS 38 (1837); Winn v. Slaughter, 52 Tenn. 191, 1871 Tenn. LEXIS 250 (1871).

13. Letters Testamentary.

Plaintiffs'  claims were properly dismissed with prejudice as plaintiffs lacked the capacity to prosecute their complaint because plaintiffs failed to obtain letters testamentary prior to filing suit as the personal representatives of the decedent's estate; and plaintiffs were not entitled to file suit as the beneficiaries of the trust because only the trustee could prosecute or defend an action, claim, or judicial proceeding. Palmer v. Colvard, — S.W.3d —, 2019 Tenn. App. LEXIS 373 (Tenn. Ct. App. July 31, 2019).

Collateral References.

Acknowledgment by executors, sufficiency of certificate. 29 A.L.R. 919, 25 A.L.R.2d 1124.

Agent's or servant's personal liability for meddling with decedent's estate. 20 A.L.R. 119, 99 A.L.R. 408, 96 A.L.R.2d 208.

Attorney's compensation for services in administration of decedent's estate, amount of. 143 A.L.R. 735, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Clerk of court or his sureties, liability of, for funds of decedent's estate, amount of. 143 A.L.R. 735, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Corporations performing legal services in respect of decedents' estates. 73 A.L.R. 1336, 105 A.L.R. 1364, 157 A.L.R. 282.

Court's power to refuse letters testamentary to one named in will as executor, absent specific statutory disqualification. 95 A.L.R. 828.

Declaratory judgments in matters respecting estates. 12 A.L.R. 52, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8.

Delegation by will of power to nominate executor. 11 A.L.R.2d 1284.

Dispensing with administration of decedent's estate on ground that administration is not necessary. 70 A.L.R. 386.

Estoppel of one doing business with personal representative purporting to carry on decedent's business, to assert representative's personal liability. 3 A.L.R.3d 757.

Extrinsic evidence to identify person whom testator intended to name as executor. 94 A.L.R. 127.

Former testimony, relationships arising from connection with decedent's estate as furnishing sufficient identity of parties to sustain admissibility of. 142 A.L.R. 702.

Judgment or order in connection with appointment of executor or administrator as res judicata, as law of the case, or as evidence, on question other than the validity of the appointment. 110 A.L.R. 594.

Judicial resolution of impasse between joint executors or administrators where concurrent action is required. 85 A.L.R.3d 1124.

Liability of estate for legal services of attorney employed by estate attorney without consent of executor or administrator. 83 A.L.R.3d 1160.

Liability of estate for tort of executor, administrator, or trustee. 82 A.L.R.3d 892.

Loss of right to be appointed executor by delay in presenting will for probate or in seeking letters testamentary. 45 A.L.R.2d 916.

Necessity that executor or administrator be represented by counsel in presenting matters in probate court. 19 A.L.R.3d 1104.

Physical condition as affecting competency to act as executor or administrator. 71 A.L.R.3d 675.

Practice of law, services as executor or administrator or in connection with administration of estate as. 111 A.L.R. 42, 125 A.L.R. 1173, 151 A.L.R. 781.

Recovery of administration fees paid under constitutional statute. 48 A.L.R. 1390, 74 A.L.R. 1301.

Relation back of letters testamentary or of administration. 26 A.L.R. 1359.

Relation back of letters testamentary or of administration as validating prior sales of decedent's property. 2 A.L.R.3d 1105.

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation. 96 A.L.R.3d 1102.

Stoppage in transitu, taking possession of goods by executor or administrator as terminating right of. 7 A.L.R. 1410.

Treaty regulation of administration of estates of deceased aliens. 4 A.L.R. 1392, 134 A.L.R. 882.

30-1-102. Jurisdiction to grant letters.

Letters of administration shall be granted by the probate court of the county where the intestate had usual residence at the time of the intestate's death, or, in case the intestate had fixed places of residence in more than one county, the probate court of either county may grant letters of administration upon the intestate's estate.

Code 1858, § 2202 (deriv. Acts 1777 (Nov.), ch. 2, § 62; 1789, ch. 23, § 1; 1794, ch. 1, § 47); Shan., § 3934; mod. Code 1932, § 8144; T.C.A. (orig. ed.), § 30-102.

Cross-References. Chancery court authorized to grant letters after lapse of six months, § 30-1-301.

Duties of clerk, § 18-6-106.

Fees of clerks of courts administering probate matters, §§ 8-21-401, 8-21-701, 8-21-702.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Place of granting letters testamentary, § 32-2-101.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 34, 538, 572.

NOTES TO DECISIONS

1. In General.

The alleged representative character of the plaintiff as executor or administrator is admitted by the general issue, and must be contested by a special plea that plaintiff is not and never was administrator. Cheek v. Wheatly, 30 Tenn. 556, 1851 Tenn. LEXIS 103 (1851); McMillan Marble Co. v. Black, 89 Tenn. 118, 14 S.W. 479, 1890 Tenn. LEXIS 29 (1890); Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890).

The appointment by the probate court is not subject to collateral attack, and is binding on all of the world until reversed by proper appellate court, or until revoked by the probate court. State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886); Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890); Eller v. Richardson, 89 Tenn. 575, 15 S.W. 650, 1890 Tenn. LEXIS 81 (1891); Rice v. Henly, 90 Tenn. 69, 15 S.W. 748, 1890 Tenn. LEXIS 103 (1891); Gallatin Turnpike Co. v. Puryear, 116 Tenn. 122, 92 S.W. 763, 1905 Tenn. LEXIS 11 (1906).

The grant and appointment when made by the probate court having jurisdiction is res judicata and conclusive, upon collateral attack, though the appointment was made without citation of the next of kin. State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886).

2. Jurisdiction.

The probate court of the county in which the deceased had his residence and domicile at the time of his death has jurisdiction to grant letters testamentary and of administration, but such letters granted by the probate court of some other county are merely voidable, and cannot be collaterally attacked upon the ground that they were so granted. Pinkerton v. Walker, 4 Tenn. 220, 4 Tenn. 221, 1817 Tenn. LEXIS 14 (1817); Johnson v. Gains, 41 Tenn. 288, 1860 Tenn. LEXIS 65 (1860); Posey v. Eaton, 77 Tenn. 500, 1882 Tenn. LEXIS 91 (1882); Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890); Eller v. Richardson, 89 Tenn. 575, 15 S.W. 650, 1890 Tenn. LEXIS 81 (1891); Franklin v. Franklin, 91 Tenn. 119, 18 S.W. 61, 1891 Tenn. LEXIS 84 (1892).

Where the executor, who is also a testamentary trustee and guardian under the same will, dies, the chancery court is the proper tribunal to appoint a proper person to execute the trusts of the will and to act as such guardian. Drane v. Bayliss, 20 Tenn. 174, 1839 Tenn. LEXIS 37 (1839).

The jurisdiction of the probate court over the subject of administration is not special or limited, but general, original and exclusive. Brien v. Hart, 25 Tenn. 131, 1845 Tenn. LEXIS 43 (1845); Johnson v. Gains, 41 Tenn. 288, 1860 Tenn. LEXIS 65 (1860); Carr v. Lowe's Ex'rs, 54 Tenn. 84, 1871 Tenn. LEXIS 418 (1871); Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882); Bellenfant v. American Nat'l Bank, 184 Tenn. 50, 195 S.W.2d 30, 1946 Tenn. LEXIS 259 (1946).

Every presumption is in favor of jurisdiction of probate court to make an appointment. Franklin v. Franklin, 91 Tenn. 119, 18 S.W. 61, 1891 Tenn. LEXIS 84 (1892); Dayton Coal & I. Co. v. Dodd, 188 F. 597, 1911 U.S. App. LEXIS 4350, 37 L.R.A. (n.s.) 456 (6th Cir. Tenn. 1911).

There is no authority for the appointment of administrators by the circuit court, not even in cases appealed to that court. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

Trial court properly acted within its discretion in transferring a probate action to another county based on a skilled nursing facility's contention that the decedent resided in that county at the time of his death; the statute has been utilized to transfer actions to the proper court with jurisdiction rather than dismissing the action when the original court has been determined to lack jurisdiction because venue was localized. In re Estate of Salmons, — S.W.3d —, 2018 Tenn. App. LEXIS 130 (Tenn. Ct. App. Mar. 14, 2018).

3. Application for Letters.

The record does not need to show the residence or the intestacy of the decedent, or the ground on which the court acted in making the appointment. Wright v. Mongle, 78 Tenn. 38, 1882 Tenn. LEXIS 138 (1882).

4. Letters on Living Persons.

The grant of administration upon the estate of a living person, as well as the appointment of an administrator in such case, is absolutely void, and a debtor of such living person is not protected in the payment of his indebtedness, though made in good faith and by compulsion of a judgment of court. Pinson v. Ivey, 9 Tenn. 296, 1830 Tenn. LEXIS 26 (1830); D'Arusment v. Jones, 72 Tenn. 251, 1880 Tenn. LEXIS 9 (1880); Shown v. McMackin, 77 Tenn. 601, 1882 Tenn. LEXIS 109, 42 Am. Rep. 680 (1882).

5. Revocation of Letters.

Grant of administration upon the estate of a decedent as an intestate is not void where will is found, but voidable; and may be revoked where a will is found and probated, but the acts of the administrator, in due course of administration, are nevertheless valid, and protect those properly and in good faith dealing with him. Pinkerton v. Walker, 4 Tenn. 220, 4 Tenn. 221, 1817 Tenn. LEXIS 14 (1817); Franklin v. Franklin, 91 Tenn. 119, 18 S.W. 61, 1891 Tenn. LEXIS 84 (1892).

Administration once granted will not be arbitrarily revoked, though it was improvidently granted. M'Gowan v. Wade, 11 Tenn. 374, 11 Tenn. 375, 1832 Tenn. LEXIS 64 (1832); Wilson v. Frazier, 21 Tenn. 30, 1840 Tenn. LEXIS 20 (1840); Wilson v. Hoss, 22 Tenn. 142, 1842 Tenn. LEXIS 48 (1842); Feltz v. Clark, 23 Tenn. 79, 1843 Tenn. LEXIS 22 (1843); State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886).

The power of the probate court to revoke the grant of letters in a proper case is well settled in this state. M'Gowan v. Wade, 11 Tenn. 374, 11 Tenn. 375, 1832 Tenn. LEXIS 64 (1832); Wilson v. Hoss, 22 Tenn. 142, 1842 Tenn. LEXIS 48 (1842); Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882); Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901); In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

The next of kin have the right, as against a public administrator, to administer within six months from the death of the intestate, and letters granted to the public administrator within the six months, while not void, may be revoked at the instance of the next of kin within that period. Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882).

6. —Proceedings for Revocation.

Proceedings to revoke letters of administration must originate in the probate court granting the same, and not by appointment of one with a superior right of preference to the administration, made in another probate court, and by his petition for certiorari in the circuit court for certification of the proceedings in the probate court. Wilson v. Hoss, 22 Tenn. 142, 1842 Tenn. LEXIS 48 (1842); Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882); Rice v. Henly, 90 Tenn. 69, 15 S.W. 748, 1890 Tenn. LEXIS 103 (1891); In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

The application for the revocation must be made by petition against the previously appointed administrator, and the issuance and service of citation on such administrator. However, such administrator's appearance in court, and the submission of the matter to the court, is a waiver of the necessity for the citation. Wilson v. Hoss, 22 Tenn. 142, 1842 Tenn. LEXIS 48 (1842).

Letters of administration, improvidently granted to a person not entitled thereto, will be revoked, upon formal application by petition of one entitled to the administration. Wilson v. Hoss, 22 Tenn. 142, 1842 Tenn. LEXIS 48 (1842); State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886).

A railroad company has such interest in the administration of the estate of the decedent as entitles it to file and maintain a petition to revoke the letters of administration granted here, upon the ground that the probate court was without jurisdiction to grant administration. Louisville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138, 1911 Tenn. LEXIS 36 (1911).

Petitioner was not entitled to file bill in chancery for removal of administrator appointed by the probate court on the ground that deceased was not a resident of the county, since probate court had original and exclusive jurisdiction over appointment and revocation of letters testamentary and of administration. Bellenfant v. American Nat'l Bank, 184 Tenn. 50, 195 S.W.2d 30, 1946 Tenn. LEXIS 259 (1946).

7. —Causes for Revocation.

The court may exercise power to revoke grant of letters for sufficient cause, as where the administrator abuses his trust, or where it is evidently for the benefit of the estate. M'Gowan v. Wade, 11 Tenn. 374, 11 Tenn. 375, 1832 Tenn. LEXIS 64 (1832); Wilson v. Hoss, 22 Tenn. 142, 1842 Tenn. LEXIS 48 (1842); Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882); Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901); In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

Letters of administration granted to a creditor or even to a stanger, five years after the intestate's death, and after the death of his widow, will not be revoked, upon application of the next of kin claiming priority of right to the administration, in the absence of some good reason for their delay in asking for letters of administration. Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901).

Collateral References.

Corporate stock, situs of, for purposes of probate jurisdiction and administration. 72 A.L.R. 179.

Diverse adjudications of courts of different states as to domicile of decedent. 121 A.L.R. 1200.

Indemnity or liability insurer or other person, potential liability of, to the estate, dependent upon establishment of claim against estate, as justifying grant of administration. 67 A.L.R.2d 936.

Judicial resolution of impasse between joint executors or administrators where concurrent action is required. 85 A.L.R.3d 1124.

Necessity and sufficiency of assets to justify appointment of administrator at domicile of decedent. 59 A.L.R. 87.

Physical condition as affecting competency to act as executor or administrator. 71 A.L.R.3d 675.

Propriety of court's appointment, as administrator of decedent's estate, of stranger rather than person having statutory preference. 84 A.L.R.3d 707.

30-1-103. Nonresident decedents — Granting letters testamentary or of administration.

  1. Letters testamentary or of administration may be granted upon the estate of a person who resided, at the time of the person's death, in some other state or territory of the union, or in a foreign country, by the probate court of any county in this state:
    1. Where the deceased had any goods, chattels, or assets, or any estate, real or personal, at the time of the person's death, or where the goods, chattels, assets, or estate may be when the letters are applied for;
    2. Where any debtor of the deceased resides;
    3. Where any debtor of a debtor of the deceased resides, the debt being unpaid when the application is made; or
    4. Where any suit is to be brought, prosecuted, or defended, in which the estate is interested.
  2. In the case of subdivision (a)(4):
    1. If the suit is pending, or to be brought, in a chancery court composed of more than one county, the probate court of any one of the counties may grant the letters; and
    2. If the suit is pending in an appellate court, the letters shall be granted by the probate court of the county in which the suit originated.

Code 1858, §§ 2203-2205 (deriv. Acts 1831, ch. 24, §§ 1, 2; 1841-1842, ch. 69, § 1; 1841-1842, ch. 165, § 1); Shan., §§ 3935-3937; Code 1932, §§ 8145-8147; T.C.A. (orig. ed.), §§ 30-103 — 30-105.

Cross-References. Administrators ad litem, appointment, § 30-1-109.

Executors of foreign wills qualifying, § 32-5-102.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 58, 63, 64, 572.

Tennessee Jurisprudence, 12 Tenn. Juris., Executors and Administrators, §§ 2, 4; 25 Tenn. Juris., Wills, § 57; 17 Tenn. Juris., Jurisdiction, § 10.

Law Reviews.

Wrongful Death Action in Tennessee (T.A. Smedley), 29 Tenn. L. Rev. 447.

Attorney General Opinions. Filing bonds by nonresident fiduciaries, OAG 84-195, 1984 Tenn. AG LEXIS 143 (6/27/84).

NOTES TO DECISIONS

1. Definitions.

Where, what is usually termed a special, limited, or ancillary administration on the estate of a nonresident is granted here to the personal representative of the estate in the state of the decedent's domicile, such administrator is expressly included in the words “executor or administrator,” and such administration stands upon the same footing as other administrations. Our statutes do not provide for such administration as a distinct species. Carr v. Lowe's Ex'rs, 54 Tenn. 84, 1871 Tenn. LEXIS 418 (1871).

The word “assets,” as used in the administration statutes, usually means items subject to payment of the debts of decedent, but it is not wholly limited to this meaning and has been applied to money collected by an administrator as damages for the wrongful killing of an intestate, since the administrator owes a duty to distributees as well as to creditors. Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915).

The word “estate” means the whole legal entity which may be the subject of devolution on the legatees, devisees, heirs, or distributees of a decedent, under the laws of the state government, which, under such laws, may be attacked or defended, or to obtain which a suit may be brought. Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915).

2. Jurisdiction over Nonresidents.

The property, real or personal, of a nonresident decedent, situated within the jurisdiction of this state at the time of his death, may be administered here under our insolvency laws, notwithstanding the estate of such deceased person in the place of his domicile is solvent. Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860); Moorehead v. Diemer, 61 Tenn. 153, 1872 Tenn. LEXIS 354 (1872); Smith v. St. Louis Mut. Life Ins. Co., 74 Tenn. 564, 1880 Tenn. LEXIS 293 (1880).

Where a nonresident became an inmate of a national home for disabled soldiers, located on land ceded by the state to the federal government, and died there, the probate court in the county in which that home is located and in which county the decedent died, leaving certificates of deposit of a bank in that county, has probate jurisdiction of his estate, and an administrator appointed by such court has authority to compel the officers of such home to deliver to him the personal property and assets of the decedent. Divine v. Unaka Nat'l Bank, 125 Tenn. 98, 140 S.W. 747, 1911 Tenn. LEXIS 9, 36 L.R.A. (n.s.) 586 (1911).

The statute makes the right of administration dependent upon the location of the property at the death of deceased, and if it be removed without authority, administration may still be had, and the responsible parties made to answer for such removal. Anderson v. Louisville & N. R. Co., 128 Tenn. 244, 159 S.W. 1086, 1913 Tenn. LEXIS 44 (1913); Coffey v. Durand, 27 Tenn. App. 704, 167 S.W.2d 684, 1940 Tenn. App. LEXIS 96 (1940).

An administrator may be appointed in the county in which a nonresident was wrongfully killed, though the cause of action for the wrongful death was the only asset in the county, and there were no technical assets. Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915).

Probate court had no jurisdiction under § 32-2-101 of original probate of will of decedent who was domiciled in Kansas at the time of death, but under this section probate court could issue letters testamentary, but administration thereunder would be limited to personal property which deceased left within the confines of Tennessee. Svoboda v. Svoboda, 61 Tenn. App. 444, 454 S.W.2d 722, 1969 Tenn. App. LEXIS 295 (Tenn. Ct. App. 1969).

3. —Extent of Jurisdiction.

Administration may be granted here for the collection of a judgment rendered in favor of the decedent, whose domicile was in another state against the debtor then residing there, but afterwards, removing to this state, and residing here both at the death of the judgment creditor and when application for grant of administration was made here. Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878); Smith v. Smith, 83 Tenn. 93, 1885 Tenn. LEXIS 25 (1885).

Under this section the grant of a limited or special administration does not prevent grant of a general administration, in a proper case, to a different person. Jordan v. Polk, 33 Tenn. 430, 1853 Tenn. LEXIS 68 (1853).

The administration upon the estate of a nonresident decedent granted in this state is an administration commensurate with the limits of the state, and the administrator is the proper representative of the intestate as to all his property and effects situated in this state at the time of his death. Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860).

4. —Administrator Pendente Lite.

Probate judge is authorized to appoint an administrator pendente lite only when the right of the person to administer is in contest, or the person applying is disqualified or unfit to serve, or no one applies. Lewis v. Burrow, 23 Tenn. App. 145, 127 S.W.2d 795, 1939 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1939).

5. Effect of Administration in Other State.

Where a distinct and independent administration has been granted in another state, the jurisdiction of the situs of certain chattels and effects of a decedent, and such jurisdiction has attached to them, they cannot be brought into the administration in this state, so as to render the sureties of the administrator here liable therefor. This rule is not affected by the fact that the same person was appointed administrator in both states, where the sureties are different. Case of Andrews' Heirs, 22 Tenn. 592, 1842 Tenn. LEXIS 156 (1842); Carr v. Lowe's Ex'rs, 54 Tenn. 84, 1871 Tenn. LEXIS 418 (1871); Snodgrass v. Snodgrass, 60 Tenn. 157, 1873 Tenn. LEXIS 428 (1873); Pearson v. Dailey, 75 Tenn. 674, 1881 Tenn. LEXIS 166 (1881).

Under this section administration of Tennessee assets may be had in Tennessee regardless of administration in another state. Fisher v. Durand, 179 Tenn. 635, 169 S.W.2d 671, 1940 Tenn. LEXIS 73 (1940).

6. —Rights and Powers of Foreign Representatives.

The administrator of another state, who has recovered a judgment there, in his name as administrator of the decedent, against a debtor of the decedent, may maintain suit, in his individual capacity, in this state, upon the judgment, without describing himself as administrator, and without obtaining grant of administration in this state, and if he names himself as administrator, such designation will be treated as mere description of the person, and the record will, in either case, sustain the action upon the plea of nul tiel record. Hunt v. Lyle, 14 Tenn. 412, 1834 Tenn. LEXIS 102 (1834); Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); Page v. Cravens, 40 Tenn. 383, 1859 Tenn. LEXIS 107 (1859).

A foreign executor or administrator has no right or power in this state to intermeddle with the decedent's estate here, and he has no authority to collect the assets or debts, and can neither sue nor be sued here in his character as executor or administrator. Allsup v. Allsup's Heirs, 18 Tenn. 283, 1837 Tenn. LEXIS 21 (1837); Keaton's Distributees v. Campbell, 21 Tenn. 224, 1840 Tenn. LEXIS 68 (1840); Sparks v. White, 26 Tenn. 86, 1846 Tenn. LEXIS 67 (1846); Patton v. Overton, 27 Tenn. 192, 1847 Tenn. LEXIS 68 (1847); Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); Young v. O'Neal, 35 Tenn. 55, 1855 Tenn. LEXIS 12 (1855); Beeler v. Dunn, 40 Tenn. 87, 1859 Tenn. LEXIS 27, 75 Am. Dec. 761 (1859); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878); Goodlett v. Anderson, 75 Tenn. 286, 1881 Tenn. LEXIS 115 (1881); Whittaker v. Whittaker, 78 Tenn. 93, 1882 Tenn. LEXIS 148 (1882); Farmers Bank of Woodland Mills v. Vinson, 9 Tenn. App. 51, — S.W.2d —, 1928 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1928).

While a foreign executor or administrator cannot maintain suits in our courts, he may indorse or assign negotiable or assignable paper, held there by the decedent, at the time of his death, and thus pass the legal title to the indorsee or assignee, who may, in his own name, sue, in our courts, the debtor residing here, especially if no objection is made upon the ground of local administration granted here. Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878); Goodlett v. Anderson, 75 Tenn. 286, 1881 Tenn. LEXIS 115 (1881).

A foreign executor or administrator is, by comity allowed to set up his claim to life policies left in his state at the time of the death of the insured there, but subsequently brought into this state and sued upon by an administrator appointed in this state. Ellis v. Northwestern Mut. Life Ins. Co., 100 Tenn. 177, 43 S.W. 766, 1897 Tenn. LEXIS 100 (1897).

A foreign administrator must also qualify in Tennessee in order to administer upon assets located within Tennessee. Coffey v. Durand, 27 Tenn. App. 704, 167 S.W.2d 684, 1940 Tenn. App. LEXIS 96 (1940).

Where a testatrix died domiciled in another state the appointment of an administrator in that state conferred no jurisdiction on such administrator to administer the assets of the estate in Tennessee. Fisher v. Durand, 179 Tenn. 635, 169 S.W.2d 671, 1940 Tenn. LEXIS 73 (1940).

Appointment of administrator in New York did not give him authority to maintain action for alleged wrongful death of decedent in county of accident in Tennessee without obtaining letters of administration in that county. Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700, 1954 Tenn. LEXIS 505 (1954).

This section applies only to the granting of letters upon the estate of nonresidents and contains no provision with respect to the authority of nonresident personal representatives. Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

Kentucky administrator was entitled to maintain suit in federal court in Tennessee under Kentucky wrongful death statute for benefit of statutory beneficiary without first obtaining ancillary letters or qualifying in Tennessee. Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

7. —Rights of Creditors.

Nonresident creditors may prove their claims in an ancillary administration. Bird v. Key, 67 Tenn. 366, 1875 Tenn. LEXIS 58 (1875); Hyder v. Hyder, 16 Tenn. App. 64, 66 S.W.2d 235, 1932 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1932).

Tennessee creditor of a testatrix who died domiciled in another state leaving assets in Tennessee was not obligated to file a claim in the courts of such other state in order to subject the Tennessee assets to such claim, and where such creditor did not subject himself to the jurisdiction of the courts of such other state and was not a party to the probate proceeding of such state, the probate proceedings in such state were not res judicata as to such creditor so as to prevent him from maintaining suit in Tennessee against an administrator appointed under the provisions of this section. Fisher v. Durand, 179 Tenn. 635, 169 S.W.2d 671, 1940 Tenn. LEXIS 73 (1940).

The failure to file a claim in the court in which the administration of an estate is pending does not bar the subsequent filing of the claim in an ancillary administration in the court of the creditor's domicile. Coffey v. Durand, 27 Tenn. App. 704, 167 S.W.2d 684, 1940 Tenn. App. LEXIS 96 (1940).

The mere filing of a claim which is ignored by the administrator because filed too late and not considered by the court in which the administration is pending does not bar the subsequent filing of the claim in an ancillary administration in the court of the creditor's domicile. Coffey v. Durand, 27 Tenn. App. 704, 167 S.W.2d 684, 1940 Tenn. App. LEXIS 96 (1940).

8. —Control of Assets.

An executor or administrator has no title or authority over the asserts in another state or country and he is not responsible therefore. Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); Young v. O'Neal, 35 Tenn. 55, 1855 Tenn. LEXIS 12 (1855); Carr v. Lowe's Ex'rs, 54 Tenn. 84, 1871 Tenn. LEXIS 418 (1871); Nelson v. Trigg, 3 Shan. 733 (1877); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878); Farmers Bank of Woodland Mills v. Vinson, 9 Tenn. App. 51, — S.W.2d —, 1928 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1928).

The administrator in the state where the decedent died, leaving negotiable or assignable notes there, is entitled to them, though the debtor resides in another jurisdiction where there is another administration. Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878); Goodlett v. Anderson, 75 Tenn. 286, 1881 Tenn. LEXIS 115 (1881); Ellis v. Northwestern Mut. Life Ins. Co., 100 Tenn. 177, 43 S.W. 766, 1897 Tenn. LEXIS 100 (1897).

In the conflict between the rights of the indorsee or assignee of the foreign executor or administrator and that of the domestic administrator where the debtor resides, the title of the domestic administrator, it seems, must be regarded as paramount, if the debt be assets here where the debtor resides, because the title of the domestic administrator is prior, and, therefore, superior to that of the indorsee or assignee, acquired by transfer from the foreign administrator. Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848).

Where the holder of negotiable or assignable notes dies while domiciled in another state, but leaving such notes in the jurisdiction of this state, where the debtor resides, administration may be granted on his estate here, for the collection and administration of such notes. Young v. O'Neal, 35 Tenn. 55, 1855 Tenn. LEXIS 12 (1855); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878); Goodlett v. Anderson, 75 Tenn. 286, 1881 Tenn. LEXIS 115 (1881).

All simple contract debts and other claims of less dignity, due the estates of decedents, are assets for administration in the jurisdiction where the debtor or party liable therefor resides. Louisville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138, 1911 Tenn. LEXIS 36 (1911).

Where one administrator qualified in Missouri and another in this state, and both sought to collect assets in this state, the assets should be turned over to administrator appointed here. Farmers Bank of Woodland Mills v. Vinson, 9 Tenn. App. 51, — S.W.2d —, 1928 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1928).

Under this section the Tennessee administrator of a testatrix who died domiciled in another state was the proper representative of the deceased for all her property situated in this state at the time of her death, and the appointment of an administrator by the state of decedent's domicile conferred no jurisdiction on such foreign administrator to administer the assets of deceased in Tennessee. Fisher v. Durand, 179 Tenn. 635, 169 S.W.2d 671, 1940 Tenn. LEXIS 73 (1940).

Legatee of testatrix who died domiciled in another state took the Tennessee assets of the estate subject to the payment of deceased's debts and obligations to Tennessee creditors. Fisher v. Durand, 179 Tenn. 635, 169 S.W.2d 671, 1940 Tenn. LEXIS 73 (1940).

9. — —Removal of Assets.

Where the resident administrator pays over the surplus funds to the foreign executor or administrator in the state or country of the decedent's domicile, such payment may be a bar in a court of equity when the rights of domestic creditors do not intervene, and the heirs and distributees or devisees and legatees are not prejudiced in their rights. Carr v. Lowe's Ex'rs, 54 Tenn. 84, 1871 Tenn. LEXIS 418 (1871).

If administration of a nonresident's estate is necessary in this state, our court will make the debts to the estate of nonresident assets for the benefit of domestic creditors, and not allow them to be removed without the payment of our own creditors, if there be such. St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878); Goodlett v. Anderson, 75 Tenn. 286, 1881 Tenn. LEXIS 115 (1881).

Policies of life insurance upon decedent's life payable at his death to his executors, administrators, or assigns, cannot be drawn into this state for recovery by suit and for administration and distribution under our statutes, by having an administrator appointed in this state to obtain physical possession of the policies and bring them into this state, even though the policies are actually brought into and sued on in our courts. Ellis v. Northwestern Mut. Life Ins. Co., 100 Tenn. 177, 43 S.W. 766, 1897 Tenn. LEXIS 100 (1897).

A pistol, a gold watch, a gold badge of an order, and money belonging to a deceased nonresident were subject to administration, and none of them was exempt, although subsequent to his death someone, without authority, sent such property to his widow in another state, since the parties responsible could be made to answer for such removal. Anderson v. Louisville & N. R. Co., 128 Tenn. 244, 159 S.W. 1086, 1913 Tenn. LEXIS 44 (1913).

10. —Payment of Debts.

A resident debtor's voluntary payment of notes left here by a decedent dying domiciled in another state, made to the foreign executor or administrator, is no bar to an action for the same debt, subsequently brought by a domestic administrator subsequently appointed. Young v. O'Neal, 35 Tenn. 55, 1855 Tenn. LEXIS 12 (1855); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878).

Where a resident debtor to a nonresident decedent happens to be temporarily in the state of the domicile of the deceased, and while there voluntarily pays the debt to the executor or administrator of the estate of such decedent, the payment is good, a valid discharge of the debt, and a protection of the debtor, because he was there subject to be sued. Young v. O'Neal, 35 Tenn. 55, 1855 Tenn. LEXIS 12 (1855); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878).

Where the debtor and creditor or both reside in the same state or country at the time of the creditor's death, and administration is granted in that state or country, as the debt is properly due there, and rightfully falls within that administration, it may be voluntarily paid to administrator in decedent's domicile by the debtor in another state or country, if he should afterwards change his domicile. Young v. O'Neal, 35 Tenn. 55, 1855 Tenn. LEXIS 12 (1855).

A resident debtor's voluntary payment to a foreign administrator who had been appointed at the domicile of the intestate, made at the place of the debtor's residence, is good as against an ancillary administrator subsequently appointed at the place of the debtor's residence, where the foreign administrator duly accounted for such payment, and where there were no creditors or distributees of the intestate in the state of such debtor's domicile. Wilkins v. Ellett, 108 U.S. 256, 2 S. Ct. 641, 27 L. Ed. 718, 1883 U.S. LEXIS 1031 (1883); Wyman v. Halstead, 109 U.S. 654, 3 S. Ct. 417, 27 L. Ed. 1068, 1884 U.S. LEXIS 1742 (1884).

Collateral References.

What constitutes “estate” of nonresident decedent within statute providing for local ancillary administration where decedent died leaving an estate in jurisdiction. 34 A.L.R.2d 1270.

30-1-104. Service of process upon nonresident representative.

    1. Whenever a nonresident of the state qualifies in this state as the executor or administrator of a person dying in or leaving assets or property in this state, for the purpose of suing or being sued, or for the purpose of being cited or otherwise notified by the court in which the decedent's estate is being administered, the nonresident shall be deemed to have assented to be treated as a resident citizen of this state.
    2. In case it is desired by any citizen or resident of this state to sue the administrator or executor in the administrator's or executor's official capacity for any debt or demand, due or owing to any citizen or resident of this state, from the testator or intestate, then, in case of the inability of the officer in whose hands process is placed to find the administrator or executor in this state, notice of the suit, served upon the clerk of the probate court of the county in which the party qualified as administrator or executor, shall be sufficient notice to bring the administrator or executor before the court issuing the process; provided, that the clerk shall notify by United States registered return-receipt mail the executor or administrator of notice having been served upon the clerk.
  1. The nonresident of the state, qualifying as executor or administrator as aforementioned, shall give to the clerk of the probate court of the county in which the nonresident qualifies the nonresident's address, and a letter so mailed to the nonresident at that address shall be sufficient notice, unless subsequently changed and notice accordingly given to the probate court clerk, in which event notice to the changed address, shall be sufficient.

Acts 1903, ch. 501, §§ 1, 2; Shan., §§ 3937a1, 3937a2; mod. Code 1932, §§ 8148, 8149; T.C.A. (orig. ed.), §§ 30-106, 30-107; Acts 1997, ch. 426, § 2.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendment to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Cross-References. Appointment of nonresident executor, § 30-1-116.

Certified mail in lieu of registered mail, § 1-3-111.

Executors of foreign wills qualifying, § 32-5-102.

Limitations on appointment of nonresident fiduciary, § 35-50-107.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 44, 124.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 58, 60, 62, 545, 701.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 36; 12 Tenn. Juris., Executors and Administrators, §§ 91, 120.

Law Reviews.

Selection and Removal of Fiduciaries (Robert L. McMurray), 26 No. 3, Tenn. B.J. 22 (1990).

NOTES TO DECISIONS

1. In General.

The statute contains no exception as to the form, methods, agencies, or privileges of suit, but includes all, and the courts cannot introduce an exception. Southern R.R. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137, 1904 Tenn. LEXIS 37 (1904).

2. Construction.

This section is in derogation of the common law and must be strictly construed and strictly complied with. Pinkerton v. Fox, 23 Tenn. App. 159, 129 S.W.2d 514, 1939 Tenn. App. LEXIS 22 (Tenn. Ct. App. 1939).

It was the intention of the legislature in adopting § 35-50-107 in effect to amend this section by requiring a foreign administrator qualifying under this section to act only in conjunction with a local personal representative. Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

3. Application.

The statute does not extend to nonresident executors or administrators generally, but only to such as have qualified in this state as the personal representatives of persons dying in or leaving assets or property in this state. Southern R.R. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137, 1904 Tenn. LEXIS 37 (1904); Memphis Street R. Co. v. Bobo, 232 F. 708, 1916 U.S. App. LEXIS 1874 (6th Cir. Tenn. 1916), aff'd, Memphis S. R. Co. v. Moore, 243 U.S. 299, 37 S. Ct. 273, 61 L. Ed. 733, 1917 U.S. LEXIS 2116 (1917), dismissed, Memphis S. R. Co. v. Bobo, 37 S. Ct. 214, 242 U.S. 664, 61 L. Ed. 551, 1916 U.S. LEXIS 1497 (1916).

This section relates to suits in state courts and it does not attempt to deprive federal courts of their jurisdiction. Memphis Street R. Co. v. Bobo, 232 F. 708, 1916 U.S. App. LEXIS 1874 (6th Cir. Tenn. 1916), aff'd, Memphis S. R. Co. v. Moore, 243 U.S. 299, 37 S. Ct. 273, 61 L. Ed. 733, 1917 U.S. LEXIS 2116 (1917), dismissed, Memphis S. R. Co. v. Bobo, 37 S. Ct. 214, 242 U.S. 664, 61 L. Ed. 551, 1916 U.S. LEXIS 1497 (1916).

This section does not apply to the service of process for the collection of a distributive share or a legacy, but applies only to suits for a debt or demand due or owing from the testator or intestate. Pinkerton v. Fox, 23 Tenn. App. 159, 129 S.W.2d 514, 1939 Tenn. App. LEXIS 22 (Tenn. Ct. App. 1939).

4. Suits.

A creditor of an estate, after recovering judgment against an administrator in one state, cannot proceed against him on such judgment in another state where he also took out letters of administration for a devastavit committed in the latter state for the satisfaction of such judgment. Bank of Wayne v. Fulton, 49 S.W. 297, 1898 Tenn. Ch. App. LEXIS 120 (1898).

This section does not prohibit a nonresident administrator from suing in the federal court for the wrongful death of his intestate, which occurred in Tennessee. Memphis Street R. Co. v. Bobo, 232 F. 708, 1916 U.S. App. LEXIS 1874 (6th Cir. Tenn. 1916), aff'd, Memphis S. R. Co. v. Moore, 243 U.S. 299, 37 S. Ct. 273, 61 L. Ed. 733, 1917 U.S. LEXIS 2116 (1917), dismissed, Memphis S. R. Co. v. Bobo, 37 S. Ct. 214, 242 U.S. 664, 61 L. Ed. 551, 1916 U.S. LEXIS 1497 (1916).

Nonresident administrators duly qualified in this state are deemed citizens for purposes of suing and being sued in federal courts. Memphis S. R. Co. v. Moore, 243 U.S. 299, 37 S. Ct. 273, 61 L. Ed. 733, 1917 U.S. LEXIS 2116 (1917); Mann v. Smith, 158 Tenn. 463, 14 S.W.2d 722, 1928 Tenn. LEXIS 176 (1929).

A foreign administrator, who has not qualified as administrator in this state, cannot sue or be sued in the state, and he cannot remove the estate to another state to be established where there are local creditors and next of kin. Farmers Bank of Woodland Mills v. Vinson, 9 Tenn. App. 51, — S.W.2d —, 1928 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1928).

This section did not apply to suit by heirs of deceased to discover assets of estate though administratrix was a nonresident since it was not a suit on a demand of debt due and owing by deceased. Doyle v. Loring, 107 F.2d 337, 1939 U.S. App. LEXIS 2740 (6th Cir. Tenn. 1939), cert. denied, 309 U.S. 686, 60 S. Ct. 808, 84 L. Ed. 1029, 1940 U.S. LEXIS 747 (1940).

Where deceased, a resident of Tennessee, was killed in an automobile accident on a highway in Tennessee, the mother of deceased who was a resident of Florida and who was appointed as administratrix by Tennessee court was entitled to sue tortfeasor, a resident of Illinois in federal court in Tennessee, and was entitled to privilege of having her summons accepted by secretary of state just as if she had been an actual resident of Tennessee. Hunt v. Noll, 112 F.2d 288, 1940 U.S. App. LEXIS 4284 (6th Cir. Tenn. 1940), cert. denied, 311 U.S. 690, 61 S. Ct. 71, 85 L. Ed. 446, 1940 U.S. LEXIS 196 (Oct. 28, 1940).

5. —Pauper Oath.

This statute authorizes nonresident, qualified here as personal representative, to prosecute a suit in the state in his representative capacity, on the pauper oath prescribed for personal representatives. Southern R.R. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137, 1904 Tenn. LEXIS 37 (1904); Memphis Street R. Co. v. Bobo, 232 F. 708, 1916 U.S. App. LEXIS 1874 (6th Cir. Tenn. 1916), aff'd, Memphis S. R. Co. v. Moore, 243 U.S. 299, 37 S. Ct. 273, 61 L. Ed. 733, 1917 U.S. LEXIS 2116 (1917), dismissed, Memphis S. R. Co. v. Bobo, 37 S. Ct. 214, 242 U.S. 664, 61 L. Ed. 551, 1916 U.S. LEXIS 1497 (1916).

6. —Limitation of Action.

Nonresidence or absence of executor from the state does not prevent or suspend, as to creditors, the running of the statute of limitations from the date of executors' qualification. Mann v. Smith, 158 Tenn. 463, 14 S.W.2d 722, 1928 Tenn. LEXIS 176 (1929).

7. —Actions for Benefit of Statutory Beneficiaries.

This section has reference to personal representatives in their capacity as such as representing the general estates of the decedents and the right of a foreign administrator to sue as a trustee for the benefit of statutory beneficiaries is not prohibited either expressly or by implication. Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

This section did not prohibit a Kentucky administrator from maintaining suit in federal court in Tennessee under Kentucky wrongful death statute for benefit of statutory beneficiary without first obtaining ancillary letters or qualifying in Tennessee. Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

Collateral References.

Application of rule permitting courts to exercise jurisdiction over equity actions against foreign personal representatives where there are assets within forum. 53 A.L.R.2d 323.

Eligibility of foreign corporation to appointment as executor or administrator. 26 A.L.R.3d 1019.

Who is resident within meaning of statute prohibiting appointment of nonresident executor or administrator. 9 A.L.R.4th 1223.

30-1-105. Recording of letters — Validity of certified copy.

All letters testamentary and of administration, when granted by the probate court, shall be recorded in that court, and a certified copy of the record shall be of the same validity as the original letters granted.

Code 1858, § 2206 (deriv. Acts 1837-1838, ch. 125, § 7); Shan., § 3938; mod. Code 1932, § 8150; T.C.A. (orig. ed.), § 30-108.

Cross-References. Record of letters testamentary, § 18-6-110.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 587.

NOTES TO DECISIONS

1. Failure to Record.

The failure of the clerk to record the letters testamentary after the regular probate of the will and the grant and issuance of the letters, and the qualification of the executor, will not vitiate his authority. Wright v. Mongle, 78 Tenn. 38, 1882 Tenn. LEXIS 138 (1882).

2. Proof of Appointment.

Where, in a suit prosecuted by an administrator, his appointment as such was denied by plea, and issue was joined thereon, the production of his letters of administration was at least prima facie evidence of the appointment, and sufficient proof thereof in the absence of any evidence to the contrary. Eller v. Richardson, 89 Tenn. 575, 15 S.W. 650, 1890 Tenn. LEXIS 81 (1891).

30-1-106. Preference in granting of letters.

When any person dies intestate in this state, administration shall be granted to the spouse of that person, if the spouse makes application for administration. For want of application for administration upon the part of the spouse, the administration shall be granted to the next of kin, if such next of kin apply for it. If neither the spouse nor next of kin make application for administration, then administration shall be granted to a creditor proving the decedent's debt on oath before the probate court; provided, that when there is more than one next of kin, the probate court may decide which of the kin shall be entitled to the administration.

Acts 1859-1860, ch. 36, § 1; Shan., § 3939; Code 1932, § 8151; T.C.A. (orig. ed.), § 30-109; Acts 2002, ch. 735, § 2.

Cross-References. Public administrators and public guardians, when granted to, § 30-1-405.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 432.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 546, 547, 549, 552, 554, 566, 569, 571, 1052.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-708.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, VII. Appellate Review of the Disposition (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 366 (1979).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

NOTES TO DECISIONS

1. In General.

The probate court's grant of administration to one is prima facie evidence of the appointee's right to administer, and the appointment should not be revoked, nor the letters recalled, without evidence that he was not entitled to the administration, and that another was so entitled. Wilson v. Hoss, 22 Tenn. 142, 1842 Tenn. LEXIS 48 (1842); Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901).

It is the spirit of this statute to grant administration to those interested in the estate or property to be administered. Word v. Shofner, 1 Tenn. Civ. App. (1 Higgins) 401 (1910).

2. Application.

A special or limited administration upon the estate of a nonresident decedent for a certain specific purpose, or to prosecute or defend a certain suit, is not within the letter or spirit of the statute prescribing to whom general administration shall be granted. Jordan v. Polk, 33 Tenn. 430, 1853 Tenn. LEXIS 68 (1853).

The provisions do not apply to the appointment of an administrator de bonis non with the will annexed, and one interested in the administration of the property under the will, or who is favored by those so interested, or by a large majority of the interests, is to be preferred to the widow and next of kin of the testator, where such widow and next of kin are neither interested in the estate to be administered nor preferred by those so interested. Word v. Shofner, 1 Tenn. Civ. App. (1 Higgins) 401 (1910).

Decedent's mother filed her petition three days following decedent's funeral and less than two weeks following his death, and no evidence showed a want of application by decedent's wife or daughter other than the fact that no petition to open the estate had yet been filed; a delay of two weeks following a death was not sufficient without other proof to show that the spouse and next-of-kin had failed to administer the estate. The mother was not a beneficiary and was nothing more than a stranger to the estate. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

3. Preference.

The statutory preference cannot continue indefinitely, and while this statute does not fix any period of limitation, it would be safe and reasonable to limit such right to six months. Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882); Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901).

Where applicants in the different classes are equally fit, the statute is mandatory in the preference prescribed. Fitzgerald v. Smith, 112 Tenn. 176, 78 S.W. 1050, 1903 Tenn. LEXIS 96 (1904).

The next of kin, unless unfitness is made to appear, is entitled to preference over the creditors, but the personal fitness of the applicants, in matters not involving legal disabilities, will be considered by the court in selecting between applicants of the same degree of kindred to the deceased, and may be of sufficient importance to justify the court in appointing one more remotely related, and the same considerations may justify the court in appointing one in a class more remotely preferred, as, for instance the largest creditor, when more fit and suitable. Fitzgerald v. Smith, 112 Tenn. 176, 78 S.W. 1050, 1903 Tenn. LEXIS 96 (1904).

Where the trial judge held the statutory preference in the appointment of administrators to be absolutely mandatory, and, yielding to this holding, counsel failed to introduce any evidence to show the superior qualifications of the applicant more remotely preferred, and to show the disqualifications of the applicant primarily preferred, a new trial will granted because of the lower court's erroneous holding. Fitzgerald v. Smith, 112 Tenn. 176, 78 S.W. 1050, 1903 Tenn. LEXIS 96 (1904).

Personal fitness of applicants for administration should be considered by the court and may be of sufficient importance to justify a court in disregarding the statutory order of preference and appointing a suitable party. Williams v. Stewart, 166 Tenn. 615, 64 S.W.2d 194, 1933 Tenn. LEXIS 125 (1933); Commerce Union Bank v. Fox, 28 Tenn. App. 587, 192 S.W.2d 233, 1945 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1945).

By the enactment of this section, the legislature meant to prefer the members of the family in providing for the granting of letters of administration. Commerce Union Bank v. Fox, 28 Tenn. App. 587, 192 S.W.2d 233, 1945 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1945).

In providing for the granting of letters of administration, the legislature meant to prefer those who are closer to the deceased by blood ties and right of property, so that members of the family who inherit the estate are preferred over creditors and strangers. Tudor v. Southern Trust Co., 193 Tenn. 331, 246 S.W.2d 33, 1952 Tenn. LEXIS 295 (1952).

Relatives who would inherit nothing have no standing in court to be appointed administrator or to remove an administrator already appointed, where they have no interest as next of kin or distributees. Cravens v. Cravens, 54 Tenn. App. 487, 392 S.W.2d 825, 1965 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1965).

Court was not persuaded by the mother's argument that whether she was properly appointed under the statute was irrelevant to the consideration of whether she could be removed; both the decedent's wife and daughter had a statutory preference to administer the estate far stronger than any claim by the mother, and although the wife declined, the guardian of the daughter accepted the appointment. The preference statute appeared to favor the appointment of the guardian in the absence of some unfitness as found by the trial court. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

Person improvidently named administrator of an estate may be unfit to serve under T.C.A. § 35-15-706(b)(3), and to hold otherwise would allow the T.C.A. § 30-1-106' s preference requirements to be defeated by a proverbial race to the courthouse by a stranger to the estate. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

4. —Widow.

There is particular propriety in giving the widow preference in granting letters of administration, where she is entitled to the whole of the personal estate, after the payment of the debts. Swan v. Swan, 40 Tenn. 163, 1859 Tenn. LEXIS 43 (1859).

A widow, administering upon her deceased husband's estate, is entitled to the appointment of a prudent business man as an associate with herself in the administration, such as she may prefer, either at the time of her appointment or subsequently. Phillips v. Green, 51 Tenn. 350, 1871 Tenn. LEXIS 173 (1871); Johnson v. Molsbee, 73 Tenn. 444, 1880 Tenn. LEXIS 159 (1880).

Application of widow after the appointment of a creditor, or even a stranger, five years after death of intestate, must be accompanied by satisfactory explanation of delay. Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901).

Widow who prior to husband's executed voluntary separation agreement waived any claim against husband's estate was not entitled to be appointed administratrix of estate. Cravens v. Cravens, 54 Tenn. App. 487, 392 S.W.2d 825, 1965 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1965).

5. —Widower.

The statute was not intended to deprive the husband of his well-settled rights to administer upon the estate of his deceased wife. Fairbanks v. Hill, 71 Tenn. 732, 1879 Tenn. LEXIS 139 (1879).

6. —Next of Kin.

Where one of the next of kin applies for letters, and the application is opposed by the widow and most of the other next of kin, but none of them applies for administration, the court ought to appoint the applicant. Swan v. Swan, 40 Tenn. 163, 1859 Tenn. LEXIS 43 (1859).

The probate court exercises its discretion in selecting among the next of kin where there are several of them applying, or in appointing the person designated by a majority of them. Crozier v. Goodwin, 69 Tenn. 125, 1878 Tenn. LEXIS 60 (1878); In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

The preference given to the next of kin is waived by the failure to assert it within five years, without giving some good reason for the delay, and letters of administration, granted to a creditor of the estate, or even to a stranger, five years after the intestate's death, will not be revoked on application of the next of kin claiming the priority of right. Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901).

The provision that the court may decide which of next of kin shall be entitled to administration, applies only where there are more than one next of kin of the same degree applying for administration. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

The next of kin have the right to nominate another instead of one of themselves for appointment as administrator. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904); Word v. Shofner, 1 Tenn. Civ. App. (1 Higgins) 401 (1910).

The probate court, upon denying the application by the next of kin for the appointment of their nominee as administrator, has no right, of its own motion, to appoint another as administrator, without giving the next of kin, and after them the creditors, an opportunity to present one of their number, or to nominate another for appointment. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

The next of kin, by appealing from an order of the probate court refusing to appoint their nominee for administrator, and, of its own motion, appointing another, do not waive their right to make a second nomination, though the first nominee was held to be ineligible by the appellate court. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

Remote relatives without interest in the estate are not within the classification “next of kin” within the meaning of statutes granting the next of kin preferential rights to the administration. Tudor v. Southern Trust Co., 193 Tenn. 331, 246 S.W.2d 33, 1952 Tenn. LEXIS 295 (1952).

7. — —Determination of Preference.

Where father declines letters, the mother was entitled, on application, to have letters which were issued to father's appointee to administer on the estate of an unmarried son revoked, and to be appointed as administratrix herself. Williams v. Stewart, 166 Tenn. 615, 64 S.W.2d 194, 1933 Tenn. LEXIS 125 (1933).

Under statute providing for granting of letters of administration, a brother was preferred over an aunt and other more remote kin of deceased. Tudor v. Southern Trust Co., 193 Tenn. 331, 246 S.W.2d 33, 1952 Tenn. LEXIS 295 (1952).

The right to administer the estate of an intestate follows the right to the property comprising the estate, and reference to statutes of distribution will determine who is entitled to administer under the statutory preference given next of kin. Tudor v. Southern Trust Co., 193 Tenn. 331, 246 S.W.2d 33, 1952 Tenn. LEXIS 295 (1952).

Under this section the legislature meant to prefer the members of the family in providing for the granting of letters of administration because they are the ones who inherit the estate and are closer to the deceased by blood ties and by rights of property than creditors or strangers to the estate. Lakins v. Isley, 200 Tenn. 353, 292 S.W.2d 389, 1956 Tenn. LEXIS 418 (1956); Cravens v. Cravens, 54 Tenn. App. 487, 392 S.W.2d 825, 1965 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1965).

The right to administer the estate of an intestate follows the property of the estate and a reference to the statutes of distribution will determine who is entitled to the administration. Lakins v. Isley, 200 Tenn. 353, 292 S.W.2d 389, 1956 Tenn. LEXIS 418 (1956); Cravens v. Cravens, 54 Tenn. App. 487, 392 S.W.2d 825, 1965 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1965).

Where mother, as sole next of kin of deceased child, was entitled to preference in the appointment of administrator, the fact that she was serving a sentence in the state penitentiary on conviction of an offense of an attempt to commit a felony did not prevent her from nominating another person to serve in her stead as administrator. In re Estate of Vaughn, 59 Tenn. App. 155, 438 S.W.2d 760, 1968 Tenn. App. LEXIS 338 (Tenn. Ct. App. 1968).

8. —Other Persons.

Counsel representing the executor in a will contest, and entitled to compensation for the services rendered, is a creditor of the estate for some amount, so as to be entitled to the appointment of administrator, after the will has been set aside. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

The attorney representing the bulk of the estate of a decedent, but at the same time obligated as such to carry into effect certain antagonistic agreements which would divert large amounts of the funds of the estate into channels different from the ordinary channels of distribution, is not eligible for the appointment as administrator, especially where the sanction of the chancery court for carrying such agreements into effect is required. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

A person having a tort claim against deceased resulting from automobile accident was entitled to have administrator appointed when those entitled to priority under the provisions of this section declined to act. In re Estate of Thompson, 203 Tenn. 485, 314 S.W.2d 6, 1958 Tenn. LEXIS 326 (1958).

When parties entitled to priority under this section have refused or declined to act then an aggrieved party may apply to the probate court for appointment of an administrator. In re Estate of Thompson, 203 Tenn. 485, 314 S.W.2d 6, 1958 Tenn. LEXIS 326 (1958).

A person having a tort claim against a decedent is not a creditor within the meaning of this section. In re Estate of Thompson, 203 Tenn. 485, 314 S.W.2d 6, 1958 Tenn. LEXIS 326 (1958).

Trial court did not abuse its discretion in ordering that the mother be removed either for unfitness under T.C.A. § 35-15-706(b)(3) or simply because she was improvidently appointed; the guardian of the decedent's daughter was an individual with priority willing to administer the estate, and thus the mother was improvidently appointed personal representative of the decedent's estate and subject to removal. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

According to decedent's mother, the statute created a conflict of interest between decedent's wife and daughter, who stood to inherit more wrongful death proceeds if the wife was disqualified from sharing in the estate, but it was unclear why a purported conflict would have any effect on this estate matter; no evidence was presented to support allegations of abandonment by the wife, and in absence of such proof, there was no conflict such that the appointment of the daughter's guardian was inappropriate. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

9. Failure to Qualify.

Where the probate court may, in its discretion, allow a reasonable time during the term for giving the administration bond, it is the duty of the party applying, especially when contest is anticipated, to bring his sureties with him, and be ready to comply with the law. If he fails to do so, the court may well appoint another as administrator, and such applicant cannot complain. Crozier v. Goodwin, 69 Tenn. 125, 1878 Tenn. LEXIS 60 (1878).

10. Costs of Determination.

An administrator cannot recover from an estate the costs of a suit by him to determine the right to administer. Cate v. Cate, 43 S.W. 365, 1897 Tenn. Ch. App. LEXIS 89 (1897).

11. Removal of Administrator.

The discretion to appoint an administrator is left largely to the probate court thereof, and relatives who would not inherit anything in the estate have no standing in court to remove an administrator already appointed where they have no interest in the estate as next of kin or distributee. Lakins v. Isley, 200 Tenn. 353, 292 S.W.2d 389, 1956 Tenn. LEXIS 418 (1956); Cravens v. Cravens, 54 Tenn. App. 487, 392 S.W.2d 825, 1965 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1965).

Mother of deceased who would take no part in personal assets or recovery for wrongful death of deceased was not entitled to removal of divorced husband of deceased as administrator where there was no charge that the former husband was not a proper and suitable person to be administrator and the personal assets and recovery if any would pass to minor child of the former husband and deceased. Lakins v. Isley, 200 Tenn. 353, 292 S.W.2d 389, 1956 Tenn. LEXIS 418 (1956).

An administrator who is removed after a claim for preference is filed is entitled to a reasonable fee for services rendered prior to removal. In re Estate of Hicks, 510 S.W.2d 263, 1972 Tenn. App. LEXIS 284 (Tenn. Ct. App. 1972).

12. Foster Son.

Appointment as administrator of a foster, but never legally adopted, son is not invalid and at the most merely voidable. In re Estate of Hicks, 510 S.W.2d 263, 1972 Tenn. App. LEXIS 284 (Tenn. Ct. App. 1972).

Collateral References.

Adverse interest or position as disqualification for appointment as personal representative. 11 A.L.R.4th 638.

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative. 11 A.L.R.4th 638.

Appointment as administrator of one not a member, nor nominee of a member, of the class of persons designated by statute as eligible to appointment, where no one in better right has applied. 119 A.L.R. 143.

Capacity of infant to act as executor or administrator, and effect of improper appointment. 8 A.L.R.3d 590.

Choice in appointment of administrator as between nominee of one in higher order of statutory preference and one in lower order of preference. 113 A.L.R. 780.

Deferred class of next of kin named in statute, but not beneficially interested in particular estate, preference respecting appointment in favor of person in. 70 A.L.R. 1466.

Delegation by will of power to nominate executor. 11 A.L.R.2d 1284.

Effect of divorce, separation, desertion, unfaithfulness, and the like, upon right to name appointee for administration of estate of spouse. 34 A.L.R.2d 876.

Executor de son tort, propriety of appointment as executor or administrator. 157 A.L.R. 237.

Governing law as to existence or character of offense for which one has been convicted in a federal court or court of another state, as bearing upon disqualification as executor or administrator. 175 A.L.R. 806.

Grantees of, or successors to, interest of one eligible because of specified relationship to deceased, who are within statute making such persons eligible to appointment. 114 A.L.R. 275.

Guardian of infant or incompetent, right of, to appointment as executor or administrator as representative or substitute for infant or incompetent. 135 A.L.R. 585.

Liability insurer's potential liability to estate dependent upon establishment of claim against estate, as justifying grant of administration under statutes making existence of assets or property a condition of grant. 67 A.L.R.2d 936.

Physical condition as affecting competency to act as executor or administrator. 71 A.L.R.3d 675.

Removal of executor or administrator because of disqualification. 8 A.L.R. 181.

Right of surviving spouse, personally incompetent to serve as administrator because of being younger than age specified, to nominate administrator. 64 A.L.R.2d 1152.

Selection of administrator from among members of class equally entitled. 1 A.L.R. 1245.

Separation agreement as affecting right of husband or wife to administer deceased spouse's estate. 35 A.L.R. 1505, 34 A.L.R.2d 1020.

Statutes and acts of one appointed executor or administrator who was ineligible. 14 A.L.R. 619.

Stranger, right to pass over eligible person interested in estate and appoint. 80 A.L.R. 824.

Trust company, statute authorizing appointment of, as administrator, upon application or consent of one acting as such (or executor), or one entitled to appointment as such. 105 A.L.R. 1190.

Validity of condition in will in restraint of marriage as applied to appointment of executor or executrix. 122 A.L.R. 26.

Waiver or renunciation of right to administer decedent's estate, scope and effect of. 153 A.L.R. 220.

30-1-107. Appeal from grant of letters.

  1. Any person who claims a right to execute a will, or to administer on the estate of an intestate, and who thinks that person to be injured by an order of the court awarding letters testamentary or of administration, may appeal to the appropriate court in accordance with § 30-2-609, on giving bond as in other cases of appeal.
  2. After the appropriate court has heard such appeal and a determination is made, the judgment shall be certified to the probate court, that it may proceed in the case accordingly.

Code 1858, §§ 2207, 2208 (deriv. Acts 1794, ch. 1, § 48); Shan., §§ 3940, 3941; Code 1932, §§ 8152, 8153; T.C.A. (orig. ed.), §§ 30-110, 30-111; Acts 1988, ch. 854, § 3.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 555.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, VII. Appellate Review of the Disposition (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 366 (1979).

NOTES TO DECISIONS

1. Appeal to Circuit Court.

Only the unsuccessful applicants can prosecute an appeal or certiorari, according to the circumstances, to the circuit court, from the order of the probate court appointing another as administrator. Wright's Distributees v. Wright, 8 Tenn. 43, 8 Tenn. 47, 1827 Tenn. LEXIS 5 (1827).

An appeal lies, and a trial de novo may be had in the circuit court. McClanahan v. McClanahan, 59 Tenn. 379, 1873 Tenn. LEXIS 78 (1873); State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886); Fitzgerald v. Smith, 112 Tenn. 176, 78 S.W. 1050, 1903 Tenn. LEXIS 96 (1904); In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

If prayer for an appeal be refused, writ of certiorari is the proper remedy to bring up the case for review. Williams v. Pointer, 71 Tenn. 366, 1879 Tenn. LEXIS 90 (1879).

Hearings in circuit courts of appeals from probate court appointments of administrators or executors are de novo in nature rather than in the nature of writs of error, and therefore filing a bill of exceptions is not essential to circuit court review. Delffs v. Delffs, 545 S.W.2d 739, 1977 Tenn. LEXIS 607 (Tenn. 1977).

On assumption that minute entry must show that appeal from probate court was prayed for and granted, the phrase “upon motion of petitioner” was sufficient prayer and order that record be certified and sent to circuit court and was sufficient to show that appeal was granted. Delffs v. Delffs, 545 S.W.2d 739, 1977 Tenn. LEXIS 607 (Tenn. 1977).

2. Proceedings in Circuit Court.

While the appeal from the action of the probate court in the appointment of an administrator is pending in the circuit court, the court has jurisdiction and power to make all amendments, and, if necessary, to introduce new parties to determine the questions contested in the probate court, for the proceedings in the circuit court are de novo. However, the circuit court has no power to consider the application of anyone for the appointment, where such applicant was not an applicant or party to the contest in the probate court. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

The circuit court cannot grant letters of administration, but, upon determination of the appeal, must remand the cause for the issuance of letters. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

3. Appeal to Appellate Court.

The appellate court, reversing both the circuit court and the probate court in their unconditional refusal to revoke the grant of administration, without requiring the appointee to execute bond, which he had omitted to do, will remand the cause to the probate court, with directions to grant letters of administration to the petitioner according to law, unless the first appointee shall enter into bond as required by law. Feltz v. Clark, 23 Tenn. 79, 1843 Tenn. LEXIS 22 (1843).

Where the probate court appointed an administrator, and, upon appeal, the circuit court erroneously reversed the judgment, the Supreme Court, reversing judgment of the circuit court, and affirming the appointment of the probate court, will give the judgment that the circuit court should have given, and will order its judgment to be certified to the probate court, with directions to proceed in the administration. Crozier v. Goodwin, 69 Tenn. 125, 1878 Tenn. LEXIS 60 (1878).

Where the appellate court reverses the probate and circuit courts in their action in removing an administrator, and appointing a new administrator, it will enter a judgment canceling the letters of administration to such new administrator and declaring the right of the previously appointed administrator to continue in the administration. Rodes v. Boyers, 106 Tenn. 434, 61 S.W. 776, 1900 Tenn. LEXIS 179 (1901).

Where the circuit court correctly reversed the judgment of the probate court in its appointment of an administrator, but erroneously appointed another as administrator, the appellate court, affirming the circuit court's reversal of the probate court and reversing the circuit court's action in such appointment of a new applicant, will remand the cause to the circuit court, with instructions to issue a procedendo to the probate court, directing it to appoint an administrator, in accord with the rules laid down in the opinion. In re Wooten's Estate, 114 Tenn. 289, 85 S.W. 1105, 1904 Tenn. LEXIS 88 (1904).

Collateral References.

Appeal from order appointing or removing executor or administrator, or proceedings to supplant him, as affecting rights of persons who dealt with him pending such appeal or proceeding. 99 A.L.R. 862.

Appeal without bond by executor or administrator from order, decree, or judgment removing him, or holding letters of administration to have been improperly issued. 104 A.L.R. 1197.

Appealability of order on application for removal of personal representative, guardian, or trustee. 37 A.L.R.2d 751.

Creditor's or debtor's right to attack issuance of letters of administration. 123 A.L.R. 1225.

Ineligibility of one appointed executor or administrator as ground for collateral attack on his authority. 14 A.L.R. 619.

Premature granting of letters of administration or letters testamentary as affecting acts or proceedings thereunder. 113 A.L.R. 1398.

30-1-108. Administrator pendente lite.

The probate judges are authorized to appoint an administrator pendente lite in any case that may arise in their respective courts where any will may be the subject of contest or litigation.

Acts 1859-1860, ch. 62; Shan., § 3942; mod. Code 1932, § 8154; T.C.A. (orig. ed.), § 30-112.

Cross-References. Administrators ad litem, appointment, § 30-1-109.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 349, 567.

NOTES TO DECISIONS

1. Appointment Authorized.

Administrator pendente lite may be appointed by the probate court to hold the property during the pendency of a contest over appointment of administrator. Crozier v. Goodwin & McConnell, 69 Tenn. 368, 1878 Tenn. LEXIS 99 (1878).

There must be a contest as to the right to administer the estate or the executorship in order to authorize the appointment of an administrator pendente lite. Lewis v. Burrow, 23 Tenn. App. 145, 127 S.W.2d 795, 1939 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1939).

2. Appointment Not Required.

Appointment of an administrator pending a will contest is unnecessary where there is a widow to hold the property during a will contest. Phillips v. Bass, 163 Tenn. 615, 45 S.W.2d 56, 1931 Tenn. LEXIS 157 (1932).

Where right of executor to administer assets was not in contest, and there was no charge that he was unfit or disqualified, mere fact that will was in contest was not ground for appointment of administrator pendente lite. Lewis v. Burrow, 23 Tenn. App. 145, 127 S.W.2d 795, 1939 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1939).

3. Duties.

The appointment of an administrator pending a will contest is in the nature of the appointment of a receiver, and he has the duty to collect the effects and hold the property until the contest is terminated and then pay over all he has received. McClanahan v. McClanahan, 59 Tenn. 379, 1873 Tenn. LEXIS 78 (1873); Williams v. Pointer, 71 Tenn. 366, 1879 Tenn. LEXIS 90 (1879); Lewis v. Burrow, 23 Tenn. App. 145, 127 S.W.2d 795, 1939 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1939).

4. Appeal.

No appeal lies from order of probate court appointing an administrator pendente lite. Houston's Ex'rs v. Houston's Adm'rs, 22 Tenn. 652, 1842 Tenn. LEXIS 172 (1842); McClanahan v. McClanahan, 59 Tenn. 379, 1873 Tenn. LEXIS 78 (1873); Williams v. Pointer, 71 Tenn. 366, 1879 Tenn. LEXIS 90 (1879).

Collateral References.

Special or temporary administrator, person to be appointed as, pending will contest. 136 A.L.R. 604.

Termination of authority of administrator pendente lite by termination of litigation. 8 A.L.R. 180.

30-1-109. Administrator ad litem.

  1. In all proceedings in the probate or chancery courts, or any other court having chancery jurisdiction, where the estate of a deceased person must be represented, and there is no executor or administrator of the estate, or the executor or administrator of the estate is interested adversely to the estate, it shall be the duty of the judge or chancellor of the court, in which the proceeding is had, to appoint an administrator ad litem of the estate for the particular proceeding, and without requiring a bond of the administrator ad litem, except in a case where it becomes necessary for the administrator ad litem to take control and custody of property or assets of the intestate's estate, when the administrator ad litem shall execute a bond, with good security, as other administrators are required to give, in such amounts as the chancellor or judge may order, before taking control and custody of the property or assets.
  2. This appointment shall be made whenever the facts rendering it necessary appear in the record of such a case, or shall be made known to the court by the affidavit of any person interested in the case; and, in such proceedings in the chancery court, the chancellor at chambers or clerk and master of the court on a rule day shall have authority to make an appointment in vacation.

Acts 1889, ch. 137, § 1; Shan., § 3954; mod. Code 1932, § 8166; T.C.A. (orig. ed.), § 30-312.

Cross-References. Administrator pendente lite, appointment, § 30-1-108.

Resignation of representative, appointment of successor, § 30-1-112.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 45, 572, 577.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-711, 4-712.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. Jurisdiction of Courts.

The statute does not apply to law courts, unless in cases of equitable cognizance. Rajio v. Collins, 101 Tenn. 662, 49 S.W. 750, 1898 Tenn. LEXIS 118 (1899).

The appellate court has no authority to appoint an administrator ad litem upon the estate of a party who died while his case was pending before that court. The statute applies only to courts of original jurisdiction. Rajio v. Collins, 101 Tenn. 662, 49 S.W. 750, 1898 Tenn. LEXIS 118 (1899).

The appellate court has no jurisdiction to appoint where no such relief was sought in the court below. Hullett v. Hullett, 162 Tenn. 431, 36 S.W.2d 896, 1930 Tenn. LEXIS 106 (1931).

Probate courts have authority to appoint an administrator whose duties are limited to a single act or a number of special acts. Casey v. Strange, 193 Tenn. 372, 246 S.W.2d 50, 1952 Tenn. LEXIS 301 (1952).

In wrongful death action the circuit court did not have jurisdiction to appoint widow of deceased wrongdoer as an administrator and litem for the purpose of defending the suit, since circuit court did not come within statutory term “any other court having chancery jurisdiction.” Brooks v. Garner, 194 Tenn. 624, 254 S.W.2d 736, 1953 Tenn. LEXIS 280 (1953).

Circuit court lacked subject matter jurisdiction to appoint an administrator for the estate and thus the order was void. Owens v. Muenzel, — S.W.3d —, 2018 Tenn. App. LEXIS 752 (Tenn. Ct. App. Dec. 21, 2018).

2. Grounds for Appointment.

The adverse interest contemplated is not merely a personal interest, but any interest which may prevent the executor or administrator from fully and fairly representing the estate of his testator or intestate. Denning v. Todd, 91 Tenn. 422, 19 S.W. 228, 1892 Tenn. LEXIS 8 (1892).

It was error for the probate judge to dismiss a cross bill filed in a partition suit, alleging a debt against the estate of the deceased ancestor, that there was no personalty belonging to the estate, that no administration had been granted or could be procured, and asking for the appointment of an administrator ad litem, in order that the debt might be established, and the land sold to pay the debt. Apple v. Owens, 1 Tenn. Ch. App. 135 (1902).

Where, after a will was rejected in a will contest, the court allowed attorney's fees to proponent's attorney and this order of allowance was affirmed and the costs taxed against the estate, the reviewing court ordered that an administrator ad litem be appointed, if no general administrator had been appointed, to permit payment of attorney's fees and costs out of the assets of the estate. Powell v. Barnard, 20 Tenn. App. 31, 95 S.W.2d 57, 1936 Tenn. App. LEXIS 1 (Tenn. Ct. App. 1936).

Where validity of will had not been determined, neither legatees nor executor named therein had authority to contest title of widow based on deed allegedly procured by fraud, but under the circumstances court of equity would impound property in dispute and hold it until rights of legatees and executors were determined and administrator ad litem and/or receiver would be appointed by the trial court. Crippled Children's Hospital School v. Camatsos, 48 Tenn. App. 617, 349 S.W.2d 178, 1960 Tenn. App. LEXIS 132 (Tenn. Ct. App. 1960).

Trial court did not abuse its discretion in denying victims'  petition to intervene in an estate's wrongful death action against a city because the statute specifically gave the victims the right to have an administrator ad litem appointed for the limited purpose of defending against their claim that they were injured by the decedent, nothing in the victims'  petition to intervene or elsewhere in the record suggested that they followed the procedure. White v. Johnson, 522 S.W.3d 417, 2016 Tenn. App. LEXIS 474 (Tenn. Ct. App. July 7, 2016).

3. Practice and Procedure.

A motion for the appointment of an administrator ad litem based upon a proper affidavit is not too late, though made after dismissal of the bill, on demurrer, for want of such administrator, but before the decree of dismissal was entered, and during the same term of court; and where the chancellor refuses such application and dismisses the bill, the Supreme Court will reverse and remand the cause for the appointment of such administrator ad litem, and for amended and supplemental bill, and further proceedings. Denning v. Todd, 91 Tenn. 422, 19 S.W. 228, 1892 Tenn. LEXIS 8 (1892).

The practice of presenting the matter for the appointment of an administrator ad litem by the affidavit of any person interested therein is a proper one to make known to the court the facts upon which such appointment is sought. Denning v. Todd, 91 Tenn. 422, 19 S.W. 228, 1892 Tenn. LEXIS 8 (1892); Newman v. Schwerin, 61 F. 865, 1894 U.S. App. LEXIS 2250 (6th Cir. Tenn. 1894).

Bill in chancery which alleged that bank was acting as administrator of estate involved and another estate and also alleged that it was acting as liquidator of a business formerly operated by the two deceased persons and that it should investigate and determine the respective interests of the two deceased persons in the business being liquidated but that it had failed and refused to do so and therefore prayed for appointment of an administrator ad litem of estate involved was in essence a proceeding for removal of bank as administrator which was within exclusive jurisdiction of probate court and was not a proceeding authorizing chancellor to appoint administrator ad litem. Fox v. Commerce Union Bank, 186 Tenn. 181, 209 S.W.2d 1, 1948 Tenn. LEXIS 534 (1948).

Since an administrator ad litem is appointed for a special and limited purpose, it may precede the appointment of a general administrator and the two administrations may subsist together. On the same principle, the special administration may occur after the general administration has been completed. Estate of Russell v. Snow, 829 S.W.2d 136, 1992 Tenn. LEXIS 234 (Tenn. 1992).

When a decedent died the survival statute paused the statute of limitations, and because no personal representative was appointed during the six month period following his death, the statute of limitations recommenced; because the statute of limitations period ran before a driver and her husband filed their action against the administrator ad litem, the statute of limitations barred their personal injury claims, and the administrator's motion to dismiss was properly granted. Putnam v. Leach, — S.W.3d —, 2018 Tenn. App. LEXIS 22 (Tenn. Ct. App. Jan. 23, 2018).

Appointment of an administrator ad litem for the decedent did not constitute a suit in equity for transfer purposes under T.C.A. § 16-10-111, and for purposes of T.C.A. § 16-1-116, the case could not be transferred to chancery court because the circuit court had jurisdiction to award the damages requested. Owens v. Muenzel, — S.W.3d —, 2018 Tenn. App. LEXIS 752 (Tenn. Ct. App. Dec. 21, 2018).

4. —Evidence to Support Appointment.

The appointment of an administrator ad litem, although it recites that it appears that there is no administrator or executor, cannot be sustained, when brought up for review by appeal from the final decree, in the absence of allegation and evidence in the record to support such recital, though such appointment might be good upon collateral attack. Newman v. Schwerin, 61 F. 865, 1894 U.S. App. LEXIS 2250 (6th Cir. Tenn. 1894).

5. Presumption of Valid Appointment.

Where administrator ad litem prosecuted action in court of law for unliquidated damages, court's ruling on demurrer to his declaration raised presumption that his appointment was necessary under statute. Casey v. Strange, 193 Tenn. 372, 246 S.W.2d 50, 1952 Tenn. LEXIS 301 (1952).

6. Extent of Authority.

Under statute having reference to proceedings of court with chancery jurisdiction over decedent's estate in which there is no qualified executor or administrator, and requiring court to appoint an administrator ad litem for the particular proceeding, the words “particular proceeding” are not limited to proceedings growing out of cases pending in chancery court prior to appointment of administrators ad litem, but are sufficiently broad to include any action necessary to protect the interest of such estate. Casey v. Strange, 193 Tenn. 372, 246 S.W.2d 50, 1952 Tenn. LEXIS 301 (1952).

7. Compensation.

An administrator ad litem appointed to defend rights of creditors to decedent's life insurance is not allowed compensation out of policy proceeds decreed not to belong to decedent's estate. Hancock v. Fidelity Mut. Life Ins. Co., 53 S.W. 181, 1899 Tenn. Ch. App. LEXIS 56 (1899).

30-1-110. Time within which administration may be granted.

The time within which administration may be granted shall be as follows:

  1. Deceased Entitled to Remainder Not Reduced to Possession.  Where a person dies entitled to a vested or contingent remainder, not reduced to possession in the deceased's lifetime, ten (10) years after the termination of the life or other particular estate on which the remainder depends, letters shall be given to administer upon the deceased's estate in the remainder.
  2. Distributee under Disability at Death of Ancestor.  Administration may be granted at any time within twenty-two (22) years from the death of the deceased to any person entitled to distribution who was an infant when the deceased died.
  3. Prosecuting Claims Against Government.  A special administration may be granted for the purpose of prosecuting any claim against the government of the United States, without any limitation of time.

Code 1858, § 2220 (deriv. Acts 1831, ch. 24, § 3; 1835-1836, ch. 86, § 3; 1841-1842, ch. 69, § 2; 1853-1854, ch. 98, § 1); Shan., § 3955; mod. Code 1932, § 8167; T.C.A. (orig. ed.), § 30-113; Acts 1993, ch. 449, § 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 316, 352, 528, 540, 563, 572.

NOTES TO DECISIONS

1. In General.

The terms “letters testamentary” and “letters of administration,” although they differ in their meaning in some respects, are convertible terms, at least so far as the limitation of time within which either may be granted, after the death of the decedent, is concerned. Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867); Townsend v. Bonner, 1 Shan. 197 (1869).

2. Application of Section.

This statute applies to the appointment of administrators de bonis non. Gallatin Turnpike Co. v. Puryear, 116 Tenn. 122, 92 S.W. 763, 1905 Tenn. LEXIS 11 (1906).

3. —Probate of Wills.

The statute does not limit the period for probate of wills, so that the right of devisees in possession of land to set up a lost will is not barred by a delay where the situation of the parties was not changed in the meantime. Alsobrook v. Orr, 130 Tenn. 120, 169 S.W. 1165, 1914 Tenn. LEXIS 8 (1914).

4. Attack on Appointment.

It is not a good defense to a direct proceeding instituted for the purpose of revoking and vacating the grant of administration, made after the time limited, that the party seeking this relief procured the grant of such administration of which he complains, or assented thereto, for there is want of power to make the grant, and this cannot be waived by any act of the parties. Rice v. Henly, 90 Tenn. 69, 15 S.W. 748, 1890 Tenn. LEXIS 103 (1891).

Where the probate court has exceeded its authority and granted administration after the time limited therefor, a person sued by one acting as administrator de bonis non, under such appointment, has such an interest in the question of the validity of the appointment as entitles him to make application, to the probate court issuing the letters, for a revocation of the administration upon the ground that the grant thereof was void, because made after the time limited therefor. Gallatin Turnpike Co. v. Puryear, 116 Tenn. 122, 92 S.W. 763, 1905 Tenn. LEXIS 11 (1906).

5. —Collateral Attack.

If the will is probated and letters testamentary issued, or administration is granted upon an estate, in the probate court, after the period of limitation prescribed, the validity of the same cannot be collaterally attacked, and the action set aside in chancery. Townsend v. Townsend, 44 Tenn. 70, 1867 Tenn. LEXIS 15 (1867); Eller v. Richardson, 89 Tenn. 575, 15 S.W. 650, 1890 Tenn. LEXIS 81 (1891); Rice v. Henly, 90 Tenn. 69, 15 S.W. 748, 1890 Tenn. LEXIS 103 (1891); Gallatin Turnpike Co. v. Puryear, 116 Tenn. 122, 92 S.W. 763, 1905 Tenn. LEXIS 11 (1906).

The appointment of an administratrix under an unprobated will more than 10 years after the death of the testator is not open to collateral attack in a proceeding to set up the will as a muniment of title and as a defense to plaintiff's claim to land devised by the will. Weaver v. Hughes, 26 Tenn. App. 436, 173 S.W.2d 159, 1943 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1943).

6. Suit against Executor De Son Tort.

Where relief is refused the distributees in their suit against an executor de son tort because the suit in their behalf was not prosecuted by an administrator of the estate, the court cannot consider the fact that it is too late to obtain a grant of administration, so as to afford the parties a remedy. Brown v. Bibb, 42 Tenn. 434, 1865 Tenn. LEXIS 85 (1865); Trafford v. Wilkinson, 3 Cooper's Tenn. Ch. 449 (1877).

30-1-111. Oath of representative.

The clerk shall, before delivering the letters of administration or letters testamentary to the personal representative, administer to the representative, if an executor, an oath for performing the will of the deceased; and, if an administrator, an oath for the faithful performance of the administrator's duty; and, as to both, an oath that all statements in the petition about the representative are true and accurate and the representative is not disqualified from serving because of having been sentenced to imprisonment in a penitentiary as set forth in § 40-20-115 or otherwise. In the alternative, the oaths of the administrator or executor may be sworn or affirmed in the presence of a notary public and the acknowledgment of the representative's oaths, when certified by the notary public, shall be presented to the appropriate clerk.

Code 1858, § 2221 (deriv. Acts 1715, ch. 48, § 5); Shan., § 3956; Code 1932, § 8168; Acts 1983, ch. 55, § 1; T.C.A. (orig. ed.), § 30-114; Acts 2019, ch. 332, § 2.

Amendments. The 2019 amendment inserted “personal” preceding “representative” near the beginning; substituted “; and, as to both, an oath that all statements in the petition about the representative are true and accurate and the representative is not disqualified from serving because of having been sentenced to imprisonment in a penitentiary as set forth in § 40-20-115 or otherwise. In the alternative, the oaths” for “. In the alternative, the oath” in the middle of the section and substituted “oaths” for “oath” near the end.

Effective Dates. Acts 2019, ch. 332, § 3. May 10, 2019.

Cross-References. “Oath” defined, § 1-3-105.

Service of process upon nonresident representative, § 30-1-104.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 33, 521, 581.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-707, 4-805.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

30-1-112. Resignation of representative.

  1. Any named executor in a decedent's last will and testament may decline to serve as such personal representative by filing a sworn statement, or a statement under penalty of perjury, with the court.
  2. Any personal representative may resign and relinquish trust in the following manner:
    1. Filing Petition.  The personal representative shall file the petition in the probate court or chancery court having cognizance of the settlement of the estate of the deceased whom the petitioner represents, praying to be permitted to resign.
    2. Notice to Legatees, etc.  When the legatees, devisees, or distributees entitled to the estate reside in the county where the letters testamentary or of administration were granted, five (5) days' notice shall be given them, their agent or attorney, of the filing or intention to file, the petition. Where they reside out of the county, the court shall order notice to be given by publication in a newspaper, or by posting at the courthouse door, or in such other mode as it thinks reasonable.
    3. Petitioner to Settle Accounts — New Administrator.   After notice has been given, the court shall cause the petitioner's accounts to be settled, and may, at its discretion, accept the resignation of the petitioner, and appoint a new administrator, taking from the appointee a good and sufficient administration bond.

Code 1858, § 2237 (deriv. Acts 1851-1852, ch. 141, §§ 1, 2); Shan., § 3973; Code 1932, § 8185; T.C.A. (orig. ed.), § 30-115; Acts 2016, ch. 809, §§ 4, 5.

Amendments. The 2016 amendment added (a); and substituted “personal representative” for “executor or administrator” in the present introductory language of (b) and in (b)(1).

Effective Dates. Acts 2016, ch. 809, § 8. April 14, 2016.

Cross-References. Removal on sentence to penitentiary, § 40-20-115.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 45, 604-606.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-901 — 4-903.

NOTES TO DECISIONS

1. In General.

Chancery may accept resignation and appoint administrator as successor to a resigned administrator, where it has cognizance of the settlement of an estate which an administrator represents, and whose resignation has been made and accepted. Meredith v. First Nat'l Bank, 127 Tenn. 68, 152 S.W. 1038, 1912 Tenn. LEXIS 10 (1913).

2. Death of Personal Representative.

The administration is an entire thing, and when granted to several, and one dies, resigns, or is removed, the entire authority remains with the survivors or the remaining representative or representatives, and the appointment of an administrator de bonis non in such case is void. Lewis' Ex'rs v. Brooks, 14 Tenn. 167, 1834 Tenn. LEXIS 60 (1834); Fitzgerald v. Standish, 102 Tenn. 383, 52 S.W. 294, 1899 Tenn. LEXIS 60 (1899).

Upon the death of an administrator or executor, no interest in the personal property and assets left unadministered is transmissible to his own personal representative; but the entire interest in all such property as remains unadministered, in specie, or capable of being identified as the specific property of the estate represented by him, passes to the administrator de bonis non of the original testator or intestate. Schackelford v. Runyan, 26 Tenn. 141, 1846 Tenn. LEXIS 82 (1846); Smith v. Pearce, 32 Tenn. 127, 1852 Tenn. LEXIS 32 (1852); Stott v. Alexander, 34 Tenn. 650, 1855 Tenn. LEXIS 111 (1855); Cheek v. Wheatley, 35 Tenn. 484, 1856 Tenn. LEXIS 14 (1856); Thomas v. Stanley, 36 Tenn. 411, 1857 Tenn. LEXIS 21 (1857).

Upon the death of the administrator of a deceased debtor, the remedy of his creditors to reach and subject the unadministered property and assets is against the administrator de bonis non of the deceased debtor, and not against the administrator of the deceased administrator, although such property and assets are in his possession. Jones v. Jones, 27 Tenn. 705, 1848 Tenn. LEXIS 26 (1848).

There is no statute providing for the appointment of successors to administrators who may die before they have closed their administration. Minor v. Webb, 48 Tenn. 395, 1870 Tenn. LEXIS 74 (1870).

3. Settlement of Accounts.

The personal representative should settle his accounts before the court is warranted in accepting the resignation. Coleman v. Raynor, 43 Tenn. 25, 1866 Tenn. LEXIS 11 (1866); Harrison v. Henderson, 54 Tenn. 315, 1872 Tenn. LEXIS 53 (1872).

The statutory requirement of the settlement is not required to be completed before the court may, in its discretion, appoint the successor. Harrison v. Henderson, 54 Tenn. 315, 1872 Tenn. LEXIS 53 (1872).

4. Successor Administrators Generally.

An administrator appointed as successor is not protected from suit for six months from his qualification. Minor v. Webb, 48 Tenn. 395, 1870 Tenn. LEXIS 74 (1870).

5. —Powers and Duties.

An administrator de bonis non is clothed with the full powers and subject to all the duties of the first administrator. Schackelford v. Runyan, 26 Tenn. 141, 1846 Tenn. LEXIS 82 (1846); Smith v. Pearce, 32 Tenn. 127, 1852 Tenn. LEXIS 32 (1852).

Administrator de bonis non was not estopped from recovering slave owned by deceased where law prohibited sale though prior administrator did not object to sale under an execution issued against a third party. Bell v. Speight, 30 Tenn. 451, 1850 Tenn. LEXIS 153 (1850).

The administrator de bonis non may maintain an action of debt upon a judgment recovered in the name of the former executor or administrator. Smith v. Pearce, 32 Tenn. 127, 1852 Tenn. LEXIS 32 (1852).

Administrator de bonis non was estopped from recovering slave owned jointly by deceased and another though sale was prohibited by law where prior administrator was paid estate's share in the slave. Cheek v. Wheatley, 35 Tenn. 484, 1856 Tenn. LEXIS 14 (1856).

Notes payable to former administrator may be sued on, either by such administrator de bonis non, or by the personal representative of such former administrator. Abingdon v. Tyler, 46 Tenn. 502, 1869 Tenn. LEXIS 87 (1869); Wood v. Tomlin, 92 Tenn. 514, 22 S.W. 206, 1893 Tenn. LEXIS 7 (1893); Clark v. Pence, 111 Tenn. 20, 76 S.W. 885, 1903 Tenn. LEXIS 2 (1903).

Where the administrator has sued upon a note, made payable to himself as administrator, for a debt due the estate, such suit may be revived, either in the name of the administrator de bonis non, or in the name of his own administrator, especially where the latter alone applies for a revivor, and it does not appear there is an administrator de bonis non. The recovery in either case shall be subject to all proper accounts between the two estates. Wood v. Tomlin, 92 Tenn. 514, 22 S.W. 206, 1893 Tenn. LEXIS 7 (1893); Clark v. Pence, 111 Tenn. 20, 76 S.W. 885, 1903 Tenn. LEXIS 2 (1903).

The administrator may, with or without suit, collect notes, payable to his intestate as administrator of another estate, for debts owing to such estate, and having collected such notes, his sureties are liable for his failure to account therefor, notwithstanding the fact that his intestate left no estate whatever of his own for administration; and they cannot escape such liability, upon the ground that such notes could have been collected by the administrator de bonis non of the estate of the first decedent. Clark v. Pence, 111 Tenn. 20, 76 S.W. 885, 1903 Tenn. LEXIS 2 (1903).

6. —Actions against Former Administrator.

The administrator de bonis non is not responsible for the maladministration or waste of his predecessor, and, therefore, cannot, at law, call him to account for such waste. Stott v. Alexander, 34 Tenn. 650, 1855 Tenn. LEXIS 111 (1855); Cheek v. Wheatley, 35 Tenn. 484, 1856 Tenn. LEXIS 14 (1856); Thomas v. Stanley, 36 Tenn. 411, 1857 Tenn. LEXIS 21 (1857).

The administrator de bonis non cannot maintain an action of trover against the representative of the former administrator for money of the intestate's estate collected by him, unless such money can be specifically identified. Stott v. Alexander, 34 Tenn. 650, 1855 Tenn. LEXIS 111 (1855); Thomas v. Stanley, 36 Tenn. 411, 1857 Tenn. LEXIS 21 (1857).

Where the administrator de bonis non demands notes payable to former administrator, and sues in chancery to obtain possession and control thereof, the personal representative of the former administrator is entitled to be reimbursed for moneys expended or to be expended by him in payment of fees to the attorneys employed to conduct actions on such notes conducted by him. Abingdon v. Tyler, 46 Tenn. 502, 1869 Tenn. LEXIS 87 (1869).

An administrator de bonis non may maintain a bill in chancery to call his predecessor in administration and sureties or his personal representative to account. Whitaker v. Whitaker, 80 Tenn. 393, 1883 Tenn. LEXIS 187 (1883).

7. Resignation Not Accepted.

Probate court's decision to deny the individual's request to resign was well within its discretion based upon his stated rationale and the status of the estate; at worst, the individual's action was a subversive attempt to position the estate to further waste judicial resources by initiating new lawsuits challenging the validity of a trust, which the estate was barred from doing, and the individual's justification for resigning did not compel the probate court accept the resignation. In re Estate of Goza, — S.W.3d —, 2014 Tenn. App. LEXIS 836 (Tenn. Ct. App. Dec. 19, 2014).

Collateral References.

Revocation or termination of authority, resignation as affecting. 8 A.L.R. 175.

Right of executor or administrator to resign. 91 A.L.R. 712.

Statutory exemption of representative from suit until expiration of prescribed period as affected by resignation of original administrator and appointment of a new one. 104 A.L.R. 909.

30-1-113. Estate turned over to new administrator — Inventory.

  1. The court shall order the petitioner to pay over and deliver to the new personal representative the balance of money, property, and effects in the petitioner's hands; and, unless the payment and delivery are made in pursuance of the order, the court may order an execution against the petitioner and the petitioner's sureties, after giving five (5) days' notice to the sureties.
  2. Within one (1) month from the time of appointment, the new representative shall make and duly file a true and perfect inventory of the estate of the deceased that comes to the representative's hands.

Code 1858, §§ 2238, 2239 (deriv. Acts 1851-1852, ch. 141, §§ 3, 4); Shan., §§ 3974, 3975; Code 1932, §§ 8186, 8187; T.C.A. (orig. ed.), §§ 30-116, 30-117.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 607, 608, 662, 986.

Law Reviews.

Attorney and Client — Liability of Attorney for Misdirection of Minor's Funds, 8 Tenn. L. Rev. 191 (1930).

NOTES TO DECISIONS

1. Failure of Old Administrator to Account.

Upon the failure of the resigning administrator to comply with the court's order requiring him to pay over and deliver to the new administrator the balance of money, property, and effects in his hands, an execution may be ordered to be issued against him and his sureties. Coleman v. Raynor, 43 Tenn. 25, 1866 Tenn. LEXIS 11 (1866).

30-1-114. Transfer of administration to new county.

  1. Any person interested in an administration may have the administration transferred to a new county formed after it was granted, and including the residence of the deceased, by filing, in the clerk's office of the new county, a transcript, duly certified, of the proceedings already had in the administration, after which the administration shall be conducted as if the letters had been granted in the new county. But without so filing a transcript, the probate court of the new county, or its clerk, can do nothing in the administration.
  2. The fees paid to the clerk of the old county for the transcript, by the party procuring it, shall be chargeable to the estate.

Code 1858, §§ 2235, 2236 (Acts 1851-1852, ch. 149, §§ 1, 2, 4-6); Shan., §§ 3971, 3972; Code 1932, §§ 8183, 8184; T.C.A. (orig. ed.), §§ 30-401, 30-402.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 609.

30-1-115. Administrator with will annexed — Powers and authority.

An administrator with the will annexed, appointed instead of an executor resigned, and all administrators with the will annexed, shall have the same power and authority as the executor had by the will of the testator, and may sell land, if the executor possessed that power.

Code 1858, § 2240 (deriv. Acts 1851-1852, ch. 141, § 4); Shan., § 3976; Code 1932, § 8188; T.C.A. (orig. ed.), § 30-118.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 33, 561, 986.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-708 — 4-710.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

NOTES TO DECISIONS

1. Execution of Trust.

The administrator with the will annexed succeeds to all the powers conferred by the will upon the executor as executor, though not to such as are vested in him as a personal trust to be executed by him as testamentary trustee, and not as executor. Armstrong v. Park's Devisees, 28 Tenn. 195, 1848 Tenn. LEXIS 72 (1848); Harrison v. Henderson, 54 Tenn. 315, 1872 Tenn. LEXIS 53 (1872); Green v. Davidson, 63 Tenn. 488, 1874 Tenn. LEXIS 295 (1874); Blakemore v. Kimmons, 67 Tenn. 470, 1875 Tenn. LEXIS 68 (1875); Caruthers v. Caruthers, 70 Tenn. 264, 1879 Tenn. LEXIS 173 (1879).

Where a will authorized an executor to execute a trust but did not name him as trustee, and executor failed to serve, an administrator with the will annexed could not execute the trust, but he could be appointed as a trustee to execute the trust. Howell v. Stroud, 1 Tenn. App. 301, — S.W. —, 1925 Tenn. App. LEXIS 49 (Tenn. Ct. App. 1925).

2. Power of Sale under Will.

Where the will directs the testator's lands to be sold, without naming a donee of the power of sale, such power is, by implication, devolved upon the executors nominated in the will, if they be charged with the distribution of the funds. Lockart v. Northington, 33 Tenn. 318, 1853 Tenn. LEXIS 48 (1853); Parker v. Sparkman, 2 Shan. 544 (1877).

Where the power of sale of land vested in executors is coupled with an interest, or a trust is created, the survivors are fully authorized to execute the power originally vested in all of the executors, and a sale and conveyance, made by the survivors, in the execution of such power, will be valid and effective to pass the title of the property to the purchaser, but a mere naked power not coupled with any interest or trust will not so survive, nor can it be executed by the survivors. Belote v. White, 39 Tenn. 703, 1859 Tenn. LEXIS 305 (1859); Fitzgerald v. Standish, 102 Tenn. 383, 52 S.W. 294, 1899 Tenn. LEXIS 60 (1899); Bedford v. Bedford, 110 Tenn. 204, 75 S.W. 1017, 1903 Tenn. LEXIS 49 (1903).

Where the testator directs his land to be sold by his nominated executors for the purpose of creating funds for distribution among certain legatees, and the intention to make the conversion is clear and certain, the land will be treated as personalty, to the extent of its value, in the hands of the administrators with the will annexed, who may, in such case, sell the land as the executors could have done, had they qualified and remained in office. Green v. Davidson, 63 Tenn. 488, 1874 Tenn. LEXIS 295 (1874); Wheless v. Wheless, 92 Tenn. 293, 21 S.W. 595, 1892 Tenn. LEXIS 76 (1893); Wayne v. Fouts, 108 Tenn. 145, 65 S.W. 471, 1901 Tenn. LEXIS 16 (1901); Bedford v. Bedford, 110 Tenn. 204, 75 S.W. 1017, 1903 Tenn. LEXIS 49 (1903); Bennett v. Gallaher, 115 Tenn. 568, 92 S.W. 66, 1905 Tenn. LEXIS 89 (1905).

3. —Will Failing to Provide for Executor.

Where the will does not provide for an executor, the statute does not apply, and a sale made by an administrator in such case is void. Where such will contains a direction for the sale of land, it can only be made through the chancery court, and the will does not authorize such administrator to treat the land as personalty, under the doctrine of equitable conversion, and as such sell it. McElroy v. McElroy, 110 Tenn. 137, 73 S.W. 105, 1902 Tenn. LEXIS 47 (1903).

4. —Executor Failing to Qualify.

Where a will directs that the land and personal property of the testator be sold for the purpose of creating a fund to be distributed among certain named legatees, and the executors named in the will, and by its proper construction empowered to make the sales, decline to qualify, the administrators with the will annexed have power, and it is their duty, to sell the land and personalty, and raise the fund designed by the will. Hardin v. Hassell, 118 Tenn. 143, 100 S.W. 720, 1906 Tenn. LEXIS 87 (1907).

5. —Liability for Failure to Sell.

Where the will directs that the real and personal property of the testator be sold for the purpose of creating a fund to be divided among certain named legatees and the administrators with the will annexed breach their duty by failing to sell the land, they will be treated, upon suit by the remainderman, as having the fund in hand, and as liable for it, with interest from the death of the life tenant, where it appears that there was enough property to raise the fund bequeathed. Hardin v. Hassell, 118 Tenn. 143, 100 S.W. 720, 1906 Tenn. LEXIS 87 (1907).

6. —Ejectment.

Executors with discretionary power to sell lands to pay debts and legacies, if it shall become necessary, have no interest or title in the land and cannot maintain ejectment. Peck v. Henderson's Lessee, 15 Tenn. 17, 15 Tenn. 18, 1834 Tenn. LEXIS 4 (1834); Gordon v. Overton, 16 Tenn. 121, 1835 Tenn. LEXIS 57 (1835); Rogers v. Marker, 59 Tenn. 645, 1874 Tenn. LEXIS 23 (1874); Daniel v. Dayton Coal & Iron Co., 132 Tenn. 501, 178 S.W. 1187, 1915 Tenn. LEXIS 40 (1915).

Collateral References.

Party's acceptance of remittitur in lower court as affecting his right to complain in appellate court as to amount of damages for personal injury. 16 A.L.R.3d 1327.

Preferences in appointment as administrator with the will annexed, construction and application of statutes relating specifically to. 164 A.L.R. 844.

30-1-116. Appointment of nonresident personal representative.

No nonresident person, bank or trust company may be appointed as the personal representative of an estate of a decedent, except as provided in § 35-50-107.

Acts 1985, ch. 312, § 1; 1988, ch. 854, § 4.

Law Reviews.

Selection and Removal of Fiduciaries (Robert L. McMurray), 26 No. 3, Tenn. B.J. 22 (1990).

30-1-117. Petition and documents required to be filed with application for letters.

  1. To apply for letters of administration or letters testamentary to administer the estate of a decedent, a verified petition containing the following information and documents shall be filed with the court:
    1. The identity of the petitioner;
    2. The decedent's name, age, if known, date and place of death, and residence at time of death;
    3. In case of intestacy, the name, age, if known, mailing address and relationship of each heir at law of the decedent;
    4. A statement that the decedent died intestate or the date of execution, if known, and the names of all attesting witnesses of the document or documents offered for probate;
    5. The document or documents offered for probate, or a copy thereof, as an exhibit to the petition;
    6. The names and relationships of the devisees and legatees and the city of residence of each if known, similar information for those who otherwise would be entitled to the decedent's property under the statutes of intestate succession, and the identification of any minor or other person under disability;
    7. An estimate of the fair market value of the estate to be administered, unless bond is waived by the document offered for probate or is waived as authorized by statute;
    8. If there is a document, whether the document offered for probate waives the filing of any inventory and accounting or whether such is not otherwise required by law;
    9. If there is a document, a statement that the petitioner is not aware of any instrument revoking the document being offered for probate, if that is the case, and that the petitioner believes that the document being offered for probate is the decedent's last will; and
    10. The name, age, mailing address, relationship of the proposed personal representative to the decedent, a statement of any felony or misdemeanor convictions, and a statement of any sentence of imprisonment in a penitentiary.
  2. No notice of the probate proceeding shall be required except for probate in solemn form, which shall require due notice in the manner provided by law to all persons interested.

Acts 1997, ch. 426, § 1; 2019, ch. 332, § 1.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that this section shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Amendments. The 2019 amendment added (a)(10).

Effective Dates. Acts 2019, ch. 332, § 3. May 10, 2019.

NOTES TO DECISIONS

1. Verified Petition.

Respondents did not file a verified petition seeking admission of the 2007 will and 2010 codicil as required, and thus the judgment admitting the will and codicil to probate was vacated and the matter was remanded. In re Estate of Pierce, 511 S.W.3d 520, 2016 Tenn. App. LEXIS 514 (Tenn. Ct. App. July 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 868 (Tenn. Nov. 16, 2016).

Administratrix's petition for letters of administration was not insufficient because a skilled nursing facility failed to provide any authority for its implied contention that a petition that did not include every item of information listed in the statute was “defective”; the facility further failed to provide any authority in support of its contention that the chancery court lacked subject matter jurisdiction simply because the administratrix's petition was incomplete. In re Estate of Salmons, — S.W.3d —, 2018 Tenn. App. LEXIS 130 (Tenn. Ct. App. Mar. 14, 2018).

30-1-118 — 30-1-149. [Reserved.]

The definitions in § 31-1-101 are applicable to this title, unless a different meaning is indicated in a section or is otherwise clearly intended.

Acts 1988, ch. 854, § 5.

30-1-151. Procedure for removal.

Any executor or administrator may be removed in accordance with the procedures in § 35-15-706.

Acts 2002, ch. 735, § 3; 2005, ch. 99, § 1.

NOTES TO DECISIONS

1. Jurisdiction.

Probate division of a chancery court had jurisdiction to remove an executor of an estate, while a ruling that the executor had depleted the estate was pending on appeal, because the depletion case and the estate case were two separate matters handled by two different chancellors, and the appeal of the depletion case did not operate as a stay of the estate proceeding. In re Estate of McMillin, — S.W.3d —, 2015 Tenn. App. LEXIS 69 (Tenn. Ct. App. Feb. 12, 2015).

2. Construction.

Language of the statutes indicates that the trial court “may” remove the administrator based on the enumerated factors; given the permissive language used in the statutes, it appears that the trial court retains discretion with regard to its removal decisions. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

Part 2
Bonds

30-1-201. When bond required.

    1. The clerk shall not require a bond of the personal representative before issuing letters testamentary or letters of administration if:
      1. The decedent by will excuses the personal representative from making bond;
      2. The personal representative and the sole beneficiary of the estate are the same person and the court approves;
      3. All of the beneficiaries are adults, who are not under a disability that would preclude them from acting, and all beneficiaries consent to the personal representative serving without bond by filing a sworn statement, or a statement under penalty of perjury, with the court and the court approves; or
      4. The personal representative is a bank that is excused from the requirements of bond by § 45-2-1005.
    2. If the preceding exemptions from making bond do not apply, the clerk, before issuing the letters, shall take from the personal representative a bond payable to the state, with two (2) or more sufficient sureties or one (1) corporate surety, in an amount determined by the court. If bond is required, the bond shall not be less than the value of the estate of the decedent subject to administration nor more than double the value of the estate and the court may increase or decrease the amount at any time by order.
  1. Any interested person may petition the court to suggest and show that the personal representative is wasting, or likely to waste, the estate. In this event, the court may require bond in an amount it deems advisable.

Code 1858, § 2222 (deriv. Acts 1715, ch. 48, § 5; 1813, ch. 120, § 4); Shan., § 3957; Acts 1923, ch. 48, § 1; Shan. Supp., § 3957a1; mod. Code 1932, § 8169; T.C.A. (orig. ed.), § 30-201; Acts 1985, ch. 140, § 6; 2016, ch. 809, § 6.

Amendments. The 2016 amendment rewrote (a)(1)(C) which read: “(C) All of the beneficiaries of the estate are adults and all of them consent in writing to the personal representative's serving without bond and the court approves; or”.

Effective Dates. Acts 2016, ch. 809, § 8. April 14, 2016.

Cross-References. Administrator appointed upon resignation of representatives to give bond, § 30-1-112.

Bond of appointee in chancery court, § 30-1-306.

Fiduciary bond or oath excused, § 45-2-1005.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 33, 35, 526, 581, 584, 585, 968.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Selection and Removal of Fiduciaries (Robert L. McMurray), 26 No. 3, Tenn. B.J. 22 (1990).

NOTES TO DECISIONS

1. Bond Required for Qualification.

Before the oath is taken and the bond is given, where the executor is not excused from giving bond, neither the nominated executor nor the applicant for the grant of letters of administration, is executor or administrator, and can do any act touching the administration, executorship or administratorship. Martin v. Peck, 10 Tenn. 298, 1829 Tenn. LEXIS 13 (1829); Drane v. Bayliss, 20 Tenn. 174, 1839 Tenn. LEXIS 37 (1839); Feltz v. Clark, 23 Tenn. 79, 1843 Tenn. LEXIS 22 (1843); Crozier v. Goodwin & McConnell, 69 Tenn. 368, 1878 Tenn. LEXIS 99 (1878); Wall v. Bissell, 125 U.S. 382, 8 S. Ct. 979, 31 L. Ed. 772, 1888 U.S. LEXIS 1939 (1888).

2. Execution of Bond.

The taking of the bond shall be done under the direction of the court having authority to make the appointment, and not by the clerk alone. Crozier v. Goodwin, 69 Tenn. 125, 1878 Tenn. LEXIS 60 (1878).

3. Time for Execution.

The probate court may, in its discretion, allow a reasonable time during the term for giving bond for administration. Crozier v. Goodwin, 69 Tenn. 125, 1878 Tenn. LEXIS 60 (1878).

4. Failure to Execute Bond.

The court is entitled to appoint an administrator with the will annexed if the nominated executor fails to qualify, as a formal renunciation is not necessary. Baldwin v. Buford, 12 Tenn. 16, 1833 Tenn. LEXIS 5 (1833).

Where the appointed administrator has entered upon the administration without giving bond, acted as administrator for several years, marshalled the assets, discharged the debts of the estate, and settled with some of the distributees, he will be permitted, in order to avoid confusion and useless litigation, to give bond, and continue in office, in preference to another person applying for a grant of letters, especially where such appointed but unbonded administrator was the nominee of the nearest of kin to the intestate, and by one degree nearer than the new applicant. Feltz v. Clark, 23 Tenn. 79, 1843 Tenn. LEXIS 22 (1843).

5. Ground for Chancery Interference.

Chancery will not interfere with the execution of a testamentary trust by the testamentary trustee, and require him to give bond, where he was excused from giving bond in the will unless some danger from misconduct or incapacity of the trustee be shown, or at least apprehended, with good cause; and the property will not be taken from the trustee's custody, unless a breach of trust, or a tendency thereto, is shown. The trustee is not required to be worth as much as the value of the trust property or fund to excuse him from giving bond where so excused by the will. Bowling v. Scales, 2 Cooper's Tenn. Ch. 63 (1874); Kerr v. White, 68 Tenn. 161, 1877 Tenn. LEXIS 10 (1877); Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890).

While poverty is no ground to deprive a testamentary trustee of the trust thrown upon him by a testator who excused him from giving bond with full knowledge of his condition, the fact that such trustee is a man of limited means, and has, since the death of the testator, embarked in a large and hazardous business, is sufficient to authorize the appointment of a receiver until the hearing of the case on the merits. Bowling v. Scales, 2 Cooper's Tenn. Ch. 63 (1874).

Collateral References.

Power of court, in absence of statute, to require corporate surety on fiduciary bond in probate proceeding. 82 A.L.R.2d 926.

What funds, not part of the estate, are received under color of office so as to render liable surety on executor's or administrator's bond. 82 A.L.R.3d 869.

30-1-202. Increasing amount of bond or adding sureties.

The court shall, upon a showing made by any person interested in the estate that the bond is not sufficient either as to the amount or as to the solvency of the surety or sureties, increase the bond as to amount or require additional sureties, or both, so as fully to protect all persons interested.

Acts 1923, ch. 48, § 1; Shan. Supp., § 3957a1; mod. Code 1932, § 8170; T.C.A. (orig. ed.), § 30-202.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 589.

Collateral References.

Discretion or power of court, after bond of executor or administrator has been given, to dispense with, discontinue, or modify bond. 121 A.L.R. 951.

30-1-203. Form of bond.

The bond must be substantially in the following form:

We, A B, C D, and E F, are bound to the state in the penalty of  dollars. Witness our hands, this  day of  , 20  . The condition of this obligation is such, that, whereas, the above bound A B has been appointed executor of the will of G H, deceased (or administrator, as the case may be); now, if A B shall well and truly, as such executor (or administrator, as the case may be), perform all the duties that are or may be required by law, which includes paying all court costs, attorney's fees, and other expenses which may be reasonably incurred because of failure of A B to properly account for and utilize all funds coming into the hands of A B, this obligation shall be void, otherwise to remain in full force and virtue.

Code 1858, § 2223 (deriv. Acts 1715, ch. 48, § 5; 1822, ch. 16, § 1); Shan., § 3958; Code 1932, § 8171; T.C.A. (orig. ed.), § 30-203; Acts 2011, ch. 477, §§ 1, 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 33, 582.

NOTES TO DECISIONS

1. Construction of Bond Executed by Surety Company.

Where surety bond was prepared by a compensated surety its construction as to right of cancelation will be in favor of an executor as principal obligor. Hartford Acci. & Indem. Co. v. White, 22 Tenn. App. 1, 115 S.W.2d 249, 1937 Tenn. App. LEXIS 70 (Tenn. Ct. App. 1937).

30-1-204. Liability on bond for performance of trusts.

  1. All executors and their sureties shall be liable upon their bonds for the performance of all the trusts of the will that they are required to perform, as also all duties devolving upon them as executors, as well in relation to the real as personal estate; and, in like manner, administrators with the will annexed, and their sureties, shall be liable upon their bonds for the performance of all the trusts and duties of their respective offices, as well in relation to real as personal estates; and the bonds, when taken substantially in the forms prescribed by law, shall bind the executors and administrators, and their sureties, as provided in this section.
  2. If, however, the final account of an executor or administrator with the will annexed is settled before the full performance of all the trusts of the will, and trust funds of the estate, as shown by the settlement of the account, are turned over to a trustee duly qualified as provided for in the will, to complete the performance of the trusts, the executor or administrator with the will annexed and the sureties shall not be liable for the further performance of the trusts.

Acts 1889, ch. 36; Shan., § 3959; mod. Code 1932, § 8172; Acts 1953, ch. 157, § 1; T.C.A. (orig. ed.), § 30-204.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 134.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 591.

NOTES TO DECISIONS

1. Impressed Trust.

Where notes are made payable to an administrator, for the purchase of property or the loan of money belonging to the estate of his intestate, and, upon his death, the administrator appointed for his estate received and collected the notes, the sureties of the latter administrator are liable for his default, notwithstanding the fact that his intestate left no estate whatever of his own for administration, and notwithstanding the fact that such notes could have been collected by an administrator de bonis non of the estate of the first decedent. Clark v. Pence, 111 Tenn. 20, 76 S.W. 885, 1903 Tenn. LEXIS 2 (1903).

Where note due one day after date was assigned by administrator to his wife, although it had been transferred by testator to administrator for purpose of fulfilling terms of testator's will, administrator thereby became liable on his bond for renouncing trust with which note had been impressed and for misappropriating note. State use of Burrow v. Cothron, 21 Tenn. App. 519, 113 S.W.2d 81, 1937 Tenn. App. LEXIS 53 (Tenn. Ct. App. 1937).

Collateral References.

Absentee presumed to be dead, right of one whose estate is administered as that of, to hold administrator personally liable. 37 A.L.R. 826.

Accounting as necessary condition of action on bond. 119 A.L.R. 103.

Agent or attorney employed by executor or administrator, liability for loss caused to estate by acts or default of. 28 A.L.R.3d 1191.

Appeal taken by executor or administrator, official bond as covering. 132 A.L.R. 1280.

Approval of bond, right of surety to take advantage of noncompliance with statutory requirement as to. 77 A.L.R. 1482.

Bank, liability of bond for loss of money deposited in, by executor or administrator in his representative capacity. 60 A.L.R. 488.

Bond of executor or administrator as covering debt due from principal to decedent. 8 A.L.R. 84.

Carrying on business pursuant to direction or permission of will, liability for losses incurred in. 109 A.L.R. 639.

Claim against estate or claim due estate, responsibility of executor or administrator in respect of compromise of. 72 A.L.R.2d 243.

Corporate stock or other corporation securities held by estate, liability for depreciation in value of, because of executor's or administrator's conduct, for which he is directly responsible to the corporation. 62 A.L.R. 563.

Corporation of which he is an officer or stockholder, purchaser from or sale to, by executor or administrator, as voidable or ground for surcharging his account. 105 A.L.R. 449.

Court order authorizing investment as affecting liability of executor or administrator for loss of funds invested. 88 A.L.R. 325.

Court order authorizing investment, liability in absence of mandatory statute, of executor or administrator for loss of funds as affected by failure to obtain. 116 A.L.R. 437.

Death, acts or omissions in respect of cause of action for, or the funds received on that account. 68 A.L.R. 1543.

Defalcation or deficit occurring before bond was given, liability of sureties on bond for. 82 A.L.R. 585.

Delay of executor or administrator in completing administration as affecting liability on bond. 85 A.L.R. 440.

Delegation of powers as affecting liability of executor or administrator. 50 A.L.R. 214.

Depreciation in assets of estate after partial distribution, liability of executor in case of. 114 A.L.R. 461.

Depreciation in value of securities, liability for, as affected by appreciation of other securities. 171 A.L.R. 1422.

Final order for distribution, liability for loss of funds after. 100 A.L.R. 1126.

Fraud of administratrix in securing her appointment by misrepresenting the decedent's identity or her relationship to him as affecting liability of sureties on her bond. 9 A.L.R. 1138.

Guardian of minor beneficiary of estate, responsibility of executor or administrator or his bond for default of. 54 A.L.R. 1274.

Highways, liability of personal representative for injury to one in street by object falling from window. 29 A.L.R. 85, 53 A.L.R. 462.

Highways, liability of personal representative for injury to person in street by fall of part of structure of completed building. 81 A.L.R.2d 897.

Individual liability of executor or administrator for injury to person or property of third person due to negligence, or violation of statute or ordinance, in management of estate. 7 A.L.R. 408.

Interest on account of preferential payment to distributee before payment of other distributees, liability of bondsmen for. 91 A.L.R. 705.

Invalidity of appointment of administrator as affecting liability of surety on his bond. 113 A.L.R. 411.

Leave of court as prerequisite to action on. 2 A.L.R. 563.

Liability of fiduciary for loss on investment as affected by fact that it was taken in his own name without indication of fiduciary capacity. 106 A.L.R. 271, 150 A.L.R. 805.

Liability of respective sureties as affected by actual, constructive, or asserted transfer of property or funds by fiduciary acting in one capacity to himself acting in another capacity. 111 A.L.R. 267.

Liability of sureties in respect of property or funds not assets of estate coming into hands of principal. 104 A.L.R. 180.

Life tenant, liability of surety for failure of executor or administrator to require security from. 138 A.L.R. 443.

Mortgage investment, surchargeability of executor or administrator in respect of, as affected by matters relating to value of property. 117 A.L.R. 871.

Order or decree of distribution of decedent's estate as protection of executor or administrator against claims of one not named therein who is entitled to a share of the estate. 106 A.L.R. 817.

Partner who is also executor of deceased partner's estate, accountability of, for profits earned subsequently to death. 55 A.L.R.2d 1391.

Payment or delivery of legacy or distributive share before decree of distribution as defense to action by legatee or distributee on bond of personal representative. 121 A.L.R. 1069.

Protection or preservation of property of estate pending appointment of executor or administrator, liability of personal representative for services rendered or supplies furnished for purpose of. 108 A.L.R. 388.

Public officer administering estate, liability on bond of, for acts or defaults after termination of office. 81 A.L.R. 63.

Receipts before letters were granted, liability of executor or administrator to account for. 26 A.L.R. 1367.

Responsibility of personal representative for loss of funds deposited in bank in his own name or other form not indicating fiduciary character. 43 A.L.R. 600.

Retaining or deferring sale of securities, liability for loss by depreciation in value because of. 92 A.L.R. 436, 47 A.L.R.2d 187.

Right of surety to terminate liability as regards future defaults of principal. 118 A.L.R. 1261, 150 A.L.R. 485.

Sale of property of estate which is invalid, liability on bond in respect of. 106 A.L.R. 429.

Sale of real property directed or authorized by will, liability of sureties on bond of executor or administrator c. t. a. in respect of proceeds of. 91 A.L.R. 943.

Specifically bequeathed personal property not needed for payment of debts, duty and liability in respect to, of executor or administrator with will annexed. 127 A.L.R. 1071.

Stockholder's statutory added liability, personal liability for, of his executor or administrator. 79 A.L.R. 1556, 96 A.L.R. 1466.

Subrogation of surety of executor or administrator to claim of estate against third person who knew or was chargeable with notice that personal representative's transaction with him involved breach of latter's obligation. 134 A.L.R. 999.

Successive bonds, rights and liabilities between sureties on. 76 A.L.R. 904.

Terms of contract or form of signature, personal liability of executor or administrator as affected by. 138 A.L.R. 155.

30-1-205. Validity of bond not dependent upon form.

The bond or any other bond executed by the parties, although not strictly in accordance with the above provision and form, because made payable to a different payee, or because the condition is more extensive or less extensive, or otherwise, shall be valid and effectual to the extent of its stipulations and conditions, and subject the parties to the bond in the same way as if the bond had been drawn in strict conformity to law, so long as the language of the bond includes, within the total obligation of the bond, the obligation to pay all court costs, attorney's fees, and other expenses reasonably incurred because of the failure of the personal representative to properly account for and utilize all funds coming into the hands of the personal representative.

Code 1858, § 2224; Shan., § 3960; mod. Code 1932, § 8173; T.C.A. (orig. ed.), § 30-205; Acts 2011, ch. 477, § 3.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 33, 583, 591.

30-1-206. [Repealed.]

Compiler's Notes. Former § 30-1-206 (Code 1858, § 2225 (deriv. Acts 1813, ch. 120, § 4); Shan., § 3961; Code 1932, § 8174; T.C.A. (orig. ed.), § 30-206), concerning when bonds are required, was repealed by Acts 1985, ch. 140, § 1.

30-1-207. Petition and order for administration bond — Appointment and duty of new administrator.

  1. A copy of such petition shall be served on the personal representative ten (10) days before any motion is made for an order of court upon the personal representative to give an administration bond.
  2. Upon satisfactory proof of the truth of the complaint, the court shall direct the personal representative to enter into bond with sureties, as other personal representatives are required to do.
  3. If the personal representative fails to comply with the order within ten (10) days after it is made, the court shall appoint an administrator for the estate, who shall give bond, with surety, as personal representatives are required to do.
  4. The administrator shall dispose of the estate agreeably to the will of the deceased, and shall forthwith call the personal representative to account.

Code 1858, §§ 2226-2229 (deriv. Acts 1813, ch. 120, § 4); Shan., §§ 3962-3965; Code 1932, §§ 8175-8178; T.C.A. (orig. ed.), §§ 30-207 — 30-210; Acts 1985, ch. 140, § 7.

Cross-References. Power of administrators with will annexed, § 30-1-115.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 33, 561, 564, 588.

NOTES TO DECISIONS

1. Appointment of New Administrator without Notice to Named Executor.

The appointment of an administrator with the will annexed, without notice to the executor (now personal representative) named in the will, and without his formal renunciation, is not void, so as to hold him responsible as executor (now personal representative) in his own wrong, but is good until revoked, and is merely voidable at the instance of the nominated executor (now personal representative) who may, within proper time, come forward, and, by formal petition, ask that the order of such appointment be set aside, whereupon the court may revoke such appointment, and allow the nominated executor (now personal representative) to qualify. Baldwin v. Buford, 12 Tenn. 16, 1833 Tenn. LEXIS 5 (1833); Franklin v. Franklin, 91 Tenn. 119, 18 S.W. 61, 1891 Tenn. LEXIS 84 (1892).

Where the widow of a decedent was appointed administratrix on the theory that decedent died intestate, but it later appeared that decedent died testate, leaving a holographic will, and the widow joined in a petition for appointment of her son as administrator with the will annexed, it was not reversible error for the court to appoint the son administrator with the will annexed prior to removal of the widow as administratrix. In re De Franceschi's Estate, 17 Tenn. App. 673, 70 S.W.2d 513, 1933 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1933).

2. Appeal.

An appeal lies to the circuit court from an order of the probate court requiring the executor (now personal representative) to give bond where he had been excused by the will. Williams v. Pointer, 71 Tenn. 366, 1879 Tenn. LEXIS 90 (1879).

The trial upon the appeal in the circuit court is de novo. Williams v. Pointer, 71 Tenn. 366, 1879 Tenn. LEXIS 90 (1879).

30-1-208. Suit on administration bond.

  1. Any person interested in or entitled to a recovery on a bond given by a personal representative may commence and prosecute a suit on the same in the name of the state of Tennessee for that person's own use.
  2. Where several persons are entitled to a recovery on bonds given by a personal representative, a verdict and judgment or a decree rendered on the bond in favor of one shall not be a bar to any other person so entitled, but each may respectively sue for and recover each person's own proportion until the whole penalty is recovered.
  3. When suits are brought on bonds given by a personal representative, it shall be sufficient to make profert of an attested or certified copy, and, if the copy is contested, either party may have a subpoena for the clerk to bring the original bond.
  4. The person for whose use a suit may be brought under this law shall be liable to costs in the same manner as if the suit had been brought in the person's own name, and the court may render judgment or decree for the costs accordingly.

Code 1858, §§ 2231-2234 (deriv. Acts 1822, ch. 16, §§ 1-4); Shan., §§ 3967-3970; Code 1932, §§ 8179-8182; T.C.A. (orig. ed.), §§ 30-211 — 30-214; Acts 1985, ch. 140, § 8.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 595, 986.

NOTES TO DECISIONS

1. Bill for Devastavit Barred by Settlement Decree.

The heirs or devisees cannot sustain a bill on the administrator's bond for a devastavit after the estate has been settled as an insolvent estate in a suit to which the heirs or devisees were parties so long as the decrees remain in full force, for they are conclusive until set aside for fraud. Hodsden v. Caldwell, 69 Tenn. 48, 1878 Tenn. LEXIS 40 (1878).

2. Suit in Chancery.

A suit in chancery on the bond of an administrator, made payable to the state of Tennessee, may be maintained in the name of the beneficiary thereunder, or in the name of the party entitled to the recovery, without making the state a party complainant to the suit. Brandon v. Mason, 69 Tenn. 615, 1878 Tenn. LEXIS 145 (1878); Johnson v. Molsbee, 73 Tenn. 444, 1880 Tenn. LEXIS 159 (1880); Brannon v. Wright, 113 Tenn. 692, 84 S.W. 612, 1904 Tenn. LEXIS 59 (1904).

Part 3
Appointment by Chancery Court

30-1-301. Jurisdiction.

The chancery court of the county in which any person resided at the time of the decedent's death, or in which the decendent's estate, goods, and chattels or effects were at the time of the decedent's death, may appoint an administrator when six (6) months have elapsed from the death, and no person will apply or can be procured to administer on the decedent's estate.

Code 1858, § 2209 (deriv. Acts 1841-1842, ch. 177, § 1); Shan., § 3943; Code 1932, § 8155; T.C.A. (orig. ed.), § 30-301.

Cross-References. Administrators ad litem, § 30-1-109.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Public administrators, guardians, and trustees, title 30, ch. 1, part 4.

Resignation of representative, § 30-1-112.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 121.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 45, 553, 573, 574, 837.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189 (1978).

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. Jurisdiction of Chancery Court.

The chancery court does not have general jurisdiction concurrent with probate court for appointment of administrators but can only appoint administrators in the exceptional cases cited in this section. Evans v. Evans, 42 Tenn. 143, 1865 Tenn. LEXIS 33 (1865); Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Bruce v. Bruce, 58 Tenn. 760, 1872 Tenn. LEXIS 331 (1872); Branner v. Branner, 69 Tenn. 101, 1878 Tenn. LEXIS 53 (1878); Shown v. McMackin, 77 Tenn. 601, 1882 Tenn. LEXIS 109, 42 Am. Rep. 680 (1882); Meredith v. First Nat'l Bank, 127 Tenn. 68, 152 S.W. 1038, 1912 Tenn. LEXIS 10 (1913).

The appointment of an administrator is not invalidated by reason of the fact that there are no personal effects to be administered, and such administrator may represent the estate in any litigation, in which the estate is required to be represented by an administrator. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872).

Where, pending an application by a bill for the appointment of an administrator of a decedent's estate by the chancery court, filed by a creditor against the heirs and distributees, one of the defendants is secretly appointed and qualified as administrator of the estate by the probate court, the complainant cannot impeach the regularity and validity of such appointment, because he had no notice of it. York v. Parker, 3 Shan. 342 (1875).

2. Venue.

Where the estate of a decedent is partly in one county and partly in another county of this state, the chancery court of either county has jurisdiction to grant administration. Rankin v. Anderson, 67 Tenn. 240, 1874 Tenn. LEXIS 363 (1874).

Allegation in petition that deceased owned real estate in district at time of his death was sufficient to give chancery court jurisdiction even though petition did not allege that deceased was a resident of the district at the time of his death. Rankin v. Anderson, 67 Tenn. 240, 1874 Tenn. LEXIS 363 (1874).

3. Demurrer to Petition.

A bill for the appointment of an administrator for a decedent's estate, prematurely filed, should be dismissed, upon demurrer; but, where the chancellor overruled the demurrer, and sustained the bill, and a long and expensive litigation was the consequence, the cause will, except as to the costs, be disposed of as though it were rightfully before the appellate court. Evans v. Evans, 42 Tenn. 143, 1865 Tenn. LEXIS 33 (1865).

When filed before the expiration of six months from decedent's death, the bill is premature and subject to demurrer. Evans v. Evans, 42 Tenn. 143, 1865 Tenn. LEXIS 33 (1865); Bruce v. Bruce, 58 Tenn. 760, 1872 Tenn. LEXIS 331 (1872).

Where a bill in equity alleges death of intestate more than six months before its filing, and that no one could be found to administer, and that rents that accrued to the estate were due from certain defendants, and “it may fairly be inferred” from allegations that the intestate was a resident of the county of suit, and that the defendants so owing the estate resided therein, a case for an appointment of an administrator is made, when tested by a demurrer. Hall v. Calvert, 46 S.W. 1120 (Tenn. Ch. App. 1897).

4. Persons Who May Be Appointed.

Widow was not entitled to appointment of an administrator on the basis of a personal estate left by deceased in another state. Bruce v. Bruce, 58 Tenn. 760, 1872 Tenn. LEXIS 331 (1872).

5. Failure to Appoint.

A bill for the appointment of an administrator is abandoned, where no administrator is appointed and qualified by the chancellor for more than three years, and no relief can be then granted under the bill. York v. Parker, 3 Shan. 342 (1875).

6. Appointment after Seven Years' Absence.

While the chancery court may grant administration upon the estate of a person who has been absent from his domicile or last place of residence in this state for the period of seven years, upon a presumption of his death, yet the court should be cautious in acting upon such presumption alone, and should, as a general rule, require diligent inquiry at the place where the party was last heard from; but where a person when last heard from expressed a possible intention of returning home in a year or two (a reasonable time), and has not been heard from for over a quarter of a century, it may be presumed as a fact that he died at the end of seven years from the time when so last heard from, and without issue, where he was then unmarried. Shown v. McMackin, 77 Tenn. 601, 1882 Tenn. LEXIS 109, 42 Am. Rep. 680 (1882).

30-1-302. Contents of bill.

For the purposes of § 30-1-301, the next of kin, or any creditor of the deceased, may file a bill in the chancery court of the county, setting forth the facts of the case, and that no person can be procured to administer on the estate, agreeably to the laws in force, and praying that an administrator be appointed, with such other specific prayers as are required, and for general relief.

Code 1858, § 2210 (deriv. Acts 1841-1842, ch. 177, § 1); Shan., § 3944; Code 1932, § 8156; T.C.A. (orig. ed.), § 30-302.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 573, 574.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. Persons Entitled to File — Bill.

Administration can be granted by the chancery court only on the application of a creditor or the next of kin. A widow is not next of kin, and is not empowered as widow to file a bill. Especially is this so where there is no personal estate for her to be interested in; but it is intimated that, if there was any personal estate in which she was interested as distributee, the right to file the bill might be given by a liberal construction of the statute. If the widow is a creditor, she may, in that character, maintain the bill for the appointment of an administrator. Bruce v. Bruce, 58 Tenn. 760, 1872 Tenn. LEXIS 331 (1872).

A bill may be filed by the personal representative of one of the next of kin against another of the next of kin having assets of the estate of the deceased in his hands, to have an administrator appointed, and for the collection of the fund. Shown v. McMackin, 77 Tenn. 601, 1882 Tenn. LEXIS 109, 42 Am. Rep. 680 (1882).

2. Allegations of Bill.

The bill must allege that no person can be procured to administer upon the estate, agreeably to the laws in force, or an allegation of equivalent import must be made. Evans v. Evans, 42 Tenn. 143, 1865 Tenn. LEXIS 33 (1865).

The bill must allege that “no person will apply or can be procured to administer,” and an allegation that complainant “knows of no person that will apply or can be procured to administer” is insufficient, and does not make the case provided for by statute, especially where the complainant is a nonresident. Bruce v. Bruce, 58 Tenn. 760, 1872 Tenn. LEXIS 331 (1872).

If the bill alleges that the decedent's “estate, goods, chattels, or effects” were at the time of his death in certain counties of the chancery district, the allegation will be sufficient to give the chancery court of that district jurisdiction to appoint the administrator, without alleging the residence of the decedent to have been there at his death. Rankin v. Anderson, 67 Tenn. 240, 1874 Tenn. LEXIS 363 (1874).

Where the bill alleged that the decedent had been dead more than six months, that no one could be found to administer on her estate, and that there were rents due her estate which accrued in her lifetime from the defendants, a sufficient case is made out for the appointment of an administrator. Hall v. Calvert, 46 S.W. 1120 (Tenn. Ch. App. 1897).

A statement in a creditors bill against the estate of a deceased that, “No one has ever applied for letters of administration, and complainant has on this week made an effort to get four or five different people to qualify as administrator, but was unsuccessful,” was sufficient to authorize the chancery court to appoint an administrator. Grace v. Johnson, 25 Tenn. App. 355, 157 S.W.2d 848, 1941 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1941).

Collateral References.

Right of minor next of kin to apply through next friend for appointment of administrator. 161 A.L.R. 1389.

30-1-303. Bill filed by creditor — Parties.

The bill, if filed by a creditor, shall be on behalf of all other creditors who may wish to come in and be made parties on the usual terms, and the distributees and heirs may be made parties defendants.

Code 1858, § 2211 (deriv. Acts 1841-1842, ch. 177, § 1); Shan., § 3945; Code 1932, § 8157; T.C.A. (orig. ed.), § 30-303.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 574.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. Sufficiency of Allegations.

It is not indispensable that the bill shall, on its face, state that it is filed on behalf of all the creditors of the intestate. The bill, when filed by any creditor, by force of the statute, is filed on behalf of all other creditors. Baker & Paul v. Huddleston, 62 Tenn. 1, 1873 Tenn. LEXIS 124 (1873).

2. Right of Appeal.

A distributee may appeal whether the administrator appeals or not. Stanley v. McKinzer, 75 Tenn. 454, 1881 Tenn. LEXIS 142 (1881).

30-1-304. Bill filed by next of kin — Parties.

If the bill is filed by the next of kin, or any of them, it shall be on behalf of all the distributees and heirs against the creditors, who may become defendants.

Code 1858, § 2212 (deriv. Acts 1841-1842, ch. 177, § 1); Shan., § 3946; Code 1932, § 8158; T.C.A. (orig. ed.), § 30-304.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 574.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. In General.

Where there are no creditors of the deceased the next of kin have the exclusive right to appointment of administrator, and those not joining may be made defendants. Evans v. Evans, 42 Tenn. 143, 1865 Tenn. LEXIS 33 (1865).

30-1-305. Appointment of administrator.

Upon the filing of the bill, the court in term, or chancellor or judge in vacation, at chambers, shall appoint an administrator of the estate, upon such terms as the court, chancellor or judge may think best.

Code 1858, § 2213 (deriv. Acts 1841-1842, ch. 177, § 1); Shan., § 3947; Code 1932, § 8159; T.C.A. (orig. ed.), § 30-305.

Cross-References. Chancery court, concurrent jurisdiction to appoint, § 16-11-113.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 575.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. Appointment in Vacation.

The power of the chancellor in vacation to appoint an administrator is restricted to cases in which the bill is filed for that specific purpose. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872).

2. Effect of Appointment.

An administrator so appointed is not a mere administrator pendente lite, but a general administrator of the estate, liable to suit, and whose appointment sets in motion the statutes of limitation in favor of the estate. The administration is full, complete, and general. Todd v. Wright, 59 Tenn. 442, 1873 Tenn. LEXIS 90 (1873); Shown v. McMackin, 77 Tenn. 601, 1882 Tenn. LEXIS 109, 42 Am. Rep. 680 (1882).

30-1-306. Bond.

If the appointment is made in vacation, the complainant shall be required to give bond, with surety, in double the value of the estate to be administered, payable to the state, conditioned that the administrator shall render a true inventory of the estate to the court at its next term, so far as it may come to the administrator's knowledge, and that the administrator will deliver the assets over, or place the assets, or the proceeds, under the charge of the court.

Code 1858, § 2214 (deriv. Acts 1841-1842, ch. 177, § 4); Shan., § 3948; Code 1932, § 8160; T.C.A. (orig. ed.), § 30-306.

Cross-References. Bond required, form and amount, title 30, ch. 1, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 575, 1138.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. Bond Required in Vacation.

The chancellor, upon appointing the administrator in vacation, may require him to give bond and qualify before the clerk and master. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872).

2. Amount of Bond.

Where it does not appear to the chancellor in what, if anything, the personal property of the decedent consists, nor what the value thereof is, so as to determine the amount of the bond, the chancellor's order to the clerk and master to take the individual bond of the administrator for $1,000 leaving further bond, with sureties, to be given thereafter, if there should be any property or effects belonging to the estate, does not invalidate the appointment, especially upon collateral attack, as by the appeal of a surety on a replevy bond given in the suit. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Greenlaw v. Logan, 70 Tenn. 185, 1879 Tenn. LEXIS 153 (1879).

3. Statute of Limitations.

The statute of limitations for protection of sureties of administrator set forth in § 28-3-109 does not apply to surety of administrator appointed by chancery court under this section, since sureties are only quasi parties in chancery proceeding. Gold v. Bush, 63 Tenn. 579, 1874 Tenn. LEXIS 308 (1874).

30-1-307. Sale of perishable property.

The judge or chancellor may also direct, in the order, that the perishable property belonging to the estate be sold.

Code 1858, § 2215 (deriv. Acts 1841-1842, ch. 177, § 4); Shan., § 3949; Code 1932, § 8161; T.C.A. (orig. ed.), § 30-307.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 575.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

30-1-308. Administrator party to court proceedings.

The administrator, when appointed, shall be a party to the proceedings in court, and shall be bound by any decree or order in the cause.

Code 1858, § 2216 (deriv. Acts 1841-1842, ch. 177, § 3); Shan., § 3950; Code 1932, § 8162; T.C.A. (orig. ed.), § 30-308.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 576.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. In General.

The appointed administrator, by virtue of his appointment, acceptance, and qualification, becomes a party to the suit, and is bound by the proceedings in court under such suit, without service of process to bring him in, or voluntary appearance. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Shown v. McMackin, 77 Tenn. 601, 1882 Tenn. LEXIS 109, 42 Am. Rep. 680 (1882).

30-1-309. Guardian appointed for minor.

Where any party interested in the estate is a minor, the court may appoint a guardian for the minor.

Code 1858, § 2217 (deriv. Acts 1841-1842, ch. 177, § 3); Shan., § 3951; Code 1932, § 8163; T.C.A. (orig. ed.) § 30-309.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 574.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

30-1-310. Duties of administrator — Removal.

An administrator shall be under the same responsibilities as a receiver in chancery, and shall make reports to the court in the same manner; and be removable from office for neglect or improper conduct, as a receiver may be; and when the administrator is removed, or dies or resigns, the court may appoint a successor.

Code 1858, § 2218 (deriv. Acts 1841-1842, ch. 177, § 2); Shan., § 3952; Code 1932, § 8164; T.C.A. (orig. ed.), § 30-310.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 576.

Law Reviews.

Tennessee Civil Disabilities: A Systematic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

30-1-311. Manner of administration.

The administration of the estate shall be conducted under the authority of the chancery court, in the same manner, and under the same rules, as the administration of an insolvent estate.

Code 1858, § 2219 (deriv. Acts 1841-1842, ch. 177, § 1); Shan., § 3953; Code 1932, § 8165; T.C.A. (orig. ed.), § 30-311.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 574, 576.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

NOTES TO DECISIONS

1. In General.

Chancery administration shall be conducted as the administration of insolvent estates. Todd v. Wright, 59 Tenn. 442, 1873 Tenn. LEXIS 90 (1873); Shown v. McMackin, 77 Tenn. 601, 1882 Tenn. LEXIS 109, 42 Am. Rep. 680 (1882).

Part 4
Public Administrators, Guardians, and Trustees

30-1-401. Appointment — Term — Oath — Bond.

The county legislative body has the power to appoint or elect a public administrator, a public guardian and a public trustee, who shall hold office for four (4) years, and who, before entering upon their duties of the office, shall take the oath by law prescribed for administrators, guardians and trustees, and shall give bond, with good and approved sureties, in such amount as may be necessary and amply sufficient, in the discretion of the county legislative body, to protect the estates, funds, and property that may come into their hands, which bond as to amount may be increased, from time to time, by the county legislative body.

Acts 1870, ch. 98, § 1; Shan., § 583; mod. Code 1932, § 837; T.C.A. (orig. ed.), § 30-1501; Acts 1987, ch. 322, § 1.

Cross-References. Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Public guardianship for the elderly, title 34, ch. 7.

Renewal of bond, § 30-1-408.

NOTES TO DECISIONS

1. Appointment of Public Administrator.

2. —Jurisdiction.

The probate court is a court of general jurisdiction, and not of a limited or special jurisdiction, as regards the appointment of administrators and the administration of the estates of decedents; and proceedings are entitled to the protection of those rules and presumptions that obtain in favor of the judgment of courts of general jurisdiction. Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882); State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886); Eller v. Richardson, 89 Tenn. 575, 15 S.W. 650, 1890 Tenn. LEXIS 81 (1891); Franklin v. Franklin, 91 Tenn. 119, 18 S.W. 61, 1891 Tenn. LEXIS 84 (1892).

The probate court exercises the precise jurisdiction in granting letters of administration to public administrators that it does in granting letters or appointing administrators in ordinary cases. The public administrator derives his right to administer any particular estate from his appointment, and the issuance of the letters of administration to him is in the same way as to any other administrator. State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886).

3. —Continuing Power of Appointment.

The duty of the county legislative body to elect a public administrator is a continuing one, and an election made at the October session, after the expiration of the public administrator's term at the April session, is valid. State v. Anderson, 84 Tenn. 321, 1886 Tenn. LEXIS 105 (1886).

4. Completion of Estates after Term.

A public administrator will not be compelled, in the absence of some just cause, to surrender the administration of estates undertaken during his term to his successor in office. Thornton v. Loague, 95 Tenn. 93, 31 S.W. 986, 1895 Tenn. LEXIS 67 (1895).

Collateral References.

Powers and duties of a public administrator. 56 A.L.R.2d 1183.

Priority, as regards right to appointment, as between public administrators and others. 99 A.L.R.2d 1063.

30-1-402. Applicable laws, rules, duties and penalties.

Administrators, guardians and trustees shall, in all things, be governed by, and be subject to, all the laws, rules, duties, and penalties, prescribed by law for the government of other administrators and guardians, and the management and settlement of estates and trusts.

Acts 1870, ch. 98, § 2; Shan., § 584; Code 1932, § 838; T.C.A. (orig. ed.), § 30-1502; Acts 1987, ch. 322, § 2.

Cross-References. Accounts and settlement of estates, title 30, ch. 2, part 6.

Distribution of estates, title 30, ch. 2, part 7.

Guardianship, title 34.

Inventory and management of estates, title 30, ch. 2, part 3.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 558.

30-1-403. Death or removal — Filling vacancy.

On the death, removal, or resignation of an administrator, guardian or trustee provided for in this part, the county legislative body may fill the vacancy for the unexpired term.

Acts 1870, ch. 98, § 3; Shan., § 585; Code 1932, § 839; T.C.A. (orig. ed.), § 30-1503; Acts 1987, ch. 322, § 3.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 556.

30-1-404. Duty to enter upon administration, guardianship, or trusteeship of estates.

  1. Should any person entitled to the administration of an estate, or to the guardianship of any minor, or person found to be incompetent, fail or neglect to apply to the probate court having jurisdiction, and take out letters of administration and guardianship, within six (6) months after the death of the intestate, or within three (3) months after the settlement of the estate by the administrator, it shall be the duty of the administrator or guardian, provided for in this part immediately to enter upon the administration or guardianship of the estates, as the case may be, first applying to the probate court, for the necessary letters of administration or guardianship.
  2. Should any person entitled to serve as trustee under an inter vivos or testamentary instrument die, decline to serve or resign and if:
    1. There is no individual or corporate successor or substitute trustee designated by the instrument who is willing and qualified to serve;
    2. The instrument does not contain provisions for the appointment of a successor or substitute and no adult income beneficiary or vested remainderman petitions for the appointment of a successor or substitute trustee within three (3) months after there is a vacancy in office or all sooner waive this right; or
    3. The court in its discretion in a proceeding pursuant to § 35-15-414 determines that a small trust should not be terminated but a successor trustee should be appointed;

      the court may appoint the public trustee who shall be granted letters of trusteeship and immediately enter into the administration of the trust, provided that the then market value of the trust estate does not exceed one hundred thousand dollars ($100,000). The public trustee shall file accountings with the court each twelve (12) months after the public trustee's qualification.

Acts 1870, ch. 98, § 4; 1870-1871, ch. 114; 1883, ch. 108, § 1; Shan., § 586; Code 1932, § 840; T.C.A. (orig. ed.), § 30-1504; Acts 1987, ch. 322, § 4; 2009, ch. 477, § 2.

Compiler's Notes. Former § 35-1-113, referred to in this section, was repealed by Acts 2004, ch. 537, § 97.

Cross-References. Appointment of administrator by chancery court, title 30, ch. 1, part 3.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 553, 557.

NOTES TO DECISIONS

1. Granting Administration to Public Administrator within Six Months — Effect.

This statute indicates a legislative intent that the parties interested in the estate of an intestate should have six months within which to apply for administration in the usual way, and that the public administrator should have no right to demand letters until the expiration of that time. The grant of letters of administration to the public administrator within the six months is not void, but the same may, upon the application of the interested parties within the six months, be revoked by the probate court. Varnell v. Loague, 77 Tenn. 158, 1882 Tenn. LEXIS 29 (1882).

Letters of administration granted to a public administrator within six months after the death of the deceased are not void, but voidable only, at the instance of any person entitled to notice who appears within six months after the death of the deceased and claims his rights as next of kin under the statute. Nutting v. Alsup, 60 Tenn. App. 467, 448 S.W.2d 77, 1969 Tenn. App. LEXIS 328 (Tenn. Ct. App. 1969).

2. Judicial Notice of Appointment and Qualification.

The courts do not judicially know that one had been appointed and qualified, and was acting as such. Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879).

30-1-405. Letters of administration — When granted.

The letters of administration may be granted, at any time within six (6) months after the death of the intestate, when it appears that the persons entitled to letters of administration refuse, after legal notice, to administer, and if it further appears that the interest of the estate requires that letters of administration should be granted.

Acts 1883, ch. 108, § 1; Shan., § 587; Code 1932, § 841; T.C.A. (orig. ed.), § 30-1505.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 557.

NOTES TO DECISIONS

1. Removal of Public Administrator.

Next of kin have a maximum of six months within which to exercise their prerogatives and that period may be shortened by notice to the next of kin under § 30-1-406. After failure to respond to statutory notice or after expiration of six months from the date of decease, next of kin have no right to demand removal of a public administrator because he was appointed without notice. Nutting v. Alsup, 60 Tenn. App. 467, 448 S.W.2d 77, 1969 Tenn. App. LEXIS 328 (Tenn. Ct. App. 1969).

30-1-406. Notice given persons entitled to serve — Effect of nonappearance.

The notice served on those entitled to administer shall fix a day on which they may appear and qualify, and their failure shall be sufficient evidence of their refusal, and the day so fixed shall not be less than two (2) months after the death of the intestate.

Acts 1883, ch. 108, § 1; Shan., § 588; Code 1932, § 842; T.C.A. (orig. ed.), § 30-1506.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 557.

NOTES TO DECISIONS

1. Construction.

The period of six months allowed next of kin to object to the appointment of a public administrator may be shortened by notice given pursuant to this section. Nutting v. Alsup, 60 Tenn. App. 467, 448 S.W.2d 77, 1969 Tenn. App. LEXIS 328 (Tenn. Ct. App. 1969).

30-1-407. Compensation for services.

The administrator, guardian or trustee shall have all the powers, and shall receive the same compensation, that other administrators, guardians and trustees are entitled to receive for their services, and this compensation shall be approved by the court at the time of periodic accountings or in the order appointing the administrator, guardian, or trustee.

Acts 1870, ch. 98, § 5; Shan., § 589; Code 1932, § 843; T.C.A. (orig. ed.), § 30-1507; Acts 1987, ch. 322, § 5.

Cross-References. Compensation of executors, administrators or accounting party, § 30-2-606.

NOTES TO DECISIONS

1. Fees as Attorney — Commissions.

A public administrator is not entitled, in addition to his ordinary compensation, to fees for professional services rendered by himself as an attorney in the course of his administration of an estate, nor is he entitled to commissions on the proceeds of the lands sold to pay debts, which were disbursed without coming into his hands. Loague v. Brennan, 86 Tenn. 634, 9 S.W. 693, 1888 Tenn. LEXIS 16 (1888).

30-1-408. Renewal of bond.

The county legislative body shall have the power, on the death, removal, or insolvency of any one (1) or more of the sureties on the bond of the administrator, guardian or trustee, to require the administrator, guardian or trustee to renew that person's bond, or give other good and sufficient security for the performance of that person's duties, and to take any and all steps that may be necessary to secure the estates committed to the charge of the administrator, guardian or trustee.

Acts 1870, ch. 98, § 6; Shan., § 590; Code 1932, § 844; T.C.A. (orig. ed.), § 30-1508; Acts 1987, ch. 322, § 6.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 556.

30-1-150. Title definitions.

Chapter 2
Management, Settlement and Distribution

Part 1
Allowances to Family

30-2-101. Right of surviving spouse and minor children to specific property.

    1. The surviving spouse of an intestate decedent, or a spouse who elects against a decedent's will, is entitled to receive from the decedent's estate the following exempt property having a fair-market value (in excess of any indebtedness and other amounts secured by any security interests in the property) that does not exceed fifty thousand dollars ($50,000):
      1. Tangible personal property normally located in, or used in or about, the principal residence of the decedent and not used primarily in a trade or business or for investment purposes, and
      2. A motor vehicle or vehicles not used primarily in a trade or business.
    2. If there is no surviving spouse, the decedent's unmarried minor children are entitled as tenants in common only to exempt property as described in subdivision (a)(1)(A). Rights to this exempt property are in addition to any benefit or share passing to the surviving spouse or unmarried minor children by intestate succession, elective share, homestead or year's support allowance.
  1. Where a deceased dies intestate, leaving a surviving spouse, until letters of administration are granted, the surviving spouse may take into possession and make use of any crop then growing and of the provisions on hand as may be necessary for the support of the surviving spouse and family; the surviving spouse may also use the stock, implements and plantation utensils for the purpose of completing, securing and selling the crop.
  2. The surviving spouse or other custodian of unmarried minor children shall apply for the property named in this section before it is distributed or sold, but the property so delivered shall in no case be liable for the payment of claims against the estate. If the surviving spouse or unmarried minor children do not receive the property allowed under this section and the property is sold by executor or administrator, the court shall order the money to be paid to the surviving spouse or unmarried minor children at any time before the money is paid out for claims or distributed.
  3. Any action to set aside the property designated in this section shall be brought within the limits set by § 31-4-102.

Acts 1967, ch. 146, § 1; 1969, ch. 135, §§ 1, 2; T.C.A., §§ 30-801, 30-802; Acts 1985, ch. 140, § 9; 1997, ch. 426, § 3; 1999, ch. 491, § 1.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendment by that act shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Cross-References. Elective share of surviving spouse, title 31, chapter 4.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 433.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 491, 500, 631-634, 816, 943, 1076-1078.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1106, 4-1107, 4-1110.

Law Reviews.

Confused by tax reforms? Follow these 10 key rules for better estate planning in Tennessee (Dan W. Holbrook), 37 No. 8 Tenn. B.J. 12 (2001).

Inheritance and Gift Taxes — Revised (Steven A. Rajtor), 16 No. 2 Tenn. B.J. 24 (1980); 16 No. 2 Tenn. B.J. 25 (1980).

Legal Rights and Issues Surrounding Conception, Pregnancy and Birth, 39 Vand. L. Rev. 597 (1986).

Protection Against Spousal Disinheritance: A Critical Analysis of Tennessee's New Forced Share System, 28 U. Mem. L. Rev. 561 (1998).

The 1978 Tennessee Inheritance and Gift Tax Reform Act (R. Wayne Peters and Steven A. Rajtor), 14 No. 3 Tenn. B.J. 4.

Value definition clauses: Creative uses (Dan W. Holbrook), 37 No. 4 Tenn. B.J. 20 (2001).

NOTES TO DECISIONS

1. Application of Statute.

Where testator died prior to effective date of Acts 1967, ch. 146 but such statute was in effect at time of probate of will, the substantive rights of dissenting widow of testator were governed by this part as it existed at date of testator's death (the old statute) but the procedural steps were governed by the law in effect at the time widow sought to enforce those rights (the new statute). Marler v. Claunch, 221 Tenn. 693, 430 S.W.2d 452, 1968 Tenn. LEXIS 496 (1968).

2. Antenuptial Agreements.

Widow was not a surviving spouse under this section for purposes of obtaining a distributive share where her right and title to any interest in the estate was waived in antenuptial agreement. Uhrig v. Pulliam, 713 S.W.2d 649, 1986 Tenn. LEXIS 767 (Tenn. 1986).

3. Exemptions.

The exemptions referred to in § 31-4-101, concerning the right to elective share, are the exemptions found under this section. Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

4. Insurance Proceeds.

The value of insurance proceeds applied to pay off debt on the family automobile is exempt property under this section. Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

5. Entitlement to Elective Share.

Where a widow elected against her husband's will and filed a petition for year's support, exempt property, elective share, and homestead, although the widow was entitled to year's support, that support was not chargeable against the real property of the estate; thus, she was entitled to no further compensation under T.C.A. § 30-2-101. Estate of Morris v. Morris, 104 S.W.3d 855, 2002 Tenn. App. LEXIS 755 (Tenn. Ct. App. 2002), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 292 (Tenn. Mar. 17, 2003).

Because a husband established that he was the surviving spouse of the decedent, he was entitled to an award of an elective-share and to receive the exempt property; equitable estoppel is not an available defense to a surviving spouse's claim for elective-share and exempt property. In re Estate of Meek, — S.W.3d —, 2014 Tenn. App. LEXIS 325 (Tenn. Ct. App. June 4, 2014), appeal denied, Estate of Meek v. Estate of Meek, — S.W.3d —, 2014 Tenn. LEXIS 822 (Tenn. Sept. 19, 2014).

Denial of a surviving spouse's claims for exempt property and a year's support was appropriate because the surviving spouse's notice of dissent could only have been construed as the surviving spouse's election to take against the decedent's will or, in other words, to seek an elective share. However, because the surviving spouse withdrew the surviving spouse's claim for an elective share, the surviving spouse no longer qualified as a surviving spouse electing against a will. In re Estate of Baker, — S.W.3d —, 2019 Tenn. App. LEXIS 565 (Tenn. Ct. App. Nov. 22, 2019).

Collateral References.

Estoppel or laches precluding lawful spouse from asserting rights in decedent's estate as against putative spouse. 81 A.L.R.3d 110.

Waiver of right to widow's allowance by postnuptial agreement. 9 A.L.R.3d 955.

30-2-102. Year's support allowance.

  1. In addition to the right to homestead, an elective share under title 31, chapter 4, and exempt property, the surviving spouse of an intestate, or a surviving spouse who elects to take against a decedent's will, is entitled to a reasonable allowance in money out of the estate for such surviving spouse's maintenance during the period of one (1) year after the death of the spouse, according to the surviving spouse's previous standard of living, taking into account the condition of the estate of the deceased spouse. The court may consider the totality of the circumstances in fixing the allowance authorized by this section, including assets that may have passed to the spouse outside probate.
  2. The allowance so ordered shall be made payable to the surviving spouse, unless the court finds that it would be just and equitable to make a division of it between the unmarried minor children. If there is no surviving spouse, the allowance shall be made to the unmarried minor children.
  3. The court may authorize the surviving spouse to receive any personal property of the estate in lieu of all or part of the money allowance authorized by this section, and in any case where the court makes an allowance in money, the surviving spouse shall be entitled to select and receive any personal property of the estate, of a value not exceeding the allowance in money, which shall be in lieu of and which value shall be credited against the allowance.
  4. The allowance authorized by this law is the absolute property of the surviving spouse for these uses and shall be exempt from all claims and shall not be taken into the account of the administration of the estate of the intestate or seized upon any precept or execution.
  5. In determining the amount to be allowed as a year's support, the court may, in its discretion, appoint freeholders to set aside that year's support, as previously required by law.
  6. If the allowance set by the court as provided in this section is not satisfactory to the surviving spouse electing against the decedent's will, the surviving spouse of an intestate decedent, the unmarried minor children of an intestate decedent or the personal representative, then appeal may be made to the appropriate court in accordance with § 30-2-609. Proceedings on appeal shall be de novo without the intervention of a jury except when demand for a jury is made in accordance with Tennessee Rules of Civil Procedure, Rule 38; provided, that in jurisdictions where probate matters originate in a court whose judge is also a chancellor, the appeal shall be made as otherwise provided by law; and provided further, that in cases heard in a probate court whose judge is required to have the same qualifications as prescribed for circuit judges, the appeal shall also be made as otherwise provided by law.
  7. Any action to set aside the property designated in this section shall be brought within the time limits set by § 31-4-102.

Acts 1967, ch. 146, § 1; 1969, ch. 135, § 3; impl. am. Acts 1976, ch. 529, § 1; T.C.A., § 30-803; Acts 1985, ch. 140, § 10; 1993, ch. 449, § 3; 1999, ch. 491, § 2.

Cross-References. Homestead, title 30, ch. 2, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 634, 638, 640, 644, 646, 816, 943, 1020, 1080.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1106.

Law Reviews.

Creditors' Rights and Security Transactions — 1954 Tennessee Survey, 7 Vand. L. Rev. 799 (1954).

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965).

Inheritance and Gift Taxes — Revised (Steven A. Rajtor), 16 No. 2 Tenn. B.J. 24 (1980).

Insurance Proceeds in Trust (Troy Beatty, Jr.), 28 Tenn. L. Rev. 344 (1961).

Tax Consequences of Widow's Allowances, 18 Vand. L. Rev. 1652 (1965).

Tennessee Law and Equal Rights Amendment: Property Law, Employment Relations and Juries, 3 Mem. St. U.L. Rev. 327 (1973).

Wrongful Death Actions in Tennessee (T.A. Smedley), 27 Tenn. L. Rev. 449 (1960).

Wrongful Death in Tennessee — New Solutions to Recurring Problems, 9 Mem. St. U.L. Rev. 85 (1979).

NOTES TO DECISIONS

1. In General.

Only the personal property and not the real property of the deceased is chargeable with a year's support and an award of a year's support must be limited to the amount of the personal assets of deceased's estate. In re Estate of Gray, 729 S.W.2d 668, 1987 Tenn. App. LEXIS 2452 (Tenn. Ct. App. 1987).

2. Purpose.

The purpose of this section is to maintain a surviving spouse while giving him or her an opportunity to adjust to the loss of or decrease in a standard of living that was provided or contributed to significantly by the deceased spouse, and the period of a year is allowed so that the surviving spouse will be preserved during the administration of the estate. Hall v. Jeffers, 795 S.W.2d 135, 1990 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1990).

3. Construction.

Former case law is still useful in deciding year's support cases and should be utilized when considering whether the year's support request is reasonable. Hall v. Jeffers, 795 S.W.2d 135, 1990 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1990).

4. Antenuptial Agreements.

Widow was not a surviving spouse under this section for the purposes of obtaining a year's support where her right and title to any interest in the estate was waived in antenuptial agreement. Uhrig v. Pulliam, 713 S.W.2d 649, 1986 Tenn. LEXIS 767 (Tenn. 1986).

5. Husband Seeking Support.

Husband's oral motion asking for a year's support at a hearing to dismiss his petition for elective share was not defective and was proper. In re Estate of Gray, 729 S.W.2d 668, 1987 Tenn. App. LEXIS 2452 (Tenn. Ct. App. 1987).

Denial of a surviving spouse's claims for exempt property and a year's support was appropriate because the surviving spouse's notice of dissent could only have been construed as the surviving spouse's election to take against the decedent's will or, in other words, to seek an elective share. However, because the surviving spouse withdrew the surviving spouse's claim for an elective share, the surviving spouse no longer qualified as a surviving spouse electing against a will. In re Estate of Baker, — S.W.3d —, 2019 Tenn. App. LEXIS 565 (Tenn. Ct. App. Nov. 22, 2019).

6. Condition of the Estate.

The words “taking into account the condition of the estate” refer to a situation in which the estate is not sufficient to pay the full year's support without serious impairment or depletion; there is no authority for construing the statute to mean that the probate court should not allow a year's support if the surviving spouse is able to support himself. Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

7. Maintenance.

The noun “maintenance” denotes means of support or livelihood. Hall v. Jeffers, 795 S.W.2d 135, 1990 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1990).

Husband was not entitled to a year's maintenance because he transferred over $ 226,000 to himself from the decedent's accounts shortly before her death, received over $ 393,000 from an inter vivos trust established by the decedent, and the amount the husband transferred to himself exceeded the amount he sought as maintenance. In re Estate of Davis, — S.W.3d —, 2013 Tenn. App. LEXIS 702 (Tenn. Ct. App. Oct. 28, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 237 (Tenn. Mar. 4, 2014).

Collateral References.

Bank deposit to credit of decedent or other indebtedness to him as subject to widow's or family allowance or other estate exemption, where bank has right to apply deposit, or other debtor has right to assert counterclaim or setoff. 108 A.L.R. 773.

Effect of testamentary gift on widow's right to fixed statutory allowance or allowance for support. 97 A.L.R.2d 1319.

Family allowance from decedent's estate as exempt from attachment, garnishment, execution and foreclosure. 27 A.L.R.3d 863.

Family allowance granted widow as payable from community interests of decedent and widow. 9 A.L.R.2d 529.

Interlocutory decree of divorce as affecting widow's right to allowance. 76 A.L.R. 284.

Nonresident's right to widow's or child's allowance out of estate of one who was domiciled in state. 26 A.L.R. 132.

Particular articles within statute giving to surviving spouse or children certain specific items of personal property of deceased. 158 A.L.R. 313.

Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent. 51 A.L.R.2d 1026.

Sale of land in state other than domicile, right to, for purpose of paying widow's statutory allowance. 81 A.L.R. 676.

Separation agreement as affecting right to statutory allowance. 35 A.L.R. 1491, 34 A.L.R.2d 1020, 66 A.L.R.2d 904.

Separation agreement invalid as contrary to public policy as affecting widow's allowance. 109 A.L.R. 1178.

Treatment of widow's allowance and exemptions in computing share to which she is entitled under statute of distribution in case of death of husband intestate or of her election to take against will. 98 A.L.R. 1325.

Waiver of allowance by failure to apply therefor during lifetime or widowhood of beneficiary. 144 A.L.R. 276.

Who included in term “family” in statutes relating to family allowance out of decedent's estate. 88 A.L.R.2d 890.

Widow's or family allowance out of decedent's estate as surviving death or marriage of widow or minor children, or attainment of majority by children. 144 A.L.R. 270.

Widow's right of quarantine. 126 A.L.R. 796.

30-2-103. Designation of beneficiary — Wages and debts owed deceased employee.

    1. An employee may designate a beneficiary to receive payment for any wages or salary due such employee at the time of the employee's death.
    2. The employer is encouraged to inform the employee of this right at the time the employee is hired.
    3. If the employee fails to designate such beneficiary as provided for in subdivision (a)(1), the employer shall pay out such wages and salary according to subsection (b).
    1. A sum not exceeding ten thousand dollars ($10,000) is authorized to be paid directly to the surviving spouse of a decedent, but if none, then to the surviving children of the decedent as tenants in common, as follows:
      1. By an employer any wages or other compensation owed a deceased employee at the time of the employee's death;
      2. By any other person owing, or holding funds for, a decedent if six (6) months have passed since the decedent's death without application having been made for the appointment of a personal representative. However, if such funds exceed ten thousand dollars ($10,000), the excess shall be paid to the personal representative or as otherwise ordered by the court.
    2. All sums paid pursuant to this subsection (b) shall be charged against the elective share, homestead allowance, and year's support allowance as applicable. If one entitled to receive payment hereunder is a minor, the sum shall be paid to the guardian or custodian for the minor's benefit.

Acts 1967, ch. 146, § 1; 1969, ch. 135, § 4; 1971, ch. 291, § 1; impl. am. Acts 1976, ch. 529, § 1; T.C.A., § 30-804; Acts 1987, ch. 322, § 7; 1993, ch. 449, §§ 4, 5; 1995, ch. 182, § 1; 1997, ch. 426, § 4.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that this section shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 660, 661.

Law Reviews.

Tennessee Law and Equal Rights Amendment: Property Law, Employment Relations and Juries, 3 Mem. St. U.L. Rev. 327 (1973).

30-2-104. Death of surviving spouse or death, majority, or marriage of minor child during year.

  1. Death of a surviving spouse within the one-year period for which the allowance is provided under § 30-2-102, for the surviving spouse's maintenance, shall not affect the vested right of the surviving spouse to the allowance or the ordering thereof by the court.
  2. If an unmarried minor child dies, marries or comes of age, no allowance shall be made under § 30-2-102 for the minor's maintenance for any period after the child's death, marriage or coming of age.

Acts 1967, ch. 146, § 1; T.C.A., § 30-805.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 640, 641.

Collateral References.

Eligibility of illegitimate child to receive family allowance out of estate of his deceased father. 12 A.L.R.3d 1140.

Statutory family allowance to minor children as affected by previous agreement or judgment for their support. 6 A.L.R.3d 1387.

30-2-105. Administrator as trustee for children's allowance.

The administrator shall be trustee for the management of the property so set apart as the allowance for the children, until the appointment of a guardian, to whom the administrator shall pay it over, and take receipt.

Acts 1967, ch. 146, § 1; T.C.A., § 30-806.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 632, 640, 642.

Law Reviews.

Homestead in Tennessee (Mark J. Mayfield), 25 Tenn. L. Rev. 261 (1958).

Part 2
Homestead

30-2-201. Assignment of homestead.

The homestead in lands of a decedent, inuring to the benefit of a surviving spouse or minor children, shall be assigned and set apart in the manner provided in this part.

Acts 1873, ch. 98, § 1; Shan., § 3808; Code 1932, § 7729; mod. C. Supp. 1950, § 7729; Acts 1976, ch. 529, § 12; T.C.A. (orig. ed.), § 30-901.

Cross-References. Descent of homestead, § 31-1-104.

Homestead Act, title 7, ch. 66.

Homestead and personal property exemptions, Tenn. Const. art. XI, § 11.

Homestead exemption, title 26, chapter 2, part 3.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 432.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 652, 653.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1102.

Law Reviews.

Davis v. Davis: The End of Interspousal Tort Immunity Tips the Scales on the Last Intrafamilial Immunity Stronghold, 14 Mem. St. U.L. Rev. 270 (1984).

Domestic Relations — 1957 Tennessee Survey (William J. Harbison), 10 Vand. L. Rev. 1082 (1957).

Homestead in Tennessee (Mark J. Mayfield), 25 Tenn. L. Rev. 261 (1958).

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Tennessee Law and Equal Rights Amendment: Property Law, Employment Relations and Juries, 3 Mem. St. U.L. Rev. 327 (1973).

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189 (1978).

NOTES TO DECISIONS

1. Jurisdiction.

Statutes giving chancery court jurisdiction concurrent with county court (now probate court) do not in express terms include jurisdiction to set aside homestead, but same may be said for section defining jurisdiction of county court (now probate court); however, both courts have jurisdiction from ancient times and practice has been both in county (now probate) and chancery courts to appoint commissioners to set aside homestead. Wyrick v. Hale, 30 Tenn. App. 597, 209 S.W.2d 50, 1947 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1947).

2. Nature of Homestead.

The homestead is only a mere claim until its assignment, and until then it is not an estate subject to conveyance by the widow; but after assignment, either by operation of law when the lands are worth not exceeding the allowed value, or otherwise where they are worth more, the homestead becomes a life estate subject to be sold by the widow. Nelson v. Theus, 5 Tenn. Civ. App. (5 Higgins) 87 (1915).

3. Necessity for Assignment.

Where the husband dies the owner of land worth less than the allowed value, a formal assignment of the property as homestead for the widow is not necessary to vest in her the life estate in such property, because, in such case, the property is “unerringly designated by the law” as the homestead of the decedent's widow. Flatt v. Mack Stadler Co., 84 Tenn. 371, 1886 Tenn. LEXIS 110 (1886); Briscoe v. Vaughn, 103 Tenn. 308, 52 S.W. 1068, 1899 Tenn. LEXIS 109 (1899); Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899); Adcock v. Adcock, 104 Tenn. 154, 56 S.W. 844, 1899 Tenn. LEXIS 23 (1899); Carver v. Maxwell, 110 Tenn. 75, 71 S.W. 752, 1902 Tenn. LEXIS 40 (1902), questioned, Anderson v. Anderson, 52 Tenn. App. 241, 372 S.W.2d 452, 1962 Tenn. App. LEXIS 134 (Tenn. Ct. App. 1962); Beeler v. Nance, 126 Tenn. 589, 150 S.W. 797, 1912 Tenn. LEXIS 79 (1912); Nelson v. Theus, 5 Tenn. Civ. App. (5 Higgins) 87 (1915).

4. Application.

In the settlement of the husband's estate, the widow is not required to file any pleading asking that the homestead be set apart to her. It may be applied for verbally or in writing. Archer v. Archer, 3 Tenn. App. 623, — S.W. —, 1925 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1925).

5. Effect of Foreclosure.

Where land is sold under a mortgage, the widow may be reimbursed out of the personalty of the insolvent estate of her husband, even where foreclosure of mortgage was before the administrator had sufficient right to protect her rights, and there was no waiver by reason of the fact that she did not assert her rights until after foreclosure. Yoe v. Samson, 48 S.W. 317, 1898 Tenn. Ch. App. LEXIS 79 (1898).

6. Waiver of Claim.

It is suggested, but not adjudicated, that the widow may waive or relinquish her homestead rights in the lands of her deceased husband. Clark v. Bullen, 147 Tenn. 261, 247 S.W. 107, 1922 Tenn. LEXIS 38 (1923).

7. Removal from State.

When the homestead is assigned to particular realty, as by metes and bounds, it becomes in the widow a full and absolute life estate in the land, embraced with every right of use or sale that attaches to any other life estate, with the exception that permanent removal from the state works a forfeiture and abandonment of it. Carey v. Carey, 163 Tenn. 486, 43 S.W.2d 498, 1931 Tenn. LEXIS 138 (1931).

The general rule is that homestead either assigned or unassigned is abandoned by the removal and becoming a resident of another state whether done by the husband or his widow; however, when a widow's homestead has been assigned to her it is not lost when she removes to another state when she retains control of the premises by leasing or renting them to a tenant. Hipshire v. Stapleton, 57 Tenn. App. 339, 418 S.W.2d 457, 1966 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1966).

8. Estates Subject to Homestead.

Homestead does not attach to a reversionary interest in land. Hipshire v. Stapleton, 57 Tenn. App. 339, 418 S.W.2d 457, 1966 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1966).

The claimant of homestead must have the right of present occupancy of the land to entitle him to homestead although it is not essential that he have actual occupancy. Hipshire v. Stapleton, 57 Tenn. App. 339, 418 S.W.2d 457, 1966 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1966).

9. Surviving Spouse.

Widow was not a surviving spouse under this section for the purpose of assignment of the homestead where her right and title to any interest in the estate was waived in antenuptial agreement. Uhrig v. Pulliam, 713 S.W.2d 649, 1986 Tenn. LEXIS 767 (Tenn. 1986).

Collateral References.

Operation and effect of antenuptial agreements to waive or bar surviving spouse's right to probate homestead or surviving family's similar homestead right of exemption. 65 A.L.R.2d 727.

30-2-202. Jurisdiction.

The probate court, at any of its sessions, shall have jurisdiction concurrent with the circuit and chancery courts, of applications for laying off of homestead.

Code 1858, § 2407 (deriv. Acts 1849-1850, ch. 77, § 1); Shan., § 4150; mod. Code 1932, § 8367; Acts 1976, ch. 529, § 13; T.C.A. (orig. ed.), § 30-902.

Cross-References. Chancery courts' concurrent jurisdiction over partition and sales of estates, § 16-11-111.

Circuit court, partition and distribution, § 16-10-109.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 652.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1960 Tennessee Survey (Herman L. Trautman), 13 Vand. L. Rev. 1101 (1960).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1978).

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419 (1978).

NOTES TO DECISIONS

1. Jurisdiction.

Where the court has acquired jurisdiction by the notice to the heirs or devisees and personal representative prescribed, a failure to comply rigidly with the requirements of §§ 30-2-204, 30-2-205, may be a mere irregularity waived by the parties having notice. Spain v. Adams, 3 Cooper's Tenn. Ch. 319 (1876).

Upon the suggestion of insolvency of an estate, the probate court has jurisdiction to set apart the homestead; and such assignment cannot be attacked in chancery except for matter necessary to impeach a decree; and the transfer of a proceeding in an insolvent administration from the probate court to the chancery court will not be permitted solely for the purpose of attacking such assignment. Having the jurisdiction to settle insolvent estates, the probate court, as an incident thereto, has the power to set apart homestead in order to ascertain what remains to be sold for debts, without the encumbrance of the homestead. Rhea v. Meridith, 74 Tenn. 605, 1880 Tenn. LEXIS 302 (1880); Steele v. Maness, 83 Tenn. 141, 1885 Tenn. LEXIS 33 (1885); Galyon v. Gilmore, 93 Tenn. 671, 28 S.W. 301, 1894 Tenn. LEXIS 14 (1894).

The probate court has no jurisdiction, in a suit brought alone for the assignment of homestead, to assign to a debtor the homestead reserved by him in general terms in a general assignment made for creditors; especially where the homestead land is encumbered with liens, against which the homestead must be protected, or where it is necessary to reinvest $1,000 (now $5,000) of the proceeds in other land for a homestead. The chancery court alone has jurisdiction. Galyon v. Gilmore, 93 Tenn. 671, 28 S.W. 301, 1894 Tenn. LEXIS 14 (1894).

2. Attack on Assignment.

The probate court's assignment of homestead cannot be attached in chancery by creditors dissatisfied therewith, without allegations necessary to impeach a decree. Rhea v. Meridith, 74 Tenn. 605, 1880 Tenn. LEXIS 302 (1880); Steele v. Maness, 83 Tenn. 141, 1885 Tenn. LEXIS 33 (1885); Galyon v. Gilmore, 93 Tenn. 671, 28 S.W. 301, 1894 Tenn. LEXIS 14 (1894).

Assignment in probate court cannot be collaterally attacked in chancery, upon the ground that the allowance was too liberal and excessive, for the judgment of the probate court cannot be reversed or drawn in question in such proceeding. Peterson v. Goudge, 6 Tenn. Civ. App. (6 Higgins) 288 (1916).

3. Appeal.

Appeal from the final judgment of the probate court is to the appellate court. Hill v. Bowers, 51 Tenn. 272, 1871 Tenn. LEXIS 161 (1871).

30-2-203. Notice of application.

  1. When an application for homestead is filed pursuant to this part, it shall be served upon the personal representative, if one has been appointed, and to the heirs or devisees and distributees or legatees who reside in this state. If there is a minor interested, the guardian shall also be served, and, if no guardian has been appointed, the courts shall appoint a guardian ad litem for the minor. Service of the application upon the parties named pursuant to this subsection (a), shall constitute adequate notice of the application for homestead.
  2. It shall not be necessary to serve the application for homestead upon nonresidents, but any nonresident interested in the estate and not so served shall have three (3) years from the date of the application to move for a rehearing of the cause. The filing of a petition for a rehearing and service of the petition on all interested parties shall constitute adequate notice of the rehearing. The cost of the rehearing shall be taxed as may be deemed just by the court.

Code 1858, §§ 2408 — 2410 (deriv. Acts 1849-1850, ch. 77, § 3-5); Shan., §§ 4151 — 4153; mod. Code 1932, §§ 8368 — 8370; impl. am. Acts 1976, ch. 529, § 1; T.C.A. (orig. ed.), §§ 30-903 — 30-905; Acts 2002, ch. 735, § 14.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 652, 1078.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1101, 4-1103, 4-1110.

NOTES TO DECISIONS

1. Failure to Give Notice.

Inasmuch as husband did not file a formal application for homestead or give the proper notice required, he was not entitled to an award of homestead and it was error for the chancellor to make such an award. In re Estate of Gray, 729 S.W.2d 668, 1987 Tenn. App. LEXIS 2452 (Tenn. Ct. App. 1987).

30-2-204. Application for homestead — Action to set aside property so designated.

  1. The surviving spouse may make application to any one of the courts named in § 30-2-202 in the county where the husband or wife, as the case may be, last resided before death, for the appointment of two (2) freeholders or householders of the county, unconnected by affinity or consanguinity with those interested in the estate of the deceased, to allot and set apart the homestead to the applicant, in connection with the county surveyor, or the surveyor's deputy.
  2. Any action to set aside the property designated in this section shall be brought within the time limits set by § 31-4-102.

Code 1858, § 2411 (deriv. Acts 1849-1850, ch. 77, § 2); Shan., § 4154; mod. Code 1932, § 8371; Acts 1976, ch. 529, § 14; T.C.A. (orig. ed.), § 30-906; Acts 1999, ch. 491, § 3.

Cross-References. Circuit court, partition and distribution, § 16-10-109.

Concurrent jurisdiction of chancery court over partition and sales of estates, § 16-11-111.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 121.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 652, 653.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1102, 4-1103.

NOTES TO DECISIONS

1. In General.

Inasmuch as husband did not file a formal application for homestead or give the proper notice required, he was not entitled to an award of homestead and it was error for the chancellor to make such an award. In re Estate of Gray, 729 S.W.2d 668, 1987 Tenn. App. LEXIS 2452 (Tenn. Ct. App. 1987).

2. Commissioners' Appointment.

While the presumption is always in favor of the legality and regularity of the action of a judicial tribunal, the requirements of the statute make it essential that the order appointing the commissioners should affirmatively show that they have the qualifications prescribed by this statute, namely, that they are “freeholders or householders of the county, unconnected by affinity or consanguinity with those interested in the estate of the deceased”; and the order should specify the surveyor, deputy surveyor, or other competent person to act with them as surveyor and commissioner. James v. Fields, 52 Tenn. 394, 1871 Tenn. LEXIS 274 (1871).

Where the commissioners were appointed by consent of the parties interested, their report is not subject to exception, upon the ground that the record failed to show that they were not related to the parties in interest. Christopher v. Christopher, 92 Tenn. 408, 21 S.W. 890, 1892 Tenn. LEXIS 88 (1893).

3. Commissioners' Duties.

Without encroaching upon the large discretion reposed in the commissioners, the court should, in complicated cases, give them such direction in advance as will enable them properly to discharge their duties, and such as will save or prevent litigation, delay, and expense. Clift v. Clift, 87 Tenn. 17, 9 S.W. 198, 1888 Tenn. LEXIS 29 (1888).

It is not fatal that order does not show that commissioners are not disinterested. Cooley v. Cooley's Heirs, 37 S.W. 1028, 1896 Tenn. Ch. App. LEXIS 51 (1896).

Chancellor properly appointed commissioners to set apart the homestead, in kind, where property was so situated and was of such character as to be susceptible of a partition in kind. Cobb v. Pegues, 8 Tenn. App. 74, — S.W.2d —, 1928 Tenn. App. LEXIS 110 (Tenn. Ct. App. 1928).

4. Commissioners' Report.

The court cannot determine how to allot without the report of the commissioners appointed upon application of the widow to allot and set apart. Wilhite v. Farley, 15 Tenn. App. 317, — S.W.2d —, 1932 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1932).

Court should not as a matter of practice attempt to determine questions relating to the allotment of homestead until commissioners have been appointed and have reported their findings. Wyrick v. Hale, 30 Tenn. App. 597, 209 S.W.2d 50, 1947 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1947).

Collateral References.

Surviving spouse taking elective share as chargeable with estate or inheritance tax. 67 A.L.R.3d 199.

30-2-205. Appointment of substitute surveyor.

If the surveyor is connected with any of the parties interested, either by affinity or consanguinity, the court shall appoint some competent surveyor, other than the surveyor's deputy, in the surveyor's place.

Code 1858, § 2412 (deriv. Acts 1849-1850, ch. 77, § 2); Shan., § 4155; mod. Code 1932, § 8372; T.C.A. (orig. ed.), § 30-907.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 653.

30-2-206. Proceedings summary.

The proceedings upon applications for homestead are summary, unless the applicant is the personal representative, and shall be heard and determined at the first term after notice.

Code 1858, § 2413 (deriv. Acts 1784 (Apr.), ch. 22, § 10); Shan., § 4156; mod. Code 1932, § 8373; T.C.A. (orig. ed.), § 30-908.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 653.

30-2-207. Order delivered to surveyor — Commissioners notified to lay off homestead — Oath.

The clerk of the court shall, within forty (40) days after the adjournment of the court, deliver to the surveyor a copy of the order, and thereupon the surveyor shall notify the two (2) commissioners of the time and place, to be designated by the surveyor, of laying off the homestead; before entering upon that duty, the surveyor shall administer to the commissioners an oath for the faithful and true performance of that duty.

Code 1858, § 2415 (deriv. Acts 1849-1850, ch. 77, § 6; 1851-1852, ch. 95, § 1); Shan., § 4158; mod. Code 1932, § 8375; impl. am. Acts 1976, ch. 529, § 1; T.C.A. (orig. ed.), § 30-909.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 655.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1103.

NOTES TO DECISIONS

1. Oath of Commissioners.

If the report recites that the commissioners were “qualified,” it is a sufficient statement that they were sworn; and especially if the proof shows they were in fact sworn by the surveyor, exception to the report, averring that they were not properly sworn, will be overruled. Christopher v. Christopher, 92 Tenn. 408, 21 S.W. 890, 1892 Tenn. LEXIS 88 (1893).

30-2-208. Out-of-county lands.

Should any of the lands to which the applicant may be entitled as homestead lie out of the county where the application is made, the commissioners, if so directed in the order of court, shall view and take them into estimate.

Code 1858, § 2415 (deriv. Acts 1849-1850, ch. 77, § 6; 1851-1852, ch. 95, § 1); Shan., § 4158; mod. Code 1932, § 8375; Acts 1976, ch. 529, § 15; T.C.A. (orig. ed.), § 30-910.

30-2-209. Assignment out of sale proceeds.

If real estate is so situated that homestead cannot be set apart, as provided in this part, then the realty shall be sold and five thousand dollars ($5,000) of the proceeds invested in real estate, under the direction of the court having jurisdiction to be held as homestead subject to the law governing homestead, or if the court deems it more desirable and practical, it may order the payment of five thousand dollars ($5,000) in cash or other personal property outright and in fee to the surviving spouse, if any, otherwise to the minor children, if any, in lieu of all other homestead rights in the realty of the deceased.

Acts 1873, ch. 98, § 1; Shan., §§ 3808, 4145; mod. Code 1932, §§ 7729, 8357; impl. am. Acts 1933, ch. 72, § 1; C. Supp. 1950, § 7729; Acts 1976, ch. 529, § 16; 1979, ch. 61, § 9; T.C.A. (orig. ed.), § 30-912; Acts 1985, ch. 140, § 11.

Cross-References. Extent and limitation of exemption, § 26-2-306.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 496.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 654, 1078.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1102, 4-1110.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Rights of Creditors in Insurance — The Tennessee Exemption Statutes (Paul J. Hartman), 5 Vand. L. Rev. 760 (1952).

Tennessee Law and Equal Rights Amendment: Property Law, Employment Relations and Juries, 3 Mem. St. U.L. Rev. 327 (1973).

30-2-210. Assignment of homestead and plat recorded.

The commissioners shall, in their report, exhibit a plat of the homestead, and also plainly set forth the same by metes and bounds where the homestead can be so assigned, and if the report is confirmed by the court, the clerk shall enter it in full with the plat on the records of the court.

Code 1858, § 2417 (deriv. Acts 1849-1850, ch. 77, § 7); Shan., § 4160; Code 1932, § 8377; Acts 1976, ch. 529, § 17; T.C.A. (orig. ed.), § 30-913.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 655, 656.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1104.

NOTES TO DECISIONS

1. Commissioners' Report.

It would be more regular for the report of the commissioners to recite and show that the homestead set apart is worth the allowed value, but this is not absolutely necessary, and the failure to do so is not fatal. If the report is excepted to for want of such recitation, or showing, it may be shown by proof that the homestead is worth that amount. Christopher v. Christopher, 92 Tenn. 408, 21 S.W. 890, 1892 Tenn. LEXIS 88 (1893).

Court should not as a matter of practice attempt to determine questions relating to the allotment of homestead until commissioners have been appointed and have reported their findings. Wyrick v. Hale, 30 Tenn. App. 597, 209 S.W.2d 50, 1947 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1947).

2. Plat.

The report should always contain, or be accompanied with, a plat, giving the metes and bounds thereof. James v. Fields, 52 Tenn. 394, 1871 Tenn. LEXIS 274 (1871); Spain v. Adams, 3 Cooper's Tenn. Ch. 319 (1876).

30-2-211. Costs.

The costs of the application shall be paid by the applicant unless the court otherwise adjudge.

Code 1858, § 2418 (deriv. Acts 1815, ch. 85, § 3); Shan., § 4161; mod. Code 1932, § 8378; T.C.A. (orig. ed.), § 30-914.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 652, 656.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1105.

Part 3
Inventory and Management

30-2-301. Making inventory — Return — Notice to beneficiaries.

  1. The personal representative, within sixty (60) days after entering on the administration of a testate or intestate estate, shall make a complete and accurate inventory of the probate estate of the deceased, and return the inventory to the clerk of the court exercising probate jurisdiction in the county of the estate, and verify it by the personal representative's oath before the clerk or before any person authorized by law to administer oaths in such cases whether within or without the borders of the state. When the will of the deceased excuses the requirement for making and filing an inventory of the estate, or when excused by all of the residuary distributees or legatees, no inventory shall be required of a solvent estate, unless demanded by any residuary distributee or legatee of the estate.
    1. Except as provided in subdivision (b)(4), the personal representative, within sixty (60) days after entering on the administration, shall notify:
      1. Each legatee or devisee under the will that that person or entity is a beneficiary by sending, by first class mail or personal delivery, a complete copy of the will to those beneficiaries sharing in the residue of the estate, and by sending a copy of the paragraph or paragraphs of the will containing the bequests to those beneficiaries only receiving bequests; and
      2. Each residuary distributee of an intestate deceased person by sending that person a copy of the letters of administration.
    2. If the residue or a portion thereof is distributable to a trustee for the benefit of others, a complete copy of the will shall be sent to the trustee who shall have the obligation under title 35 to send copies of the will to the trust beneficiaries.
    3. Within the sixty-day period, the personal representative shall also execute and file with the clerk of the court an affidavit that the required copies have been mailed or delivered to the beneficiaries or distributees, and an explanation of efforts to identify and locate beneficiaries or distributees, if any, to whom copies have not yet been sent.
    4. The personal representative shall not be required to comply with the requirements of subdivisions (b)(1) and (b)(3) if:
      1. The personal representative and the sole beneficiary of the estate are the same person; or
      2. The decedent's will was admitted to probate in solemn form.
    5. Within the sixty-day period, the personal representative shall execute and file with the clerk of the court an affidavit that the bureau of TennCare has been notified of the decedent's death pursuant to § 71-5-116.
      1. Following expiration of the sixty-day period, specified in subsection (a), a person or entity may file a notice with the clerk's office that provides the name, current mailing address and actual physical address of any legatee or distributee who has not been identified or has not been located by the personal representative. The notice may not be filed prior to the expiration of the sixty-day period.
        1. The person or entity filing notice pursuant to subdivision (b)(6)(A) shall be entitled to a reasonable fee for each legatee or distributee for whom the person or entity filing the notice provides satisfactory proof, as defined in subdivision (b)(6)(C), of the legatee or distributee’s relationship to the decedent.
          1. Other than a reasonable fee, such person or entity shall not be entitled to any other compensation from any person or entity, including any legatee or distributee, for providing the information to the legatee or the distributee or to the clerk.
          2. Such fee shall be determined by the contract between the legatee or distributee and the person or entity filing the notice; provided, however, such fee shall not exceed one-third (1/3) of the legatee or distributee’s interest.
          3. Any contract entered into between a person or entity filing notice pursuant to subdivision (b)(6)(A) and a legatee or distributee prior to the expiration of the sixty-day period specified in subsection (a), shall be null and void and unenforceable in a court of law.
        2. If more than one person or entity submits accurate identifying information to the clerk, then the person or entity that has a contract with the legatee or distributee shall be entitled to the fee provided by this subdivision (b)(6).
      2. For the purposes of this subdivision (b)(6), any one of the following constitutes satisfactory proof of the relationship between the legatee or distributee and the decedent:
        1. An affidavit of pedigree pursuant to § 30-2-711;
        2. An affidavit of heirship pursuant to § 30-2-712;
        3. Vital records establishing the relationship; or
        4. Other proof satisfactory to the court.

Code 1858, § 2241 (deriv. Acts 1723, ch. 10, § 2; 1851-1852, ch. 180, § 1); Shan., § 3977; Code 1932, § 8189; Acts 1957, ch. 34, § 1; T.C.A. (orig. ed.), § 30-501; Acts 1984, ch. 644, § 1; 1988, ch. 854, §§ 6, 7; 1992, ch. 951, §§ 4, 5; 2006, ch. 639, § 1; 2008, ch. 1050, § 1; 2010, ch. 893, §§ 1, 2.

Cross-References. Administrator appointed to succeed resigning representative, time in which inventory to be taken, § 30-1-113.

Comparison of inventories with tax rolls, § 67-1-1009.

Estate tax, title 67, chapter 8, part 2.

Inheritance taxes, title 67, chapter 8, parts 3-5.

Inventory of safe deposit boxes, § 45-2-905.

Inventory proved incomplete, effect, § 30-2-608.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Tax assessment, filing of return, § 67-5-511.

Tax assessment of property of estate, § 67-5-502.

Theft of property, § 39-14-103.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 662, 664, 986.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1302 — 4-1304, 4-1401.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273 (1979).

Marital Deduction Planning Under the Tax Reform Act of 1976 (Ronald S. Borod, William H. Lawson, Jr., Clayton D. Smith), 7 Mem. St. U.L. Rev. 181 (1977).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707 (1978).

Selection and Removal of Fiduciaries (Robert L. McMurray), 26 No. 3, Tenn. B.J. 22 (1990).

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189 (1978).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

The Tolling of Statutes of Limitations in Tennessee, 14 Mem. St. U.L. Rev. 375 (1984).

Value definition clauses: The basics (Dan W. Holbrook), 37 No. 3 Tenn. B.J. 33 (2001).

Attorney General Opinions. Surplus campaign funds of deceased candidate for state or local office, OAG 99-118, 1999 Tenn. AG LEXIS 118 (5/14/99).

NOTES TO DECISIONS

1. Penalty for Failure to File.

When an executor did not file an inventory of the estate, did not keep a record of the transactions affecting the estate, and did not file a report until after a bill for an accounting was instituted more than seven years after he had qualified as executor he was not entitled to compensation for his services and the fact that there had been litigation concerning insurance proceeds would not excuse him. State v. Hardison, 26 Tenn. App. 80, 167 S.W.2d 998, 1942 Tenn. App. LEXIS 33 (1942).

2. Waiver.

It was error to deny a decedent's child's requests for an inventory and accountings of property in the decedent's estate without finding if the child qualified as a residuary distributee or legatee because (1) T.C.A. § 30-2-301 required an inventory if demanded by a residuary distributee or legatee, (2) T.C.A. § 30-2-601(a)(4) only waived an accounting if the will or all residuary distributees waived an accounting, and (3) no copy of the will was in the record, so an appellate court could not find if the child were a residuary distributee or legatee, requiring remand. In re Estate of Dalton, — S.W.3d —, 2016 Tenn. App. LEXIS 436 (Tenn. Ct. App. June 28, 2016).

3. No Breach of Fiduciary Duty.

Defendant fulfilled her duty to communicate with the beneficiaries of the estate; although defendant did not want to communicate directly with plaintiffs, she provided information to her attorney, who communicated that information to them. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

Defendant provided plaintiffs with a handwritten list of accounts and could not have provided all of the information plaintiffs demanded because she did not possess nor control access to such information and, in some cases, she did not know the information existed; thus, defendant did not breach her duty by failing to disclose information about the trust assets. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

Defendant was not responsible for failing to provide a copy of the antenuptial agreement with attachments to plaintiffs, and thus plaintiffs failed to establish that defendant breached a duty in this regard; defendant could not have provided a copy because she and the decedent had destroyed their copies and she had no knowledge that the decedent had a copy, plus her attorney allowed plaintiffs'  attorney to examine the files relevant to the estate and concealment was not shown. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

Not including the gold coins on her handwritten list of trust assets did not constitute a breach of duty nor did it establish that defendant intended to conceal the coins from plaintiffs; the list was created in response to plaintiffs'  request for contact information concerning accounts that were assets of the trusts and information about tangible personal property would not have been a relevant response to that request. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

Requirement of making and filing an inventory was waived by the will and thus defendant was not required to file an inventory, and she did not breach a duty by not filing an inventory that included separate line-items of the estate's tangible personal property. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

4. Inventory.

As for defendant failing to list the gold coins in the final accounting, that was not the office of an accounting; as distinguished from accountings, it is the inventory in which the personal representative is to provide a list of probate assets. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

Collateral References.

Action to protect assets in possession of co-representative. 63 A.L.R. 452.

Apportionment of income on death of one entitled thereto during accrual period, as between his estate and heirs, devisees, trust beneficiaries, etc. 126 A.L.R. 36.

Attorneys, rights of estate of deceased member of law firm in respect to business unfinished at time of latter's death. 78 A.L.R.2d 280.

Commissions, right to, as affected by failure to file, or improper filing of, inventory or account. 83 A.L.R. 732.

Family settlement of testator's estate. 29 A.L.R.3d 8.

Incompetent decedent's estate, amount of assets of, as diminished by claims incurred during guardianship. 113 A.L.R. 402.

Negotiable paper, payment of, to personal representative of owner appointed in one state, as affected by appointment of another representative in another state. 114 A.L.R. 1461, 149 A.L.R. 1083.

Refund under annuity contract upon death of annuitant as part of his estate for purposes of forced heirship or statute limiting amount of disposable estate of decedent survived by spouse or child. 72 A.L.R.2d 924.

Rent on death of landlord as part of his estate. 31 A.L.R. 4.

Rights in respect to proceeds of sale of land located in a state other than domicile, for payment of decedent's debts. 81 A.L.R. 665.

Situs of corporate stock for purposes of probate jurisdiction and administration. 72 A.L.R. 179.

Summary proceedings for recovery of property belonging to decedent's estate as means of collecting debt. 88 A.L.R. 853.

Testamentary gift to executor as one in his fiduciary capacity or in his own right. 3 A.L.R.3d 1376.

Unharvested crops, tenant's personal representative as entitled to. 141 A.L.R. 1248.

United States war savings bonds as assets of holder's estate. 168 A.L.R. 245, 173 A.L.R. 550, 37 A.L.R.2d 1221, 39 A.L.R.2d 698, 40 A.L.R.2d 788, 51 A.L.R.2d 163.

Who may exercise voting power of corporate stock pending settlement of estate of deceased owner. 7 A.L.R.3d 629.

30-2-302. Recording of inventory.

The clerk shall present the inventory to the court, and, if it appears to be regular, the court shall order it to be recorded in the book of inventories.

Code 1858, § 2242 (deriv. Acts 1851-1852, ch. 180, § 1); Shan., § 3978; Code 1932, § 8190; T.C.A (orig. ed.), § 30-502.

Cross-References. Duties of county clerk, § 18-6-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 663.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1305.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965).

NOTES TO DECISIONS

1. Inventory — Right to Impeach.

2. —Creditors and Heirs.

The inventories and settlements of administrators have the verity of judicial records, except that they may be impeached by those interested in the estate, as not showing the full measure of the administrator's liability. Snodgrass v. Snodgrass, 60 Tenn. 157, 1873 Tenn. LEXIS 428 (1873).

3. —Personal Representative.

The administrator is responsible for all the assets included in his inventory, although they do not properly belong to the estate, unless he can show that he was mistaken in the facts upon which he admitted his liability. Snodgrass v. Snodgrass, 60 Tenn. 157, 1873 Tenn. LEXIS 428 (1873); Sanders v. Forgasson, 62 Tenn. 249, 1873 Tenn. LEXIS 186 (1873); Little v. Cook, 78 Tenn. 715, 1882 Tenn. LEXIS 240 (1882).

4. —Sureties of Personal Representative.

The sureties of an executor or administrator are not precluded by the inventory from showing the truth as to the ownership of property included therein, and may show that it belongs to others, and not to the decedent, or that the executor or administrator had no right to administer such property, and thus escape liability, though he may be personally liable. Snodgrass v. Snodgrass, 60 Tenn. 157, 1873 Tenn. LEXIS 428 (1873); Sanders v. Forgasson, 62 Tenn. 249, 1873 Tenn. LEXIS 186 (1873); Little v. Cook, 78 Tenn. 715, 1882 Tenn. LEXIS 240 (1882).

5. Proof of Assets When Not Inventoried.

Upon the issue fully administered in an action against a personal representative, the plaintiff may prove assets, although no inventory has been returned. Marr v. Rucker, 20 Tenn. 348, 1839 Tenn. LEXIS 59 (1839); Gilpin v. Noe, 56 Tenn. 192, 1872 Tenn. LEXIS 126 (1872).

6. Burden of Proof.

Upon the issue fully administered in an action against a personal representative, the plaintiff has the burden of proof of assets, although no inventory has been returned or the assets were not included in the inventory returned. Marr v. Rucker, 20 Tenn. 348, 1839 Tenn. LEXIS 59 (1839); Gilpin v. Noe, 56 Tenn. 192, 1872 Tenn. LEXIS 126 (1872).

30-2-303. Sale of decedent's effects.

Unless otherwise directed by the will and unless the specific personal property is the subject of a bequest, the personal representative of a testate or intestate estate may, in the personal representative's discretion, sell the personal property of the decedent at public or private sale, for cash or on terms, in such manner and for such prices as the personal representative may deem advisable; but the personal representative shall not make a private sale to the personal representative, to business associates, to members of the personal representative's immediate family or to their agents without court approval or the written consent of all residuary distributees of the estate. The personal representative may employ persons or firms to conduct the sale and shall receive credit for all reasonable expenses of the sale in the final accounting.

Code 1858, §§ 2243-2245 (deriv. Acts 1723, ch. 10, § 2; 1797, ch. 7, § 5); Shan., §§ 3979-3981; mod. Code 1932, §§ 8191-8193; T.C.A. (orig. ed.), §§ 30-503 — 30-505; Acts 1985, ch. 140, § 12.

Cross-References. Duties of county clerk, § 18-6-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 722, 724, 725.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1204.

NOTES TO DECISIONS

1. Provisions Directory.

This statute prescribing the manner, time, and place of the sale of the goods and chattels of a decedent is merely directory. Sneed v. Hooper, 3 Tenn. 200, 1 Cooke 200, 1812 Tenn. LEXIS 56 (1812); Johnston v. Dew, 6 Tenn. 224, 1818 Tenn. LEXIS 52 (1818); Hooper v. Bryant, 11 Tenn. 1, 1832 Tenn. LEXIS 10 (1832); Johnson v. Kay, 27 Tenn. 142, 1847 Tenn. LEXIS 61 (1847); Lyon v. Lyon, 1 Cooper's Tenn. Ch. 225 (1873).

2. Private Sale.

3. —Validity.

A bona fide private sale of the goods of the deceased vests good title in the purchaser, even against creditors of the estate. Johnson v. Kay, 27 Tenn. 142, 1847 Tenn. LEXIS 61 (1847).

4. —Liability of Personal Representative.

The administrator, having the interest in the goods of the deceased, may alien, sell, or dispose of them at private sale, or otherwise, and in doing so, generally speaking, he will incur no liability beyond accounting for their value. Johnson v. Kay, 27 Tenn. 142, 1847 Tenn. LEXIS 61 (1847).

Where a will gives the executors “full and ample authority and power … to use their discretion” in the settlement of the estate, the executors cannot be held liable on account of the private sale of corporate stock, where they exercised the discretion which a reasonably prudent and intelligent person would have used in the administration of his own affairs. Lovewell v. Schoolfield, 217 F. 689, 1914 U.S. App. LEXIS 1466 (6th Cir. 1914).

5. —Fraud in Sale.

Purchaser from executor takes good title to property sold unless there is fraud in collusion with the executor. Hadley v. Kendrick, 78 Tenn. 525, 1882 Tenn. LEXIS 218 (1882).

6. Delay in Sale — Discretion.

A personal representative who, in good faith and upon reasonable grounds, postpones the sale of bank stocks, will not be held liable for loss to the estate resulting from the subsequent depreciation of such stocks, in consequence of events that he could not foresee or control, and especially is this so where the delay is made at the instance or request of the parties beneficially interested. He is permitted a discretion in fixing the time, place, and terms of selling stocks which is not allowable as to perishable property. Prejudicial haste and dangerous delay are alike to be avoided in sales of stocks. Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897).

7. Obligation to Sell Property.

Discretion granted to the personal representative by this section relates to the procedure for selling the decedent's personal property, not whether to sell; thus, a representative was required to sell stock and distribute the proceeds among the beneficiaries equally. Austin v. Austin (In re Estate of Austin), 920 S.W.2d 209, 1996 Tenn. LEXIS 222 (Tenn. 1996).

Collateral References.

Corporation of which he is officer or stockholder, sale by executor or administrator, as voidable or as ground for surcharging his account. 105 A.L.R. 451.

Exchange of property as covered by power of sale. 63 A.L.R. 1003.

Power of sale conferred on executor by testator as authorizing private sale. 11 A.L.R.2d 955.

Validity of sales of property of deceased person before letters testamentary or of administration have been granted to the vendor. 26 A.L.R. 1364.

30-2-304. Apportionment of rents upon death of life tenant.

  1. Where a tenant for life of real estate creates a lease out of the tenant's estate for one (1) or more years, and dies before the expiration of the lease, and before the term fixed for the payment of the rent, the rent may be apportioned, and the executor or administrator of the tenant for life may recover of the lessee, pro rata, according to the contract, and for the time the lessee had the use of the property until the death of the tenant for life.
  2. Whenever any person has rented from a life tenant by written contract signed by the life tenant any real estate, adapted to and rented for farming or agricultural purposes, for a period not exceeding one (1) year, and the written contract has been entered into after December 1st of the preceding year, and the life tenant dies after the succeeding January 1st and during the year for which the contract is made, the lessee shall have the right to hold possession of such premises until the end of the year or term as against the remaindermen and all other persons; and in this case the rents on the premises for the year shall be apportioned between the estate of the deceased life tenant and the remainderman as provided by subsection (a).

Acts 1877, ch. 159; 1925, ch. 51, § 1; Shan. Supp., §§ 4184, 4184a1; Code 1932, §§ 8406, 8407; T.C.A. (orig. ed.), §§ 30-506, 30-507.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 626.

Tennessee Jurisprudence, 12 Tenn. Juris., Executors and Administrators, § 33; 21 Tenn. Juris., Remainders, Reversions and Executory Interests, § 25.

NOTES TO DECISIONS

1. Duration of Lease.

A life tenant cannot create a lease on land which will extend beyond the life estate. Collins v. Crownover, 57 S.W. 357, 1900 Tenn. Ch. App. LEXIS 28 (1900); Turner v. Turner, 132 Tenn. 592, 179 S.W. 132, 1915 Tenn. LEXIS 50 (1915); Hawkins v. McCall, 7 Tenn. App. 13, — S.W.2d —, 1928 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1928).

2. Apportionment of Rents and Emblements.

Where life tenant leased land in fall of 1898 for the following crop year of 1899 but died on 17th day of March, 1899 the remainderman was entitled to possession at once of land which had been prepared for crops but not planted, since administrator of life tenant had only the right to collect rent up to the date of the death of life tenant. Collins v. Crownover, 57 S.W. 357, 1900 Tenn. Ch. App. LEXIS 28 (1900).

Where after the death of the life tenant the remainderman sought to recover possession of the land and compensation from a sublessee for its use there was no ratification of the lease within the meaning of this section, and lessee was entitled to the emblements requiring an outlay of labor and industry without payment of any compensation for the use of the land in harvesting the emblements. Turner v. Turner, 132 Tenn. 592, 179 S.W. 132, 1915 Tenn. LEXIS 50 (1915).

Where life tenant rented warehouse for a period of five years but died within two years, the administrator of the estate of deceased life tenant who collected the rents was liable to the remainderman for the rents collected. Hawkins v. McCall, 7 Tenn. App. 13, — S.W.2d —, 1928 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1928).

30-2-305. Debts chargeable against all assets.

Every debtor's property, except such as may be specially exempt by law, is assets for the satisfaction of all the debtor's just debts.

Code 1858, § 2252 (deriv. 5 Geo. II, ch. 7, § 4); Shan., § 3985; Code 1932, § 8197; T.C.A. (orig. ed.), § 30-508.

Cross-References. Insolvent estates, title 30, ch. 5.

Sale of land to pay debts, title 30, ch. 2, part 4.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 611, 849, 852.

Law Reviews.

Creditors' Rights and Security Transactions — 1954 Tennessee Survey, 7 Vand. L. Rev. 799 (1954).

Insurance Proceeds in Trust (Troy Beatty, Jr.), 28 Tenn. L. Rev. 344 (1961).

Rights of Creditors in Insurance — The Tennessee Exemption Statutes (Paul J. Hartman), 5 Vand. L. Rev. 760 (1952).

NOTES TO DECISIONS

1. Assets for Satisfaction of Debts.

Debts of the testator are to be paid from the personal property unless there is some specific provision in his will otherwise. Wilson v. Smith, 50 Tenn. App. 188, 360 S.W.2d 78, 1962 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1962).

Where husband's will directed his widow, who was executrix, to pay all his debts, gave widow all his personal property and life estate in his real property, and value of personal property greatly exceeded cost of administration and amount of debts, estate of widow was not entitled to recover proceeds which widow paid subsequent to husband's death on mortgage on land held by husband at his death and which was sold after widow's death. Wilson v. Smith, 50 Tenn. App. 188, 360 S.W.2d 78, 1962 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1962).

2. —Definition.

The word “assets” usually means property and funds going into the hands of the personal representative for the payment of the debts of the decedent. COMBS v. COMBS, 131 Tenn. 66, 173 S.W. 441, 1914 Tenn. LEXIS 85 (1914); Sharp v. Cincinnati, N. O. & T. P. R. Co., 133 Tenn. 1, 179 S.W. 375, 1915 Tenn. LEXIS 67 (1915).

3. —Debts of Personal Representative.

Sureties respond for debt of a personal representative to the estate as for other debts so due. Spurlock v. Earles, 67 Tenn. 437, 1874 Tenn. LEXIS 396 (1874).

4. —Equity in Mortgaged Property or Deed of Trust.

As to mortgage or deed of trust on lands of decedent, estate has equity in surplus that may be left after the satisfaction of the secured debt. Woman's College v. Horne, 60 S.W. 609, 1900 Tenn. Ch. App. LEXIS 138 (1900).

5. —Land.

6. — —Executory Contracts.

Money paid by decedent for land under an unexecuted and repudiated parol contract for the purchase of land is personal assets, and must be collected by personal representative. Crippen v. Bearden & Odell, 24 Tenn. 129, 1844 Tenn. LEXIS 41 (1844).

The executory contract of the sale of land vests the equitable title in the purchaser. Lunsford v. Jarrett, 79 Tenn. 192, 1883 Tenn. LEXIS 40 (1883); Kelley v. Kelley, 83 Tenn. 194, 1885 Tenn. LEXIS 41 (1885).

Where there is an executory contract of the sale of land, upon the death of the vendor, his executor or administrator will be entitled to receive the purchase money remaining unpaid. Lunsford v. Jarrett, 79 Tenn. 192, 1883 Tenn. LEXIS 40 (1883); Kelley v. Kelley, 83 Tenn. 194, 1885 Tenn. LEXIS 41 (1885).

7. — —Redemption Money.

Where land is redeemed after the death of the purchaser, the redemption money goes to his personal representative, and not to his heirs, where he had not taken the sheriff's deed; but where he had taken the sheriff's deed, and had thus become vested with the legal title, then the money should be paid to his heirs. The redemption money, when going to the personal representative, constitutes a fund for the payment of debts and for distribution. Campbell v. Campbell, 40 Tenn. 325, 1859 Tenn. LEXIS 89 (1859).

8. — —Growing Trees.

Growing trees constitute an interest in the land and are a part of the realty. Childers v. Wm. H. Coleman Co., 122 Tenn. 109, 118 S.W. 1018, 1909 Tenn. LEXIS 6 (1909).

9. — —Growing Crops.

The personal representative of a life tenant is entitled to the growing crops as emblements, as against the remainderman or reversioner. Hunt v. Watkins, 20 Tenn. 498, 1840 Tenn. LEXIS 9 (1840); Hawkins v. Skeggs's Adm'r, 29 Tenn. 31, 1848 Tenn. LEXIS 34 (1848); In re Turner, 101 Tenn. 701, 50 S.W. 757, 1898 Tenn. LEXIS 126 (1898); Emert v. Blair, 121 Tenn. 240, 118 S.W. 685, 1908 Tenn. LEXIS 18 (1908).

A devisee during her widowhood, who voluntarily puts an end to the estate by her marriage while the crop is growing, is not entitled to such crop as emblements. Hawkins v. Skeggs's Adm'r, 29 Tenn. 31, 1848 Tenn. LEXIS 34 (1848).

Growing crops pass under a completed sale and conveyance of the land, whether private or judicial, in the absence of exception or reservation. Pickens v. Reed, 31 Tenn. 80, 1851 Tenn. LEXIS 22 (1851); Shofner v. Shofner, 37 Tenn. 94, 1857 Tenn. LEXIS 83 (1857); Vaughn v. Vaughn, 88 Tenn. 742, 13 S.W. 1089, 1890 Tenn. LEXIS 13 (1890).

The growing crops on the land of an intestate owner go to his administrator, and not to his heirs, because growing crops, the product of annual planting called emblements, are personal property. Shofner v. Shofner, 37 Tenn. 94, 1857 Tenn. LEXIS 83 (1857); Carson v. Browder, 70 Tenn. 701, 1879 Tenn. LEXIS 225 (1879); Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887); Vaughn v. Vaughn, 88 Tenn. 742, 13 S.W. 1089, 1890 Tenn. LEXIS 13 (1890).

Growing crops are so appurtenant to the land, and so partake of the nature of realty, that, if the owner die testate, the crops then growing will pass with the land to the devisee, to the exclusion of the executor, unless a contrary intention is manifested in the will. Shofner v. Shofner, 37 Tenn. 94, 1857 Tenn. LEXIS 83 (1857); Ellis v. Foster, 54 Tenn. 131, 1872 Tenn. LEXIS 30 (1872); Vaughn v. Vaughn, 88 Tenn. 742, 13 S.W. 1089, 1890 Tenn. LEXIS 13 (1890).

The assignment of homestead or dower to a widow entitles her to the crops growing thereon at the husband's death and remaining thereon when the assignment is made, and neither the personal representative nor the heir is entitled thereto as against her. Vaughn v. Vaughn, 88 Tenn. 742, 13 S.W. 1089, 1890 Tenn. LEXIS 13 (1890).

10. — —Fixtures.

Whatever is affixed to the freehold, in such sense as to become a fixture, passes with the freehold to the heir or devisee, and not to the personal representative as personal assets for the payment of debts. Degraffenfeid v. Scruggs, 23 Tenn. 451, 1844 Tenn. LEXIS 136 (1844); Childress v. Wright, 42 Tenn. 350, 1865 Tenn. LEXIS 74 (1865); Saunders & Aycock v. Stallings, 52 Tenn. 65, 1871 Tenn. LEXIS 234 (1871); McDavid v. Wood, 52 Tenn. 95, 1871 Tenn. LEXIS 240 (1871); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Union Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 86 S.W. 310, 1904 Tenn. LEXIS 86, 108 Am. St. Rep. 903, 4 Ann. Cas. 1070 (1904).

11. —Notes and Accounts Due Decedent.

It is only the balances due on notes and accounts of the deceased, after allowing to the debtors all just credits and setoffs, that go into the fund for the payment of debts, whether the estate be solvent or insolvent. Richardson v. Parker, 32 Tenn. 529, 1852 Tenn. LEXIS 109 (1852); Gregory v. Hasbrook, 1 Cooper's Tenn. Ch. 218 (1873).

12. —Life Insurance Proceeds.

The proceeds of policies payable to estate are by statute taken out of the rule that assets are subject to decedent's debts. White v. Bickford, 146 Tenn. 608, 244 S.W. 49, 1922 Tenn. LEXIS 10, 26 A.L.R. 129 (1922); In re Stansell, 8 F.2d 363, 1925 U.S. Dist. LEXIS 1624 (D. Tenn. 1925); Dawson v. National Life Ins. Co., 156 Tenn. 306, 300 S.W. 567, 1927 Tenn. LEXIS 119 (1927); Lunsford v. Nashville Sav. & Loan Corp., 162 Tenn. 179, 35 S.W.2d 395, 1930 Tenn. LEXIS 76 (1931).

Except as exempt by statute, proceeds of life policies payable to estate of insured and disposed of by his will are assets liable for insured's debts, as where such disposition is not to widow, child or dependent relative. Sparkman-Thompson, Inc. v. Chandler, 162 Tenn. 614, 39 S.W.2d 741, 1931 Tenn. LEXIS 76 (1931), superseded by statute as stated in, Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

13. —Annuities Reserved in Deeds.

Annuities reserved by the decedent, in deeds made to his children, for his support and maintenance during life, where the children were subsequently released by him from the payment thereof, are not assets of the estate. Hale v. Hale, 99 Tenn. 532, 42 S.W. 201, 1897 Tenn. LEXIS 64 (1897).

14. Sale of Real Estate.

15. —Exhaustion of Personalty as Prerequisite.

Even though judgment was recovered against the debtor in his lifetime, his real estate, descended or devised, cannot be subjected to its satisfaction, until the personal estate has been exhausted or shown to be insufficient, any more than if he had survived. Consequently, the personal estate must first be resorted to, either by fieri facias, if one can be issued tested before the debtor's death, or, if not, by scire facias or other proceeding against his personal representative. Ward v. Southerland & Mc'Campbell, 7 Tenn. 1, 1823 Tenn. LEXIS 62 (1823); Elliot v. Patton, 12 Tenn. 9, 12 Tenn. 10, 1833 Tenn. LEXIS 4 (1833); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880).

The tendency of modern legislation and decisions is to treat the lands of the ancestor as assets for the payment of debts to the same extent as personalty, where the personalty is insufficient. Abingdon v. Tyler, 46 Tenn. 502, 1869 Tenn. LEXIS 87 (1869); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878).

16. —Priority of Sale.

Where it becomes necessary to sell a decedent's lands for the payment of his debts, the undevised lands shall be sold first and before the lands specifically devised, where neither the devised nor the undevised lands are specially charged with the payment of the debts, but where there is a general provision that if the personalty is insufficient for the payment of debts, the lands be rented out to pay the balance. Crumley v. Deake, 67 Tenn. 361, 1875 Tenn. LEXIS 57 (1875).

17. —Will Provisions — Effect.

Where a testator bequeaths personalty for the payment of debts and legacies, and also devises land to be sold by his executor for the same purposes, the assets of the personalty are legal assets because they are liable for the debts, without the aid of the court; and the assets of the realty are equitable assets because creditors and legatees cannot subject the same to their debts and legacies, in a court of law. The legatee of personalty must resort to chancery, if the executor does not assent to the legacy. Hughlett v. Hughlett, 24 Tenn. 453, 1844 Tenn. LEXIS 111 (1844); Fulton v. Davidson, 50 Tenn. 614, 1871 Tenn. LEXIS 121 (1871), overruled in part, Holding v. Allen, 150 Tenn. 669, 266 S.W. 772, 1924 Tenn. LEXIS 36, 36 A.L.R. 743 (1924); Porter v. Moores, 51 Tenn. 16, 1871 Tenn. LEXIS 130 (1871); Wall v. Allen, 63 Tenn. 210, 1874 Tenn. LEXIS 229 (1874); Spurlock v. Earles, 67 Tenn. 437, 1874 Tenn. LEXIS 396 (1874); Mitchell v. Calloway, 3 Shan. 636 (1875); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878); Barksdale v. Butler, 74 Tenn. 450, 1880 Tenn. LEXIS 272 (1880); Hardin v. Hassell, 118 Tenn. 143, 100 S.W. 720, 1906 Tenn. LEXIS 87 (1907).

The land is none the less an asset where the will directs that it shall be sold for the payment of debts; for the right of the creditor to satisfaction does not depend upon the direction in the will, but it exists independent of it although the will may designate and direct certain parts of the property to be first applied to the debts, and such direction will be enforced by the courts. Hubbard v. Epps, 68 Tenn. 231, 1877 Tenn. LEXIS 28 (1877).

18. —Rents of Land.

The rents of lands descended or devised, accrued and received by the heir or devisee before the sale of the land to pay the ancestor's debts, cannot be subjected to his debts. Boyd v. Martin, 56 Tenn. 382, 1872 Tenn. LEXIS 150 (1872); Seat v. Knight, 3 Cooper's Tenn. Ch. 262 (1876); Moore v. Knight, 74 Tenn. 427, 1880 Tenn. LEXIS 270 (1880); Combs v. Young's Widow & Heirs, 12 Tenn. 218, 1833 Tenn. LEXIS 57 (1833); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881); Grimstead v. Huggins, 81 Tenn. 728, 1884 Tenn. LEXIS 93 (1884); Smith v. Heirs & Creditors of Thomas, 82 Tenn. 324, 1884 Tenn. LEXIS 130 (1884); Stephens v. Mason, 1 Tenn. App. 246, 1925 Tenn. App. LEXIS 38 (1925).

Rents of land, becoming due after the owner's death, descend to the heir or devisee as incident to the reversion; but if the rents become due before his death, they go to the personal representative as part of the personal estate. Rowan v. Riley, 65 Tenn. 67, 1873 Tenn. LEXIS 301 (1873); Smith v. Heirs & Creditors of Thomas, 82 Tenn. 324, 1884 Tenn. LEXIS 130 (1884).

Rents and profits go to heir or devisee until land is sold for ancestor's debts. Wright v. Eakin, 151 Tenn. 681, 270 S.W. 992, 1924 Tenn. LEXIS 95 (1925).

19. —Waste of Personal Assets by Personal Representative.

The land of a decedent cannot be subjected to the payment of his debts, unless there is an insufficiency of administrable personalty. The waste of the personal assets by the executor or administrator and the insolvency of himself and sureties gives the creditors of the decedent no remedy against the land devised or descended; but where the personal assets are lost, or they depreciate in value without the fault of the executor or administrator, or without such fault as would render him and his sureties liable, the land will not be relieved from the payment of debts to the extent of such loss or depreciation. Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828); Gilman v. Tisdale's Heirs, 9 Tenn. 285, 1830 Tenn. LEXIS 22 (1830); Elliot v. Patton, 12 Tenn. 9, 12 Tenn. 10, 1833 Tenn. LEXIS 4 (1833); Anderson v. Lessee of Clark's Heirs, 32 Tenn. 156, 1852 Tenn. LEXIS 39 (1852); Abingdon v. Tyler, 46 Tenn. 502, 1869 Tenn. LEXIS 87 (1869); Nix v. French, 57 Tenn. 377, 1873 Tenn. LEXIS 219 (1873); Jones v. Douglass, 1 Cooper's Tenn. Ch. 631 (1874); Woodfin v. Anderson, 2 Cooper's Tenn. Ch. 331 (1875); Morrow v. Morrow, 2 Cooper's Tenn. Ch. 549 (1875); Bennett v. Coldwell, 67 Tenn. 483, 1875 Tenn. LEXIS 71 (1875); Kyle v. Kyle, 2 Shan. 380 (1877); Trafford v. Austin, 3 Cooper's Tenn. Ch. 492 (1877); Glenn v. Maguire, 3 Cooper's Tenn. Ch. 695 (1878); Wooldridge v. Page, 68 Tenn. 325, 1878 Tenn. LEXIS 17 (1878); Woolridge v. Page, 69 Tenn. 135, 1878 Tenn. LEXIS 64 (1878); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878); Gibson v. Jones, 81 Tenn. 684, 1884 Tenn. LEXIS 87 (1884); Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897).

20. —Distribution upon Refunding Bonds.

The distribution upon refunding bonds, whether the estate is solvent or insolvent, is not such exhaustion of the personalty as will render the land subject to the payment of debts. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

21. —Land Held by Title Bond.

The holder of a title bond for the conveyance of land is the equitable owner of the land; it is devisable and descendible as his, and upon his death, such land, only as land, can be subjected to the payment of his debts, for it is not only not personal assets in the hands of the personal representative, but if there is any purchase money owing on such land, such debt is a charge upon decedent's personal estate, although such debt be a lien upon the land. Simmons v. Tillery, 1 Tenn. 274, 1808 Tenn. LEXIS 14 (1808); Stephenson v. Yandle, 4 Tenn. 109, 1816 Tenn. LEXIS 32 (1816); Craig v. Leiper, 10 Tenn. 193, 1828 Tenn. LEXIS 1, 24 Am. Dec. 479 (1828); Anderson v. Donelson, 9 Tenn. 197, 1829 Tenn. LEXIS 37 (1829); Smith v. Christmas, 15 Tenn. 564, 15 Tenn. 565, 1835 Tenn. LEXIS 45 (1835); Moore's Adm'rs v. Widow & Heirs, 30 Tenn. 512, 1851 Tenn. LEXIS 91 (1851); Wilkins v. Frierson, 34 Tenn. 701, 1855 Tenn. LEXIS 122 (1855); Gass v. Hawkins, 1 Shan. 167 (1860); Milligan v. Humbard, 58 Tenn. 137, 1872 Tenn. LEXIS 238 (1872); Irvine v. Muse, 57 Tenn. 477, 1873 Tenn. LEXIS 244 (1873); Hix v. Gosling, 69 Tenn. 560, 1878 Tenn. LEXIS 140 (1878).

Where father acquired land and was given a bond for title but deed was never registered, and thereafter while insolvent persuaded grantor to make a deed to children which was registered, an execution against land for debt of father was valid and purchaser at execution sale secured good title, since deed to children was void as to creditors. Russell v. Stinson, 4 Tenn. 1, 1816 Tenn. LEXIS 2 (1816); Russell v. Stinson, 4 Tenn. 56, 1816 Tenn. LEXIS 19 (1816).

A person dying in the possession of land held under a title bond which chancery has, by adjudication, refused, at the suit of his heirs to execute specifically, does not die so seized and possessed thereof as to make such land liable for his debts, as against the defense of the vendor or his heirs. Milligan v. Humbard, 58 Tenn. 137, 1872 Tenn. LEXIS 238 (1872).

22. —Vendor's and Purchase Money Liens — Effect.

Heir of land upon which there is a valid vendor's lien in favor of his ancestor holds the naked title in trust for the vendee and administrator, subject to be divested when the purchase money debt is ascertained and the land sold in satisfaction. Kelley v. Kelley, 83 Tenn. 194, 1885 Tenn. LEXIS 41 (1885).

The personal estate of the intestate is primarily liable for all her debts, and her heirs are entitled to have her administrator, out of assets coming into his hands, discharge the purchase money notes given by her and constituting liens on the real estate. American Surety Co. v. Grace, 151 Tenn. 575, 271 S.W. 739, 1924 Tenn. LEXIS 87 (1925).

23. —Widow's Rights of Homestead.

If a lien creditor sells land for his debt, the widow may compel reimbursement to her homestead rights out of the personalty to the extent to which the personalty was liable for the debts. Whitmore v. Rascoe, 112 Tenn. 621, 85 S.W. 860, 1903 Tenn. LEXIS 132 (1903).

24. —Costs of Foreign Administration Not Chargeable.

Land located in Tennessee is not liable for cost of administering owner's estate in a foreign state. Fidelity Mut. Life Ins. Co. v. Wall, 167 Tenn. 207, 68 S.W.2d 108, 1933 Tenn. LEXIS 27 (1934).

25. Enforcement of Liens — Rights of Heirs and Devisees.

The bill of a creditor of a decedent's estate to compel the collection of a debt and to enforce a vendor's lien in favor of the decedent is not a bill to subject descended land to the satisfaction of the debts of the decedent, but to collect a personal asset endangered by the negligent or collusive conduct of the administrator. Kelley v. Kelley, 83 Tenn. 194, 1885 Tenn. LEXIS 41 (1885).

If the lien on land be the personal obligation of the decedent, and if it be enforced against the land, the heir or devisee is entitled to be substituted to the rights of the lienholder as against the personal estate and to be reimbursed out of the same, except, perhaps, where the rights of the general creditors would be prejudicially affected thereby. O'Conner v. O'Conner, 88 Tenn. 76, 12 S.W. 447, 1889 Tenn. LEXIS 35, 7 L.R.A. 33 (1889); Whitmore v. Rascoe, 112 Tenn. 621, 85 S.W. 860, 1903 Tenn. LEXIS 132 (1903).

26. Equitable Conversion.

The equitable conversion of land into personalty vests the same in the personal representative of the deceased owner thereof, and renders it liable to his debts as personalty. Green v. Davidson, 63 Tenn. 488, 1874 Tenn. LEXIS 295 (1874).

27. —Inter Vivos or Will Directions.

The equitable conversion of land into personalty may arise upon direction for its sale, made by will, deed, settlement, or other contract inter vivos; but the equitable conversion, to be effective while the property is yet actually unchanged in form, must rest upon clear, imperative, and unconditional direction in the deed, will or settlement, or upon a clear and imperative agreement in the contract, to sell and thus to convert the property. Roberts v. Jackson's Heirs, 11 Tenn. 76, 11 Tenn. 77, 1832 Tenn. LEXIS 21 (1832); McCormick v. Cantrell, 15 Tenn. 614, 15 Tenn. 615, 1835 Tenn. LEXIS 47 (1835); Green v. Davidson, 63 Tenn. 488, 1874 Tenn. LEXIS 295 (1874); Paul v. York, 1 Cooper's Tenn. Ch. 547 (1874); Jones v. Kirkpatrick, 2 Cooper's Tenn. Ch. 693 (1876); Lunsford v. Jarrett, 79 Tenn. 192, 1883 Tenn. LEXIS 40 (1883); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Grimstead v. Huggins, 81 Tenn. 728, 1884 Tenn. LEXIS 93 (1884); Kelley v. Kelley, 83 Tenn. 194, 1885 Tenn. LEXIS 41 (1885); Wheless v. Wheless, 92 Tenn. 293, 21 S.W. 595, 1892 Tenn. LEXIS 76 (1893); Rogers v. Rogers, 101 Tenn. 428, 47 S.W. 701, 1898 Tenn. LEXIS 85 (1898); Wayne v. Fouts, 108 Tenn. 145, 65 S.W. 471, 1901 Tenn. LEXIS 16 (1901); McElroy v. McElroy, 110 Tenn. 137, 73 S.W. 105, 1902 Tenn. LEXIS 47 (1903); Bedford v. Bedford, 110 Tenn. 204, 75 S.W. 1017, 1903 Tenn. LEXIS 49 (1903); Bennett v. Gallaher, 115 Tenn. 568, 92 S.W. 66, 1905 Tenn. LEXIS 89 (1905); Hardin v. Hassell, 118 Tenn. 143, 100 S.W. 720, 1906 Tenn. LEXIS 87 (1907).

In order to work an equitable conversion of land into personalty, so as to subject it to the payment of debts of the decedent as personalty, under an executory contract to convey the land, the contract must be such as the chancery court will, in view of well settled principles, specifically enforce. Donohoo v. Lea, 31 Tenn. 119, 1851 Tenn. LEXIS 30 (1851); Blair v. Snodgrass, 33 Tenn. 1, 1853 Tenn. LEXIS 1 (1853).

The equitable conversion takes place, in wills, as from the death of the testator, and in deeds and other instruments inter vivos as from the date of their execution, unless the conversion is directed to be made at a specific time in the future, or upon the happening of some particular but contingent event which may or may not happen. Wheless v. Wheless, 92 Tenn. 293, 21 S.W. 595, 1892 Tenn. LEXIS 76 (1893); Wayne v. Fouts, 108 Tenn. 145, 65 S.W. 471, 1901 Tenn. LEXIS 16 (1901).

28. —Land Purchased by Personal Representative with Personalty.

A personal representative has no power to convert the personalty of the estate into realty; and if he does so, it will be considered in equity as personalty, and be distributed accordingly; and may, as personalty, be applied to the payment of debts of the decedent's estate. Roberts v. Jackson's Heirs, 11 Tenn. 76, 11 Tenn. 77, 1832 Tenn. LEXIS 21 (1832); Paul v. York, 1 Cooper's Tenn. Ch. 547 (1874); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Grimstead v. Huggins, 81 Tenn. 728, 1884 Tenn. LEXIS 93 (1884); Rogers v. Rogers, 101 Tenn. 428, 47 S.W. 701, 1898 Tenn. LEXIS 85 (1898).

29. Wife's Property when Decedent.

The property of a wife is assets for the payment of her own debts, no matter how it devolves, or who takes it after the debts are paid. American Surety Co. v. Grace, 151 Tenn. 575, 271 S.W. 739, 1924 Tenn. LEXIS 87 (1925).

Though the husband takes the personal property of his deceased wife, by virtue of his marital rights and not under the statute of distribution, it is nonetheless charged with her indebtedness. American Surety Co. v. Grace, 151 Tenn. 575, 271 S.W. 739, 1924 Tenn. LEXIS 87 (1925).

30. Debts Chargeable Against Assets.

31. —Wrongful Death Action Against Personal Representative of Deceased.

Widow of deceased killed in automobile accident in Florida was entitled to sue administrator of deceased driver in Tennessee where law in Florida provided that action survived in favor of widow even though law in Tennessee provided that action did not survive unless filed prior to death of tortfeasor. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698, 1934 Tenn. LEXIS 19 (1934).

32. Parties to Proceedings.

In a proceeding by a general creditor of an estate of a decedent under this section and §§ 30-2-403, 30-2-404, a qualified domestic executor or administrator of the estate is a necessary party, unless the decedent owned no personal property in the state. Fidelity Mut. Life Ins. Co. v. Wall, 167 Tenn. 207, 68 S.W.2d 108, 1933 Tenn. LEXIS 27 (1934).

33. Debtor's Property Assets for Creditors — During Life of Debtor.

34. —Fraudulent Conveyance — Definition.

Every conveyance without a fair consideration is fraudulent if the conveyor is thereby rendered insolvent, or if he is engaged or about to engage in a business or transaction for which his remaining property is an unreasonably small capital, or if he intends or believes that he will incur debts beyond his ability to pay; the second situation making the conveyance fraudulent as to creditors and as to persons who become creditors during the continuance of such business transaction, and the third as to both present and future creditors. State v. Nashville Trust Co., 28 Tenn. App. 388, 190 S.W.2d 785, 1944 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1944).

35. —Spendthrift Trusts — Inter Vivos Rights.

Expenditure by son of own money on realty owned by father who had indicated that he would place property in spendthrift trust in favor of son was fraudulent conveyance, regardless of actual intent, since inevitable effect was to hinder and delay his creditors, existing and subsequent. State v. Nashville Trust Co., 28 Tenn. App. 388, 190 S.W.2d 785, 1944 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1944).

Where son, with knowledge that father intended to place real estate in spendthrift trust for son's benefit, placed mansion and other substantial improvements on land and where, after state had recovered judgment against son, father placed the improved property in such spendthrift trust, state, as judgment creditor regardless of son's actual intent, could subject property to judgment to extent that it was enhanced by contributions of son. State v. Nashville Trust Co., 28 Tenn. App. 388, 190 S.W.2d 785, 1944 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1944).

One cannot create a spendthrift trust with his own property for his own benefit. State v. Nashville Trust Co., 28 Tenn. App. 388, 190 S.W.2d 785, 1944 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1944).

The policy which led to the enactment of statutes such as this is quite different from that under which spendthrift trusts are sustained, the former being protection of the debtor and the latter consideration for the right of the donor or settler to dispose of his property and control his bounty as he wishes, within the limits allowed by law. State v. Nashville Trust Co., 28 Tenn. App. 388, 190 S.W.2d 785, 1944 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1944).

36. —Remaindermen's Interests Subject to Creditors.

Under will stating testator's wish that, at his wife's death, his property be sold and divided among named persons, the interests of such remaindermen were subject to attachment or execution until such sale might be made under the will. Fowler v. Plunk, 7 Tenn. App. 29, — S.W.2d —, 1928 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1928).

37. —Creditor's Bill.

Plaintiff who instituted creditor's bill in behalf of all creditors for the purpose of appointment of receiver to administer assets of debtor and who did not have a lien on assets could not revive suit against administrator of debtor where the assets had not been impounded or a receiver appointed prior to death of debtor. Newman v. Haggard, 167 Tenn. 542, 72 S.W.2d 549, 1933 Tenn. LEXIS 63 (1934).

30-2-306. Notice to creditors of qualification of personal representative.

  1. Except as provided in subsection (e), it is the duty of the clerk of the court in which an estate is being administered, within thirty (30) days after the issuance of letters testamentary or of administration, to give, in the name of the personal representative of the estate, public notice of the personal representative's qualification as such by two (2) consecutive weekly notices published in some newspaper of the county in which letters testamentary or of administration are granted, or, if no newspaper is published in that county, by written notices posted in three (3) public places in the county, one (1) of which shall be posted at the usual place for posting notices at the courthouse.
  2. The notice shall be substantially in the following form:

    NOTICE TO CREDITORS

    Estate of  (name of deceased)

    Notice is hereby given that on the  day of  , 20  letters testamentary (or of administration as the case may be) in respect of the estate of  (name of deceased) who died  , 20  were issued to the undersigned by the  court of  County, Tennessee. All persons, resident and nonresident, having claims, matured or unmatured, against the estate are required to file the same with the clerk of the above named court on or before the earlier of the dates prescribed in (1) or (2), otherwise their claims will be forever barred:

      1. Four (4) months from the date of the first publication (or posting, as the case may be) of this notice if the creditor received an actual copy of this notice to creditors at least sixty (60) days before the date that is four (4) months from the date of the first publication (or posting); or
      2. Sixty (60) days from the date the creditor received an actual copy of the notice to creditors if the creditor received the copy of the notice less than sixty (60) days prior to the date that is four (4) months from the date of first publication (or posting) as described in (1)(A); or
    1. Twelve (12) months from the decedent's date of death.

      This  day of  , 20 .

      Personal Representative

      Attorney for the Estate

      Clerk

  3. An affidavit of the publisher of the newspaper, in case of publication by newspaper, showing the dates on which the notice was published, or of the personal representative, in case of posted notices, showing the date on which the notice was first posted, shall be prima facie evidence of the publication required by this section. The affidavit shall be filed with the clerk and be noted by the clerk on the docket of the cause.
  4. In addition, it shall be the duty of the personal representative to mail or deliver by other means a copy of the published or posted notice as described in subsection (b) to all creditors of the decedent of whom the personal representative has actual knowledge or who are reasonably ascertainable by the personal representative, at the creditors' last known addresses. This notice shall not be required where a creditor has already filed a claim against the estate, has been paid or has issued a release of all claims against the estate.
  5. The requirement of subsection (a) shall not apply if the letters testamentary or of administration are issued more than one (1) year from the decedent's date of death.

Acts 1939, ch. 175, § 1; 1947, ch. 137, § 1; 1949, ch. 48, § 1; C. Supp. 1950, § 8196.1; Acts 1971, ch. 229, § 1; T.C.A. (orig. ed.), § 30-509; Acts 1989, ch. 395, §§ 1, 2; 1991, ch. 415, § 4; 1997, ch. 426, § 5; 1999, ch. 491, §§ 4, 5; 2005, ch. 429, § 5; 2008, ch. 856, § 1; 2012, ch. 886, § 4.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendment by that act to this section shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 714, 738, 766, 768, 879, 881, 892, 896.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1001.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273 (1979).

Constitutional Law — Fourteenth Amendment Right to Due Process — Notice to Estate Creditors Under State Nonclaim Statutes, 56 Tenn. L. Rev. 465 (1989).

Current Problems Facing the Executor Taking the Section 2053 Estate Tax Deduction (Jay D. Christiansen), 30 Vand. L. Rev. 795 (1977).

Decedent's Estates — Bilbrey v. Smithers: Limitations on Post-Death Claims for Purposes of Intestate Succession in Tennessee, 27 U. Mem. L. Rev. 517 (1997).

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965).

In Rem Actions — Adequacy of Notice, 25 Tenn. L. Rev. 495 (1958).

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707 (1978).

Procedure and Evidence — 1961 Tennessee Survey (Edmund M. Morgan), 14 Vand. L. Rev. 1353 (1961).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

Attorney General Opinions. Constitutionality, OAG 88-138, 1988 Tenn. AG LEXIS 139 (8/8/88).

NOTES TO DECISIONS

1. Constitutionality.

This act is valid and constitutional in all respects. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

2. Purpose and Policy.

The intent of this act was to afford a simple, inexpensive, and expeditious remedy for administration of estates of decedents; and it should be liberally construed to advance the remedy. Cooper's Estate v. Keathley, 27 Tenn. App. 7, 177 S.W.2d 356, 1943 Tenn. App. LEXIS 124 (Tenn. Ct. App. 1943).

This statute dispenses with formal pleadings and strict rules of procedure required in actions commenced in the circuit court. Poole v. First Nat'l Bank, 29 Tenn. App. 327, 196 S.W.2d 563, 1946 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1946).

This act was passed to regulate procedure and brings about no change in substantive law. It establishes no new rights and does not deny any right already existing. The administrator is required to give notice to creditors to file their claims with the clerk of the probate court, but there is no change made as to who constitutes “creditors.” Collins v. Ruffner, 185 Tenn. 290, 206 S.W.2d 298, 1947 Tenn. LEXIS 332 (1947).

Purpose of this and other sections of the general law with reference to the administration of estates is to expedite and simplify such administration. Bowling v. Minton, 193 Tenn. 141, 244 S.W.2d 998, 1951 Tenn. LEXIS 338 (1951).

The purpose of this and the following sections dealing with claims against the estate is to afford a very simple and expeditious remedy for the administration of estates and in doing so the statute is liberally construed. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

This and the following sections all form an orderly system for the probate and distribution of estates and should be construed together so as to make the system consistent in its parts and uniform in its operation. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

This and the following sections set up a simple, expeditious and inexpensive remedy for the administration of decedents' estates, and such administration is made a proceeding in rem in which the probate court is given jurisdiction to take charge of the assets of the decedent, whether the estate be solvent or insolvent, and to determine and adjudicate claims against the estate and order their payment. Commerce Union Bank v. Alexander, 44 Tenn. App. 104, 312 S.W.2d 611, 1957 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1957).

Personal representative could be held personally liable for a breach of the duty created by T.C.A. § 30-2-306(e) (now T.C.A. § 30-2-306(d)) as to hold otherwise would mean that the legislature intended to provide a personal representative statutory protection for choosing to violate her statutory duty by not notifying known or readily ascertainable creditors with the hope that these creditors would fail to file claims within 12 months of the date of death, likely resulting in more money for the beneficiaries. Burke v. Langdon, 190 S.W.3d 660, 2005 Tenn. App. LEXIS 650 (Tenn. Ct. App. Oct. 13, 2005).

3. Pending Proceedings — Effect.

This act had no application where the executor qualified prior to the date the act became operative. Lockett v. Dermid, 26 Tenn. App. 588, 174 S.W.2d 660, 1943 Tenn. App. LEXIS 122 (Tenn. Ct. App. 1943).

Exception by the executrix of the decedents'  estate to a creditor's claim against the decedent's estate was not time-barred because, when the claim was filed against the decedent's estate by the creditor, the clerk of court did not send notice to the executrix of the estate as required by statute. The estate, thus, did not file an exception to the claim until after the time for filing exceptions had run. In re Estate of Hill, — S.W.3d —, 2018 Tenn. App. LEXIS 728 (Tenn. Ct. App. Dec. 14, 2018).

4. Construction with Other Acts.

5. —State's Priority — Aid to Indigents.

This section is part of a general law and does not abrogate any earlier special law by implication. State v. Smith, 194 Tenn. 582, 253 S.W.2d 758, 1952 Tenn. LEXIS 424 (1952).

6. —Widow's Rights at Law.

This section, part of a general law, in no wise repeals or alters laws and statutes existing at the time of its passage as to the right of the widow in case she should dissent from the will either as to the year's support, homestead, exempt property, dower right or distributive share in personal estate of decedent. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

7. —Heir's Rights under Statutes of Descent.

This section in no wise changes the substantive rights as to shares of those taking under prior statutes of descent and distribution. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

8. —Wrongful Death Claims.

Claims sounding in tort were not contemplated by this act; thus, an action for wrongful death may be brought in the circuit court against the personal representative of a decedent after the period for filing claims under this act has expired. Collins v. Ruffner, 185 Tenn. 290, 206 S.W.2d 298, 1947 Tenn. LEXIS 332 (1947).

9. Notice Published in Two Newspapers.

Where notice was published in one newspaper by clerk and subsequently published in second newspaper, account filed within nine (now six) months of first publication in second newspaper but not within nine (now six) months of first publication in first newspaper was not filed too late where stipulation appeared in the record to the effect that the executors relied on the publication in the second newspaper in establishing and fixing the time for exceptions to such claim. Holland v. King, 199 Tenn. 588, 288 S.W.2d 447, 1956 Tenn. LEXIS 357 (1956).

10. Contents of Notice.

While the “actual notice” required by T.C.A. § 30-2-307 may be something other than an exact copy of the published notice required by this section, it must, at a minimum, include information regarding the commencement of probate proceedings and the time period within which claims must be filed with the probate court. Estate of Jenkins v. Guyton, 912 S.W.2d 134, 1995 Tenn. LEXIS 766 (Tenn. 1995).

Accurate information about the time period for filing claims must be conveyed in the notice; this can best be achieved by delivering not only a copy of the published or posted notice to creditors, but also a copy of T.C.A. § 30-2-307, which sets out the various time limits, and a statement of the date of the decedent's death. Bowden v. Ward, 27 S.W.3d 913, 2000 Tenn. LEXIS 549 (Tenn. 2000).

Because creditor received a copy of the published notice which erroneously stated that the creditor had only six months from the date of the first publication of the notice to creditors in which to file a claim, after the six-month period had expired, creditor did not receive “actual notice,” and therefore, had 12 months from the decedent's death to file a claim. Bowden v. Ward, 27 S.W.3d 913, 2000 Tenn. LEXIS 549 (Tenn. 2000).

11. Actual Notice of Probate Proceedings Not Required.

Claimant was not entitled to actual notice of the probate court proceedings since he had already filed a claim, lack of actual notice did not result in an untimely filing of his initial claim, and this section provided that receipt of actual notice of probate proceedings from the personal representative was not required for a creditor who had timely filed a claim against the estate. In re Estate of Miller, — S.W.3d —, 2013 Tenn. App. LEXIS 450 (Tenn. Ct. App. July 12, 2013).

12. Appeal.

Chapter 175 of the Acts of 1939, dealing with the administration of estates in the county court (now probate court), recognizes and treats as distinct and independent proceedings relating (1) to the filing and proving of claims, etc., and (2) to the sale of real estate of the decedent; and consistently therewith provides that in the one case appeals shall lie to the circuit court, where a trial by jury may be had, and in the other to the Court of Appeals, or, in a given case, to the Supreme Court. Walker v. Gambill, 181 Tenn. 38, 178 S.W.2d 390, 1944 Tenn. LEXIS 343 (1944).

Where the ruling appealed from related only to the allowance of a claim, and not to a petition for the sale of lands, the appeal was properly taken to the circuit court under the terms of this section. Walker v. Gambill, 181 Tenn. 38, 178 S.W.2d 390, 1944 Tenn. LEXIS 343 (1944).

All appeals from judgments of the probate court allowing or disallowing claims filed therein lie, since the Acts of 1939, to the circuit court. Walker v. Gambill, 181 Tenn. 38, 178 S.W.2d 390, 1944 Tenn. LEXIS 343 (1944).

Questions of law under this section are appealable directly from the circuit to the Supreme Court. Pennington v. Pennington, 182 Tenn. 391, 187 S.W.2d 532, 1945 Tenn. LEXIS 232 (1945).

Collateral References.

Failure of personal representative to file proof of publication of notice of appointment or notice to creditors within specified time as tolling statute of limitations. 42 A.L.R.2d 1218.

30-2-307. Claims against estate — Filing — Amendment.

    1. All claims against the estate arising from a debt of the decedent shall be barred unless filed within the period prescribed in the notice published or posted in accordance with § 30-2-306(b).
    2. Before the date that is twelve (12) months from the decedent's date of death, the court may permit the personal representative to distribute the balance of the estate in accordance with § 30-2-701, make final settlement and enter an order discharging the personal representative. If a creditor files its claim after the estate is closed as permitted in the preceding sentence and before the date that is twelve (12) months from the decedent's date of death, the personal representative shall not be personally liable to the creditor whose recourse will be against the distributees of the estate, each of whom shall share liability on the claim in proportion to the claimant's share of the residue. The burden of proof on any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative, or as to whether actual notice was properly sent in accordance with § 30-2-306, shall be upon the creditor claiming entitlement to actual notice. In such cases, the distributees of the estate shall be personally liable on a pro rata basis if the court finds the claim is proper and the creditor did not receive the appropriate notice.
  1. When any claim is evidenced by a written instrument, the instrument or a photocopy of the instrument shall be filed; when due by a judgment or decree, a copy of the judgment or decree certified by the clerk of the court where rendered shall be filed; and when due by open account, an itemized statement of the account shall be filed; and every claim shall be verified by affidavit of the creditor before an officer authorized to administer oaths, which affidavit shall state that the claim is a correct, just and valid obligation of the estate of the decedent, that neither the claimant nor any other person on the claimant's behalf has received payment of the claim, in whole or in part, except such as is credited thereon, and that no security for the claim has been received, except as thereon stated.
  2. No claim shall be filed by the clerk nor deemed to be filed unless submitted in triplicate, but the second and third copies need not be verified.
  3. The clerk shall file all claims received not later than twelve (12) months from the decedent's date of death. However, filing of claims by the clerk shall not create an inference as to whether the claims are valid or were timely filed. The clerk shall return any claim submitted before the appointment of a personal representative or received more than twelve (12) months from the decedent's date of death.
    1. A creditor who has timely filed a claim against the estate shall file any amendment to its claim no later than thirty (30) days from the later of:
      1. The date an exception to the claim is filed; or
      2. The expiration of the exception period.
    2. Unless the court with jurisdiction over the probate of the decedent's estate grants an extension of time for amendment on the creditor's showing of extraordinary circumstances, any amendment filed after the time prescribed shall be void.
  4. If a claim filed against the decedent's estate is filed by a personal representative of the decedent's estate, the personal representative must provide the clerk of the court with the name and current mailing address of each residuary beneficiary of the decedent's estate at the time the claim is filed.

Acts 1939, ch. 175, § 2; 1947, ch. 137, § 1; C. Supp. 1950, § 8196.2; Acts 1971, ch. 229, § 2; T.C.A. (orig. ed.), § 30-510; Acts 1984, ch. 629, § 1; 1985, ch. 140, § 13; 1988, ch. 854, § 8; 1989, ch. 395, § 3; 2005, ch. 99, § 2; 2007, ch. 8, § 1; 2012, ch. 886, §§ 5, 6; 2017, ch. 290, § 1.

Amendments. The 2017 amendment added (f).

Effective Dates. Acts 2017, ch. 290, § 16. July 1, 2017.

Cross-References. Suits against representatives, title 30, ch. 2, part 5.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 676, 714, 718, 738, 762, 767, 769, 770, 780, 784, 793, 794, 858, 956, 1070, 1072, 1110.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1001 — 4-1006.

Tennessee Jurisprudence, 12 Tenn. Juris., Executors and Administrators, §§ 35-37, 87, 91, 97, 99; 22 Tenn. Juris., Specific Performance, § 14.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273 (1979).

Administration of Estates — Revival of Actions — Time Limitations, 36 Tenn. L. Rev. 804 (1969).

Current Problems Facing the Executor Taking the Section 2053 Estate Tax Deduction (Jay D. Christiansen), 30 Vand. L. Rev. 795 (1977).

Decedent's Estates — Bilbrey v. Smithers: Limitations on Post-Death Claims for Purposes of Intestate Succession in Tennessee, 27 U. Mem. L. Rev. 517 (1997).

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965).

Estate, Gift and Trust Law-Joint and Mutual Wills-Proper Jurisdictional Vehicles for Contract-Based Mutual Wills Claims, 80 Tenn. L. Rev. 883 (2013).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

“The Law of Joint Wills, A Recent Development” (William L. Harbison), 24 No. 3 Tenn. B.J. 24 (1988).

Value definition clauses: The basics (Dan W. Holbrook), 37 No. 3 Tenn. B.J. 33 (2001).

Wills, Trusts and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Constitutionality.

There is no authority for denying to the legislature the power to fix reasonable limitations upon the filing of claims against the estates of decedents. This is true whether the claims be those of nonresidents or of infants or mental incompetents. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940); Pennington v. Pennington, 182 Tenn. 391, 187 S.W.2d 532, 1945 Tenn. LEXIS 232 (1945).

2. Purpose and Policy.

All claims and demands against decedent's estate except for taxes and assessments that are not filed with the court (now probate court) within the period provided by this section or on which suit shall not have been brought or revived before the end of statutory period following the date of publication of notice to creditors shall be forever barred from assertion against the executor or any successor administrator with the will annexed, and the personal representative may without liability for the payment, distribute the assets of the estate and close the administration as provided in the statute. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

The effect of the provisions of this section that any written instrument or copy thereof upon which a claim is based is required to be filed, and if due by open account the statement must be itemized is that the claim must prima facie appear to be valid. Miller v. Morelock, 185 Tenn. 466, 206 S.W.2d 427, 1947 Tenn. LEXIS 353 (1947).

This statutory enactment, limiting the time within which claims against decedents' estates may be filed, has frequently been denominated as a nonclaim or administrative statute for the orderly, expeditious, and exact settlement of such estates. Statutes of the kind are jurisdictional. Alamo Development Corp. v. Thomas, 186 Tenn. 631, 212 S.W.2d 606, 1948 Tenn. LEXIS 590 (1948).

This section providing for filing of claims is liberally construed. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

The statute is designed to afford a simple and somewhat informal method of filing claims and dispenses with formal pleading and is to be liberally construed. In re Estate of Myers, 55 Tenn. App. 195, 397 S.W.2d 831, 1965 Tenn. App. LEXIS 249 (Tenn. Ct. App. 1965).

3. Application and Effect.

This section did not operate to preclude defendant sued on notes by executor from asserting defense that notes had been released or discharged, the limitation of nine (now six) months not applying to a person who merely asserts a defense to suit by executor. Trice v. Hewgley, 53 Tenn. App. 259, 381 S.W.2d 589, 1964 Tenn. App. LEXIS 100, 18 A.L.R.3d 720 (Tenn. Ct. App. 1964).

This section has no application to claims sounding in tort. Herring v. Estate of Tollett, 550 S.W.2d 660, 1977 Tenn. LEXIS 540 (Tenn. 1977).

This section is not applicable to claims for specific property coming into the hands of personal representatives because suits for specific performance may be maintained against the heirs or those who acquire subject property by will. While the personal representative is a proper party in a suit of this kind, he is not a necessary party; the heirs or one acquiring the property by will are necessary parties. Wright v. Universal Tire, Inc., 577 S.W.2d 194, 1978 Tenn. App. LEXIS 333 (Tenn. Ct. App. 1978).

Even though plaintiff had no existing claim on the date of the death of the decedent because he held a deed from her in “satisfaction” of the value of his services rendered, where the heirs of the decedent declared the deed rescinded and sought a decree to cancel it by a suit, plaintiff was required to file his claim timely after being served with the complaint in the deed litigation and his failure to do so for nearly three years prevented its assertion. Estate of Minton v. Markham, 625 S.W.2d 260, 1981 Tenn. LEXIS 506 (Tenn. 1981).

This statute provides a condition for collecting from an estate; it does not bar a claimant from collecting from other legitimate sources. Third Nat'l Bank v. Brown, 691 S.W.2d 557, 1985 Tenn. App. LEXIS 3398 (Tenn. Ct. App. 1985).

T.C.A. former § 30-2-307(a)(1)(B) (deleted by 2012 amendment)  provided for an absolute one-year limit on the filing of claims against the estate; however, the attorney sought to hold the personal representative personally responsible for the breach of her duty to notify the attorney as a known or readily ascertainable creditor, and the attorney was not seeking recourse against the estate, such that former T.C.A. § 30-2-307(a)(1)(B) was not applicable. Burke v. Langdon, 190 S.W.3d 660, 2005 Tenn. App. LEXIS 650 (Tenn. Ct. App. Oct. 13, 2005).

Claim for payment of a debt due by a decedent is not a formal pleading and is not subject to the requirements of the Tennessee rules of civil procedure; therefore, a trial court erred by finding that a claim was void, because it was signed by a corporation, but not an attorney. In re Estate of Jewell B. Green v. Carthage General Hosp., 246 S.W.3d 582, 2007 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 20, 2007), appeal denied, In re Estate of Green v. Carthage Gen. Hosp., Inc., — S.W.3d —, 2007 Tenn. LEXIS 1113 (Tenn. Dec. 26, 2007).

4. Definitions.

5. —Claims.

The term “claim” as used in this section does not include an action for specific performance, but refers to debts or demands against the decedent which might have been enforced by personal actions for the recovery of money, upon which only a money judgment could have been rendered. Wright v. Universal Tire, Inc., 577 S.W.2d 194, 1978 Tenn. App. LEXIS 333 (Tenn. Ct. App. 1978).

6. —Creditors.

All persons are considered creditors who have demands against an estate arising out of contract, or who have a judgment arising out of tort. Collins v. Ruffner, 185 Tenn. 290, 206 S.W.2d 298, 1947 Tenn. LEXIS 332 (1947).

Sanctions were warranted because there was no legal basis for filing a lien to secure the quantum meruit claim and thereby requiring the estate to seek a court order requiring appellant to release the lien as the quantum meruit claim appellant asserted was for services rendered in a life insurance proceeds matter that had nothing to do with the property she alleged was hers based on a quitclaim deed; the insurance matter was not a right of action to which an attorney's lien would apply; and, to the extent appellant sought payment for services rendered in representing the decedent, her mother, in the life insurance matter, she should have done so as a creditor of the estate. In re Estate of Lloyd, — S.W.3d —, 2020 Tenn. App. LEXIS 6 (Tenn. Ct. App. Jan. 8, 2020).

7. Pending Proceedings — Effect.

8. —Amendment Not Retroactive.

The first 1947 amendment to this section, decreasing the time for filing claims against decedents' estates from nine to 12 months, is not retroactive. Thus where an administratrix published notice to creditors on January 29, 1947, proof of claim filed on January 15, 1948, was timely, notwithstanding that the amendment became effective in March, 1947. Alamo Development Corp. v. Thomas, 186 Tenn. 631, 212 S.W.2d 606, 1948 Tenn. LEXIS 590 (1948).

9. Jurisdiction.

Where an estate was being administered in county court (now probate court) the petitioner in a suit in chancery court, for specific performance of alleged oral agreement by deceased to leave petitioner certain described property was not entitled to recover on a quantum meruit basis for reasonable value of services rendered, since claim could only be filed in county court (now probate court). Eslick v. Friedman, 191 Tenn. 647, 235 S.W.2d 808, 1951 Tenn. LEXIS 369 (1951).

Original jurisdiction was vested in the county court (now probate court) to determine whether or not motion to strike exceptions to claims against estate was well taken and the only method of obtaining a hearing in another court was by appeal to Court of Appeals or Supreme Court, dependent upon how the matter was heard and determined, so that chancery court was without jurisdiction to determine the question. Rowan v. Inman, 207 Tenn. 144, 338 S.W.2d 578, 1960 Tenn. LEXIS 441 (1960).

The probate court has the power and authority to adjudicate conflicting claims of ownership and right of possession to personal property which is claimed both by the representative of a decedent's estate and by third parties who claim title, not through the decedent and his representative, but from another source. Browne v. Browne, 547 S.W.2d 239, 1977 Tenn. LEXIS 553 (Tenn. 1977).

Circuit court erred in finding that an ex-wife's claims for unpaid child support and alimony were barred by the doctrine of res judicata because the court was without subject matter jurisdiction over her claims inasmuch as her ex-husband was deceased and the claims at issue were against his estate, the ex-wife was required to file her claims against the estate in the probate court. Wright v. Estate of Wright, — S.W.3d —, 2017 Tenn. App. LEXIS 299 (Tenn. Ct. App. May 10, 2017).

10. Construction with Other Acts.

11. —Tort Claims.

Provision that all claims against estate must be filed in duplicate with clerk of court in which estate is pending within period of 12 months (now six months) from date of notice to creditors does not apply to torts but is restricted to claims originating from contracts or agreements. Collins v. Ruffner, 185 Tenn. 290, 206 S.W.2d 298, 1947 Tenn. LEXIS 332 (1947).

12. —Foreclosure of Liens.

No holder of any lien shall assert any claim against liened property while the same be in the hands of the personal representative except by claim or demand filed with the clerk as provided in this section, but if no claim or demand be so filed within the period prescribed by this section, any such lienor after the administration of the estate is closed or the liened property is distributed may enforce the lien at any time within the 10 year statute of limitations. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

13. Procedure in Filing.

Where claimant filed claim on check and note in clerk's office, attached copies of such instruments thereto, swore to claim but clerk through inadvertence failed to have claimant sign claim, court did not err in permitting signing of claim after expiration of the nine (now six) month period. In re Estate of Myers, 55 Tenn. App. 195, 397 S.W.2d 831, 1965 Tenn. App. LEXIS 249 (Tenn. Ct. App. 1965).

Claim against estate due by judgment was not void for failure to file certified copy of judgment since the administratrix's failure to except to the claim relieved the claimant of the obligation to take any further steps to perfect it. In re Estate of Lucas, 844 S.W.2d 627, 1992 Tenn. App. LEXIS 561 (Tenn. Ct. App. 1992).

14. —Amendment of Claim.

Where claim against the estate of a decedent was defective in failing to meet the requirements of this section the defects could be cured by amendment. Cooper's Estate v. Keathley, 27 Tenn. App. 7, 177 S.W.2d 356, 1943 Tenn. App. LEXIS 124 (Tenn. Ct. App. 1943).

15. —Time of Filing.

Claims must be filed within 12 months (now six months) following publication of first notice and date of filing of affidavit of publication by publisher is immaterial. Pennington v. Pennington, 182 Tenn. 391, 187 S.W.2d 532, 1945 Tenn. LEXIS 232 (1945).

16. —Formal Pleading Unnecessary.

Where the claim against the estate of a decedent is a note, the claim is sufficient in form if the original note, verified by the affidavit required by this act, is filed. Cooper's Estate v. Keathley, 27 Tenn. App. 7, 177 S.W.2d 356, 1943 Tenn. App. LEXIS 124 (Tenn. Ct. App. 1943).

This statute contemplates that claims should be set out in written form as an informal statement of the cause of action, the intent being to afford a simple, inexpensive, and expeditious remedy for administration of decedents' estates. The statute should be liberally construed to advance the remedy and dispense with formal pleadings. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949), citing Cooper's Estate v. Keathley, 27 Tenn. App. 7, 177 S.W.2d 356, 1943 Tenn. App. LEXIS 124 (Tenn. Ct. App. 1943).

Formal pleadings in connection with claims of creditors against decedent estates are not necessary under the Code. In re Costello's Estate, 37 Tenn. App. 649, 269 S.W.2d 602, 1954 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1954); In re Estate of Russell, 52 Tenn. App. 320, 373 S.W.2d 226, 1961 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1961).

17. —Duplicate Filing.

Where claim was a note, it was not required to be treated as a nullity merely because it was not filed in duplicate. Cooper's Estate v. Keathley, 27 Tenn. App. 7, 177 S.W.2d 356, 1943 Tenn. App. LEXIS 124 (Tenn. Ct. App. 1943).

18. —Claims Itemized and Verified.

A claim against an estate of a decedent will not be treated as a nullity merely because the claim was not filed in duplicate as required by this act. Cooper's Estate v. Keathley, 27 Tenn. App. 7, 177 S.W.2d 356, 1943 Tenn. App. LEXIS 124 (Tenn. Ct. App. 1943).

Evidence that a foster son and his wife provided services to decedent for ten years consisting of providing transportation to doctors, helping to buy groceries, washing and ironing clothes, keeping the house, and providing meals was sufficient to imply a promise to pay and to support a claim against the estate for services rendered. In re Estate of Hicks, 510 S.W.2d 263, 1972 Tenn. App. LEXIS 284 (Tenn. Ct. App. 1972).

19. Effect of Filing.

Merely filing a claim against an estate is not the practice of law; therefore, a trial court erred by finding that a hospital's claim against an estate was void, because filing such a claim did not require the exercise of professional judgment since it was in essence a demand for payment. In re Estate of Jewell B. Green v. Carthage General Hosp., 246 S.W.3d 582, 2007 Tenn. App. LEXIS 455 (Tenn. Ct. App. July 20, 2007), appeal denied, In re Estate of Green v. Carthage Gen. Hosp., Inc., — S.W.3d —, 2007 Tenn. LEXIS 1113 (Tenn. Dec. 26, 2007).

20. —Action Begun.

Where a claim was filed within the time allowed by statute, the fact that it was not itemized and verified in the language of the statute did not make it void ipso facto. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

The filing of a claim in effect amounts to a demand for payment and is the equivalent of the beginning of an action. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

21. —Notice to Personal Representative.

The filing of a claim under the provisions of this section is equivalent to the commencement of an action; the mere filing of the claim does not establish the validity of the claim, but it puts the representatives of the estate on notice and they must make some exception thereto. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

While the “actual notice” required by this section may be something other than an exact copy of the published notice required by T.C.A. § 30-2-306, it must, at a minimum, include information regarding the commencement of probate proceedings and the time period within which claims must be filed with the probate court. Estate of Jenkins v. Guyton, 912 S.W.2d 134, 1995 Tenn. LEXIS 766 (Tenn. 1995).

22. Prima Facie Validity.

Under the provisions of this section, a claim filed with the clerk within the time allowed for filing claims against decedents' estates becomes a final and binding obligation of the estate when it is not excepted to by the personal representative within the time allowed. Miller v. Morelock, 185 Tenn. 466, 206 S.W.2d 427, 1947 Tenn. LEXIS 353 (1947); Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

23. Limitations.

Except as to liened property any claim (exclusive of claims of the United States of America, any state or subdivision thereof for taxes and assessments) not filed within the period provided by this section, whether such claim or demand be a contingent or unmatured one or not, and whether same be held by a person under disability, all right thereon shall be barred, both against all assets of the estate while in the hands of the personal representative and against the personal representative. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

Where an amendment to a claim against the estate of a decedent merely cured the defects in the filing of the claim and did not introduce a new cause of action or a new party, the amendment would relate back to the filing of the original claim and thus save the claim from the bar of the statute of limitations. Cooper's Estate v. Keathley, 27 Tenn. App. 7, 177 S.W.2d 356, 1943 Tenn. App. LEXIS 124 (Tenn. Ct. App. 1943).

A claim for breach of contract by which decedent agreed not to compete in business for a specified number of years and which contract contained no penalty or liquidation of damages was not such a claim that would ripen into a judgment where the administrator neglected to except within the time required by law since the amount of damages were not ascertained. Coin Automatic Co. v. Estate of Dixon, 213 Tenn. 311, 375 S.W.2d 858, 1964 Tenn. LEXIS 391 (1964).

This statute provides a statute of limitations affecting only the remedy and is not a statute of proscription. Woods v. Palmer, 496 S.W.2d 474, 1973 Tenn. LEXIS 476 (Tenn. 1973).

In an action in which a husband's children from a prior marriage contended that a wife's last will was invalid because it breached a contract in which the wife and the husband agreed to make mutual wills, although the husband's children did not file a claim against the wife's estate within the twelve-month period prescribed by T.C.A. § 30-2-307(a), the children's complaint was timely under T.C.A. § 32-4-108 because the children decided to file a will contest to challenge the wife's last will and the contest was filed within two years after the entry of the order admitting the challenged will to probate. In re Estate of Brown, 402 S.W.3d 193, 2013 Tenn. LEXIS 308 (Tenn. Mar. 22, 2013).

No extraordinary circumstances existed to warrant an extension of the statutory deadline for filing an amended claim since the personal representative filed an exception to the claimant's original claim and the claimant had 33 days to amend his claim; it was not an abuse of discretion to dismiss the amended claim since it was filed one month beyond the deadline under this section. In re Estate of Miller, — S.W.3d —, 2013 Tenn. App. LEXIS 450 (Tenn. Ct. App. July 12, 2013).

Wife's claim concerning her husband's debt, when not filed within one year of his death, regardless of whether the estate was opened or not, was barred. Reese v. Estate of Cutshaw, — S.W.3d —, 2018 Tenn. App. LEXIS 730 (Tenn. Ct. App. Dec. 14, 2018).

24. Tax Claims.

This section limiting the time for filing claims, does not apply to claims for taxes. Hamilton Nat'l Bank v. Richardson, 42 Tenn. App. 486, 304 S.W.2d 504, 1957 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1957).

As the United States did not “clearly consent” to be bound by T.C.A. § 30-2-307' s 12-month statute of limitations governing probate proceedings, the Internal Revenue Service's (IRS's) claim for taxes owed by a decedent was governed by the 10-year federal statute of limitations on collection of unpaid income taxes, 26 U.S.C. § 6502(a)(1); therefore, the IRS's tax claim was not time-barred. Christine L. Bacigalupo, Administratrix of the Estate of James Roy Bacigalupo v. United States, 399 F. Supp. 2d 835, 2005 U.S. Dist. LEXIS 28840 (M.D. Tenn. Nov. 15, 2005).

Absent its own consent, the United States is not bound by the 12-month time limitation governing claims filed in probate proceedings pursuant to T.C.A. § 30-2-307. Christine L. Bacigalupo, Administratrix of the Estate of James Roy Bacigalupo v. United States, 399 F. Supp. 2d 835, 2005 U.S. Dist. LEXIS 28840 (M.D. Tenn. Nov. 15, 2005).

25. Penal Judgment Abated by Death.

Penal judgment for a fine imposed by the United States was abated by the convict's death. United States v. Noel, 609 S.W.2d 740, 1980 Tenn. App. LEXIS 390 (Tenn. Ct. App. 1980).

26. Contents of Notice.

Accurate information about the time period for filing claims must be conveyed in the notice; this can best be achieved by delivering not only a copy of the published or posted notice to creditors, but also a copy of this section, setting out the various time limits, and a statement of the date of the decedent's death. Bowden v. Ward, 27 S.W.3d 913, 2000 Tenn. LEXIS 549 (Tenn. 2000).

27. Actual Notice.

Although creditor received a copy of the published notice which erroneously stated that the creditor had only six months from the date of the first publication of the notice to creditors in which to file a claim, after the six-month period had expired, creditor did not receive “actual notice” from the decedent's personal representative; therefore, creditor had 12 month's to file a claim. Bowden v. Ward, 27 S.W.3d 913, 2000 Tenn. LEXIS 549 (Tenn. 2000).

28. Res Judicata.

When a trial court dismissed with prejudice a credit union's claim for the decedent's unpaid credit card balance, because the credit union failed to include an itemized statement, the dismissal of the credit union's appeal meant that the denial of the credit union's claim was final so that the credit union's subsequent claim that the subject funds passed outside the decedent's estate by virtue of the contractual setoff for an unpaid credit card balance, as set forth in the member agreement, was barred by the doctrine of res judicata. In re Estate of Letsinger, — S.W.3d —, 2016 Tenn. App. LEXIS 898 (Tenn. Ct. App. Nov. 29, 2016).

Collateral References.

Action on contingent claim, presentation of claim as condition precedent. 34 A.L.R. 372.

Allowance out of decedent's estate for services rendered by attorney not employed by executor or administrator. 79 A.L.R. 521, 142 A.L.R. 1459.

Allowance out of property or funds of estate for services of attorney rendered in protection of estate of decedent. 49 A.L.R. 1161, 107 A.L.R. 749.

Amendment of claim against decedent's estate, introducing new or different claim or effecting substantial change in claim. 56 A.L.R.2d 627.

Amendment of statement of claim against decedent's estate, or verification thereof. 74 A.L.R. 400.

Amount of compensation of attorney for services in administration of decedent's estate. 143 A.L.R. 735, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Asserted right to rescission or cancellation of contract with decedent as claim which must be presented to his personal representative. 73 A.L.R.2d 883.

Condition precedent to suit for specific performance of contract to make will in favor of another or to will latter a specified sum or property, presentation of claim against decedent's estate as. 113 A.L.R. 1070.

Corpus or income, attorneys' fees prior to establishment of trust as chargeable to. 135 A.L.R. 1322.

Devise or bequest of property as compensation for personal services, claim against estate of deceased promisor for breach of. 69 A.L.R. 85.

Executor's or administrator's waiver of presentation of claim against estate before bringing action thereon. 34 A.L.R. 393.

Filing claim against estate of decedent as affecting or precluding other remedies against the estate. 120 A.L.R. 1225.

Funeral expenses, presentation of claim for to executor or administrator. 34 A.L.R. 375.

Guaranty, suretyship, or indorsement, claim on decedent's contract of, as contingent. 94 A.L.R. 1155.

Judgment lien, presentation of claim against deceased debtor's estate as condition of action to enforce. 114 A.L.R. 1167.

Last sickness, claims for expenses of, as within statute requiring presentation of claims against decedent's estate. 17 A.L.R.4th 530.

Limitations, effect of statement of claim against decedent's estate setting out debt apparently barred by statute of. 119 A.L.R. 426.

Mortgage on real estate not yet due; contingency of claim. 78 A.L.R. 1159.

Necessity of presenting claim against decedent's estate as affected by executor's or administrator's personal duty or obligation to claimant. 103 A.L.R. 337.

Necessity of presenting claim to executor or administrator before bringing suit. 34 A.L.R. 362.

Necessity of presenting, probating, or prosecuting claims for allowance as affected by provision of will directing payment of debts. 65 A.L.R. 861.

Necessity of presenting spouse's claim under separation agreement to personal representative of other spouse's estate. 58 A.L.R.2d 1283.

Personal claim of executor or administrator against estate, antedating death of decedent. 144 A.L.R. 962.

Protection or preservation of property of estate, liability of estate or personal representative for services rendered or supplies furnished after decedent's death and before appointment of executor or administrator, for purpose of. 108 A.L.R. 388.

Rent or its equivalent accruing after lessee's death as expense of administration of his estate. 22 A.L.R.3d 814.

Right of attorney whose selection is directed or suggested by will, against estate or personal representative. 166 A.L.R. 491.

Right of executor or administrator who is himself an attorney to employ attorney at expense of estate. 18 A.L.R. 635.

Rights in decedent's estate as between legal and putative spouse. 81 A.L.R.3d 6.

Shortening period for filing claims against decedent's estate, applicability of statute providing for, to existing claims and constitutionality of statute as so applied. 117 A.L.R. 1208.

Stockholder's statutory liability, liability of stockholder's estate for, on his death. 79 A.L.R. 1542, 96 A.L.R. 1466.

Sufficiency of notice of claim against decedent's estate. 74 A.L.R. 368.

Taxes, claims for, as within contemplation of statute requiring presentation of claims. 109 A.L.R. 1370.

Unliquidated claim for damages arising out of tort as a contingent claim within statutes relating to presentation of claims against decedent's estate. 22 A.L.R.3d 493.

Validity of claims against estate filed prior to publication of notice to creditors, 70 A.L.R.3d 784.

Vendor under executory contract for sale of land as entitled to claim as creditor of the estate of vendee. 35 A.L.R. 927.

Waiver of mortgage or other lien by filing claim as an unsecured one. 2 A.L.R. 1132.

Will, attorneys' fees incurred in attempt to establish or defeat. 10 A.L.R. 783, 40 A.L.R.2d 1407.

Workmen's Compensation Act, necessity of filing claim under, against estate of deceased employer. 94 A.L.R. 889.

30-2-308. Triplicate copies of pleadings as claims.

Triplicate copies of the first pleading filed in original actions against a personal representative shall be filed with the clerk of the court where the administration originated, to be noted by the clerk in the record of claims as are other claims filed.

Acts 1939, ch. 175, § 6; C. Supp. 1950, § 8196.7 (Williams, § 8196.6); T.C.A. (orig. ed.), § 30-511; Acts 1985, ch. 140, § 14.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273 (1979).

NOTES TO DECISIONS

1. Application.

This section requiring that duplicate copies of the first pleading be filed in the probate courts relates only to the claims contemplated in § 30-2-307, and has no application to claims sounding in tort. Herring v. Estate of Tollett, 550 S.W.2d 660, 1977 Tenn. LEXIS 540 (Tenn. 1977).

2. Tort Claim.

Although this section does not apply to tort claims, a tort claimant should put the court in which the estate is being administered on notice of the pendency of a tort action in another court, and filing a copy of the complaint would accomplish this. Herring v. Estate of Tollett, 550 S.W.2d 660, 1977 Tenn. LEXIS 540 (Tenn. 1977).

Collateral References.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

30-2-309. Statute of limitations arrested by filing claim.

The filing of claims within the time and in the manner provided in §§ 30-2-307 and 30-2-308 shall operate to arrest any statute of limitations applicable to the claims.

Acts 1939, ch. 175, § 2; C. Supp. 1950, § 8196.2; T.C.A. (orig. ed.), § 30-512.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 769.

NOTES TO DECISIONS

1. Construction with Other Acts.

Both § 28-1-110 and this section are for the benefit of creditors and there is no conflict between the statutes or repeal by implication which would warrant the courts disregarding § 28-1-110 in favor of this section. In re Estate of Myers, 55 Tenn. App. 195, 397 S.W.2d 831, 1965 Tenn. App. LEXIS 249 (Tenn. Ct. App. 1965).

2. Illustrative Cases.

Since filing of a claim under this section operates to arrest any statute of limitations where defendant filed a claim within nine (now six) months asking for judgment against insured's estate under subrogation clause of policy in event mortgagee-plaintiffs should prevail alleging intentional burning on part of insured as an issue was present for the court to decide. Smith v. Insurance Co. of North America, 30 F.R.D. 540, 1962 U.S. Dist. LEXIS 6023 (M.D. Tenn. 1962).

30-2-310. Limitation on time of filing claims.

  1. All claims and demands not filed with the probate court clerk, as required by §§ 30-2-306 — 30-2-309, or, if later, in which suit has not been brought or revived before the end of twelve (12) months from the date of death of the decedent, shall be forever barred.
  2. Notwithstanding subsection (a), all claims and demands not filed by the state with the probate court clerk, as required by §§ 30-2-306 — 30-2-309, or, if later, in which suit has not been brought or revived before the end of twelve (12) months from the date of death of the decedent, shall be forever barred. This statute of limitations shall not apply to claims for taxes. Claims for state taxes shall continue to be governed by § 67-1-1501.

Acts 1939, ch. 175, § 3A, as added by Acts 1947, ch. 213, § 2; 1949, ch. 176, § 1; mod. C. Supp. 1950, § 8196.4 (Williams, § 8196.3a); Acts 1971, ch. 229, § 3; T.C.A. (orig. ed.), § 30-513; Acts 1989, ch. 395, § 4; 2000, ch. 970, § 1; 2014, ch. 883, § 1.

Compiler's Notes. Acts 2000, ch. 970, § 2 provided that subsection (b) shall apply to all estates which have not been closed on January 1, 2001, and to all estates which come into existence on or after January 1, 2001.

Cross-References. Actions against personal representative, § 28-3-102.

Revivor of actions, § 30-2-320.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 756, 757, 760, 769.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1002 — 4-1005.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum, (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273 (1979).

Administration of Estates — Revival of Actions — Time Limitations, 36 Tenn. L. Rev. 804 (1969).

Current Problems Facing the Executor Taking the Section 2053 Estate Tax Deduction (Jay D. Christiansen), 30 Vand. L. Rev. 795 (1977).

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707 (1978).

TennCare: Expanded Estate Recovery - Recover at ALL Cost, 45 U. Mem. L. Rev. 711 (2015).

NOTES TO DECISIONS

1. Applicability.

Under this section, claimants are required to file a claim against an estate within six months of a notice to creditors; however, this section only bars claims against the estate and does not bar a creditor who may have other legal remedies. Boatman v. Morrison, 746 S.W.2d 706, 1987 Tenn. App. LEXIS 3216 (Tenn. Ct. App. 1987).

Personal representative improperly assumed the responsibility for environmental remediation on property the estate did not own because no claim was filed against the estate, T.C.A. § 30-2-310, and the decedent never held an ownership interest in the property; even if there had been a valid claim, the will did not expressly, or by incorporation of T.C.A. § 35-50-110, give the personal representative the power to enter into contracts on behalf of the estate, settle or compromise claims or demands, or abate environment hazards on property of the estate. In re Estate of Ledford, 419 S.W.3d 269, 2013 Tenn. App. LEXIS 246 (Tenn. Ct. App. Apr. 11, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 791 (Tenn. Oct. 16, 2013).

Because the decedent's children and grandchildren were proceeding as beneficiaries of the decedent's estate, and were not claimants against the estate (having withdrawn their claim), the one-year statute of limitations was not applicable. In re Estate of Kirkman, — S.W.3d —, 2017 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2017).

2. Failure to File Bars Claim.

No court has power or jurisdiction to permit any delay in the filing of any such claims, i.e., to permit the filing of any such claims after the expiration of the 12 months' period (now six months) or to permit any relief to be granted thereon against the personal representative or the assets while in its hands, except as provided by § 30-2-504. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940); Warfield v. Thomas' Estate, 185 Tenn. 328, 206 S.W.2d 372, 1947 Tenn. LEXIS 336 (1947).

Failure of mortgagee or widow to file claim for payment of mortgage indebtedness on home owned by testator and widow as tenants by the entirety within the statutory period barred its payment out of the assets of the estate regardless of any intent of the testator to leave the home place to the widow free and unencumbered. Bonham v. Bonham, 180 Tenn. 364, 175 S.W.2d 328, 1943 Tenn. LEXIS 19 (1943).

Wife's claim concerning her husband's debt, when not filed within one year of his death, regardless of whether the estate was opened or not, was barred. Reese v. Estate of Cutshaw, — S.W.3d —, 2018 Tenn. App. LEXIS 730 (Tenn. Ct. App. Dec. 14, 2018).

3. Tax Claims Are Excepted from Limitation.

Tax claims are excepted consistent with the general rule that the sovereign is not within the limitation, unless expressly so provided. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

4. Rights of Lien Holders.

No holder of any lien shall assert any claim against liened property while same be in the hands of the personal representative, except by claim or demand filed with the county court clerk (now county clerk), as provided in this section; but if no such claim or demand be so filed within the 12 (now six) months' period, any such lienor, after the administration of the estate is closed or the liened property is distributed, may enforce the lien at any time within the limitations of the 10 year statute of limitations. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

5. Liens of State.

Claim of state under former provision of Old-Age Assistance Law that amount of old-age assistance furnished should be allowed as claim against estate of recipient was not barred because it was not filed within nine (now six) months from date of notice to creditors. State Dep't of Public Welfare v. O'Brien, 200 Tenn. 475, 292 S.W.2d 733, 1956 Tenn. LEXIS 431 (1956).

Statute of limitations, T.C.A. § 30-2-310, did not prevent the Tennessee Bureau of TennCare from opening a decedent's estate and filing a claim to recoup TennCare funds because the notice provision in T.C.A. § 71-5-116(d)(1)(D) was inoperative if the Bureau did not receive a notice to creditors of a decedent's death within the statute. In re Estate of Crumley, 439 S.W.3d 318, 2012 Tenn. App. LEXIS 874 (Tenn. Ct. App. Dec. 18, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 421 (Tenn. Apr. 9, 2013).

Trial court erred in holding that the Tennessee Bureau of TennCare failed to strive vigorously in its efforts to recoup TennCare funds from a decedent's estate because the Bureau opened the estate within 13 months of the decedent's death, and since that time, the Bureau sought to recoup the TennCare funds from the estate. In re Estate of Crumley, 439 S.W.3d 318, 2012 Tenn. App. LEXIS 874 (Tenn. Ct. App. Dec. 18, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 421 (Tenn. Apr. 9, 2013).

6. Application of Limitation.

Suit by creditor of estate against administration personally based on new contract resulting from novation where creditor refrained from filing claim against estate within period specified by this section because of reliance on promise of administratrix to pay claim was not governed by the limitation of this section. Hooper v. Neubert, 53 Tenn. App. 233, 381 S.W.2d 569, 1964 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1964).

In suit by state against estate to recover on bond executed to cover taxes, court held that state was not barred by any statute of limitations unless the particular statute expressly so provided. In re Estate of Darwin, 503 S.W.2d 511, 1973 Tenn. LEXIS 443 (Tenn. 1973).

This statute provides a statute of limitations affecting only the remedy and is not a statute of proscription. Woods v. Palmer, 496 S.W.2d 474, 1973 Tenn. LEXIS 476 (Tenn. 1973).

Even though plaintiff had no existing claim on the date of the death of the decedent because he held a deed from her in “satisfaction” of the value of his services rendered, where the heirs of the decedent declared the deed rescinded and sought a decree to cancel it by a suit, plaintiff was required to file his claim timely after being served with the complaint in the deed litigation and his failure to do so for nearly three years prevented its assertion. Estate of Minton v. Markham, 625 S.W.2d 260, 1981 Tenn. LEXIS 506 (Tenn. 1981).

Son's claims were barred by the statutes of limitation, T.C.A. §§ 28-1-105 and 30-2-310, where the son never set forth any proof establishing the existence of a material fact with regard to when the statute of limitations began to run. Vandergriff v. Vandergriff, 106 S.W.3d 682, 2003 Tenn. App. LEXIS 35 (Tenn. Ct. App. 2003), appeal denied, Vandegriff v. Vandegriff, — S.W.3d —, 2003 Tenn. LEXIS 476 (Tenn. May 19, 2003).

Plain language of T.C.A. § 30-2-310(b) establishes that the one-year limitation period begins on the date of death, regardless of whether a representative has been appointed; moreover, the legislative history supports an identical interpretation. In re Estate of Tanner, 295 S.W.3d 610, 2009 Tenn. LEXIS 653 (Tenn. Oct. 7, 2009).

At the time of the decedent's death, T.C.A. § 71-5-116(c) permitted adjustment or recovery from an estate until a waiver or release was granted by the bureau, regardless of any limitations on ordinary claims imposed by T.C.A. § 30-2-310(b), further incident to its right to demand payment pursuant to the release and waiver provisions, the state bureau was permitted to file a formal claim against the estate, despite the fact that claims of most other types would have been barred; § 30-2-310(b) created a general one-year statute of limitations on state claims against an estate, except claims for taxes and § 71-5-116(c) imposed a duty on the representative of an estate to actively seek a release or waiver of any medical assistance correctly paid, owed under the state program. Because appellee decedent's son did not do so, and no waiver or release issued, the bureau was empowered under the terms of the applicable statute, as then written, to file the claim beyond the one-year period of limitation. In re Estate of Tanner, 295 S.W.3d 610, 2009 Tenn. LEXIS 653 (Tenn. Oct. 7, 2009).

Chancery court properly determined that a claim by the Bureau of TennCare against a decedent's estate for justly paid medical benefits was not time-barred by T.C.A. § 30-2-310 because the administrator did not file a release pursuant to T.C.A. § 71-5-116(c)(2) and the Bureau did not receive the notice required by § 71-5-116(d). In re Estate of Stidham, 438 S.W.3d 535, 2012 Tenn. App. LEXIS 584 (Tenn. Ct. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 910 (Tenn. Dec. 12, 2012).

7. —Accrual of Claim.

It is not necessary that a claimant have exact or precise information as to the extent of his damages to set the statute in operation, so long as it is reasonably apparent that he has an actionable claim. Estate of Minton v. Markham, 625 S.W.2d 260, 1981 Tenn. LEXIS 506 (Tenn. 1981).

When one who did not previously know that he had an actionable claim against an estate discovers or reasonably should discover that such a claim exists, the statute of limitations begins to run against him. Estate of Minton v. Markham, 625 S.W.2d 260, 1981 Tenn. LEXIS 506 (Tenn. 1981).

8. Procedure.

This section is a statute of limitation or statute of nonclaim and does not provide the procedure for revival of actions. The procedure provided in § 30-2-320 for the revivor of actions must be followed. Windsor Hosiery Mills, Inc. v. Haren, 222 Tenn. 479, 437 S.W.2d 248, 1969 Tenn. LEXIS 491 (1969).

Collateral References.

Amendment of claim against decedent's estate after expiration of time for filing claims. 56 A.L.R.2d 627.

Application of nonclaim statute to claim for unmatured payments under land contract. 99 A.L.R.2d 275.

Conduct of personal representative preventing filing of claims within time allowed by statute of nonclaim. 11 A.L.R. 246, 66 A.L.R. 1415.

Executory contract, applicability of nonclaim statutes to claims arising under. 41 A.L.R. 144, 47 A.L.R. 896.

Government claim as within provision of statute fixing time for presenting claims against decedent's estate. 34 A.L.R.2d 1003.

Mortgage on real estate or mortgage debt, nonclaim statute as applied to. 78 A.L.R. 1126.

Nonclaim statute as governing claim barred, subsequent to death of obligor, by general statute of limitations. 112 A.L.R. 289.

Partnership, applicability of statute of nonclaim as between surviving partner and estate of deceased partner. 96 A.L.R. 449, 157 A.L.R. 1114.

Real estate mortgage or mortgage debt, nonclaim statute as applied to. 78 A.L.R. 1126.

Running of statute of limitations as affected by doctrine of relation back of appointment of administrator. 3 A.L.R.3d 1234.

Statute forbidding suit against representative of estate until expiration of prescribed period as affecting running of statute of nonclaim. 104 A.L.R. 901.

Stock subscription, applicability of nonclaim statute to claim for unpaid balance of, upon call made after stockholder's death. 41 A.L.R. 150, 47 A.L.R. 896.

Stockholder's superadded liability, applicability of statute of nonclaim to. 41 A.L.R. 180, 51 A.L.R. 772, 87 A.L.R. 494.

Succession tax as affected by attempted waiver of statute of nonclaim. 76 A.L.R. 1456.

Time for filing claim based on promise not to make a will. 32 A.L.R.2d 370.

Trust funds, applicability of nonclaim statute in case of misappropriation of, or fraudulent breach of trust by decedent. 41 A.L.R. 169.

Unfiled or abandoned claim, effect of recovery of judgment on, after expiration of time allowed for filing claims. 60 A.L.R. 736.

30-2-311. Waiver of filing small claims — Payment.

Notwithstanding §§ 30-2-30730-2-310, the personal representative, if in the personal representative's discretion it is deemed proper, may waive the requirement for the filing of and may pay any claim not exceeding one thousand dollars ($1,000) principal amount. If the act of the personal representative in so doing is brought into question, the personal representative will have the burden of showing the validity of the claim so paid.

C. Supp. 1950, § 8196.2; Acts 1979, ch. 90, § 1; T.C.A. (orig. ed.), § 30-514; Acts 1987, ch. 322, § 8.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 782, 940, 956, 986.

Law Reviews.

Administration Under the Small Estates Act (Judge Herschel P. Franks), 14 No. 4 Tenn. B.J. 3 (1978).

Current Problems Facing the Executor Taking the Section 2053 Estate Tax Deduction (Jay D. Christiansen), 30 Vand. L. Rev. 795 (1977).

30-2-312. Entry of claim by clerk — Fees — Notice.

Each claim filed with the clerk shall be entered by the clerk in a well bound book, in which the clerk shall set forth the title of the estate, the name and address of the creditor as reflected by the claim filed, the nature and amount of the claim and the date of filing, which book shall be provided and paid for as are other records in the clerk's office. The fees authorized by § 8-21-401(c)(1)(A) shall be paid to the clerk by the claimant at the time such claim is filed. If notice is required to be given to the residuary beneficiary or beneficiaries of the decedent's estate as required by § 30-2-313(b), the claimant shall pay to the clerk on the filing of the claim the fee provided by § 8-21-401(c)(9) for each residuary beneficiary to whom notice is to be given.

Acts 1939, ch. 175, § 2; C. Supp. 1950, § 8196.2; impl. am. Acts 1951, ch. 166, § 1(38); 1983, ch. 252, § 1; T.C.A. (orig. ed.), § 30-515; Acts 2017, ch. 290, § 15.

Amendments. The 2017 amendment added the last sentence.

Effective Dates. Acts 2017, ch. 290, § 16. July 1, 2017.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 781.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

30-2-313. Notice of filing claim — Exceptions to claims — Jury trials upon demand.

  1. The clerk of the court, within five (5) days after the filing of a claim and its entry in the claim book as provided in § 30-2-312, shall give written notice to the personal representative and the attorney of record of the filing of the claim, by mailing each a true and correct copy of the claim.
  2. If a personal representative of the decedent's estate files a claim against the estate of the decedent, the clerk of the court, within five (5) days after the filing of a claim and the entry thereof in the claim book as provided in § 30-2-312, shall give written notice to each residuary beneficiary of the decedent's estate of the filing of the claim, by mailing each a true and correct copy of the claim. The notice required by this subsection (b) is in addition to the notice required to be given by subsection (a).
  3. A claim shall not become a final judgment against the estate until after the expiration of the exception period prescribed in § 30-2-314(a).
  4. Should the claimant or the party excepting desire a trial by jury, it shall be demanded by that party in the first claim or exception filed. However, a claimant who has not demanded a jury in the claimant's claim may do so within five (5) days after receipt of notice of the filing of exceptions to the claimant's claim by filing a written demand for a jury with the probate court clerk.

Acts 1939, ch. 175, § 2; 1947, ch. 137, § 2; 1947, ch. 213, § 1; C. Supp. 1950, § 8196.2; T.C.A. (orig. ed.), § 30-516; Acts 1985, ch. 140, § 15; 1989, ch. 395, §§ 5, 6; 2017, ch. 290, § 2.

Amendments. The 2017 amendment added present (b); and redesignated former (b) and (c) as present (c) and (d), respectively.

Effective Dates. Acts 2017, ch. 290, § 16. July 1, 2017.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 773, 776, 781.

Law Reviews.

Wills, Trusts and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Construction with Other Sections.

This section and § 30-2-314 are to be construed in pari materia. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

This section does not have the effect of limiting the 30 day period after nine (now six) months from date of notice to creditors, provided by § 30-2-314 for filing exceptions but under the circumstances provided may extend the period for filing exceptions beyond such nine (now six) months and 30 days. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

2. Written Notice by Clerk Mandatory.

Provision requiring clerk of the court to give written notice to personal representative within five days of filing of a claim is mandatory. Cromwell v. Dobbins, 191 Tenn. 92, 231 S.W.2d 577, 1950 Tenn. LEXIS 548, 1950 Tenn. LEXIS 549 (1950).

In view of the mandatory nature of the provision of this section requiring the giving of written notice by the clerk of the filing of the claim, Supreme Court would presume that notice had been given to the proper personal representative within the statutory time after the filing of the claim where the record was silent as to the giving of the notice. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

3. Exceptions — Time to File.

The executor, or other party interested in the estate of decedent, either as creditor, distributee, heir or otherwise, may at any time prior to the end of the 30th day that succeeds the statutory period after publication of notice to the creditors by the executor file exceptions in triplicate to any claim or claims that have been filed with the clerk and the judge may hear and determine all issues. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

Where exception to claim filed in the last month was filed within 30 days after the expiration of the nine (now six) month period from date of notice to creditors, such exception was in time even though it was not filed within 30 days from the date of notice by the clerk of the filing of the claim. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

If a claim is filed within the last month of the period for filing claims, the delivery of notice to the personal representative, no matter how long delayed, is a prerequisite to the beginning of the 30 days within which exceptions must be filed. In re Estate of Ross, 58 Tenn. App. 533, 434 S.W.2d 333, 1968 Tenn. App. LEXIS 312 (Tenn. Ct. App. 1968).

Exception by the executrix of the decedents'  estate to a creditor's claim against the decedent's estate was not time-barred because, when the claim was filed against the decedent's estate by the creditor, the clerk of court did not send notice to the executrix of the estate as required by statute. The estate, thus, did not file an exception to the claim until after the time for filing exceptions had run. In re Estate of Hill, — S.W.3d —, 2018 Tenn. App. LEXIS 728 (Tenn. Ct. App. Dec. 14, 2018).

4. Computation of Time.

In computing time under this section the first day is excluded and the last day is included. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

30-2-314. Exceptions to claim — Trial by circuit court where jury demanded — Concurrent jurisdiction.

    1. Until thirty (30) days after the expiration of four (4) months from the date of the notice to creditors given as provided in § 30-2-306(b), the personal representative, or any party interested in the estate either as creditor, distributee, heir or otherwise, may except to the claim by filing written exceptions in triplicate with the clerk of the court in which the estate is being administered.
    2. However, if the filing of the claim as permitted by § 30-2-307(a) occurs after the date that is four (4) months from the date of the notice to creditors, the personal representative, or any party interested in the estate either as creditor, distributee, heir or otherwise, may except to any claim by filing written exceptions in triplicate with the clerk of the court in which the estate is being administered; provided, that the exception is filed no later than thirty (30) days from the date the personal representative receives notice from the clerk of the filing of the claim.
    3. Each exception shall include a reasonably detailed explanation of the ground or grounds upon which the person making such exception intends to rely.
    4. Within five (5) days after the filing of exceptions to a claim the clerk shall notify the claimant of the exceptions by mailing the claimant a copy of the exceptions.
    5. If the creditor timely files an amendment as permitted by § 30-2-307(e), the personal representative shall file any exception to the amended claim not later than thirty (30) days from the later of:
      1. The date the amendment is filed with the clerk; or
      2. The expiration of the exception period.
    1. If the claim or the exception filed contains a demand for a trial by jury, or there is a demand as provided in § 30-2-313, the probate court clerk shall certify the claim and the exception to the circuit court for trial by jury upon the issues made by the claim and exception. The claim or exception may be amended in the circuit court, but not so as to avoid the period of limitation upon claims contained in § 30-2-310.
    2. Should no exception be taken to a claim in which a jury trial has been demanded, the claim shall not be certified to the circuit court.
  1. Within five (5) days after an issue triable by a jury has been made, the probate court clerk shall certify all of the papers the clerk has on file relating to that claim to the circuit court, and shall, at the same time, give written notice of the clerk's action to the claimant, the excepting party and the personal representative, and shall thereafter file with the circuit court a statement to this effect, which shall be prima facie evidence that the parties have been notified.
    1. The matter shall be triable at the first term of the circuit court convening five (5) days or more after the certified record has been filed in the circuit court.
    2. On motion of the personal representative or the excepting party, the claimant may be required by the circuit court to make a cost bond, or, in lieu of a bond, take the oath prescribed for poor persons.
    3. After the matter has been certified to the circuit court for trial, it shall be proceeded within that court as in any other law case.
    4. The jury demanded may be waived by the parties and the case tried in the circuit court and on appeal as one in which no jury had been demanded.
  2. If the probate court is a court of record, the probate court shall have concurrent jurisdiction with the circuit court to conduct trials of the claim or the exception, all in the same manner and to the same extent as prescribed in this section for circuit courts, except that no certification of the claim or exception shall be required in the absence of any referral to another court.

Acts 1939, ch. 175, § 3; 1947, ch. 137, § 1; 1947, ch. 213, § 2; C. Supp. 1950, § 8196.3; Acts 1971, ch. 229, § 4; T.C.A. (orig. ed.), § 30-517; Acts 1985, ch. 140, § 16; 1989, ch. 395, § 7; 1991, ch. 415, § 5; 1992, ch. 951, § 6; 1997, ch. 426, § 6; 2005, ch. 99, § 3; 2005, ch. 429, § 6.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that this section shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Cross-References. Actions against personal representative, § 28-3-102.

Time for payment of claims, § 30-2-319.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 676, 738, 769, 771-774, 776.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1007, 4-1008.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman), 18 Vand. L. Rev. 1185 (1965).

Procedure and Evidence — 1961 Tennessee Survey (Edmund M. Morgan), 14 Vand. L. Rev. 1353 (1961).

Procedure — 1963 Tennessee Survey (William J. Harbison), 17 Vand. L. Rev. 1108 (1964).

Wills, Trust and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Purpose and Policy.

The effect of this section is to require payment of a claim prima facie valid if not excepted to within the time provided therefor by this section. Miller v. Morelock, 185 Tenn. 466, 206 S.W.2d 427, 1947 Tenn. LEXIS 353 (1947).

A claim is prima facie valid if not excepted to within statutory period by representative. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

2. Construction.

This section and § 30-2-313 are to be construed in pari materia. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

The 30 day period allowed for filing exceptions to claims at the end of the nine (now six) month period from date of notice to creditors as provided in this section will not be shortened by the provision of former § 30-2-313 providing a 30 day period from date of notice by the clerk for filing exceptions to claims filed in the last month of the nine (now six) month period but such section may under appropriate circumstances extend the time for filing exceptions beyond nine (now six) months and 30 days after publication of notice to creditors. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

3. Procedure.

This statute dispenses with formal pleadings and strict rules of procedure required in actions commenced in the circuit court. Poole v. First Nat'l Bank, 29 Tenn. App. 327, 196 S.W.2d 563, 1946 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1946).

4. Jurisdiction.

See Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918, 1960 Tenn. LEXIS 482 (1960) which in denying certiorari to executrix to review order of circuit court enjoining foreclosure of deeds of trust by executrix pending decision on denial of claim in which party claimed payment of debt secured by deed of trust, made comment that under §§ 30-2-30630-2-321, circuit court may have had jurisdiction of controversy arising out of question of whether mortgage trust deeds held by decedent had been satisfied and that any error in overruling petitions for injunctions against foreclosure may have been error in exercise of court's jurisdiction and not an error in excess of such jurisdiction, and therefore was not subject to review by certiorari. Trice v. Cheatham, 208 Tenn. 130, 344 S.W.2d 358, 1961 Tenn. LEXIS 404 (1961).

Executrix's petition under Declaratory Judgment Act for writs of error and certiorari to probate court to bring claims filed in probate court against estate to the circuit court for trial by jury was properly dismissed since executrix had plain and speedy and adequate remedy under §§ 30-2-314, 30-2-315 by filing exceptions to the claim prior to payment. Trice v. Cheatham, 208 Tenn. 130, 344 S.W.2d 358, 1961 Tenn. LEXIS 404 (1961).

5. Form of Action.

Claim against estate involving complicated accounting was a suit of an equitable nature so as to fall within § 16-10-111 and this section did not require that such claim when certified for trial in circuit court should be tried in form of an action at law. Hewgley v. Trice, 51 Tenn. App. 452, 369 S.W.2d 741, 1962 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1962).

6. Exceptions to Claims.

If a claim is filed within the last month of the period for filing claims, the delivery of notice to the personal representative, no matter how long delayed, is a prerequisite to the beginning of the 30 days within which exceptions must be filed. In re Estate of Ross, 58 Tenn. App. 533, 434 S.W.2d 333, 1968 Tenn. App. LEXIS 312 (Tenn. Ct. App. 1968).

7. —Persons Who May File.

Heir of intestate seeking to hold administrator liable for failure to file exception to claim against estate should have filed exception to such claim since under this section interested parties as well as the personal representative may file exceptions. Brigham v. Southern Trust Co., 201 Tenn. 466, 300 S.W.2d 880, 1957 Tenn. LEXIS 325 (1957).

8. —Representative Must Search Record.

Representative is required to search record for filed claims and cannot rely on statement of clerk. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

9. —Necessity for Filing.

Where a claim is unexcepted to within the time allowed by this section, the claim is final. Warfield v. Thomas' Estate, 185 Tenn. 328, 206 S.W.2d 372, 1947 Tenn. LEXIS 336 (1947).

Representative is not required to file exceptions to claim void on its face. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

Where claim was filed within statutory period and representative filed final report without allowance of claim, as clerk had told him that no claims had been filed, acceptance of final report by probate court did not bar suit by claimant in chancery court to recover on claim. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 1949 Tenn. LEXIS 461, 1950 Tenn. LEXIS 399 (1949).

Where creditor filed suit in chancery to subject intestate's real estate to satisfaction of claim under administration statute, heirs could not make defense thereto after time for filing exceptions in court of administration had expired. Bowling v. Minton, 193 Tenn. 141, 244 S.W.2d 998, 1951 Tenn. LEXIS 338 (1951).

10. —Extension of Time for Filing.

Representative was not entitled to an extension of time in which to file exceptions to claim where he failed to file exception within period required, but he could file a bill in chancery court for relief on the ground that his failure to file exceptions on time was not due to want of diligence on his part, but to fraud of claimant. Warfield v. Thomas' Estate, 185 Tenn. 328, 206 S.W.2d 372, 1947 Tenn. LEXIS 336 (1947).

Exception by the executrix of the decedents'  estate to a creditor's claim against the decedent's estate was not time-barred because, when the claim was filed against the decedent's estate by the creditor, the clerk of court did not send notice to the executrix of the estate as required by statute. The estate, thus, did not file an exception to the claim until after the time for filing exceptions had run. In re Estate of Hill, — S.W.3d —, 2018 Tenn. App. LEXIS 728 (Tenn. Ct. App. Dec. 14, 2018).

11. —Liability of Administrator for Failure to File.

Administrator would not be liable for failure to file exception to claim in absence of proof of fraud or bad faith. Brigham v. Southern Trust Co., 201 Tenn. 466, 300 S.W.2d 880, 1957 Tenn. LEXIS 325 (1957).

12. —Chancery Relief.

Where an executor fails to file exceptions to a claim within the time allowed by this section, he may still question the validity of the claim by filing a bill in the chancery court seeking relief upon the ground that his failure to file exceptions in time was due to no want of diligence on his part but was due to the fraud of the claimant. Warfield v. Thomas' Estate, 185 Tenn. 328, 206 S.W.2d 372, 1947 Tenn. LEXIS 336 (1947).

Representative was entitled to file bill in chancery for determination by chancellor whether claim to which no exceptions had been filed was a claim utterly void and unenforceable. Miller v. Morelock, 185 Tenn. 466, 206 S.W.2d 427, 1947 Tenn. LEXIS 353 (1947).

13. Computation of Time.

In computing time under this section the first day is excluded and the last day is included. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

Under former T.C.A. § 30-2-314(a) (amended 2015), an exception to a claim must be filed within 30 days after the expiration of four months from the date of the first notice to creditors. Hence, one intending to except to a claim has essentially five months from the first notice. In re Estate of Layton, — S.W.3d —, 2015 Tenn. App. LEXIS 996 (Tenn. Ct. App. Dec. 30, 2015).

Second sentence of former T.C.A. § 30-2-314(a) (amended 2015) did not support the nursing home operator's position that the daughter's exception was not timely filed where the operator's claim was filed before the notice to creditors, and thus, the 30-day rule in the second sentence did not apply. In re Estate of Layton, — S.W.3d —, 2015 Tenn. App. LEXIS 996 (Tenn. Ct. App. Dec. 30, 2015).

Nursing home operator's argument that an exception to a claim should have been barred unless filed within 30 days of the deadline for the filing of claims was rejected as former T.C.A. § 30-2-314(a)(amended 2015) expressly related the time period within which to file exceptions to the date the notice creditors was given. In re Estate of Layton, — S.W.3d —, 2015 Tenn. App. LEXIS 996 (Tenn. Ct. App. Dec. 30, 2015).

14. Failure to File Exceptions — Effect.

The filing of a claim in effect amounts to a demand for payment and is the equivalent of the beginning of an action and puts those interested in defending the estate against such claim as well as creditors on notice that they must file exceptions or they will be forever barred from objecting unless there is some fraud or such matter that a court of equity might reach. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

When the time for filing exceptions has passed, an uncontested claim becomes final against the estate. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720, 1956 Tenn. LEXIS 428, 1956 Tenn. LEXIS 429 (1956).

15. Claim Not Excepted to — Effect.

A claim properly filed and not excepted to within the time provided by this section has the effect of a judgment against the estate. Brigham v. Southern Trust Co., 201 Tenn. 466, 300 S.W.2d 880, 1957 Tenn. LEXIS 325 (1957).

Collateral References.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Rights in decedent's estate as between legal and putative spouse. 81 A.L.R.3d 6.

30-2-315. Trial of disputed claims where no jury demanded — Appeals — Independent suits, effect.

    1. The clerk shall, within ten (10) days after the filing of exceptions to a claim, in which matter no jury is demanded, as herein provided, fix a date for the hearing thereof by the court, and mail notice of the hearing to the personal representative, to the claimant whose claim has been excepted to, and to the party filing the exception. The date so fixed shall be not less than fifteen (15) days after the date of the mailing of the notice, nor more than eight (8) months after the date of the notice to creditors.
    2. The court shall hear and determine all issues arising upon all the exceptions.
    3. No other pleadings shall be required and the testimony may be taken orally or by deposition.
    4. The court shall assess the costs accruing in consequence of the exceptions in accordance with its discretion, and all costs assessed against the personal representative shall be a proper charge against the estate.
  1. A judgment upon the findings of the court shall be entered in the court and from the judgment an appeal may be perfected within thirty (30) days from the date of entry of the judgment, to the court of appeals or the supreme court, as the case may be. The procedure on appeal shall be governed by the Tennessee Rules of Appellate Procedure.
    1. Notwithstanding §§ 30-2-306 — 30-2-314, whenever there is instituted in any other court of competent jurisdiction an independent suit against a personal representative involving liability of the estate, and a claim founded on the same cause of action is or has been filed against the estate in the manner provided in §§ 30-2-307 and 30-2-308, which claim has not been adjudicated by the court in which the administration is pending, the court in which the administration is pending shall hold in abeyance any action on the claim until the final determination of the independent suit, whereupon, on the filing of a certified copy of the final judgment or decree with the clerk of the court in which the administration is pending, that court is authorized to enter judgment accordingly.
    2. This subsection (c) is not intended to deprive the judgment creditor of any other remedy provided by law for the enforcement of the final judgment or decree rendered in the independent suit.

Acts 1939, ch. 175, § 3A, as added by Acts 1947, ch. 213, § 2; mod. C. Supp. 1950, § 8196.4 (Williams, § 8196.3a); Acts 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 30-518; Acts 1985, ch. 140, § 17.

Cross-References. Actions against personal representative, § 28-3-102.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 738, 766, 776, 778, 783, 888.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1009.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, VII. Appellate Review of the Disposition (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 366 (1979).

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273 (1979).

Decedents' Estates, Trusts and Future Interests — 1964 Tennessee Survey (Herman L. Trautman, 18 Vand. L. Rev. 1185 (1965).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

NOTES TO DECISIONS

1. Constitutionality.

There can be no doubt of the power of the legislature to confer jurisdiction upon the probate court to hear and decide claims against a decedent's estate. Alamo Development Corp. v. Thomas, 186 Tenn. 631, 212 S.W.2d 606, 1948 Tenn. LEXIS 590 (1948).

2. Jurisdiction.

Under this section a probate court has jurisdiction to hear proof on and approve or disapprove a claim against a decedent's estate excepted to by the personal representative on the ground that the claim was not timely filed. Alamo Development Corp. v. Thomas, 186 Tenn. 631, 212 S.W.2d 606, 1948 Tenn. LEXIS 590 (1948).

The county court (now probate court) in the exercise of its probate jurisdiction has the power and authority to adjudicate conflicting claims of ownership and right of possession to personal property which is claimed both by the representative of a decedent's estate and by third parties who claim title, not through the decedent and his representative, but from another source. Browne v. Browne, 547 S.W.2d 239, 1977 Tenn. LEXIS 553 (Tenn. 1977).

In an appeal from a probate court's judgment sustaining a claim against a decedent's estate, the circuit court lacked subject matter jurisdiction under T.C.A. § 30-2-609(b)(2) because the probate court's decision did not involve the final settlement of the estate by the personal representative. Instead, the estate was only entitled to appeal to the court of appeals in accordance with T.C.A. § 30-2-315(b). In re Estate of Trigg, 368 S.W.3d 483, 2012 Tenn. LEXIS 379 (Tenn. May 30, 2012).

Chancery court erred in setting aside the probate court's order granting conservators'  motion to remove because it was without subject matter jurisdiction to review the probate court's actions or issue any rulings in the case, and thus, all of its orders were void and of no effect; once the conservators decided to file the conservatorship in the property court, any appeals had to be to the court of appeals. In re Conservatorship of Beasley, — S.W.3d —, 2015 Tenn. App. LEXIS 393 (Tenn. Ct. App. May 28, 2015).

Exception by the executrix of the decedents'  estate to a creditor's claim against the decedent's estate was not time-barred because, when the claim was filed against the decedent's estate by the creditor, the clerk of court did not send notice to the executrix of the estate as required by statute. The estate, thus, did not file an exception to the claim until after the time for filing exceptions had run. In re Estate of Hill, — S.W.3d —, 2018 Tenn. App. LEXIS 728 (Tenn. Ct. App. Dec. 14, 2018).

3. Appeal.

Original jurisdiction was vested in the probate court to determine whether or not motion to strike exceptions to claims against estate was well taken and the only method of obtaining a hearing in another court was by appeal to the Court of Appeals or Supreme Court, dependent upon how the matter was heard and determined. Rowan v. Inman, 207 Tenn. 144, 338 S.W.2d 578, 1960 Tenn. LEXIS 441 (1960).

4. —Construction of Appeal Provision.

The language “as the case may be” in this section is construed to be equivalent to a provision that the appeal shall lie to the Supreme Court or the Court of Appeals. Sizemore v. Rinehart, 193 Tenn. 475, 246 S.W.2d 91, 1952 Tenn. LEXIS 313 (1952); Ezell v. Buhler, 557 S.W.2d 62, 1977 Tenn. LEXIS 668 (Tenn. 1977).

5. —Court of Appeals — When Forum.

Where probate judge in determining validity of claims against estate, decided their merits on the facts without stipulation, Court of Appeals was proper forum for appeal from such decision. Sizemore v. Rinehart, 193 Tenn. 475, 246 S.W.2d 91, 1952 Tenn. LEXIS 313 (1952).

6. —Retroactive Effect of Provision.

This section is retroactive, and applies to hearings on claims against estates already in the process of administration on its effective date; and this notwithstanding the fact that other 1947 amendments to this chapter, decreasing the time for filing claims against decedents' estates from nine to 12 months, are held to be prospective only. Alamo Development Corp. v. Thomas, 186 Tenn. 631, 212 S.W.2d 606, 1948 Tenn. LEXIS 590 (1948).

Collateral References.

Appealability of order, of court possessing probate jurisdiction, allowing or denying tardy presentation of claim to personal representative. 66 A.L.R.2d 659.

Court's rejection of claim against decedent's estate, right of executor or administrator to contest. 129 A.L.R. 922.

Direction of verdict based on testimony of interested witness as to claims against estates of deceased persons. 72 A.L.R. 58.

Interest on decree or judgment of probate court allowing a claim against estate or making an allowance for services. 54 A.L.R.2d 814.

Moral obligation connected with the debt or estate of deceased person as consideration for executory promise. 17 A.L.R. 1313, 79 A.L.R. 1346, 8 A.L.R.2d 787.

Who entitled to contest, or appeal from, allowance of claim against decedent's estate. 118 A.L.R. 743.

30-2-316. Judgment on claims where no exceptions filed.

After the lapse of ninety (90) days from and after the expiration of the time for entering exceptions to claims filed against the estate, the court may, upon the written application of any creditor having a matured claim on which no independent suit is pending, to whose duly filed claim no exception has been filed as provided in § 30-2-314, enter judgment for the creditor against the estate; provided, that not less than five (5) days' prior written notice of intention to file an application shall be given to the personal representative, stating the time at which the application is to be presented to the court.

C. Supp. 1950, § 8196.5; T.C.A. (orig. ed.), § 30-519.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 777.

Law Reviews.

Some Aspects of Estate Planning in Tennessee (Alec Brock Stevenson), 2 Vand. L. Rev. 265 (1949).

NOTES TO DECISIONS

1. Failure to Timely Object to Claim.

As a widow's claim against a decedent was not void on its face, and as the estate failed to file an exception to it during the statutory time period, based on the terms of a prenuptial agreement which required any modification thereto to be in writing, the claim had to be considered just. Ethridge v. Estate of Ethridge, 427 S.W.3d 389, 2013 Tenn. App. LEXIS 517 (Tenn. Ct. App. Aug. 6, 2013), appeal denied, Ethridge v. Ethridge ex rel. Estate of Ethridge, — S.W.3d —, 2013 Tenn. LEXIS 1049 (Tenn. Dec. 10, 2013).

30-2-317. Priority of claims — Payment — Contested or unmatured claims.

  1. All claims or demands against the estate of any deceased person shall be divided into the following classifications, which shall have priority in the order shown:
    1. First: Costs of administration, including, but not limited to, premiums on the fiduciary bonds and reasonable compensation to the personal representative and the personal representative's counsel;
    2. Second: Reasonable funeral expenses;
    3. Third: Taxes and assessments imposed by the federal or any state government or subdivision of the federal or any state government, including claims by the bureau of TennCare pursuant to § 71-5-116 and including city and county governments; and
    4. Fourth: All other demands that may be filed as aforementioned within four (4) months after the date of notice to creditors.
  2. All demands against the estate shall be paid by the personal representative in the order in which they are classed, and no demand of one class shall be paid until the claims of all prior classes are satisfied or provided for; and if there are not sufficient assets to pay the whole of any one class, the claims in that class shall be paid pro rata.
  3. Debts due upon bills single, bonds, bills of exchange and promissory notes, whether with or without seal, and upon settled and liquidated accounts signed by the debtor, are of equal dignity, unless otherwise provided, and are to be paid accordingly.
  4. The personal representative shall hold aside sufficient funds or other assets to pay each contested or unmatured claim (or the proper ratable portion thereof, as the case may be) with interest (if the claim be one bearing interest), until it is determined whether or not the claim is to be paid, or until an unmatured claim has reached maturity, also sufficient assets to meet the expenses of pending litigation and costs of court and any unpaid taxes.

Code 1858, § 2250 (deriv. Acts 1786, ch. 4, § 2); Shan., § 3983; mod. Code 1932, § 8195; Acts 1939, ch. 175, § 4; 1947, ch. 137, § 1; C. Supp. 1950, § 8196.5 (Williams, § 8196.4); Acts 1971, ch. 229, § 5; T.C.A. (orig. ed.), § 30-520; Acts 1997, ch. 426, § 7; 2001, ch. 400, § 1; 2006, ch. 639, § 2; 2014, ch. 883, § 2.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that this section shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Cross-References. Disbursement of decedent's shares or assets in possession of credit union, § 45-4-405.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 785, 788, 789, 841, 907, 1144.

Law Reviews.

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707 (1978).

NOTES TO DECISIONS

1. Construction with Other Acts.

Provision of Public Acts 1937, ch. 49, § 12 providing a lien in favor of state for amount of public welfare paid deceased after payment of funeral expenses and expenses of administration was not repealed by Acts 1939, ch. 175, § 4 (compiled as this section and § 30-2-318) providing priority of claims and listing various classes, since 1939 Act was general and the Act of 1937 was special. State v. Smith, 194 Tenn. 582, 253 S.W.2d 758, 1952 Tenn. LEXIS 424 (1952).

Where under Uniform Trust Receipts Law, entruster was entitled to lien on general assets of trustee for value of unidentified proceeds from sale of property subject to trust receipt within 10 days of demand for accounting, entruster's lien was not affected by subsequent death of trustee or insolvency of his estate or by the provisions of this section fixing order of preference of demands against decedents' estates. Commerce Union Bank v. Alexander, 44 Tenn. App. 104, 312 S.W.2d 611, 1957 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1957).

2. Administrative Expenses — Attorney Fees.

While administrative expenses incurred by the administrator as personal representative for the preservation of the estate may be credited on the accounts of the administrator on settlement, subject to the approval of the court, they are not allowed as a debt against the estate but only as a part of the administrator's expense account allowable on settlement. State ex rel. Dahlberg v. American Surety Co., 173 Tenn. 505, 121 S.W.2d 546, 1938 Tenn. LEXIS 35 (1938).

When a suit for the construction of a will brought by a prospective beneficiary inures to the benefit of the estate, the attorney for the complainant is entitled to a reasonable fee payable by the estate; however, when the suit is brought for the benefit of the beneficiary, and has as its objective the defeat of the testator's intent, the complainant's attorney has no right to compensation from the estate. First American Nat'l Bank v. Charlton, 557 S.W.2d 500, 1977 Tenn. LEXIS 676 (Tenn. 1977).

Trial court did not abuse its discretion in awarding an estate's attorney compensation for his services because his services were necessary and beneficial to the estate; all of the lesser beneficiaries were paid their dollar amounts, distributions were made to the main beneficiaries, deeds were drawn to facilitate matters, and the attorney remained in constant contact with the executrix. In re Estate of Abbott, — S.W.3d —, 2013 Tenn. App. LEXIS 816 (Tenn. Ct. App. Dec. 18, 2013).

Remand was necessary because the conservatorship court improperly transferred to the probate court motions for attorney's fees without making necessary findings of fact and improperly closed the conservatorship without making findings of fact concerning the objections to the final accounting. In re Hudson, 578 S.W.3d 896, 2018 Tenn. App. LEXIS 458 (Tenn. Ct. App. Aug. 10, 2018).

3. —Expenses of Nominee Who Does Not Qualify.

Person nominated as executor in will was entitled to reimbursement for attorney's fees and other expenses incurred in defending will contests and injunction suit even though he did not qualify as executor and had no final accounting to make against which the disbursements could be credited. In re Estate of Lewis, 45 Tenn. App. 651, 325 S.W.2d 647, 1958 Tenn. App. LEXIS 143 (Tenn. Ct. App. 1959).

4. —Compensation of Personal Representative.

The personal representative of an estate is entitled to reasonable compensation. In re Estate of Roark, 829 S.W.2d 688, 1991 Tenn. App. LEXIS 867 (Tenn. Ct. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 228 (Tenn. Mar. 9, 1992).

Fee the trial court awarded an executrix did not exceed reasonable limits because the executrix promptly and faithfully discharged her duties, and the services she provided were reasonable, appropriate, and inured to the estate's benefit; throughout the administration of the estate, the executrix's actions were in good faith. In re Estate of Abbott, — S.W.3d —, 2013 Tenn. App. LEXIS 816 (Tenn. Ct. App. Dec. 18, 2013).

Trial court did not err in holding that an executor's fees were properly paid by the estate so long as the fees were reasonable and necessary because any assertion that the trial court erred in finding that all of the attorney's fees inured to the benefit of the estate, despite the attorneys also representing the individual parties, was waived; a beneficiary failed to include the appropriate citations in the argument section of her brief. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

Trial court did not err in holding that an executor's fees were properly paid by the estate so long as the fees were reasonable and necessary because the executor completely prevailed against a beneficiary in her claim that the executor breached his fiduciary duty or otherwise acted inappropriately; the trial court specifically found that the beneficiary's actions, rather than the actions of the executor, were the root of the litigation. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

5. —Accountant's Services.

The employment of an accountant for the benefit of an estate could be equated to the employment of an attorney. Perlberg v. Jahn, 773 S.W.2d 925, 1989 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1989).

6. Tax Claims.

County trustee is not required to file a claim for taxes. Hamilton Nat'l Bank v. Richardson, 42 Tenn. App. 486, 304 S.W.2d 504, 1957 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1957).

Administrator was liable for back taxes assessed against estate where administrator had notice of such assessments notwithstanding compromise with county attorney which was made without authority. Hamilton Nat'l Bank v. Richardson, 42 Tenn. App. 486, 304 S.W.2d 504, 1957 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1957).

Where, although estate was insolvent, there were sufficient funds in estate for payment of federal estate and state inheritance taxes and will provided that such taxes were to be considered a debt against estate and not a charge against any beneficiary, proceeds of deceased husband's life insurance would not be subjected to prorate allocation for such taxes as between the beneficiary children. Wolfe v. Mid-Continent Corp., 222 Tenn. 348, 435 S.W.2d 836, 1968 Tenn. LEXIS 436 (1968).

Under the law of the case doctrine, the appellate court was bound to treat the receiver's case against the estate as a claim against the estate in the second appeal; the Claims Act, T.C.A. § 30-2-306 et seq., and the Federal Insolvency Act, 31 U.S.C. § 3713, gave priority to claims filed by the United States when the estate of a decedent was insolvent; under both the federal and state statutes, the claim of the IRS would have priority over the claim of the receiver. In re Estate of Ford, 207 S.W.3d 758, 2006 Tenn. App. LEXIS 299 (Tenn. Ct. App. 2006), appeal denied, — S.W 3d —, 2006 Tenn. LEXIS 883 (Tenn. 2006).

7. Retainer Rights of Personal Representative.

8. —When and How Exercised.

The administrator had a personal obligation for services rendered to him as administrator, but he was permitted to discharge his personal obligation by making payment out of the assets of the estate. Western Surety Co. v. Wilson, 484 S.W.2d 45, 1972 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1972).

9. Bureau of TennCare Reimbursement.

Chancery court properly concluded the Bureau of TennCare was entitled to use real property in a decedent's revocable trust to satisfy a claim against the estate for medical benefits, T.C.A. § 71-5-116(c)(1), because any property that could be reached by the personal representative pursuant to T.C.A. § 35-15-505 for the payment of the debts of an insolvent estate could be reached by the probate court for the purpose of reimbursing the Bureau. In re Estate of Stidham, 438 S.W.3d 535, 2012 Tenn. App. LEXIS 584 (Tenn. Ct. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 910 (Tenn. Dec. 12, 2012).

Collateral References.

Amount of funeral expenses allowable against decedent's estate. 4 A.L.R.2d 995.

Expense of preserving assets before appointment of executor or administrator as entitled to priority. 108 A.L.R. 393.

Expense of removing and reinterring remains as a funeral expense. 40 A.L.R. 1459.

Foreclosure decree which ascertains amount of mortgage debt or other claim as judgment within statute relating to rank of claims against decedent's estate. 57 A.L.R. 489.

Foreign judgment, or judgment of sister state, rendered in lifetime of debtor, rank of, in settlement of debtor's estate after his death. 128 A.L.R. 1400.

Guardianship, priority in event of incompetent's death of claims incurred during, over other claims against estate. 113 A.L.R. 402.

Judgment against executor or administrator, or levy of attachment or execution against him, as affecting rank of creditor's claim against estate of his rights in respect of property of estate. 121 A.L.R. 656.

Liability of estate for legal services of attorney employed by estate attorney without consent of executor or administrator. 83 A.L.R.3d 1160.

Personal claim of executor or administrator against estate, antedating death of decedent. 144 A.L.R. 953.

Personal credit, when funeral expenses deemed ordered on, rather than on credit of estate. 30 A.L.R. 444.

Priority of payment of funeral expenses of life beneficiary or life tenant out of corpus or estate under instrument providing for invasion of corpus or estate for support of such person. 18 A.L.R.2d 1236.

Priority on distribution to claims for wages of servants, employees, or the like. 52 A.L.R.3d 940.

Priority received by creditors as regards ancillary assets of decedent's estate as giving them status of secured creditors so as to prevent reducing their claim upon distribution in the domiciliary jurisdiction so as to effect ultimate equality among creditors. 92 A.L.R. 596, 127 A.L.R. 504.

Refund of state inheritance or estate tax where claims are proven against estate after tax was paid. 63 A.L.R.3d 924.

Rent accruing under lease after death of lessee as preferred claim or cost of administration. 22 A.L.R.3d 814.

Right of coexecutor or cotrustee to retain independent legal counsel. 66 A.L.R.2d 1169.

State's prerogative right of preference at common law. 51 A.L.R. 1355, 65 A.L.R. 1331, 90 A.L.R. 184, 167 A.L.R. 640.

Stockholders' superadded liability, rank or preference of claim against insolvent estate in respect of. 92 A.L.R. 1040.

Tombstone or monument as a proper charge against estate of decedent. 121 A.L.R. 1103.

Trustee or fiduciary, statutory provisions as to classification or priority of claims against decedent's estate in respect of. 92 A.L.R. 1040.

Vendor under executory contract for sale of land as preferred creditor in case of vendee's death. 35 A.L.R. 929.

30-2-318. Payment of claims prior to time fixed for payment.

  1. At any time prior to the expiration of the period fixed for the payment of claims, the personal representative may pay the preferred claims as provided in § 30-2-317 for which the estate may be liable, and upon order of court any debt of the decedent for which security may have been given that is in danger of being sold by way of foreclosure to the detriment of the estate.
  2. If the executor or administrator knows or is willing to undertake that an estate is solvent, the executor or administrator may pay debts, but if the executor or administrator pays any debts other than those specified in subsection (a) prior to the expiration of the time fixed for the payment of claims, and the estate proves insolvent, the executor or administrator and the sureties of the executor or administrator shall be liable to each and every creditor for the creditor's ratable share of the insolvent estate.

Code 1858, § 2325 (deriv. Acts 1851-1852, ch. 283, § 1); Shan., § 4064; mod. Code 1932, § 8260; modified; Acts 1939, ch. 175, § 4; C. Supp. 1950, § 8196.5 (Williams, § 8196.4); T.C.A. (orig. ed.), §§ 30-521, 30-522.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 747, 786, 789.

NOTES TO DECISIONS

1. Wrongful Payments by Administrator.

The administrator and his sureties are liable for the pro rata due a creditor where the administrator has voluntarily exhausted the assets in paying the other creditors in full, with a knowledge of the unpaid debt. Such liability may be enforced by a suit brought within the time limited for establishing claims against the estate. Rice v. Hunt, 75 Tenn. 33, 1881 Tenn. LEXIS 70 (1881).

2. Remedies of Representative Making Wrongful Payments.

Where the administrator, believing the estate to be solvent, paid a number of the creditors in full, taking from each of them a separate obligation to refund the excess over the pro rata of his claim, if the estate should prove to be insolvent, and to hold the administrator harmless for making the payment, and the estate is about to be wound up as an insolvent estate by a bill filed in chancery, the administrator may maintain a bill in the chancery court, and in the county of the administration, against all of the overpaid creditors, some of whom reside or are found in that county, though some of them reside in other counties and are not found in that county, for an account to ascertain the pro rata on their claims, and to recover the excess over such pro rata. Hatcher v. Royster, 82 Tenn. 222, 1884 Tenn. LEXIS 122 (1884).

Creditors, paid in full after suggestion of insolvency, may be compelled in equity to restore the excess above their respective pro ratas. Donnell v. McCullough, 152 Tenn. 594, 280 S.W. 34, 1925 Tenn. LEXIS 106 (1926).

Collateral References.

Depreciation of assets of decedent's estate after partial distribution of estate, leaving insufficient funds to pay creditors. 114 A.L.R. 463.

30-2-319. Time for payment of claims.

All uncontested claims and all contested claims that have been finally adjudged and allowed shall be paid by the personal representative as soon as practicable (not in any event to exceed ninety (90) days) after the expiration of the date on which the personal representative could file an exception to the claim pursuant to § 30-2-314(a), if, after having segregated sufficient assets to meet the contingent liabilities referred to in § 30-2-317, adequate assets are in the personal representative's hands for this purpose, payment being made according to the classification of the claims.

Acts 1939, ch. 175, § 4; 1941, ch. 62, § 1; 1947, ch. 137, § 4; C. Supp. 1950, § 8196.5 (Williams, § 8196.4); Acts 1971, ch. 229, § 6; T.C.A. (orig. ed.), § 30-523; Acts 1997, ch. 426, § 8; 2012, ch. 886, § 7.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendments to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Cross-References. Early payment of claims, § 30-2-318.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 788, 1144.

Collateral References.

Presumption of payment from possession by debtor as administrator to creditor, of paper evidencing obligation. 70 A.L.R. 879, 156 A.L.R. 777.

Relation back of letters testamentary or of administration to cover payment of debts and legacies before letters are granted. 26 A.L.R. 1366.

Renewal note made or indorsed by personal representative of obligor in original paper as payment or novation of that paper. 12 A.L.R. 1546.

30-2-320. Pending actions considered legally filed demands — Manner of revival.

All actions pending against any person at the time of that person's death, that by law may survive against the personal representative, shall be considered demands legally filed against the estate at the time of the filing with the clerk of the court in which the estate is being administered of a copy in duplicate of the order of revivor, one (1) of which copies shall be certified or attested, a notation of which shall be entered by the clerk in the record of claims, as in the case of other claims filed. Pending actions not so revived against the personal representative within the period prescribed in § 30-2-307(a) shall abate.

Acts 1939, ch. 175, § 5; 1947, ch. 137, § 1; C. Supp. 1950, § 8196.6 (Williams, § 8196.5); Acts 1971, ch. 229, § 7; T.C.A. (orig. ed.), § 30-524; Acts 1989, ch. 395, § 8.

Cross-References. Order of substitution of parties, Tenn. R. Civ. P. 25.

Revivor of actions generally, title 20, ch. 5, Tenn. R. Civ. P. 25.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 711, 713, 753, 766, 784, 859.

Law Reviews.

Administration of Estates — Revival of Actions — Time Limitations, 36 Tenn. L. Rev. 804 (1969).

NOTES TO DECISIONS

1. Applicability.

Where plaintiff's action for declaratory judgment is a claim against the estate, and is not an action in tort against the decedent, and does not seek unliquidated damages, plaintiff must comply with the requirements of this section. Wunderlich v. Fortas, 776 S.W.2d 953, 1989 Tenn. App. LEXIS 269 (Tenn. Ct. App. 1989).

Where a bankruptcy trustee failed to file an order of substitution as required under this section after defendant died and administrator of defendant's estate was substituted as party defendant in an adversary proceeding, the bankruptcy court still retained jurisdiction because an order of substitution is not required by Federal Rules of Civil Procedure 25. DuVoisin v. Coker (In re Southern Indus. Banking Corp.), 125 B.R. 517, 1991 Bankr. LEXIS 438 (Bankr. E.D. Tenn. 1991).

This section does not apply to claims already reduced to judgment. In re Estate of Lucas, 844 S.W.2d 627, 1992 Tenn. App. LEXIS 561 (Tenn. Ct. App. 1992).

2. Jurisdiction.

Although estate did not bring motion to dismiss for lack of subject matter jurisdiction until after the trial, final judgment, posttrial motions and rulings thereon, estate's delay was not a waiver of court's lack of jurisdiction. Subject matter jurisdiction may never be waived and its sufficiency may be challenged at any stage of the proceedings. Wunderlich v. Fortas, 776 S.W.2d 953, 1989 Tenn. App. LEXIS 269 (Tenn. Ct. App. 1989).

3. Statute of Limitations.

In action against defendant by insured's estate and mortgages where defendant counterclaimed, alleging intentional burning on part of insured, motion of plaintiff to dismiss such counterclaim under this section was overruled because of action of plaintiff in delaying more than a year before making her motion to file and amend her reply to counterclaim. Smith v. Insurance Co. of North America, 30 F.R.D. 540, 1962 U.S. Dist. LEXIS 6023 (M.D. Tenn. 1962).

Where a pending action against a decedent is revived a copy of the order of revivor must be filed with the probate court clerk within the nine (now six) month period. Windsor Hosiery Mills, Inc. v. Haren, 222 Tenn. 479, 437 S.W.2d 248, 1969 Tenn. LEXIS 491 (1969).

4. Requisites to Revivor.

Not only must the suit be revived in the court where pending but a copy of the order of revivor must be filed with the probate clerk within the nine (now six) month period. Windsor Hosiery Mills, Inc. v. Haren, 222 Tenn. 479, 437 S.W.2d 248, 1969 Tenn. LEXIS 491 (1969).

Any references in this section, or in any other part of the code, to an “order of revivor” shall be construed as references to an order of substitution of parties under Tenn. R. Civ. P. 25. Revivor of an action therefore requires first, entering an order of substitution of parties, and second, filing a copy of that order with the clerk of the court in which the estate of the deceased party is being administered. Mid-South Pavers, Inc. v. Arnco Constr., Inc., 771 S.W.2d 420, 1989 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1989).

5. Penal Judgment Abated by Death.

Penal judgment for a fine imposed by the United States was abated by the convict's death. United States v. Noel, 609 S.W.2d 740, 1980 Tenn. App. LEXIS 390 (Tenn. Ct. App. 1980).

6. Tort Actions.

Actions alleging violations of federal securities laws are in the nature of tort actions, and tort claimants are not included in the class of creditors for revival of action purposes; the proper procedure in tort actions is to put the probate court on notice by filing a copy of the complaint. Estate of Patten v. Batchelor, 664 S.W.2d 698, 1983 Tenn. App. LEXIS 637 (Tenn. Ct. App. 1983).

7. Order of Revivor.

The order of revivor mentioned in this section has been construed to mean an order of substitution under Tenn. R. Civ. P. 25. DuVoisin v. Coker (In re Southern Indus. Banking Corp.), 125 B.R. 517, 1991 Bankr. LEXIS 438 (Bankr. E.D. Tenn. 1991).

30-2-321. Computation of time.

Wherever in this title any period of time is required to be computed from the date of the notice to creditors, the computation shall be made from the date of the first publication of the notice, in case of published notices, or from the date of the posting of the notice, in case of posted notices, as shown by the filed proof of the publication or of the posting of the notices as required by § 30-2-306.

Acts 1939, ch. 175, § 9; C. Supp. 1950, § 8196.12 (Williams, § 8196.9); T.C.A. (orig. ed.), § 30-525.

Cross-References. Computation of time, § 1-3-102.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 757, 768, 780.

30-2-322. Continuance of decedent's business.

    1. The probate court of the county of the decedent's residence at the time of decease, when not contrary to the decedent's will, if any, may authorize the personal representative to continue the business of the decedent upon such conditions as it may impose, for an original period not exceeding nine (9) months from the date of the executor's or administrator's appointment. This authority may be granted upon such notice as the court considers reasonable, or without prior notice, either at the time of the qualification of the personal representative, if the petition for appointment contains a prayer therefor, or thereafter during the period of administration.
    2. If, prior to the granting of this authority, notice has not been given to all parties in interest, it shall be given within five (5) days thereafter, or within such extended time as the court, for cause shown shall allow, in a manner and for a period considered reasonable by the court.
    3. The court, for cause shown, and upon such notice as it considers reasonable, may extend this authority beyond nine (9) months.
  1. Any party in interest may, at any time, petition the court to revoke or modify an order granting authority to the personal representative to continue a decedent's business.

Acts 1955, ch. 138, §§ 1, 2; T.C.A., §§ 30-526, 30-527.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 683, 718, 1016.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Wills and Fiduciary Powers (Robert L. McMurray), 31 Tenn. L. Rev. 191 (1964).

Collateral References.

Preference or priority of claims arising out of continuation of decedent's business by personal representative. 83 A.L.R.2d 1406.

30-2-323. Advances for property maintenance expenses.

Unless contrary to the decedent's will, the personal representative of the estate is authorized, but not required, to advance or to pay as an expense of administration for a period of up to four (4) months after the decedent's death the reasonable costs of routine upkeep of any real property passing under the will of the decedent or by intestate succession. These authorized expenditures, which may be made in the personal representative's discretion, shall include those for utility services, day-to-day maintenance, lawn service, and insurance premiums but shall not include mortgage note payments, real estate taxes, major repairs or other extraordinary expenses. None of the foregoing limitations shall apply to any real property that is actually part of the probate estate being administered.

Acts 1997, ch. 426, § 9.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that this section shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Law Reviews.

Vesting of Title in Probate Estate: The Curious Meaning of Words (Dan Holbrook), 38 No. 12 Tenn. B.J. 26 (2002).

NOTES TO DECISIONS

1. Compliance.

Personal representative was entitled to payments from estate funds for utilities, repairs, and maintenance of a particular residential property because title to the property was transferred from a corporation, which the decedent wholly owned, to the decedent's estate so that the property was owned by the estate until title was later transferred to the decedent's beneficiaries and the personal representative acted properly to preserve and maintain the residential property while it was owned by the estate. In re Estate of McCants, — S.W.3d —, 2018 Tenn. App. LEXIS 378 (Tenn. Ct. App. July 2, 2018).

30-2-324. Dismissing probate case without prejudice after notice.

  1. After notice has been sent to the last known address of the personal representative of the estate, the attorney for the estate and any beneficiaries of the estate, the court may enter an order, without liability to the clerk of the county of administration, dismissing, without prejudice, a probate case if:
    1. No order of disposition has been entered;
    2. The case has been open for a period of time in which disposition could have occurred, but in no event less than eighteen (18) months from the order opening the estate; and
    3. The administration of the estate remains incomplete.
  2. A dismissal pursuant to this section shall only operate to close the administration and not invalidate any previous order of the court in the proceeding.

Acts 2011, ch. 417, § 2.

Part 4
Sale of Land to Pay Debts

30-2-401. Jurisdiction to sell realty — Procedure.

The probate court shall have concurrent jurisdiction with the chancery and circuit courts to sell real estate of decedents and for distribution or partition, and the mode of procedure in such a case in the probate court shall conform in every respect to the rules and regulations laid down for the conduct of similar causes in the chancery and circuit courts.

Acts 1873, ch. 64, §§ 1, 2; Shan., § 4067; Code 1932, § 8263; T.C.A. (orig. ed.), § 30-601.

Cross-References. Execution of contract to convey by representative, title 66, ch. 4, part 1.

Exemption of functions of executors or administrators, from real estate brokers' licensing law, § 62-13-104.

Judicial power to decree sale, § 16-1-107.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

“Real estate” defined, § 1-3-105.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 614.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1111, 4-1202, 4-1203.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189 (1978).

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

NOTES TO DECISIONS

1. Jurisdiction of Court.

Where the probate court first obtains jurisdiction of a suit to sell lands to pay the debts of a decedent, in a case where its jurisdiction is concurrent, it will retain its jurisdiction to the exclusion of the chancery court. Rhea v. Meridith, 74 Tenn. 605, 1880 Tenn. LEXIS 302 (1880).

2. Appeal.

The statute did not affect the question as to appeal from decree of sale of probate court under an insolvency bill to sell land to pay debts where the probate court proceeded according to the forms of chancery. Key v. Harris, 116 Tenn. 161, 92 S.W. 235, 1905 Tenn. LEXIS 15 (1905).

3. Contingent Remainder.

A contingent remainder interest is not subject to execution and sale by a judgment creditor. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

4. Sale of Real Property.

Trial court properly ordered the personal representative (PR) to sell a portion of the decedent's real property sufficient to fund the annuities bequeathed to his daughters, the beneficiaries, because the gifts of the annuities to the beneficiaries were charges on the residuary estate consisting of both the decedent's personal property and real property; no rule of law or public policy contravened the intent of the decedent that the annuities he left to the beneficiaries be funded by his estate, which included his real property; the probate court had jurisdiction to sell the decedent's real property; and the PR could use the decedent's real property to satisfy the obligations of the decedent when the personal property was insufficient. In re Estate of Nichols, — S.W.3d —, 2018 Tenn. App. LEXIS 156 (Tenn. Ct. App. Mar. 22, 2018).

Collateral References.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator's death. 7 A.L.R.4th 989.

Relation back of letters testamentary or of administration as validating prior sales of decedent's property. 2 A.L.R.3d 1105.

30-2-402. Petition in court of administration for sale of realty — Procedure.

  1. If the personal property available appears to be insufficient to pay debts and expenses, the personal representative, or a creditor whose claim is duly filed, may, at any time, file a petition in the court in which the estate is being administered, for the sale of the decedent's land, or so much of the land as may be necessary, regardless of the county in which the land lies; provided, if all of the land to be sold lies outside of the county of administration, the sale shall be held in the county in which such land lies upon such notice as may be prescribed by the court and the clerk shall file for record in the office of the register of deeds in the county where the land lies a certified copy of the decree confirming the sale or deed thereto and charge the expenses of sale and cost of recording as a part of the costs of the cause.
    1. The surviving spouse, heirs, devisees, encumbrancers, and others interested in the realty, excepting creditors, shall be impleaded.
    2. No preliminary formal suggestions of insolvency need be made, nor advertisement for creditors other than that already made under the requirements of § 30-2-306.
    3. Nothing in the proceeding nor in any decree made in the proceeding, shall change the manner or affect the time for filing claims as provided in § 30-2-307.
    4. Hearings may be upon oral testimony.
    5. The court shall have the same powers as a court of chancery in like cases, and the mode of procedure, except as modified in this section, shall follow that prescribed for the conduct of such causes in chancery.
  2. If, upon the hearing, the court is satisfied that the personal estate is insufficient as mentioned in subsection (a), and that the land ought to be sold, it may decree the sale of the land in whole or in part, subject to subsequent confirmation by the court. The court is also empowered, in a like proceeding, to ratify contracts of private sale and to authorize the consummation of the contracts by the personal representative. Every deed made pursuant to such orders of court, whether issued as the result of a public or a private sale, and every decree of court divesting and vesting title shall be effective to divest all the right, title and interest, legal and equitable, in the property sold, and vest the title and interest in the purchaser.
  3. The heir or devisee whose land shall be sold has the privilege, either in this cause or by subsequent application, to compel all others holding or claiming under the decedent to contribute in proportion to their respective interests for the purpose of equalizing the burden of the loss.
  4. Nothing in subsections (a)-(d) shall be construed as divesting the jurisdiction or powers now possessed by the chancery court in respect of the administration of insolvent estates of decedents.

Acts 1939, ch. 175, § 8; 1943, ch. 24, § 1; C. Supp. 1950, § 8196.11 (Williams, § 8196.8); Acts 1957, ch. 395, § 1; T.C.A. (orig. ed.), § 30-602.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 39, 614, 767, 849, 850, 852, 854, 879-885, 887, 889, 890, 892, 896, 907, 1107, 1108, 1110.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1111, 4-1203.

Law Reviews.

Husband and Wife — Estate by Entirety Liable for Debts, 8 Tenn. L. Rev. 60 (1930).

Some Aspects of Estate Planning in Tennessee (Alec Brock Stevenson), 2 Vand. L. Rev. 265 (1949).

The Tennessee Court System — Probate Courts, 8 Mem. St. U.L. Rev. 461 (1978).

Value definition clauses: The basics (Dan W. Holbrook), 37 No. 3 Tenn. B.J. 33 (2001).

NOTES TO DECISIONS

1. Purpose.

The purpose of the requirement as to interpleading is to protect the purchaser by making all parties in interest defendants in suit to sell land. Bowling v. Minton, 193 Tenn. 141, 244 S.W.2d 998, 1951 Tenn. LEXIS 338 (1951).

2. Validity.

Objection that this section enlarges the jurisdiction of the county court so that it may administer insolvent estates of more than $1,000 in value including the sale of land for debts was without merit where no valid reason appeared why the legislature might not so provide. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

3. Application.

This section has exclusive application to the administration of insolvent estates in the probate court. Motlow Milling Co. v. Warterfield, 178 Tenn. 634, 162 S.W.2d 378, 1942 Tenn. LEXIS 2 (1942).

4. —Effect on Other Sections.

This section does not repeal §§ 30-5-10230-5-104 and the suggestion of insolvency in the probate court is an essential prerequisite to the filing of a bill to administer the insolvent estate in chancery. Motlow Milling Co. v. Warterfield, 178 Tenn. 634, 162 S.W.2d 378, 1942 Tenn. LEXIS 2 (1942).

5. Jurisdiction.

This section confers jurisdiction upon the probate court to sell land of decedent where there are no personal assets to pay his debts. Miller v. Woodruff, 177 Tenn. 486, 151 S.W.2d 159, 1941 Tenn. LEXIS 18 (1941).

In case of insolvent estates the probate court has concurrent jurisdiction with the chancery court to sell lands of decedent to pay his debts. Commerce Union Bank v. Alexander, 44 Tenn. App. 104, 312 S.W.2d 611, 1957 Tenn. App. LEXIS 153 (Tenn. Ct. App. 1957).

6. Parties.

All persons having title or interest in the lands sought to be reached must be made parties to the suit. Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882).

The statement that the “surviving spouse, heirs, devisees, encumbrancers and others interested … shall be impleaded” is simply a provision that all parties in interest shall be made parties to the suit and all parties in interest should be made defendants in a suit to sell land in order that it would bring its full value, to protect the purchaser and to fix and determine the rights involved, but this does not mean that the heirs are allowed to relitigate claims determined by judicial action. Bowling v. Minton, 193 Tenn. 141, 244 S.W.2d 998, 1951 Tenn. LEXIS 338 (1951).

That an executor has an interest in real estate sufficient to seek a sale thereof when the personal assets are insufficient is clearly established by this section. Burleson v. McCrary, 753 S.W.2d 349, 1988 Tenn. LEXIS 132 (Tenn. 1988).

7. Hearing.

Where petition is filed in probate court for the sale of land to pay debts hearings thereon may be had upon oral testimony. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

8. Right to Make Defense.

Where a creditor files suit in chancery to subject the intestate's real estate to the satisfaction of a claim filed in the probate court, the heir cannot make defense thereto when the time for filing exceptions has expired. Bowling v. Minton, 193 Tenn. 141, 244 S.W.2d 998, 1951 Tenn. LEXIS 338 (1951).

9. Appeal.

Where the petition is filed in the probate court for the sale of lands to pay debts and hearings are had on oral testimony, appeal will lie direct to the Court of Appeals or the Supreme Court as the case may be. Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156 S.W.2d 425, 1939 Tenn. LEXIS 4 (1940).

Proceedings relating (1) to the filing and proving of claims, etc., and (2) to the sale of real estate of the decedent are distinct and independent, and in the first case appeals lie to the circuit court and the second to the Court of Appeals or the Supreme Court. Walker v. Gambill, 181 Tenn. 38, 178 S.W.2d 390, 1944 Tenn. LEXIS 343 (1944).

Collateral References.

Bond of executor or administrator, liability on, for proceeds of private or unauthorized sale of real property. 104 A.L.R. 205.

Burial lot owned by deceased, right of personal representative or heir to sell. 76 A.L.R. 1371.

Caveat emptor, doctrine of, as applied to purchaser at executor's sale. 68 A.L.R. 671.

Champerty rule as applicable to executor's sale or to conveyance by person claiming thereunder. 71 A.L.R. 597.

Cloud on title, unauthorized or fraudulent conveyance by administrator or executor as. 78 A.L.R. 240.

Commissions of executor or administrator or expenses of administration, power to sell decedent's real estate to pay. 95 A.L.R. 1143.

Conditional bid at sale by administrator or executor. 104 A.L.R. 633.

Confirmation, conclusiveness on purchaser of provisions of order or decree of, regarding terms and conditions. 95 A.L.R. 1492.

Corporation of which he is an officer or stockholder, sale to, by executor or administrator as voidable or as ground for surcharging his account. 105 A.L.R. 451.

Estoppel of executor or administrator by failure to disclose his interest in real property. 50 A.L.R. 962.

Estoppel to deny authority of administrator to sell property by failure to disclose one's interest therein. 50 A.L.R. 811.

Homestead, order directing or confirming sale of, for payment of debts as subject to collateral attack. 66 A.L.R. 926.

Interlocutory mandatory injunction to secure possession. 32 A.L.R. 916, 15 A.L.R.2d 213.

Legacy charged upon real estate, right of legatee to enforce payment of, as against purchaser from personal representative of devisee or testator. 116 A.L.R. 7, 134 A.L.R. 361.

Life tenant given possession of property, right or duty of executor or administrator to require security from. 138 A.L.R. 443.

Marketability of title, conveyance by personal representative as affecting. 57 A.L.R. 1496, 81 A.L.R.2d 1020.

Mortgagee's purchase of mortgaged property at sale by personal representative of deceased mortgagor as affecting his right to personal judgment for mortgage debt. 95 A.L.R. 97.

Partition of real property, right of executor or administrator to bring proceedings for. 57 A.L.R. 573.

Personal property, treating as, for purposes of administration, real property acquired by executor or administrator upon foreclosure or other enforcement of mortgage or other lien against it in favor of decedent. 110 A.L.R. 1397.

Power of executor or trustee with power to sell or to lease real property, or to do both, to give an option to purchase. 83 A.L.R.2d 1310.

Right of devisee of real estate specifically devised but subject to mortgage to contribution or other relief from specific devisee of other property. 72 A.L.R.2d 383.

Validity of conveyance of property of deceased person before letters testamentary or of administration were granted to the vendor. 26 A.L.R. 1364.

30-2-403. Petition in equity for sale of realty by chancery, circuit, or probate court in county where land lies.

  1. Where an executor not authorized by will to sell and convey real estate, or an administrator, has exhausted the personal estate of the deceased in the payment of the deceased's debts, leaving just debts or demands against the deceased unpaid, or paid by the representative out of the representative's own means, and the deceased died seized and possessed of real estate, the chancery, circuit, or probate court of the county where the real estate or a portion of it lies, may, on the petition of the personal representative, or any bona fide creditor whose debt remains unpaid, decree the sale of those lands, or of such portions of the lands as may prove least injurious to the heirs and legal representatives, and as may be sufficient to satisfy the debts or demands set forth in the bill or petition, and shown to exist.
  2. This proceeding may be had in any county where any portion of the land lies, and the court may decree a sale of any lands in any county.

Code 1858, §§ 2267, 2270 (deriv. Acts 1827, ch. 54, § 4; 1831, ch. 22, § 1); 1847-1848, ch. 170, § 1; Shan., §§ 4000, 4003; Code 1932, §§ 8213, 8216; T.C.A. (orig. ed.), §§ 30-603, 30-606.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 121, 434.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 39, 614, 850, 867-870.

Tennessee Jurisprudence, 12 Tenn. Juris., Executors and Administrators, §§ 53-55; 16 Tenn. Juris., Judicial Sales, § 5; 18 Tenn. Juris., Marshaling Decedents' Estates, §§ 2, 3, 7; 25 Tenn. Juris., Witnesses, § 22.

Law Reviews.

Pleadings, Motions and Pre-Trial Procedure, 4 Mem. St. U.L. Rev. 219 (1974).

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

NOTES TO DECISIONS

1. Construction.

The statute should be liberally construed, in order to attain the end designed. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872).

This statute does not change the law as established by statute and decisions, protecting bona fide purchasers from the heirs or devisees. Smith v. Heirs & Creditors of Thomas, 82 Tenn. 324, 1884 Tenn. LEXIS 130 (1884).

2. Purpose.

The reason and policy of the statute are stated to be: (1) To prevent accumulation of costs by numerous separate suits at law against the personal representative and separate scire facias proceedings to subject the lands; (2) to prevent the consumption of the real estate by a portion only of the creditors to the entire deprivation of the others; (3) to prevent sacrifice of the estate in satisfying the first few judgments that might be obtained against the personal representative and against the land; (4) to authorize the court, which had an account of all the debts before it, and an exact knowledge of the character, description, and probable value of the estate, to take the land into the custody of the court, and direct its sale for the benefit of all, under such circumstances as would insure the best price. Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872); Vance v. Sanders, 67 Tenn. 294, 1874 Tenn. LEXIS 376 (1874); Moses v. Moses, 1 Shan. 414 (1875); Kyle v. Kyle, 2 Shan. 380 (1877); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Bashaw v. Temple, 115 Tenn. 596, 91 S.W. 202, 1905 Tenn. LEXIS 93 (1906).

3. Effect on Previous Statutes.

The statute in these sections does not repeal the previous statutes providing a remedy at law by scire facias, but provides an additional remedy, by which such proceeding at law may be enjoyed. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872); Kyle v. Kyle, 2 Shan. 380 (1877).

4. Nature and Extent of Remedy.

These statutory provisions include all such debts as, in the course of the investigation originated by the bill, may be shown to exist, whether mentioned in the bill or not. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Vance v. Sanders, 67 Tenn. 294, 1874 Tenn. LEXIS 376 (1874); Griffith v. Philips, 77 Tenn. 417, 1882 Tenn. LEXIS 77 (1882); Doherty v. Choate, 84 Tenn. 192, 1885 Tenn. LEXIS 136 (1885).

A bill filed in chancery by a creditor of a decedent's estate to compel the collection of a debt due the estate, and secured by a vendor's lien on land sold by the deceased, upon the ground that such personal asset is endangered by the negligent or collusive conduct of the administrator in refusing to collect the debt, is not a bill under this section. Kelley v. Kelley, 83 Tenn. 194, 1885 Tenn. LEXIS 41 (1885).

The proceeding under this statute is different in inception and scope from proceedings under § 30-5-101 providing for removal of insolvent estates into chancery, though the two have the same general object. Proceedings under this section are not removed from the probate court, where a complete administration of the personal estate is contemplated. Arnold v. Burks, 157 Tenn. 18, 5 S.W.2d 633, 1927 Tenn. LEXIS 44 (1928).

Where it is sought to have surplus proceeds of mortgage foreclosure sale applied to payment of sum due foreign administrator as compensation and his attorney's fees, lands in this state may not be charged therefor, and in attempting to enforce such charges the local personal representative is a necessary party. Fidelity Mut. Life Ins. Co. v. Wall, 167 Tenn. 207, 68 S.W.2d 108, 1933 Tenn. LEXIS 27 (1934).

5. Form of Proceeding.

The mode of procedure in suits in circuit court for sale of land must in all respects be according to the practice and course of the chancery court. Whitmore v. Johnson's Heirs, 29 Tenn. 610, 1850 Tenn. LEXIS 41 (1850).

6. Jurisdiction.

Jurisdiction of circuit court is statutory and limited and requirements of statute must be complied with. Whitmore v. Johnson's Heirs, 29 Tenn. 610, 1850 Tenn. LEXIS 41 (1850); Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872); Linnville v. Darby, 60 Tenn. 306, 1872 Tenn. LEXIS 496 (1873).

The circuit court has all the jurisdiction of the chancery court to subject the lands of decedents to the payment of their debts; and, like the chancery court, it may decree sales and make all such incidental orders and decrees as the circumstances and equities of the particular case may require, so as to carry into effect the object of the law, and to protect and secure the interests of the creditors, personal representatives, widows, heirs, and purchasers. Moore's Adm'rs v. Widow & Heirs, 30 Tenn. 512, 1851 Tenn. LEXIS 91 (1851).

The jurisdiction of the probate court must be confined to the legal title. The statute was not designed to affect valid prior liens, mortgages, or securities acquired by a creditor upon the property of the deceased in his lifetime, and, therefore, where he was seized of an equitable interest, resort must be had to a court of equity. Parchman v. Charlton, 41 Tenn. 381, 1860 Tenn. LEXIS 79 (1860).

The requirements of the statute must be substantially complied with in order to give the chancery court jurisdiction. Young v. Young, 80 Tenn. 335, 1883 Tenn. LEXIS 177 (1883).

The probate court has concurrent jurisdiction with the circuit and chancery courts to sell lands to pay the debts of decedents, where the personal assets are insufficient for that purpose, whether the insolvency of the estate has been formally suggested or not. Davis v. Davis, 87 Tenn. 200, 10 S.W. 363, 1888 Tenn. LEXIS 53 (1889); Bashaw v. Temple, 115 Tenn. 596, 91 S.W. 202, 1905 Tenn. LEXIS 93 (1906).

Independent of statute, the court of chancery has inherent jurisdiction to subject realty of a decedent, and may do so where all necessary persons are parties and the necessity is alleged and shown. Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891); Waddell v. Waddell, 42 S.W. 46, 1897 Tenn. Ch. App. LEXIS 29 (1897).

Under § 30-5-101, the probate court had exclusive jurisdiction to sell lands for the payment of the debts of decedents, where the estate did not exceed the value of $1,000 and was insolvent, and its insolvency had been suggested, but if the insolvency had not been suggested and publication thereof made, but the insolvency existed, the chancery court had jurisdiction to sell the lands. Bashaw v. Temple, 115 Tenn. 596, 91 S.W. 202, 1905 Tenn. LEXIS 93 (1906).

A bill in chancery under this section lies regardless of the value of the decedent's estate. Bashaw v. Temple, 115 Tenn. 596, 91 S.W. 202, 1905 Tenn. LEXIS 93 (1906); Owen, Moseley & Co. v. Beard, 3 Tenn. Civ. App. (3 Higgins) 82 (1911).

7. —Test.

The facts set forth in the bill or petition, and decree, alone can be looked to, to test the jurisdiction. Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872).

8. Suggestion of Insolvency—Necessity.

A bill for the administration of a complicated estate in chancery, and for a sale of lands to pay debts, with allegations in conformity to this statute, may be sustained, where there is no valid suggestion of insolvency. Belcher v. Wickersham, 68 Tenn. 111, 1877 Tenn. LEXIS 4 (1877).

This statute does not require a suggestion of insolvency previous to the filing of a bill under it, and such a bill, framed as a bill in chancery, may be filed in the probate court without the suggestion of insolvency. Davis v. Davis, 87 Tenn. 200, 10 S.W. 363, 1888 Tenn. LEXIS 53 (1889); Bashaw v. Temple, 115 Tenn. 596, 91 S.W. 202, 1905 Tenn. LEXIS 93 (1906).

9. Right to Petition.

The statute does not make it compulsory upon the personal representative to file the bill, but authorizes him to do so if he thinks proper, and if he neglects or refuses to do so, any bona fide creditor, whose debt remains unpaid, may file it for the attainment of the identical objects which would have been obtained had the representative filed it. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Vance v. Sanders, 67 Tenn. 294, 1874 Tenn. LEXIS 376 (1874).

Any bona fide creditor may, for himself and all other creditors, file a bill against the personal representative and the heirs for an account of the administration, and to sell a sufficiency of the lands descended to pay the residue of debts, after exhausting the personal assets, or ascertaining their insufficiency, and to enjoin other creditors from further proceeding at law by scire facias, or otherwise, the object being to settle up the estate by one bill or suit only. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834).

Where lands of decedent were attached, and the debtor died before judgment, the lands can be subjected only after exhaustion of personalty. Perkins' Heirs v. Norvell, 25 Tenn. 151, 1845 Tenn. LEXIS 49 (1845).

A surety, against whom and his cosurety a judgment has been rendered for the whole debt, is a bona fide creditor, and is entitled to file a bill against the personal representative and heirs of the deceased cosurety for contribution, and, upon an allegation of the exhaustion of personal assets, for a sale of the lands of such decedent for the payment of the recovery and debts. Stephens v. Meek, 74 Tenn. 226, 1880 Tenn. LEXIS 237 (1880).

Under this section either the personal representative or a bona fide creditor may bring suit to subject real estate to payment of debts. Boro v. Hidell, 122 Tenn. 80, 120 S.W. 961, 1909 Tenn. LEXIS 4, 135 Am. St. Rep. 857 (1909).

An executor, empowered to sell lands, may proceed under this statute, or creditors may act should he fail to exercise his testamentary power. Arnold v. Burks, 157 Tenn. 18, 5 S.W.2d 633, 1927 Tenn. LEXIS 44 (1928).

A bill to sell realty may be filed under this section only where there has been a complete administration of the personal estate in the probate court, leaving debts unpaid. Arnold v. Burks, 157 Tenn. 18, 5 S.W.2d 633, 1927 Tenn. LEXIS 44 (1928).

10. —Personal Representative.

Where the executor, for the purpose of removing an encumbrance from the devised land, pays at the request of the devisee, a sum of money sufficient to remove the encumbrance on the land, such payment becomes a charge on the land in the hands of the devisee, and chancery will decree its reimbursement out of the same. Franklin v. Armfield, 34 Tenn. 305, 1854 Tenn. LEXIS 52 (1854).

Where the administrator paid with his own means a large amount of indebtedness of the estate, and made advances to the minor heirs to procure necessary food and clothing when they had no income, and no property except unproductive real estate, the administrator was entitled to be reimbursed for the debts so paid by him and the advances. Ingram v. Ingram, 52 Tenn. 541, 1871 Tenn. LEXIS 286 (1871).

11. Parties.

The personal representative is a necessary party because the court can only know how the estate has been administered by an investigation of his accounts. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Singletary v. Simmerly, 2 Shan. 390 (1877); Apperson v. Harris, 75 Tenn. 323, 1881 Tenn. LEXIS 124 (1881).

All the creditors must be brought in, or named in the bill, or must come in, for the establishment and allowance of their claims, in order to share ratably in the proceeds of the sale. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872); Harris v. Harris, 67 Tenn. 474, 1875 Tenn. LEXIS 69 (1875); Kyle v. Kyle, 2 Shan. 380 (1877); Ewing v. Maury, 71 Tenn. 381, 1879 Tenn. LEXIS 94 (1879).

The heirs or devisees, as the case may be, must be made parties to suits under this statute in order that they may have an opportunity to contest the proper administration and exhaustion of the personal assets, and the justness of the claims, and that the title may be divested out of them and vested in the purchaser, in the event of a sale. If the heirs or devisees are not made parties, they cannot be affected by any decree made in the suit, and the sale will be a nullity as to them as well as to the purchaser, and utterly void and inoperative. Estes v. Johnson, 29 Tenn. 223, 1849 Tenn. LEXIS 52 (1849); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Taylor v. McGill, 74 Tenn. 294, 1880 Tenn. LEXIS 251 (1880); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881).

Where the lands of a decedent escheat to the state, the bill to sell such lands for the payment of the debts of the decedent must make the state, or its proper officer for the administration of escheated property, a party or parties thereto. Hinkle's Lessee v. Shadden, 32 Tenn. 46, 1852 Tenn. LEXIS 8 (1852); Parchman v. Charlton, 41 Tenn. 381, 1860 Tenn. LEXIS 79 (1860); Trafford v. Young, 3 Cooper's Tenn. Ch. 496 (1877).

To a bill filed by the personal representative, the creditors are not necessary parties, though they may be parties, but if they are named in the bill, and their debts are set out and conceded, they become quasi parties so as to prevent a subsequent bar under the statute of limitations. Vance v. Sanders, 67 Tenn. 294, 1874 Tenn. LEXIS 376 (1874); Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891); Puckett v. Wynns, 132 Tenn. 513, 178 S.W. 1184, 1915 Tenn. LEXIS 41 (1915).

The recognition of creditors as parties is not a recognition of the justness of their claims. Miller v. Taylor, 2 Shan. 461 (1877).

The joinder of adult heirs with a creditor as complainants in a general creditor's bill to wind up an insolvent estate is not objectionable, especially where the bill seeks to hold the administrator for mismanagement of the estate. Spencer v. Goodlett, 104 Tenn. 648, 58 S.W. 322, 1900 Tenn. LEXIS 39 (1900).

Local administrator was a necessary party to a suit attempting to subject realty located in Tennessee to costs of administering owner's estate in another jurisdiction. Fidelity Mut. Life Ins. Co. v. Wall, 167 Tenn. 207, 68 S.W.2d 108, 1933 Tenn. LEXIS 27 (1934).

In a proceeding under this section, an administrator or executor qualified under the laws of this state is a necessary party. Fidelity Mut. Life Ins. Co. v. Wall, 167 Tenn. 207, 68 S.W.2d 108, 1933 Tenn. LEXIS 27 (1934).

12. Bill and Allegations.

A creditor's bill to sell land must charge an exhaustion of the personalty in payment of debts, and that the complainant's debt is just and unpaid. Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872); Apperson v. Harris, 75 Tenn. 323, 1881 Tenn. LEXIS 124 (1881).

A bill filed under this statute is not an insolvency bill under ch. 5 of this title. Wade v. Fisher, 57 Tenn. 490, 1873 Tenn. LEXIS 249 (1873).

It is not essential that it should be stated in the caption of a general creditor's bill that the executor is sued in his representative capacity, but it is sufficient to allege that fact in the body of the bill. Spencer v. Goodlett, 104 Tenn. 648, 58 S.W. 322, 1900 Tenn. LEXIS 39 (1900).

A statement by a creditor in his bill against the estate of a deceased that the personalty was of practically no value and was wholly insufficient to pay the debts of the deceased and that such just debts can only be satisfied by a sale of the real estate, was sufficient to show that a sale of the lands was necessary. Grace v. Johnson, 25 Tenn. App. 355, 157 S.W.2d 848, 1941 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1941).

13. Service on Minor.

In proceedings in equity, service of process on regular guardian without service on ward is sufficient, or the regular guardian may waive the service of process on himself or ward, and come in and defend for his minor ward, and it will be sufficient, even where the bill is filed to subject lands descended to the ancestor's debts. Britain v. Cowen, 24 Tenn. 315, 1844 Tenn. LEXIS 63 (1844); Cowan v. Anderson, 47 Tenn. 284, 1869 Tenn. LEXIS 43 (1869); Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871); Brown v. Severson, 59 Tenn. 381, 1873 Tenn. LEXIS 79 (1873); Scott v. Porter, 70 Tenn. 224, 1879 Tenn. LEXIS 161 (1879).

14. Injunction against Separate Suits.

An injunction forbidding the prosecution of separate suits and compelling a settlement in the one may issue. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Bashaw v. Temple, 115 Tenn. 596, 91 S.W. 202, 1905 Tenn. LEXIS 93 (1906).

15. Estates Subject to Debts.

The words “seized and possessed of real estate” are not here used in their technical sense and whatever estate the deceased had in real estate subject to appropriation to the payment of his debts in his lifetime, whether by execution or by other appropriate proceeding, may be appropriated after his death. Milligan v. Humbard, 58 Tenn. 137, 1872 Tenn. LEXIS 238 (1872).

Where a person died in the possession of land under a conditional title bond which the heirs of the vendor refused to perform by a conveyance of the land and which the Supreme Court refused specifically to execute so that the heirs of the vendor could not be made to convey, the vendee's seizure and possession or his ownership of the land, would not authorize a sale thereof for the payment of his debts as against the defense by his heirs who were in possession of the land, both under the title bond and under an execution sale thereof for costs against the heirs of the vendor, and under the sheriff's deed. Milligan v. Humbard, 58 Tenn. 137, 1872 Tenn. LEXIS 238 (1872).

The fee in land encumbered with a homestead right, or the reversionary fee or remainder estate therein, or the fee in reversion expectant on the termination of the homestead right, may be sold as real estate to pay the debts. Hicks v. Pepper, 60 Tenn. 42, 1873 Tenn. LEXIS 411 (1873); Lunsford v. Jarrett, 70 Tenn. 579, 1879 Tenn. LEXIS 200 (1879); Gilbert v. Cowan, McClung & Co., 71 Tenn. 203, 1879 Tenn. LEXIS 59 (1879); Flatt v. Mack Stadler Co., 84 Tenn. 371, 1886 Tenn. LEXIS 110 (1886); Carrigan v. Rowell, 96 Tenn. 185, 34 S.W. 4, 1895 Tenn. LEXIS 24 (1896).

If the lands of the decedent are partitioned among the heirs or devisees, and some of the shares are sold and conveyed to bona fide purchasers, the remaining unsold shares are liable not merely for their ratable proportion of the entire indebtedness of the estate, but for the entire indebtedness thereof, and the proper adjustment among the heirs or devisees is a matter for separate suit between them for marshaling the real assets. Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882); Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

16. Defenses.

A person claiming the title of the heirs may make any defense available to them against suit to sell the descended lands to pay the debts of the decedent, and the complainant whose debt is barred and whose bill shows that there were sufficient personal assets to pay his debts cannot question the defendant's title, nor litigate with him the validity of the tax title under which he claims the title of the heirs. Loyd v. Loyd, 68 Tenn. 406, 1877 Tenn. LEXIS 34 (1877).

Where creditor filed suit in chancery to subject intestate's real estate to satisfaction of claim under administration statute, heirs could not make defense thereto after time for filing exceptions in court of administration had expired. Bowling v. Minton, 193 Tenn. 141, 244 S.W.2d 998, 1951 Tenn. LEXIS 338 (1951).

17. —Statutes of Limitations.

The heirs and distributees, devisees and legatees, when impleaded by creditors in an action against the personal representative, may interpose for the protection of their rights, the statutes of limitations, within which suit must be brought against the personal representative by creditors, although these statutes were originally intended for the benefit of the personal representative only. Woods v. Woods, 99 Tenn. 50, 41 S.W. 345, 1897 Tenn. LEXIS 8 (1897).

Statutes of limitations in favor of estates of decedents operate against creditors of insolvent estates after suggestion and advertisement of insolvency as well as against creditors of solvent estates. Woods v. Woods, 99 Tenn. 50, 41 S.W. 345, 1897 Tenn. LEXIS 8 (1897).

The running of the statutes of limitations in favor of the estates of decedents is not prevented in favor of the creditor by the fact that there was a will which creditor had a right to bring into court for construction, where the will was promptly probated, and he was entitled to nothing thereunder. Woods v. Woods, 99 Tenn. 50, 41 S.W. 345, 1897 Tenn. LEXIS 8 (1897).

18. Sale.

The proceeds of land sold are in the custody of the court, and not of the personal representative, and it is not his duty, but that of the creditor, after his claim has been allowed, to ask the court for an order directing the clerk to pay him his debt or its pro rata out of the proceeds. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Gillespie v. Darwin, 53 Tenn. 21, 1871 Tenn. LEXIS 312 (1871); Moses v. Moses, 1 Shan. 414 (1875).

The administrator of a decedent is the mere representative of the personalty, and a fund arising from the sale of land in his suit for its sale to pay debts of the decedent's estate must be retained and disbursed in the court where the bill is filed, and not paid over to him to be administered, even upon a special bond to secure the fund. Moses v. Moses, 1 Shan. 414 (1875).

19. —Purchase by Administrator.

An administrator may become purchaser at a sale of realty made by a master in chancery, even though the bill was filed by him, but the court, will narrowly scrutinize his good faith upon any charge of fraud. Cooley v. Cooley's Heirs, 37 S.W. 1028, 1896 Tenn. Ch. App. LEXIS 51 (1896).

20. —Surplus Funds.

The excess of the proceeds of the sale of land above what is necessary to pay the ancestor's debts for which it was sold, like the land, belongs to the heirs or devisees, and not to the personal representative of the ancestor. Read v. Bostick, 25 Tenn. 321, 1845 Tenn. LEXIS 95 (1845); Moses v. Moses, 1 Shan. 414 (1875).

Where, upon the adjudged exhaustion of the personal assets, land was sold for the payment of debts of a decedent and a surplus was realized, such surplus may be impounded and applied to the payment of a judgment against the administrator of the deceased debtor in favor of the complainant creditor who was not a party to the suit for the sale of the land to pay debts, but such impounding suit is not one for the sale of land by a creditor under this section. Rhinehart, Ballard & Co. v. Murray, 83 Tenn. 469, 1885 Tenn. LEXIS 68 (1885).

21. Executor Failing to Sell Land under Will.

Though the executor is authorized by the will to sell lands, for the payment of debts, the remedy of the testator's creditors is not confined to a decree of the chancery court compelling the executor to execute the power, but, if for any reason, this power of sale be not executed, there can hardly be any doubt that either the circuit or chancery court would proceed directly to sell the land for the payment of debts, following the direction of the will as to what lands should be first applied to the debts. Hubbard v. Epps, 68 Tenn. 231, 1877 Tenn. LEXIS 28 (1877).

22. Validity of Proceedings.

Irregularities, so gross as to be reversible error upon a direct proceeding by appeal, may not invalidate the decree, or render the sale made under it void in a collateral attack. A decree showing the jurisdictional facts is not void on collateral attack, though reversible upon appeal, for its failure to show on its face, by recital, the necessity to sell all the lands sold, what debts and their amount remaining due, and simply shows that “there were just debts due and owing from the estate.” Griffith v. Philips, 77 Tenn. 417, 1882 Tenn. LEXIS 77 (1882).

Mere irregularities, though gross, do not render a sale void, but only voidable. Griffith v. Philips, 77 Tenn. 417, 1882 Tenn. LEXIS 77 (1882).

After a long acquiescence but without actual possession by either party, and resales of the land, a most liberal rule should be applied, consistent with settled principles, in favor of the validity of proceedings for the sale of lands. Griffith v. Philips, 77 Tenn. 417, 1882 Tenn. LEXIS 77 (1882).

A decree of the sale of lands of a decedent to pay his debts, reciting that the estate of the deceased “is largely indebted, that its indebtedness amounts to … dollars, or more, and that the personal assets amounts only to the sum of about … dollars,” does not assume the facts necessary to give the court jurisdiction to sell the land, and is void on its face, and purchasers will acquire no title under it. Young v. Young, 80 Tenn. 335, 1883 Tenn. LEXIS 177 (1883).

Every presumption is in favor of the regularity of its proceedings in cases in circuit court for sale of land. Ridgely v. Bennett, 81 Tenn. 210, 1884 Tenn. LEXIS 27 (1884).

In a bill filed to sell lands, it is more regular and proper to set out each specific debt, and to whom due, but if the amount is aggregated in the bill, and the amount established by the proof largely exceeds the personal assets, and such aggregate amount is so reported by the master, and there is no exception to the report, the cause will not be reversed on this account. Doherty v. Choate, 84 Tenn. 192, 1885 Tenn. LEXIS 136 (1885); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891); Puckett v. Wynns, 132 Tenn. 513, 178 S.W. 1184, 1915 Tenn. LEXIS 41 (1915).

Where administrator's petition for sale of real estate alleged the facts required by the statute and the decree stated them to have been made out to the satisfaction of the court and assumed them as its basis and the grounds of the sale, and the court otherwise had jurisdiction of the parties and the subject-matter, one cannot in a collateral proceeding attacking the sale look beyond the pleading and decree to see if the proceedings were formal and the decree based upon the proper evidence. Cross v. Phillips, 12 Tenn. App. 679, — S.W.2d —, 1930 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1930).

23. Land in Different Counties.

Where the lands of the decedent lie in different counties of this state, and administration is granted in one of such counties, a bill will lie in the chancery court to sell the lands in that county as well as the lands in the other counties. Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886).

24. Land in Another State.

Chancery court cannot decree a sale of the land in another state, but, having acquired jurisdiction of the person, it may coerce the party holding the land in trust to make a conveyance of the entire tract to the personal representative, to be sold by him under the order of the court, for the benefit of the creditors and distributees of the estate. Miller v. Birdsong, 66 Tenn. 531, 1874 Tenn. LEXIS 176 (1874).

30-2-404. Proof of exhaustion of personalty.

Before making a decree for the sale of lands, it shall be made to appear to the satisfaction of the court that the personal estate has been exhausted in the payment of bona fide debts, and that the debts or demands for which the sale is sought are justly due and owing either to creditors or to the personal representative for advances out of the personal representative's own means to pay just demands against the estate.

Code 1858, § 2268 (deriv. Acts 1827, ch. 54, § 4; 1831, ch. 22, § 1); Shan., § 4001; Code 1932, § 8214; T.C.A. (orig. ed.), § 30-604.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 434, 439.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 868, 872.

Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, § 22.

NOTES TO DECISIONS

1. Rule Adopted.

This section adopts the common-law rule that personalty is the primary fund for the payment of debts. Hope v. Wilkinson, 82 Tenn. 21, 1884 Tenn. LEXIS 99, 52 Am. Rep. 149 (1884).

2. Application.

Where personalty of deceased sureties on a guardian bond was not exhausted in the payment of debts of the estates of such sureties, the ward was not entitled to bring suit under this section after the estates were fully administered. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

3. Necessity of Exhaustion.

It is not necessary for all the personalty to be actually exhausted and applied in the payment of debts, either by the personal representative or by the court, before the decree of sale, but if it appears that, after such exhaustion, there will be unsatisfied indebtedness, a sufficiency of the realty may be sold and subjected. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834).

The insufficiency of the personal assets and the existence of bona fide debts must be established and adjudged before a decree of sale of lands of a decedent to pay his debts. Crabtree v. Niblett, 30 Tenn. 488, 1850 Tenn. LEXIS 160 (1850).

Where the ascertained personal assets of the estate are insufficient to pay his debts, and are not in a condition to be applied, the court, treating them good and available, may decree a sale of sufficient land to discharge the excess of indebtedness over the amount of such available assets, without delaying the cause until the assets can be actually applied. Doherty v. Choate, 84 Tenn. 192, 1885 Tenn. LEXIS 136 (1885).

Under a bill of conformity to settle up the trusts of an administration or a bill for the sale of lands under this section or an insolvent bill, there can be no decree for sale of land without showing necessity and in case of a bill of conformity the amount of personal assets and the amount of the debts due must first be ascertained, so that it can be clearly seen that the personal estate (the primary fund for this purpose) is insufficient for the purpose and how much land should be sold to meet the deficiency. Miller v. Taylor, 2 Shan. 461 (1877).

To authorize a decree for a sale before actual application of personalty to the extent it is available in exoneration of the lands, it should be made clearly to appear that such personalty will be insufficient. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

Sale of land will be decreed where valid debts in excess of the amount of personal assets are shown, and the administrator has not wasted the assets of the estate, and it is not necessary in such case to await the actual application of the personal assets before ordering a sale of the land. Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897).

Realty as to which the testator died intestate cannot be subjected to the payment of his debts, where the personalty was sufficient for that purpose, a contrary intention not appearing from the will. Ford v. Cottrell, 141 Tenn. 169, 207 S.W. 734, 1918 Tenn. LEXIS 78 (1918).

Debts of the testator are to be paid from the personal property unless there is some specific provision in the will otherwise. Wilson v. Smith, 50 Tenn. App. 188, 360 S.W.2d 78, 1962 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1962).

Where husband's will directed his widow, who was executrix, to pay all his debts, gave widow all his personal property and life estate in his real property, and value of personal property greatly exceeded cost of administration and amount of debts, estate of widow was not entitled to recover proceeds which widow paid subsequent to husband's death on mortgage on land held by husband at his death and which was sold after widow's death. Wilson v. Smith, 50 Tenn. App. 188, 360 S.W.2d 78, 1962 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1962).

4. —Sufficiency of Allegation.

A bill listing decedent's personalty and stating that it was practically of no value and insufficient to pay decedent's debts and that the debts could be satisfied only by sale of the realty was sufficient. Grace v. Johnson, 25 Tenn. App. 355, 157 S.W.2d 848, 1941 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1941).

5. —Absence of Personalty.

The allegation and finding that there was no personal property subject to the payment of decedent's debts is equivalent to the statutory requirement of the exhaustion of the personalty before a sale of land to pay the remaining debts. Puckett v. Wynns, 132 Tenn. 513, 178 S.W. 1184, 1915 Tenn. LEXIS 41 (1915).

6. —Depreciation of Personalty without Fault of Representative.

The personal assets of an estate have been “exhausted in the payment of debts,” so far as to justify a sale of land to pay debts, where the amount actually realized from the personal estate is insufficient to pay all the debts, though the personal assets were of sufficient value at one time for that purpose, if they had been then disposed of, but have since depreciated in value, without fault of the administrator, and thereby became insufficient. Pearson v. Gillenwaters, 99 Tenn. 462, 42 S.W. 199, 1897 Tenn. LEXIS 52 (1897).

The realty of a decedent may be subjected to the satisfaction of his debts where the goods and chattels of the estate which came to the hands of the personal representative, or the notes taken for same upon a sale thereof, and good when received, are lost, without such fault on his part as would render him and his sureties liable, for, if the administrator is not chargeable, the creditors of the estate are not chargeable therewith, in favor of the heir or devisee. Jones v. Douglass, 1 Cooper's Tenn. Ch. 631 (1874); Pearson v. Gillenwaters, 99 Tenn. 462, 42 S.W. 199, 1897 Tenn. LEXIS 52 (1897).

7. —Wasting Assets or Insolvency.

Waste by the administrator, and the insolvency of himself and sureties, or the insolvency of the refunding bonds of the distributees or legatees, is not ground for coming into equity to subject the lands to the payment of the debts. Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828).

8. —Payment to Distributees or Legatees — Effect.

The personal estate has not been “exhausted in the payment of bona fide debts,” where the administrator or executor has paid the personal funds to the distributees or legatees, and the lands of the decedent are, in such cases, exonerated to the extent of such distribution. The creditors can resort to the personal liability of the personal representative and distributees and legatees who may be compelled to refund for the payment of debts. Where the distributees or legatees are also the heirs or devisees, the lands of the decedent so descended or devised are likewise exonerated to the extent of such distribution. The lands descended or devised may be subjected to the satisfaction of the personal liability of the distributees or legatees for the repayment of such funds where they are also the heirs or devisees, but the lands must be subjected as the lands of the heirs or devisees, and not as the lands of the decedent. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888); Pearson v. Gillenwaters, 99 Tenn. 462, 42 S.W. 199, 1897 Tenn. LEXIS 52 (1897).

9. Proof of Exhaustion.

A judgment against the personal representative with the return of nulla bona upon an execution issued thereon, is not sufficient proof of the exhaustion of the personal assets to authorize a decree for the sale of the land, and the decree must be preceded by an investigation of the administrator's accounts, and a report thereon by the master. Singletary v. Simmerly, 2 Shan. 390 (1877). See also Wade v. Fisher, 57 Tenn. 490, 1873 Tenn. LEXIS 249 (1873).

10. —Account.

The proper practice in such suits is that an account of the debts and personal assets shall be taken before a decree of sale of the land. Kyle v. Kyle, 2 Shan. 380 (1877); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878).

11. —Clerk's Report.

Where the suit is under this statute, and the decree of sale asserts that the exhaustion or insufficiency of the personal estate and the existence of bona fide debts remaining unpaid appeared to the court, the recitals of the decree of sale are conclusive, and not subject to collateral attack, though there be no report by the clerk. Kindell v. Titus, 56 Tenn. 727, 1872 Tenn. LEXIS 198 (1872).

The court may ascertain the necessary facts without a report by the clerk. Bloom v. Cate, 75 Tenn. 471, 1881 Tenn. LEXIS 145 (1881); Puckett v. Wynns, 132 Tenn. 513, 178 S.W. 1184, 1915 Tenn. LEXIS 41 (1915).

The absence of a clerk's report does not invalidate the sale, since it must be assumed that the court had before it the necessary evidence to establish the facts set forth in the decree of sale. Puckett v. Wynns, 132 Tenn. 513, 178 S.W. 1184, 1915 Tenn. LEXIS 41 (1915).

12. Priority of Creditors over Devisees.

Where land is devised to one in consideration of his future services as guardian for a minor, he cannot set up his claim to the land under the will in opposition to the rights of creditors of the estate, and the necessary expenses of the administration. Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897).

13. Judgment against Representative.

A judgment against the personal representative is prima facie evidence of such indebtedness in a suit, under this statute or the insolvent statute, to sell lands of the decedent to pay his debts, and the burden is on the heirs or devisees to show that it is not a just claim, and that the estate is not liable. Kyle v. Kyle, 2 Shan. 380 (1877); Wooldridge v. Page, 68 Tenn. 325, 1878 Tenn. LEXIS 17 (1878); Woolridge v. Page, 69 Tenn. 135, 1878 Tenn. LEXIS 64 (1878).

Neither a judgment by default upon motion against a personal representative, nor his refusal to plead “fully administered,” especially if such course was resorted to for the purpose of defeating the creditor, is such an admission of personal assets as will estop the judgment creditor from showing the truth, that there were no such assets, in a proceeding to subject the realty to the payment of the debt. Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882).

14. —Representative's Failure to Plead.

Since the enactment of the statute and other acts in pari materia, in a chancery suit, the heir is not protected by the mere failure of the administrator to plead “fully administered.” Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878).

Upon a bill filed by the personal representative to sell lands, it is not a fatal objection to the claims of creditors by judgments against the personal representative, that the defense of “fully administered” was not made in the suits against the personal representative, where it is neither claimed by the heirs nor shown by the proof that the defense could have been made in the particular cases, and where it clearly appears that the personal assets were insufficient to meet the demands in question, and other equally just demands to the satisfaction of which they were applied. Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878).

15. —Representative's Confession of Judgment.

A bill will not lie to subject a decedent's lands, though judgment be confessed by the personal representatives if contrary to the truth of the case. Kyle v. Kyle, 2 Shan. 380 (1877); Glenn v. Maguire, 3 Cooper's Tenn. Ch. 695 (1878).

16. Prior Decree Adjudging Exhaustion — Effect.

A decree for the sale of land unappealed from and unreversed, and adjudging that the personalty had been exhausted in the payment of debts and special legacies, is conclusive of that fact in another case between the same parties to sell other lands for the payment of a debt subsequently arising, although it appears that the personalty was not exhausted in the payment of special legacies, but in the payment of general legacies, and that the former decree erroneously adjudged the general legacies to be special legacies. Thomson v. Blanchard, 70 Tenn. 528, 1879 Tenn. LEXIS 193 (1879); Sale v. Eichberg, 105 Tenn. 333, 59 S.W. 1020, 1900 Tenn. LEXIS 79, 52 L.R.A. 894 (1900), questioned, Waybright v. Columbian Mut. Life Ins. Co., 30 F. Supp. 885, 1939 U.S. Dist. LEXIS 1905 (D. Tenn. 1939).

17. Defenses of Heirs or Devisees.

The heirs or devisees can contest the validity of the creditor's demand when sought to be enforced against the realty, notwithstanding the previous recovery of judgment against the personal representative. They may plead the statutes of limitations and, in addition, may make the defense of the nonexhaustion of the personal assets in the payment of bona fide debts, or their sufficiency except for waste by the personal representative. Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Bloom v. Cate, 75 Tenn. 471, 1881 Tenn. LEXIS 145 (1881); Buntyn v. Holmes, 77 Tenn. 319, 1882 Tenn. LEXIS 57 (1882).

The right of the heirs or devisees to make all defenses to a judgment against the personal representative that he might have originally made, when it is sought to subject the land descended or devised to them, does not extend to mere technical objections or irregularities, not going to the question of the liability of the ancestor for the debt, or sufficiency of personal assets, or other meritorious defenses. Buntyn v. Holmes, 77 Tenn. 319, 1882 Tenn. LEXIS 57 (1882).

18. —Estoppel to Deny Liability of Land.

If the personal representatives are all the heirs and distributees of the estate, and make an agreement with the claimant that the land may be sold to pay the judgment recovered, if claimant will allow the issue of fully administered to be adjudged in their favor, which was accordingly done, they will be estopped as heirs, in a subsequent suit to sell the land to pay the judgment debt, to deny that the land is liable therefor, and they will be estopped to insist that there were sufficient personal assets. Buntyn v. Holmes, 77 Tenn. 319, 1882 Tenn. LEXIS 57 (1882).

19. Sale of Sufficient Land as Exoneration of Other Lands.

If sufficient land has been once sold to meet the deficit of personalty to pay debts and legacies, the land is thenceforth exonerated, and the loss, if any, must be borne by the creditors and legatees. Jones v. Douglass, 1 Cooper's Tenn. Ch. 631 (1874).

20. Defenses of Other Creditors.

Other creditors to be affected may contest a claim. Bates v. Elrod, 81 Tenn. 156, 1884 Tenn. LEXIS 18 (1884).

21. Independent Jurisdiction of Chancery.

While the personalty is the primary fund for the payment of the debts of a decedent, when it has been exhausted under the provisions of a will, leaving debts unprovided for, the lands of the testator will become assets for the payment of debts, and may be subjected by decree of the chancery court under its general jurisdiction, independent of its statutory jurisdiction. Morrow v. Morrow, 2 Cooper's Tenn. Ch. 549 (1875); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891).

30-2-405. Procedure under §§ 30-2-403 and 30-2-404.

Suits prosecuted under §§ 30-2-403 and 30-2-404 shall be conducted as other suits in equity.

Code 1858, § 2269 (Acts 1827, ch. 54, § 5; 1831, ch. 22, § 2); Shan., § 4002; Code 1932, § 8215; T.C.A. (orig. ed.), § 30-605.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 867, 870, 873.

Tennessee Jurisprudence, 18 Tenn. Juris., Marshaling Decedents' Estates, § 6.

NOTES TO DECISIONS

1. Form of Proceeding.

The suits prosecuted under §§ 30-2-403 and 30-2-404 must be conducted as other suits in equity and according to the practice and course of a court of chancery. Whitmore v. Johnson's Heirs, 29 Tenn. 610, 1850 Tenn. LEXIS 41 (1850); Parchman v. Charlton, 41 Tenn. 381, 1860 Tenn. LEXIS 79 (1860); Trafford v. Austin, 3 Cooper's Tenn. Ch. 492 (1877).

30-2-406. Complaint in equity by creditor serving as administrator.

  1. Where administration is granted to any person on account of the person being a creditor of the intestate, and there are not personal assets sufficient to satisfy the debt or demand of that administrator, the person may proceed against the heirs or devisees of the deceased for the recovery of the person's debt or demand, to the court having probate jurisdiction of the county in which the administration was granted, a complaint, setting forth the nature of the debt or demand, and the amount of it, praying that the heir or heirs may be made defendants to the proceedings.
  2. Upon this complaint being filed in the clerk's office, the same proceedings shall be had, and the defendants shall be bound by, and be subject to, the same rules as in other cases in equity.

Code 1858, §§ 2253, 2254 (deriv. Acts 1789, ch. 39, § 1); Shan., §§ 3986, 3987; Code 1932, §§ 8198, 8199; T.C.A. (orig. ed.), §§ 30-607, 30-608; Acts 1985, ch. 140, § 18.

NOTES TO DECISIONS

1. Construction of Section.

This statute does not require that a creditor must take administration in order to receive his debt. Boyd v. Armstrong's Heirs, 9 Tenn. 40, 1821 Tenn. LEXIS 11 (1821).

30-2-407. Execution against property in heir's hands.

If a decree is made against the heir or heirs, or any of them, execution shall be issued against the real estate of the deceased debtor in the possession of the heir or heirs against whom the decree is given.

Code 1858, § 2255 (deriv. Acts 1789, ch. 39, § 1); Shan., § 3988; Code 1932, § 8200; T.C.A. (orig. ed.), § 30-609.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 850, 866.

30-2-408. Claims against alienated property.

  1. If an heir or devisee aliens the land before an action is brought or process sued out, the heir or devisee shall be answerable to any creditor of the decedent for the ancestor's debts to the value of the lands aliened.
  2. Within six (6) months from the death of any person, a mortgagee or purchaser for value from the heir or devisee of the decedent shall take subject to the right of any creditor of decedent whose debt is otherwise unsatisfied to subject the realty to the payment of the decedent's debts, as in this title provided. If administration has been granted on the estate of the decedent during the period of six (6) months, the rights of creditors whose claims are ultimately established in the administration as valid obligations of the estate shall constitute liens on the realty of the decedent, which realty may be subjected to these liens in the hands of the heir or the heir's alienees as in this title provided.
  3. After six (6) months have elapsed from the death of any person, and no personal representative has qualified to administer on the decedent's estate, a mortgagee or purchaser for value from the heir of the decedent shall take title free from the right of any nonlien creditor to subject the same to the payment of the decedent's debt, unless the mortgagee or purchaser takes with actual knowledge of the debt.
  4. After six (6) months have elapsed from the death of any person, a mortgagee or purchaser for value from the heir of the decedent shall take free from the title, right, or claims of all persons claiming under any unprobated will of the decedent, unless the mortgagee or purchaser for value has actual knowledge of the existence of the unprobated will.

Code 1858, § 2256 (deriv. Acts 1789, ch. 39, § 3); Shan., § 3989; Code 1932, § 8201; Acts 1957, ch. 118, § 1; 1974, ch. 530, § 1; T.C.A. (orig. ed.), § 30-610.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 765, 779, 854, 866, 891.

Tennessee Jurisprudence, 12 Tenn. Juris., Executors and Administrators, §§ 53, 78; 20 Tenn. Juris., Partition, § 22; 25 Tenn. Juris., Wills, § 176.

Law Reviews.

Constitutional Law — 1961 Tennessee Survey (James C. Kirby, Jr.), 14 Vand. L. Rev. 1171 (1961).

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (II) (Herman L. Trautman), 15 Vand. L. Rev. 882 (1962).

Legislature Amends Tennessee Code Annotated Section 30-610 — One Year Waiting Period Shortened to Six Months, 5 Mem. St. U.L. Rev. 109 (1975).

Real Property — 1957 Tennessee Survey (Thomas G. Roady, Jr.), 10 Vand. L. Rev. 1188 (1957).

Wills, Trusts and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Constitutionality.

One year (now six months) limitation provided by subsections (b)-(d) is not so unreasonable as to violate U.S. Const., amend. 14 and Tenn. Const., art. I, § 8. Doughty v. Hammond, 207 Tenn. 545, 341 S.W.2d 713, 1960 Tenn. LEXIS 491 (1960).

Where decedent did not die until after enactment of subsections (b)-(d), claimant under undiscovered will of decedent which had been executed prior to enactment of such subsections took subject to whatever reasonable regulations as were in effect at decedent's death and was not unlawfully deprived of property rights by such subsections. Doughty v. Hammond, 207 Tenn. 545, 341 S.W.2d 713, 1960 Tenn. LEXIS 491 (1960).

2. Construction.

The statute should be liberally construed as applying in favor of all creditors. Gibson v. Jones, 81 Tenn. 684, 1884 Tenn. LEXIS 87 (1884).

Under subsection (b) as added by the 1957 amendment, creditors falling within the provisions of such subsection are given the further protection of making the debt a lien upon the realty of the decedent and not merely a claim against the heir for the value of the land. Crook v. Crook, 208 Tenn. 262, 345 S.W.2d 679, 1961 Tenn. LEXIS 419 (1961).

3. Application.

The statute applies to alienation by ancestor's immediate heir, and heir of latter cannot, even before suit brought or process served to subject the land, alienate so as to defeat creditors of the ancestor. Maydwell v. Maydwell, 56 Tenn. 571, 1872 Tenn. LEXIS 177 (1872).

Suit by some heirs at law against remaining heirs at law and against trustee of trust deed, to subject land to sale for partition, though sale is made by clerk and master, would amount to a purchase from the heirs themselves so that heirs would be subject to the terms of this section. Crook v. Crook, 208 Tenn. 262, 345 S.W.2d 679, 1961 Tenn. LEXIS 419 (1961).

4. “Process Sued Out” — Meaning.

The “process sued out” is, it seems, the scire facias authorized and provided for in the succeeding sections. Boyd v. Armstrong's Heirs, 9 Tenn. 40, 1821 Tenn. LEXIS 11 (1821); Ward v. Southerland, 7 Tenn. Appx. 1 (1823).

5. Alienation.

A conveyance before suit commenced by mother inheriting land from a child to whom it descended from the father is not an alienation within the meaning of this section, and the land is liable for father's debts. Maydwell v. Maydwell, 56 Tenn. 571, 1872 Tenn. LEXIS 177 (1872).

The word “alien” implies absolute divestiture of all title in the grantor. Buntyn v. Holmes, 77 Tenn. 319, 1882 Tenn. LEXIS 57 (1882).

The execution of a deed of trust or mortgage by heir to secure a preexisting debt was not such an alienation as to defeat the right of the creditors of the decedent to subject the land to payment of such debts. Camp v. Sherley, 77 Tenn. 255, 1882 Tenn. LEXIS 48 (1882); Buntyn v. Holmes, 77 Tenn. 319, 1882 Tenn. LEXIS 57 (1882).

Heir may alien land before there is any process sued out by the personal representative to subject it to payment of debts. Crook v. Crook, 208 Tenn. 262, 345 S.W.2d 679, 1961 Tenn. LEXIS 419 (1961).

6. Estoppel of Heirs to Deny Liability.

Where the heirs of a decedent were administrators and made an agreement with creditor of decedent to have land of such decedent sold if creditor would allow plea of fully administered to be found in their favor, such heirs were estopped from denying the liability of the land for the debt. Buntyn v. Holmes, 77 Tenn. 319, 1882 Tenn. LEXIS 57 (1882).

7. Title of Purchaser.

The purchaser acquires indefeasible title against all persons except creditors of ancestor. Raht v. Meek, 89 Tenn. 274, 14 S.W. 777, 1890 Tenn. LEXIS 47 (1890); Coffey v. McEwen, 186 Tenn. 404, 210 S.W.2d 681, 1948 Tenn. LEXIS 563 (1948).

8. —Burden to Show Bona Fides of Purchase.

The burden is on the heir's vendee to show the bona fides of his purchase. Gibson v. Jones, 81 Tenn. 684, 1884 Tenn. LEXIS 87 (1884); Raht v. Meek, 89 Tenn. 274, 14 S.W. 777, 1890 Tenn. LEXIS 47 (1890); Neilson v. Weber, 107 Tenn. 161, 64 S.W. 20, 1901 Tenn. LEXIS 68 (1901); Wright v. Eakin, 151 Tenn. 681, 270 S.W. 992, 1924 Tenn. LEXIS 95 (1925); Coffey v. McEwen, 186 Tenn. 404, 210 S.W.2d 681, 1948 Tenn. LEXIS 563 (1948).

9. Liability of Purchaser.

Normally a purchaser who pays money to executor of estate is relieved of duty to see that funds are properly applied, but he is not relieved if purchase is under circumstances which raise a reasonable doubt as to proper application of funds. Coffey v. McEwen, 186 Tenn. 404, 210 S.W.2d 681, 1948 Tenn. LEXIS 563 (1948).

Purchaser of land held by insolvent estate, who paid a reasonable price for same was nevertheless secondarily liable to creditor who received no payment on his claim while other creditors were paid where purchaser knew that deficiency judgment held by creditor was not paid. Coffey v. McEwen, 186 Tenn. 404, 210 S.W.2d 681, 1948 Tenn. LEXIS 563 (1948).

10. —Notice.

A purchaser was not affected by knowledge of his attorney not acquired in the course of his employment. Neilson v. Weber, 107 Tenn. 161, 64 S.W. 20, 1901 Tenn. LEXIS 68 (1901).

Bona fides cannot be where the purchaser had notice of ancestor's debts that might be a charge on the land. Neilson v. Weber, 107 Tenn. 161, 64 S.W. 20, 1901 Tenn. LEXIS 68 (1901).

Suggestion of insolvency not followed up for 15 months did not affect the purchaser with notice. Neilson v. Weber, 107 Tenn. 161, 64 S.W. 20, 1901 Tenn. LEXIS 68 (1901).

11. Probate — Requirements as to.

Absent this section, there is no statutory limitation on the time within which a will must be probated. Doughty v. Hammond, 207 Tenn. 545, 341 S.W.2d 713, 1960 Tenn. LEXIS 491 (1960).

Collateral References.

Right of surviving spouse to contribution, exoneration, or other reimbursement out of decedent's estate respecting liens on estate by entirety or joint tenancy. 76 A.L.R.2d 1004.

30-2-409. Proceeding by scire facias when debt sued on prior to deceased's death.

  1. Where no person will administer on the estate of the deceased, any person who has commenced a suit against the deceased in the lifetime of the deceased may issue a scire facias against the deceased's heirs or devisees, for whom, in case they are minors, the court shall appoint a guardian ad litem for the purpose of defending the suit.
  2. On return of the scire facias made known to the guardian and heirs, or devisees, the plaintiff may prosecute the suit to judgment and execution against the real estate of the ancestor descended or devised to the heirs or devisees.

Code 1858, § 2257 (deriv. Acts 1809 (Sept.), ch. 121, § 3); Shan., § 3990; Code 1932, § 8202; T.C.A. (orig. ed.), § 30-611.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 709, 850, 857.

Law Reviews.

The Tennessee Recording System (Toxey H. Sewell), 50 Tenn. L. Rev. 1 (1982).

NOTES TO DECISIONS

1. In General.

Where lands are attached in the lifetime of the ancestor, and he dies before judgment, there must be a revivor against the personal representative, and an exhaustion of personal assets against the heir, before an order of sale can be had against the land. Green v. Shaver, 22 Tenn. 139, 1842 Tenn. LEXIS 47 (1842); Stockard v. Pinkard, 25 Tenn. 119, 1845 Tenn. LEXIS 39 (1845); Perkins' Heirs v. Norvell, 25 Tenn. 151, 1845 Tenn. LEXIS 49 (1845); McKnight v. Hughes, 72 Tenn. 522, 1880 Tenn. LEXIS 56 (1880); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880); Montgomery v. Realhafer, 85 Tenn. 668, 5 S.W. 54, 1887 Tenn. LEXIS 9, 4 Am. St. Rep. 780 (1887).

Where no one will administer on the estate of a decedent, any person who has commenced a suit against him in his lifetime may have a scire facias against his heirs or devisees, and may prosecute the suit to judgment and execution against the real estate of the deceased ancestor descended or devised. Frierson v. Heirs of Harris, 45 Tenn. 146, 1867 Tenn. LEXIS 106 (1867).

2. Application.

This section applies only to pending suits commenced against the decedent before his death, and not to judgments rendered against him in his lifetime. Boyd v. Armstrong's Heirs, 9 Tenn. 40, 1821 Tenn. LEXIS 11 (1821).

3. Requisites of Scire Facias.

The scire facias against the heirs should call upon the heirs to show cause why plaintiff should not proceed against the heirs, in the action which was pending against the ancestor at the time of his death, to the trial of the issues, and to verdict and judgment in respect of the real estate which descended to them. If it should also call upon the heirs to show cause why the suit should not be revived against them, it would be untechnical, but not fatally erroneous. Smith v. Stump's Heirs, 7 Tenn. 278, 1823 Tenn. LEXIS 55 (1823).

4. Plea in Abatement.

It is not a good plea in abatement to such scire facias that the defendants had not, at the time of the issuing of the writ of scire facias, nor at any time before or since, any lands by descent and as heirs of the decedent. Smith v. Stump's Heirs, 7 Tenn. 278, 1823 Tenn. LEXIS 55 (1823).

5. Allowance of Judgment in Administration Suit — Effect.

It is no defense to a scire facias to revive a judgment against the personal representative of the deceased judgment debtor, that the amount of the judgment was allowed as a claim against the estate, and was ordered to be paid pro rata, without a revivor, in a chancery suit instituted by the personal representative, after his suggestion of the insolvency of the estate, for the purpose of administering the estate as an insolvent estate. The judgment creditor is entitled to a new judgment against the personal representative, and if such judgment is not rendered in such administration suit, so as to merge the old judgment, he is legally entitled to a revivor of his judgment, especially where there was no injunction against the revivor of the old judgment. McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880).

6. Showing That No One Would Administer.

The record should show by suggestion of record and proof that no one would administer, in order to authorize the issuance of the scire facias against the heirs, but such defect cannot be taken advantage of by a collateral attack, and at most, it could but amount to an error that might be ground for reversal, but would not render the revivor void. Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879); Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883); McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 1904 Tenn. LEXIS 109 (1904).

The fact that there is an administrator, or that one could have been procured, may, perhaps, be waived by the heirs, where they answer a scire facias reciting that no one will administer or answer one issued under an order based on the suggestion that no one would administer, but giving them notice that the revivor is sought against them to obtain judgment against them on account of lands descended or personalty received from their ancestor, where they fail to show cause why such action by revivor should not be had against them, by pleading that there was an administrator, or a designated person willing to administer. Preston v. Golde, 80 Tenn. 267, 1883 Tenn. LEXIS 164 (1883).

7. Judgment.

The proper judgment upon scire facias is that the plaintiff have judgment and execution against the lands descended generally, without specifying them, for the debt and costs to be levied on them. Smith v. Stump's Heirs, 7 Tenn. 278, 1823 Tenn. LEXIS 55 (1823); Butterworth v. Brown's Heirs, 15 Tenn. 467, 1835 Tenn. LEXIS 26 (1835).

The judgment should not be against the heirs personally, but, if so rendered against them, it is not absolutely void, for such error does not affect the validity of the judgment as against the lands descended, and, upon appeal, the judgment may be corrected. Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879).

30-2-410. Proceeding by scire facias when personalty exhausted or insufficient.

Where, in a suit against an executor or administrator, the plea of “fully administered,” “no assets,” or “not sufficient assets to satisfy the plaintiff's demand,” is found in favor of an executor or administrator, the plaintiff may proceed to ascertainment of the plaintiff's demand, and entry of judgment; but before taking out execution against the real estate of the deceased debtor, the heirs or devisees of the deceased debtor shall be summoned by scire facias to show cause why execution should not be issued against the real estate for the amount of the judgment, or so much of it as there may not be personal assets to discharge.

Code 1858, §§ 2258, 2259 (deriv. Acts 1784 (Oct.), ch. 11, § 2); Shan., §§ 3991, 3992; Code 1932, §§ 8203, 8204; modified; T.C.A. (orig. ed.), § 30-612.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 744, 849, 850, 858-860.

NOTES TO DECISIONS

1. Construction.

The statute providing for scire facias against the heir or devisee, to subject the ancestor's lands, whether descended or devised, to the payment of the ancestor's debts, is in derogation of the common-law rights of heirs and devisees, and must be strictly construed, and the remedy thereby given must be strictly pursued. Roberts v. Busby, 4 Tenn. 299, 1817 Tenn. LEXIS 29 (1817); Gray v. Darby's Lessee, 8 Tenn. 396, 1825 Tenn. LEXIS 13 (1825); Planter's Bank v. Chester, 30 Tenn. 578, 1851 Tenn. LEXIS 108 (1851).

2. Effect of Other Statutes.

The object of §§ 30-5-12130-5-124 (repealed) was not to repeal this section, but to remedy the evils existing in the mode of procedure and to prevent a multiplicity of suits, save cost and to produce equality of payment among the creditors, and suits at law by scire facias or otherwise to subject the land may be enjoined. Dulles v. Read, 14 Tenn. 52, 14 Tenn. 53, 1834 Tenn. LEXIS 53 (1834); Vance v. Sanders, 67 Tenn. 294, 1874 Tenn. LEXIS 376 (1874); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880).

3. Procedure by Scire Facias and in Equity Contrasted.

In a direct proceeding by the creditor to reach the land by scire facias upon the judgment recovered against the administrator, the law is that the heir may make the objection that the defense of fully administered was not put in by the administrator in the suits in which the judgments were recovered, and that the land descended cannot be subjected without a finding in favor of the administrator upon such an issue; however the same reason does not apply to a proceeding under §§ 30-5-12130-5-124 (repealed) which is in the nature of a suit in equity and requires an account of the personal assets to be taken before the rendition of any decree against the land. Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878).

4. Proceedings in Original Suit.

5. —Trial of Plea.

The plea of “fully administered,” “no assets,” or “not sufficient assets” may be tried in the forum where the action is pending, and if in the circuit court, it may be tried before a jury, if properly demanded. Anderson v. Lessee of Clark's Heirs, 32 Tenn. 156, 1852 Tenn. LEXIS 39 (1852).

6. —Verdict Against Plea of Fully Administered.

Where the plaintiff negatives the plea of “fully administered,” and procures a judgment against the administrator for his debt, he is not entitled to a scire facias against the heir, for where the plea of “fully administered” is found against the personal representative, the lands of the decedent cannot be subjected, by scire facias against heirs or devisees, to the payment of his debts. Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828); Anderson v. Lessee of Clark's Heirs, 32 Tenn. 156, 1852 Tenn. LEXIS 39 (1852); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878); Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

A general finding by verdict against the plea of fully administered, without ascertaining the balance of assets unadministered, is unquestionably bad, for no judgment against the administrator for any particular sum can be entered on such finding. NIXON v. BULLOCK, ERWIN & CO., 17 Tenn. 414, 1836 Tenn. LEXIS 73 (1836); Marr v. Rucker, 20 Tenn. 348, 1839 Tenn. LEXIS 59 (1839).

7. —Absence of Plea of Fully Administered — Effect as to Subjection of Land.

The recovery of a judgment against a personal representative without plea of fully administered will not prevent the judgment creditor from subjecting the decedent's land, if the personalty is in fact insufficient to pay the debts of the estate. Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878); Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882).

8. —Judgment.

The judgment against the personal representative is not a lien on the lands descended or devised, until the issuance of process against the heir or devisee to subject the land. Ward v. Southerland, 7 Tenn. Appx. 1 (1823); Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828).

9. Proceeding on Scire Facias against Heirs.

10. —Jurisdiction.

In order to render judgment under this section valid it must distinctly appear that the court had jurisdiction. Planter's Bank v. Chester, 30 Tenn. 578, 1851 Tenn. LEXIS 108 (1851).

11. —Estate Subject to Scire Facias.

Neither the equity of redemption, nor any other estate not subject to levy of execution at law, can be subjected to the payment of the deceased owner's debts by scire facias and execution against the heirs or devisees. Hurt v. Reeves, 6 Tenn. 49, 6 Tenn. 50, 1818 Tenn. LEXIS 21 (1818); Childs v. Derrick, 9 Tenn. 78, 9 Tenn. 79, 1824 Tenn. LEXIS 2 (1824); Combs v. Young's Widow & Heirs, 12 Tenn. 218, 1833 Tenn. LEXIS 57 (1833); Garretson v. Brien, 50 Tenn. 534, 1871 Tenn. LEXIS 110 (1871); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883); Evans v. Belmont Land Co., 92 Tenn. 348, 21 S.W. 670, 1892 Tenn. LEXIS 82 (1893).

A judgment for rents received by the heir cannot be rendered under this section. Combs v. Young's Widow & Heirs, 12 Tenn. 218, 1833 Tenn. LEXIS 57 (1833).

12. —Prerequisites and Requirements.

The scire facias must either name the heirs or devisees, or the sheriff must serve it personally upon them, and make known the names in his return, otherwise, the judgment and the sale of the land made thereunder will be void. Bush's Heirs v. Williams, 3 Tenn. 360, 1 Cooke 360, 1813 Tenn. LEXIS 34 (1813); Roberts v. Busby, 4 Tenn. 299, 1817 Tenn. LEXIS 29 (1817); Ward v. Southerland, 7 Tenn. Appx. 1 (1823); Williams v. Seawell & Jones' Lessee, 9 Tenn. 83, 1825 Tenn. LEXIS 9 (1825); Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827); Simmons v. Wood's Lessee, 14 Tenn. 518, 1834 Tenn. LEXIS 135 (1834); McCracken v. Nelson, 83 Tenn. 312, 1885 Tenn. LEXIS 53 (1885).

The scire facias must be based upon a domestic judgment against the personal representative, for the statute applies exclusively to domestic judgments. Gilman v. Tisdale's Heirs, 9 Tenn. 285, 1830 Tenn. LEXIS 22 (1830); Brown v. Wright, 12 Tenn. 56, 12 Tenn. 57, 1833 Tenn. LEXIS 14 (1833).

A scire facias must be based upon a record. Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); Miller v. Netherland, 31 Tenn. 66, 1851 Tenn. LEXIS 18 (1851).

The issuance of scire facias to subject lands is a judicial act and must be awarded by the court upon a suggestion made of record that real estate has descended to the heirs. Hillman Bros. v. Hickerson, 40 Tenn. 575, 1859 Tenn. LEXIS 172 (1859); Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884); Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

The scire facias should require the heirs or devisees to show cause why execution should not be issued against the real estate of the ancestor, and not to show cause why the judgment against the ancestor should not be revived against them, for there is no authority for a simple revivor of a judgment against the heirs or devisees. Frierson v. Heirs of Harris, 45 Tenn. 146, 1867 Tenn. LEXIS 106 (1867).

Before scirce facias can be resorted to, the personal representative must be first called on, by suit, to pay debts due from his testator or intestate with the question of whether he has the assets with which to pay to be determined, ordinarily, by the result of the suit against him, and, perhaps, by the return of nulla bona to execution and the heir or devisee has the right to demand that all this shall be done before he is vexed. Wooldridge v. Page, 68 Tenn. 325, 1878 Tenn. LEXIS 17 (1878).

13. —Necessity.

The law will not permit the establishment of a claim against the personal representative, by judgment, even to affect the inheritance of the heir, without a further proceeding by scire facias against the heir himself. Stephenson v. Yandle, 4 Tenn. 109, 1816 Tenn. LEXIS 32 (1816).

A lien against the land descended or devised is created by the suing out of process by scire facias against the heir or devisee to subject the land to the payment of the ancestor's debts, and the mere judgment against the personal representative is not a lien on the land of the ancestor descended or devised. Porter's Lessee v. Cocke, 7 Tenn. 29, 7 Tenn. 30, 1823 Tenn. LEXIS 2 (1823); Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828).

14. —Validity.

If the scire facias is served on some of the heirs, and not on others, the sale of the land will be good as to those upon whom it was served. Simmons v. Wood's Lessee, 14 Tenn. 518, 1834 Tenn. LEXIS 135 (1834); Valentine v. Cooley, 19 Tenn. 613, 1838 Tenn. LEXIS 97 (1838); Winchester v. Beardin, 29 Tenn. 247, 1849 Tenn. LEXIS 58, 51 Am. Dec. 702 (1849).

A scire facias issued by the clerk of the court in vacation without being awarded by the court was void. Hillman Bros. v. Hickerson, 40 Tenn. 575, 1859 Tenn. LEXIS 172 (1859).

15. —Defenses.

To the scire facias on the judgment against the deceased debtor, the heir or devisee can make no defense that the debtor might have made to the rendition of the judgment, but he may show that the personalty has not been exhausted, while to a scire facias on a judgment against the personal representative, the heir or devisee may plead any plea, or make any defense that the ancestor might have pleaded or relied upon, as well as show that the personalty has not been exhausted, or that the same has been wasted. Sneed v. Mayfield's Heirs, 3 Tenn. 60, 1 Cooke 60, 1812 Tenn. LEXIS 20 (1812); Neal v. M'Combs, 10 Tenn. 10, 1820 Tenn. LEXIS 3 (1820); Boyd v. Armstrong's Heirs, 9 Tenn. 40, 1821 Tenn. LEXIS 11 (1821); Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828); Wooldridge v. Page, 68 Tenn. 325, 1878 Tenn. LEXIS 17 (1878); Woolridge v. Page, 69 Tenn. 135, 1878 Tenn. LEXIS 64 (1878); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878).

To a scire facias on a judgment against the personal representative, the heir may rely upon the statutes of limitations that the personal representative might have relied upon, but he can only insist upon such statutes as had barred the action against the personal representatives at the time the suit was brought against him. Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828); Miller v. Taylor, 2 Shan. 461 (1877); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878); Bates v. Elrod, 81 Tenn. 156, 1884 Tenn. LEXIS 18 (1884).

A barred debt cannot be revived, as against the real estate descended or devised, by the promise of the personal representative to pay the debt, or to waive the bar of the statute. Trott v. West, Moss & Co., 17 Tenn. 433, 1836 Tenn. LEXIS 80 (1836).

The heirs may contest the claim of the creditor and the administration of the representative before descent of the property as cast can be interrupted. Woolridge v. Page, 69 Tenn. 135, 1878 Tenn. LEXIS 64 (1878); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878); Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882).

16. —Execution.

It is requisite, before proceeding to execution, to sue out the writ of scire facias warning the heir or devisee to show cause why execution should not issue against him, and to which he may make any defense the nature of the case will admit of. Boyd v. Armstrong's Heirs, 9 Tenn. 40, 1821 Tenn. LEXIS 11 (1821).

Where execution issued against chattels, is returned “no personal property found,” and levied on real estate of the deceased, and upon return of the execution into court, scire facias is ordered against his heirs, such proceedings are void, because there is no authority in law for the sheriff's levying the execution on realty descended or devised, upon his simple return of no personalty to be found, and thereafter bringing the heirs before the court by scire facias to show cause why the land should not be ordered to be sold. Moore v. Webb, 53 Tenn. 301, 1871 Tenn. LEXIS 360 (1871).

After recovering a judgment against the personal representative, but before taking out an execution against the real estate, the heirs or devisees must be summoned by scire facias to show cause why execution should not issue. Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

17. Proceeding against Representative Personally.

A scire facias to charge an executor or administrator personally on a judgment, rendered against him in his representative character, in a suit in which he was not required or had no opportunity to make the defense of the want or insufficiency of personal assets, must allege a devastavit and notify him to appear at the next term to show cause against such personal liability, or it will be fatally defective. Wray v. Williams, 10 Tenn. 302, 1829 Tenn. LEXIS 15 (1829); Cox v. Cox, 10 Tenn. 305, 1829 Tenn. LEXIS 16 (1829); Graham v. Ruble, 41 Tenn. 170, 1860 Tenn. LEXIS 39 (1860); Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

An action at law will not lie against a personal representative upon a judgment rendered against his intestate or testator as the personal representative of the estate of another decedent, suggesting a devastavit, because founded on a tort which, by the common law, died with the person. Griffith v. Beasly, 18 Tenn. 434, 1837 Tenn. LEXIS 49 (1837); Stott v. Alexander, 34 Tenn. 650, 1855 Tenn. LEXIS 111 (1855); Cheek v. Wheatley, 35 Tenn. 484, 1856 Tenn. LEXIS 14 (1856).

A personal judgment against an executor or administrator, upon a bill taken for confessed, without any allegation of a devastavit, is erroneous, and it will be corrected on a bill of review. Dance v. McGregor, 24 Tenn. 428, 1844 Tenn. LEXIS 105 (1844).

Scire facias to charge an executor or administrator personally must be based upon a suggestion of record that he has been guilty of a devastavit, or the suggestion of record must state such facts as, of themselves, make out a case of devastavit. Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

18. —Prerequisites to Personal Liability.

A judgment against a personal representative, to be levied of the goods of the decedent, if in the hands of the personal representative to be administered, and, if not, then of the proper goods of the defendant, is erroneous as to the alternative clause for the defendant is entitled to make defense upon scire facias to subject him to personal liability. Massingale v. Jones, 4 Tenn. 36, 1816 Tenn. LEXIS 12 (1816). See White v. Archbill, 34 Tenn. 588, 1855 Tenn. LEXIS 104 (1855).

19. —Burden of Proof.

In an issue upon the plea of “fully administered” in an action against the personal representative, the burden of the proof as to the existence of assets of the estate lies upon the plaintiff. May v. Wright's Adm'rs, 1 Tenn. 385, 1809 Tenn. LEXIS 11 (1805); Marr v. Rucker, 20 Tenn. 348, 1839 Tenn. LEXIS 59 (1839); Gilpin v. Noe, 56 Tenn. 192, 1872 Tenn. LEXIS 126 (1872).

20. —Demurrer.

Demurrer will lie in scire facias against administrator for its insufficiency. Hillman Bros. v. Hickerson, 40 Tenn. 575, 1859 Tenn. LEXIS 172 (1859); Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

21. —Defenses.

A personal representative may rely upon the plea of fully administered in proceedings to charge him personally, where he had no opportunity of pleading in the original proceeding, as in case of judgment by motion, without notice or appearance. Williams v. Greer's Adm'rs, 5 Tenn. 235, 1817 Tenn. LEXIS 106 (1817); Wray v. Williams, 10 Tenn. 302, 1829 Tenn. LEXIS 15 (1829); Cox v. Cox, 10 Tenn. 305, 1829 Tenn. LEXIS 16 (1829); Henry v. Mills, 69 Tenn. 144, 1878 Tenn. LEXIS 65 (1878).

Where the recovery against a personal representative is by decree in chancery, upon pleadings raising no issue or contest as to whether he had wasted the assets, he may rely upon the defense of the insufficiency or want of personal assets, in any subsequent proceeding to charge him personally. Wray v. Williams, 10 Tenn. 302, 1829 Tenn. LEXIS 15 (1829); Cox v. Cox, 10 Tenn. 305, 1829 Tenn. LEXIS 16 (1829).

Judgment against a personal representative operates as a conclusive admission that he has assets of the estate to satisfy it, and, in a subsequent proceeding to render him personally liable on such judgment, he will not be allowed to defend upon the ground that there were no assets, or that he had fully administered them, when he had opportunity to do so, and made no such plea in the former suit, or the plea, if made, was found against him. Blount & Williams v. Hopson, 9 Tenn. 399, 1830 Tenn. LEXIS 33 (1830); Griffith v. Beasly, 18 Tenn. 434, 1837 Tenn. LEXIS 49 (1837); White v. Archbill, 34 Tenn. 588, 1855 Tenn. LEXIS 104 (1855); Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

Where the personal representative is sued upon the former judgment against him suggesting a devastavit, he may defend by showing that there were goods of the decedent which might have been levied on, notwithstanding the sheriff's return of no goods of the decedent. The charge of devastavit is prerequisite. Griffith v. Beasly, 18 Tenn. 434, 1837 Tenn. LEXIS 49 (1837).

After judgment by default against an administrator upon a scire facias based on a suggestion of devastavit to make him personally liable, the suggestion of insolvency can be interposed to defeat such personal liability, if interposed before such liability has been fixed by judgment in the scire facias proceeding upon the suggestion of devastavit, though it be after the original judgment against the administrator for the debt. Mosier v. Zimmerman, 24 Tenn. 62, 1844 Tenn. LEXIS 20 (1844); Ford v. Woltering, 57 Tenn. 203, 1872 Tenn. LEXIS 415 (1872); Griffin v. Fowlkes, 2 Shan. 151 (1876).

It is not a good plea to a scire facias on a judgment against an administrator suggesting a devastavit, that he was discharged from the office of administrator and his successor appointed before the judgment was rendered, nor is it a good plea that he did not waste the assets for these defenses, if true, should have been made to the original action, and if the plaintiff, instead of demurring to the second plea, takes issue upon it, and the issue is found in his favor, he is entitled to judgment. Cude v. Spence, 26 Tenn. 278, 1846 Tenn. LEXIS 125 (1846).

The personal representative may defend against a subsequent suit to make him personally liable, by showing that the assets of the estate were destroyed under circumstances which exonerate him from personal liability. Graham v. Ruble, 41 Tenn. 170, 1860 Tenn. LEXIS 39 (1860); Jones v. Douglass, 1 Cooper's Tenn. Ch. 631 (1874); Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896); Pearson v. Gillenwaters, 99 Tenn. 462, 42 S.W. 199, 1897 Tenn. LEXIS 52 (1897).

22. —Judgment.

A judgment against a personal representative, without providing that the process was to be levied of the goods and chattels of the deceased, is erroneous, but not void. White v. Archbill, 34 Tenn. 588, 1855 Tenn. LEXIS 104 (1855); Glenn v. Maguire, 3 Cooper's Tenn. Ch. 695 (1878).

23. —Liability on Foreign Judgment.

A personal representative is individually liable upon a foreign judgment against him as such, where he failed to plead “fully administered,” or “not sufficient assets,” and the judgment did not provide that the money was to be levied on the goods and chattels of the deceased, and such judgment may be sued on here and a recovery may be had against him in his individual capacity. White v. Archbill, 34 Tenn. 588, 1855 Tenn. LEXIS 104 (1855).

30-2-411. Service of scire facias.

When any such heir or devisee is a minor and has a guardian, the scire facias shall be served on the guardian and heir, but if the minor has no guardian, the court shall appoint one to defend the suit.

Code 1858, § 2260 (deriv. Acts 1784 (Oct.), ch. 11, § 3); Shan., § 3993; Code 1932, § 8205; T.C.A. (orig. ed.), § 30-613.

Compiler's Notes. This section may be affected by Civil Procedure Rule 4.04 as to personal service on minors and incompetents.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 860.

NOTES TO DECISIONS

1. Effect of Statute.

This statute makes the lands liable for all debts, even during the infancy of the heir. Gray v. Darby's Lessee, 8 Tenn. 396, 1825 Tenn. LEXIS 13 (1825).

2. Service.

The scire facias must be personally served upon residents of the state, whether they be minors or adults, and it must be served upon the guardians of the minors, if they have guardians. Stephenson v. Yandle, 4 Tenn. 109, 1816 Tenn. LEXIS 32 (1816); Roberts v. Busby, 4 Tenn. 299, 1817 Tenn. LEXIS 29 (1817); Darby's Lessee v. McCarrol, 6 Tenn. 286 (1818); Williams v. Seawell & Jones' Lessee, 9 Tenn. 83, 1825 Tenn. LEXIS 9 (1825); Combs v. Young's Widow & Heirs, 12 Tenn. 218, 1833 Tenn. LEXIS 57 (1833); Simmons v. Wood's Lessee, 14 Tenn. 518, 1834 Tenn. LEXIS 135 (1834); Crutchfield v. Stewart, 18 Tenn. 237, 1837 Tenn. LEXIS 7 (1837); Frazier v. Pankey, 31 Tenn. 75, 1851 Tenn. LEXIS 21 (Tenn. Sep. 1851).

A sale of an infant's inheritance to pay the debts of the ancestor, made upon scire facias served upon his guardian ad litem only, and not upon himself, nor upon his general guardian, is void. Darby's Lessee v. Russel, 6 Tenn. 138, 6 Tenn. 139, 1818 Tenn. LEXIS 49 (1818); Darby's Lessee v. McCarrol, 6 Tenn. 286 (1818).

3. Sale.

A sale of infant's land to satisfy debt of ancestor made upon application of a guardian ad litem, such infant having a regular guardian, was a nullity. Darby's Lessee v. McCarrol, 6 Tenn. 286 (1818).

30-2-412. Judgment without appearance.

Upon the return of two (2) writs of scire facias, that the heirs or devisees have been summoned on each, or that they reside out of the state, so that they cannot be summoned, and have no guardians upon whom the writ can be executed, judgment shall be given against the real estate in their hands, though no appearance be made for them.

Code 1858, § 2261 (deriv. Acts 1784 (Oct.), ch. 11, § 4); Shan., § 3994; Code 1932, § 8206; T.C.A. (orig. ed.), § 30-614.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 860, 861.

NOTES TO DECISIONS

1. Exclusive Exception.

This section furnishes the only exception to the rule that the heirs — adults and minors and the guardians of the minors — must all be personally served with the scire facias. Roberts v. Busby, 4 Tenn. 299, 1817 Tenn. LEXIS 29 (1817).

2. Return.

Where process runs generally against the heirs but does not name them, judgment under scire facias upon the return of two nihils or “not found” is void. Bush's Heirs v. Williams, 3 Tenn. 360, 1 Cooke 360, 1813 Tenn. LEXIS 34 (1813); Roberts v. Busby, 4 Tenn. 299, 1817 Tenn. LEXIS 29 (1817); Boyd v. Armstrong's Heirs, 9 Tenn. 40, 1821 Tenn. LEXIS 11 (1821); Williams v. Seawell & Jones' Lessee, 9 Tenn. 83, 1825 Tenn. LEXIS 9 (1825); Henderson v. Overton, 10 Tenn. 394, 1830 Tenn. LEXIS 8, 24 Am. Dec. 492 (1830). But see Seawell v. Williams, 6 Tenn. 280, 1814 Tenn. LEXIS 49 (1814), overruled in part, Williams v. Seawell & Jones' Lessee, 9 Tenn. 83, 1825 Tenn. LEXIS 9 (1825); House v. Mitchell, 19 Tenn. 138, 1838 Tenn. LEXIS 35 (1838).

Unless the scire facias is personally served, or the fact of nonresidence is returned twice, that is, on one scire facias and on an alias, the proceeding is void. The return of two nihils is not equivalent to a return of nonresidence required. Roberts v. Busby, 4 Tenn. 299, 1817 Tenn. LEXIS 29 (1817).

30-2-413. Plea of sufficient assets, waste, or concealment — Trial of collateral issue — Execution.

  1. To this writ the heirs or devisees may plead that the executors or administrators have sufficient assets, or that they have wasted or concealed the assets, upon which plea the court shall order the trial of a collateral issue between the personal representative and the heirs or devisees.
  2. If this issue be found against the representative, the original plaintiff or complainant shall have execution not only against the goods and chattels of the deceased debtor, but also against the proper goods and chattels, lands and tenements of the representative.

Code 1858, §§ 2262, 2263 (deriv. Acts 1784 (Oct.), ch. 11, § 5); Shan., §§ 3995, 3996; Code 1932, §§ 8207, 8208; T.C.A. (orig. ed.), §§ 30-615, 30-616.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 858, 862.

NOTES TO DECISIONS

1. Purpose.

The law allows the collateral issue between the personal representative and the heirs or devisees, for the reason that they should not, without a hearing, be stripped of their inheritance or devise. Neither the personal representative nor the creditor represents the heirs or devisees in the creditor's action against the personal representative, so as to bind them on the lands descended or devised. Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828); Neal v. M'Combs, 10 Tenn. 10, 1820 Tenn. LEXIS 3 (1820); Miller v. Taylor, 2 Shan. 461 (1877); Woodfin v. Anderson, 2 Cooper's Tenn. Ch. 331 (1875); Bloom v. Cate, 75 Tenn. 471, 1881 Tenn. LEXIS 145 (1881).

2. Finding for Heir — Lands Exempt.

If finding for the heir be made upon a collateral issue, the ancestor's lands cannot be made liable for the satisfaction of his debts. Peck v. Heirs of Wheaton, 8 Tenn. 353, 1828 Tenn. LEXIS 12 (1828).

3. Matters Not Relieving Representative.

The loss of the assets by the administrator and the insolvency of his sureties furnish no ground of relief against the heir, either in law or equity. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

4. Parties.

The administrator should be before the court, and, the heirs having the right also to contest the justice of the original demand with the creditor, he should be before the court. Gilman v. Tisdale's Heirs, 9 Tenn. 285, 1830 Tenn. LEXIS 22 (1830).

5. Pleas Available to Heirs and Devisees.

The heir or devisee may plead that the executor or administrator has not fully administered, or that he has or had assets. The same idea is preserved in the statute contained in § 30-2-406. Johnston v. Dew, 6 Tenn. 224, 1818 Tenn. LEXIS 52 (1818).

This section regards the personal assets and the conduct of the personal representative in administering them and the fact that it authorizes the heir or devisee to contest the plea of fully administered does not confine his defense to that alone, nor exclude any defense that goes to the merits of the claim or debt which has been established by judgment against the personal representative. The right to contest the merits of such a claim exists under § 30-2-410. Neal v. M'Combs, 10 Tenn. 10, 1820 Tenn. LEXIS 3 (1820).

6. —Plea of Available or Wasted Assets.

If the heirs or devisees make the defense to the scire facias that the executor or administrator has assets, or has wasted the same, it is a matter to be tried between the heirs or devisees and the personal representative; and if found against the personal representative, it will defeat the scire facias, and subject the personal representative, in his own proper estate, to the payment of the debt; but if such defense is not made, the personal representative need not appear in the proceeding by scire facias and the judgment sustaining his plea of fully administered or insufficient assets in the former proceeding will be taken as admitted. Anderson v. Lessee of Clark's Heirs, 32 Tenn. 156, 1852 Tenn. LEXIS 39 (1852).

Collateral References.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Liability of executor or administrator, or his bond, for loss caused to estate by act or default of his agent or attorney. 28 A.L.R.3d 1191.

30-2-414. Execution issuing against realty.

If judgment or decree pass against the heirs or devisees, or any of them, execution shall be issued against the real estate of the deceased debtor descended or devised.

Code 1858, § 2264 (deriv. Acts 1784 (Oct.), ch. 11, § 2); Shan., § 3997; Code 1932, § 8209; T.C.A. (orig. ed.), § 30-617.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 862.

NOTES TO DECISIONS

1. Judgment upon Finding Against Heirs.

The proper judgment upon a scire facias against the heirs or devisees is that plaintiffs have judgment and execution against the lands descended or devised generally, without specifying them. Smith v. Stump's Heirs, 7 Tenn. 278, 1823 Tenn. LEXIS 55 (1823); Butterworth v. Brown's Heirs, 15 Tenn. 467, 1835 Tenn. LEXIS 26 (1835); Edgington v. Jamison, 70 Tenn. 569, 1879 Tenn. LEXIS 198 (1879).

Where, after judgment against the administrator and plea of fully administered found in his favor, scire facias is issued against the heirs, and their defense is found against them, a judgment that the plaintiff have execution against the lands descended for the debt and costs of the scire facias proceeding to reach the lands is proper. Goine's Heirs v. Henderson, 13 Tenn. 197, 1833 Tenn. LEXIS 135 (1833).

2. Judgment on Appeal.

If the heir appeals, and judgment finally goes against him, a personal judgment may be rendered against him for the costs of the appeal. Goine's Heirs v. Henderson, 13 Tenn. 197, 1833 Tenn. LEXIS 135 (1833).

30-2-415. Contribution among devisees or heirs.

If upon a judgment or decree pursuant to § 30-2-414, a devisee or heir is evicted from the real estate devised or descended to the devisee or heir, the devisee or heir may bring an action at law or suit in equity against the other devisee or devisees, heir or heirs, for the evicted devisee or heir's proportion of the value of the land sold, suggesting in the declaration or bill of complaint the value of the several devises or descents, and the recovery against the other devisee or devisees, heir or heirs, shall be in proportion to the value of all the devises or inheritances proved on the trial, without regard to the sum for which the estate of which the devisee or heir was evicted was sold.

Code 1858, § 2265 (deriv. Acts 1784 (Oct.), ch. 11, § 6); Shan., § 3998; mod. Code 1932, § 8210; T.C.A. (orig. ed.), § 30-618.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 854, 863, 890.

NOTES TO DECISIONS

1. Marshaling Land.

The heirs or devisees should, as among themselves, bear ratably the burden or charge of the debts of the ancestor upon the land, and they are entitled to have the lands marshaled, upon a bill filed for that purpose, but such right will not interfere with the rights of the creditors to subject the land, or any part of it, to the satisfaction of their debts. Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882); Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

30-2-416. Purchaser's remedy when satisfaction of judgment and sale is set aside at instance of heirs.

In all cases in which the heirs, or devisees, of a deceased person, whose real estate has been sold for the satisfaction of the deceased's debts, by virtue of proceedings under §§ 30-2-40930-2-415, institute suit for the recovery of the real estate against the purchaser, in consequence of failure to serve the scire facias personally on the minor heirs, the court rendering the judgment, upon the application of the purchaser, shall set aside the satisfaction of the original judgment or execution, and thereupon the original judgment shall be revived, and may be enforced by the purchaser against the real estate in the same way as the original judgment could have been enforced by the original creditor.

Code 1858, § 2266 (deriv. Acts 1849-1850, ch. 119); Shan., § 3999; Code 1932, § 8212; T.C.A. (orig. ed.), § 30-619.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 864.

NOTES TO DECISIONS

1. Subrogation in General.

The purchasers of land at judicial sale, made under proceedings for the payment of debts of a decedent, and the subpurchasers thereof, are entitled, if the sale be declared void at the instance of the heirs and the land be recovered, to be subrogated to the rights of the creditors whose debts were a proper charge on the land and were paid out of the purchase money, either wholly or partly, and to have a lien on the land therefor, and to have a sale to enforce the same, though the heirs or some of them were infants or lunatics. Martin v. Turner, 49 Tenn. 384, 1871 Tenn. LEXIS 21 (1871); Bennett v. Coldwell, 67 Tenn. 483, 1875 Tenn. LEXIS 71 (1875); Jones v. McKenna, 72 Tenn. 630, 1880 Tenn. LEXIS 71 (1880); Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881); Strother v. Reilly, 105 Tenn. 48, 58 S.W. 332, 1900 Tenn. LEXIS 52 (1900).

2. Subrogation upon Independent Bill.

The relief of equitable subrogation will be granted to the purchaser, or to the evicted subpurchaser or party claiming under him, upon a bill filed by him, after the recovery of the land by the heir in an action at law, for the chancery court will grant active relief at the instance of the purchaser in such case, and, in granting relief, is not confined to cases in which the heir seeks to recover the land in chancery and in which relief is granted to the heir upon the condition that he will do equity by refunding such purchase money. Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871); Smithson v. Inman, 61 Tenn. 88, 1872 Tenn. LEXIS 344 (1872); Trousdale v. Maxwell, 74 Tenn. 161, 1880 Tenn. LEXIS 223 (1880); Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881); Strother v. Reilly, 105 Tenn. 48, 58 S.W. 332, 1900 Tenn. LEXIS 52 (1900).

3. Burden of Establishing Creditors' Claims.

Where the sale is held to be void because the heirs were not legally made parties to the suit, the purchaser must establish the claims of creditors, in order to be substituted to their rights, and the establishment of the claims in such void proceedings is not even prima facie evidence of the existence of such debts. Miller v. Taylor, 2 Shan. 461 (1877); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881).

4. Lien on Land.

If the purchase money was received by the heirs themselves or appropriated for their benefit, the purchasers under such void and avoided sales are entitled to a lien on the land for such money, and to a sale to enforce the lien. Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881).

5. Statutes of Limitations — Effect.

Neither the statutes of limitations, nor the lapse of time will, upon the avoidance of the sale by the heirs, affect the right of purchasers, for the statutes of limitations will not begin to run until such avoidance. Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881); Strother v. Reilly, 105 Tenn. 48, 58 S.W. 332, 1900 Tenn. LEXIS 52 (1900).

30-2-417. Restitution from assets afterwards discovered where real property subjected to payment of debts.

Where real property has been subjected to the payment of decedent's debts, and assets that should have been applied to the debts are afterwards discovered, or, for any reason, personal property of decedent, that should have been so applied afterwards comes to the hands of the personal representative, legatee or next of kin, the heir, devisee, or other person aggrieved, may maintain an action to procure reimbursement therefrom.

Code 1932, § 8211; T.C.A. (orig. ed.), § 30-620.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 849, 854, 863, 890.

30-2-418. Court-ordered sale of real estate — Notice — Hearing.

  1. In the case of a will that does not give the personal representative the power to sell real estate, and in intestate estates, when the personal estate is ascertained by the report of the clerk, and the confirmation of the report by the court, to be insufficient for the payment of the debts of the estate, administrative expenses, inheritance taxes and estate taxes, the court shall direct that the real estate, subject to sale, or so much of the real estate as is necessary, be sold for the payment of the debts, expenses and taxes.
  2. The clerk shall notify the devisees or heirs, the surviving spouse and other interested parties that the court will conduct a hearing to determine the advisability of selling real estate and to authorize the sale.
  3. The devisees or heirs, the surviving spouse and other interested parties shall be made parties to the proceedings but it shall not be necessary that all parties be before the court for an order to be made therein.
  4. After notice to the parties and after considering the appraisal of one (1) qualified real estate appraiser as to the fair market value of the property, the court may order the sale of real estate. The sale may be by public or private means and upon such terms and conditions as the court may direct or approve.

Acts 1989, ch. 516, § 6; 1997, ch. 407, § 1; 1997, ch. 426, § 10.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendments to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Cross-References. Suggestion of insolvency by representative, § 30-5-102.

Part 5
Suits Against Representatives

30-2-501. Time limitation for suit — State tax lien.

  1. Other than by filing of claims or the revivor of actions pending against the decedent at the time of the decedent's death, no suits shall be brought or other action taken by any creditor against the estate until the expiration of three (3) months from the issuance of letters, and nothing in this part shall be so construed as to permit the filing of claims or revivor of pending actions, or institution of suits against the personal representative after twelve (12) months from the date of death of the decedent, except, however, for insolvency proceedings or claims filed by creditors within the period prescribed in the notice published or posted in accordance with § 30-2-306(b).
  2. Where any taxes were owed to the state by the decedent at the time of death, any and all property of such decedent, or an amount equal to the proceeds derived from the disposal thereof, shall be subject to the state's common law lien for delinquent taxes for a period of six (6) months following death or until payment within that period, which lien shall be enforceable by distress warrant in accordance with title 67, chapter 1, part 12.

Acts 1939, ch. 175, § 6; 1947, ch. 137, § 1; C. Supp. 1950, § 8196.7 (Williams, § 8196.6); Acts 1957, ch. 242, § 1; 1971, ch. 230, § 1; T.C.A. (orig. ed.), § 30-1001; Acts 1989, ch. 395, § 9.

Cross-References. Action against remaining executors after removal of one from state or county, §§ 20-1-11220-1-114.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Revival of action after death of sole executor, § 20-5-114.

Summary judgments for and against executors and administrators, § 25-3-128.

Suspension of limitations during exempt period, § 28-1-110.

Testimony as to transactions with deceased, § 24-1-203.

Wrongful death action, § 20-2-112.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 564, 753, 756, 786, 789.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273 (1979).

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707 (1978).

Wrongful Death Actions in Tennessee (T. A. Smedley), 27 Tenn. L. Rev. 447 (1960).

NOTES TO DECISIONS

1. Construction.

Neither § 30-2-309 nor § 30-2-501 limited or affected the provisions of § 28-1-110 relative to suspension of period of limitation. In re Estate of Myers, 55 Tenn. App. 195, 397 S.W.2d 831, 1965 Tenn. App. LEXIS 249 (Tenn. Ct. App. 1965).

No notice of insolvency was filed; the state bureau raised only the likelihood that if it had filed a timely claim, a notice of insolvency would be necessary—that might be so. After failing to file a timely claim, however, a party would not be free to take advantage of the insolvency that that claim might have brought about; because the trial court held that the state bureau did not file its claim in time, the procedural trigger for treating the estate as insolvent — the filing of the notice of insolvency — never occurred, therefore even if T.C.A. § 30-2-501(a) created an exception to the ordinary statutes of limitations, that exception did not apply. In re Estate of Tanner, 295 S.W.3d 610, 2009 Tenn. LEXIS 653 (Tenn. Oct. 7, 2009).

2. Application.

Exemption of administrator under this section from suit for six (now three) months after issuance of letters does not apply to a tort action since probate judge with jurisdiction to administer estates does not have jurisdiction over negligence cases. McMahan v. Beach, 198 Tenn. 168, 278 S.W.2d 680, 1955 Tenn. LEXIS 358 (1955).

Suit by some heirs at law against remaining heirs at law and against trustee of trust deed to subject land to sale for partition was not a claim against the estate within the meaning of this section so that personal representative was not a necessary party and suit could be brought even though within the six (now three) month period provided by this section. Crook v. Crook, 208 Tenn. 262, 345 S.W.2d 679, 1961 Tenn. LEXIS 419 (1961).

As this section has no application to tort actions and first three counts of amended counterclaim sounded in tort this section could have no effect on these counts in any way. Smith v. Insurance Co. of North America, 30 F.R.D. 540, 1962 U.S. Dist. LEXIS 6023 (M.D. Tenn. 1962).

Delay of more than a year beyond the time for responsive pleading operated as a waiver of the responsive statute; thus plaintiff's motion to file and amend her reply to defendant's amended counterclaims based on affirmative defense under statute of limitations of this section must be overruled. Smith v. Insurance Co. of North America, 30 F.R.D. 540, 1962 U.S. Dist. LEXIS 6023 (M.D. Tenn. 1962).

Collateral References.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent's estate, against personal representative. 42 A.L.R.2d 418.

Check or draft holder's rights as against administrator of drawer whose rights attached before presentment, as affected by Negotiable Instruments Law. 50 A.L.R. 403, 84 A.L.R. 412.

Coexecutors or coadministrators, different pleas interposed by, in actions against them in representative capacity. 85 A.L.R. 449.

Coexecutors or coadministrators, suits between. 63 A.L.R. 439.

Constitutionality, construction, and application of statute forbidding suit against representative of estate until expiration of prescribed period. 104 A.L.R. 892.

Declaratory judgments in matters respecting estates. 12 A.L.R. 52, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8.

Jurisdiction of federal court, citizenship of executor or administrator as test of diversity of citizenship for purpose of. 77 A.L.R. 910, 136 A.L.R. 938.

Legacy charged upon land devised, right of legatee to enforce payment of, as against personal representative of devisee. 116 A.L.R. 7, 134 A.L.R. 361.

Libel by will. 21 A.L.R.3d 754.

Necessity that executor or administrator be represented by counsel in presenting matters in probate court. 19 A.L.R.3d 1104.

Nonresident executor or administrator, action or proceeding which directly or indirectly seeks to establish liability of, or to recover judgment against, as one in personam or in rem, as regards acquisition of jurisdiction upon constructive or substituted service of process. 136 A.L.R. 621.

Partner deceased, applicability of statute of limitations as between estate of, and surviving partner. 96 A.L.R. 441, 157 A.L.R. 1114.

Payment or delivery of legacy or distributive share before decree of distribution as defense to action by legatee or distributee against personal representative. 121 A.L.R. 1069.

Relation back of letters testamentary or of administration, effect of doctrine of, on suits and actions growing out of previous acts. 26 A.L.R. 1369.

Release or compromise of interest in decedent's estate, return or tender of consideration for, as condition of action for rescission or cancelation, action upon original claim, or action for damages sustained by the fraud inducing the release or compromise. 134 A.L.R. 164.

Tolling or interruption of running of statute of limitations pending appointment of executor or administrator for tort-feasor in personal injury or death action. 47 A.L.R.3d 179.

30-2-502. Premature suit — Abatement — Judgment voidable.

  1. To all suits instituted within three (3) months after issuance of letters, the administrator or executor shall plead the prematurity of the action in abatement, or, in default thereof, shall be held liable as for a devastavit, if the estate proves insolvent.
  2. A judgment by confession or by default within the period of three (3) months against an administrator or executor, shall be deemed as to the estate voidable.

Code 1858, §§ 2275, 2276 (deriv. Acts 1831, ch. 23, § 2); Shan., §§ 4008, 4009; mod. Code 1932, §§ 8221, 8222; modified; C. Supp. 1950, § 8221; Acts 1971, ch. 230, §§ 2, 3; T.C.A. (orig. ed.), §§ 30-1002, 30-1003.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 747, 753.

NOTES TO DECISIONS

1. Failure to Answer.

A personal representative, not pleading the prematurity of suit brought against him within six months after his qualification, and submitting to a judgment against him, is guilty of a devastavit. Gorman v. Swaggerty, 36 Tenn. 560, 1857 Tenn. LEXIS 54 (1857).

2. Elements of Answer.

The personal representative must “plead the prematurity of the action in abatement,” and it is stated that a motion to dismiss is not the proper mode of defense of prematurity of suit. Cohen v. Whitman, 1 Cooper's Tenn. Ch. 269 (1873).

Collateral References.

Liability of executor or administrator for negligence or default in defending action against estate. 14 A.L.R.3d 1036.

30-2-503. Revival of judgments against deceased.

Judgments obtained against the deceased in the deceased's lifetime may be revived without delay.

Code 1858, § 2277 (deriv. Acts 1831, ch. 23, § 3); Shan., § 4010; Code 1932, § 8223; T.C.A. (orig. ed.), § 30-1004.

Cross-References. Death of codefendant, § 25-4-102.

Judgments revived by and against heirs, when, § 25-4-104.

Proceedings on judgment against deceased, § 30-2-507.

Real assets, subjected to debts sued on before debtor's death, § 30-2-409.

Revival by or against heirs when no personal representative, § 20-5-104.

Revival by or against personal representative, § 20-5-116.

Scire facias, issuance by general sessions judge to review judgments, § 16-15-401.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 754.

NOTES TO DECISIONS

1. Revival against Administrator.

While a judgment at common law did not survive a defendant against whom it was rendered, under this section and § 25-4-104, a judgment does survive and may be revived against his administrator or his heirs if there is no administration. The statutes appear to make no distinctions with reference to the character of the action upon which the judgment is founded Pickens v. Scarbrough, 164 Tenn. 75, 46 S.W.2d 58, 1931 Tenn. LEXIS 14 (1932).

30-2-504. Waste or misappropriation of assets by personal representative — Statute of limitation applicable.

Nothing in part 3 of this chapter or § 30-2-501 shall be so construed as to exempt a personal representative from suit by either a creditor or a beneficiary for waste or misappropriation of the assets of the estate or other wrongful act in connection therewith, or to affect any existing statute of limitation applicable to such a suit, or to preclude the enforcement against the property affected by it of any subsisting lien that shall endure beyond the time fixed herein for filing claims.

Acts 1939, ch. 175, § 10; C. Supp. 1950, § 8196.13 (Williams, § 8196.10); T.C.A. (orig. ed.), § 30-1005.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 759, 766, 786.

Collateral References.

Liability of executor or administrator for negligence or default in defending action against estate. 14 A.L.R.3d 1036.

30-2-505. General sessions court's execution against representative — Return made to circuit court.

If a general sessions court judge's execution against an executor or administrator be returned “no property to be found,” the judge who rendered the judgment, or who holds the papers in the cause, shall, on suggestion and application of the plaintiff, the plaintiff's agent or attorney, return the papers to the next circuit court of the plaintiff's county.

Code 1858, § 2271 (deriv. Acts 1822, ch. 43, § 1); Shan., § 4004; Code 1932, § 8217; T.C.A. (orig. ed.), § 30-1006.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 745, 750.

NOTES TO DECISIONS

1. In General.

This statute places a justice's (now general sessions court) judgment on the same footing with the judgment of the circuit court, as respects the modes of proceeding to obtain satisfaction. Hillman Bros. v. Hickerson, 40 Tenn. 575, 1859 Tenn. LEXIS 172 (1859).

2. Determination of Issue.

A personal representative sued before a justice of the peace (now general sessions court) may plead “fully administered,” “no assets,” or “not sufficient assets,” and the justice (now judge) may determine such issue. Blount & Williams v. Hopson, 9 Tenn. 399, 1830 Tenn. LEXIS 33 (1830); Anderson v. Lessee of Clark's Heirs, 32 Tenn. 156, 1852 Tenn. LEXIS 39 (1852); Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

It is not contemplated that the question of “fully administered,” when involving rights of heirs, shall be determined before the justice (now general sessions court), or that a proceeding shall be instituted in that forum against the heirs by scire facias. When this course is proposed, the proceeding must be returned to the circuit court. Ford v. Woltering, 57 Tenn. 203, 1872 Tenn. LEXIS 415 (1872).

3. Transfer to Circuit Court.

A written application for the transmission of the papers to the circuit court, stating the object thereof, was made, and the judge indorsed on the papers that they were, by order of plaintiff's attorney, sent to the circuit court for further proceedings; such mode of procedure was held to be valid and effective. Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

4. Relief in Chancery.

Where a judgment is taken against an administrator so as to make him personally liable therein, in violation of an agreement that he should not be so liable, chancery will grant relief against the enforcement of such liability. Newnan v. Stuart, 6 Tenn. 78, 1818 Tenn. LEXIS 26 (1818); Keller v. Myers, 73 Tenn. 305, 1880 Tenn. LEXIS 128 (1880).

Where deceased during his lifetime transferred real estate to defendants without consideration, creditors of deceased who secured judgments against executor of deceased in justice court (now general sessions court) and whose executions were returned “nulla bona” could file bill in chancery to subject real estate to their claims without proceeding in mode set forth in this section and § 30-2-506. Spencer v. Armstrong, 59 Tenn. 707, 1874 Tenn. LEXIS 38 (1874).

30-2-506. Proceedings on general sessions court's execution.

Upon the return of papers under § 30-2-505, scire facias shall be issued, and all other proceedings had for the satisfaction of the judgment, either out of the goods and chattels, lands and tenements of the defendant, in case the executor or administrator has wasted the assets, or out of the real estate of the deceased.

Code 1858, § 2272 (deriv. Acts 1822, ch. 43, § 1); Shan., § 4005; Code 1932, § 8218; T.C.A. (orig. ed.), § 30-1007.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 745, 750.

NOTES TO DECISIONS

1. Scire Facias.

Scire facias may issue, citing heirs or devisees to show cause why the plaintiff shall not have execution of the lands descended. In case no one will administer, a pending suit may be revived against the heirs or devisees, and judgment and execution may be had against the land of the decedent, descended or devised. Frierson v. Heirs of Harris, 45 Tenn. 146, 1867 Tenn. LEXIS 106 (1867); Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

An original scire facias will not lie in the circuit court to revive against the personal representative a judgment against the decedent rendered by general sessions judge; but upon appeal to the circuit court in the revivor proceeding, the scire facias may be amended in that court. Bryant v. Smith, 47 Tenn. 113, 1869 Tenn. LEXIS 15 (1869); Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

A judgment rendered against a decedent in his lifetime, may be revived against his personal representative, upon writ of scire facias; and where the execution issued on such revived judgment is returned nulla bona, the plaintiff therein is entitled to proceed under the statute. Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

2. —Sufficiency of Allegations.

While the suggestion of record and the allegation of the scire facias that the personal representative named had wasted and converted to his own use the assets of his intestate or testate, may be good, yet such suggestion and allegation of a mere conversion to his own is not equivalent to a charge of devastavit, and is not sufficient. Caleb Cope & Co. v. McFarland, 39 Tenn. 543, 1859 Tenn. LEXIS 271 (1859); Jackson ex rel. Alexander v. Crank, 1 Shan. 599 (1876).

3. —Defenses.

The defense may be made by plea to scire facias. Newnan v. Stuart, 6 Tenn. 78, 1818 Tenn. LEXIS 26 (1818); Keller v. Myers, 73 Tenn. 305, 1880 Tenn. LEXIS 128 (1880).

To a scire facias against a personal representative to render him individually liable on a judgment against him in his representative character, it is a good plea, even at law, that the judgment was rendered as a compromise judgment upon an agreement to look to the real estate of the intestate. Newnan v. Stuart, 6 Tenn. 78, 1818 Tenn. LEXIS 26 (1818); Keller v. Myers, 73 Tenn. 305, 1880 Tenn. LEXIS 128 (1880).

Failure of an administrator to plead “no assets” or “fully administered” in answer to scire facias to revive judgments rendered against his intestate precludes him from subsequently making such defense. The question is res judicata. Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

The administrator waives the question of jurisdiction by appearing and pleading “no assets” and “fully administered” to writs of scire facias seeking execution against him personally on judgments rendered against him in his representative capacity with execution returned nulla bona. Simons v. Page, 96 Tenn. 718, 36 S.W. 843, 1896 Tenn. LEXIS 26 (1896).

4. —Waiver.

A personal representative's waiver of scire facias to revive judgment may authorize the issuance of execution against the personal representative, but not against the deceased debtor. Gwin v. Latimer, 12 Tenn. 22, 1833 Tenn. LEXIS 7 (1833).

5. Judgment.

A scire facias to revive a judgment does not warrant a new judgment, but simply a judgment awarding execution of the original judgment. Bryant v. Smith, 47 Tenn. 113, 1869 Tenn. LEXIS 15 (1869); McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880); Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881); Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

Collateral References.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

30-2-507. Proceedings on judgment against deceased.

The like proceeding as provided in § 30-2-506, shall be had in case of an execution issued after the death of the debtor, and returned “nothing to be found,” on a judgment recovered in the debtor's lifetime.

Code 1858, § 2273 (deriv. Acts 1822, ch. 43, § 2); Shan., § 4006; Code 1932, § 8219; T.C.A. (orig. ed.), § 30-1008.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 745.

Collateral References.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Part 6
Accounts and Settlements

30-2-601. Accountings — Statement in lieu of accounting.

    1. Within fifteen (15) months from the date of qualification, the personal representative shall make an accounting with the clerk of the court exercising probate jurisdiction in the county of the estate. If accountings have been waived by the decedent's will or other pleadings filed with the court, the personal representative shall not be required to file a detailed accounting but shall be required to file a status report detailing any remaining estate issues within fifteen (15) months from the date of qualification and each year thereafter that the estate remains open. Upon application of one (1) or more of the distributees of the residue, the court may require the personal representative to file a detailed accounting with the court.
    2. After the first accounting and until the estate is fully administered, the personal representative shall make further accountings annually from the date of the first accounting. The accountings shall state all receipts, disbursements and distributions of principal and income for the accounting period and the remaining assets held in the estate and shall be verified by the oath of the personal representative before the clerk or any person authorized by law to administer oaths in such cases.
    3. The final accounting shall state the personal representative has mailed or delivered notice of the requirement to file claims required by § 30-2-306(d) to the creditors of the decedent who were known to or reasonably ascertainable by the personal representative.
    4. For good cause shown to the court, it may extend the time for filing the accountings. However, detailed accountings of solvent estates may be waived if:
      1. The decedent by the decedent's will waived the requirement for the personal representative to make court accountings of the estate; or
      2. All of the distributees of the residue file with the clerk of the court sworn waivers, or statements under penalty of perjury, excusing the personal representative from filing all court accountings.
    1. If all court accountings are waived by the decedent's will or by the distributees as above provided and notwithstanding any other provisions of probate law to the contrary, the personal representative and the distributees of the residue of a solvent estate, in which all legitimate claims against the estate have been satisfied, may file separate statements with the clerk of the court at any time after the period for creditors to file claims against the estate has expired, which statement by the personal representative shall state substantially the facts in subdivision (b)(1)(A) and which statement by the distributees of the residue shall state substantially the facts in subdivision (b)(1)(B); except that no statement acknowledging receipt shall be required of a distributee who is also the personal representative:
      1. That the personal representative has properly administered the estate, has paid or settled all claims that were lawfully presented, has paid all expenses of administration, has mailed or delivered notice of the requirement to file claims, as prescribed in § 30-2-306(d), to the creditors of the decedent who were known to or reasonably ascertainable by the personal representative, has for estates where the death occurred prior to January 1, 2016, filed with the court a final receipt from the department of revenue unless waived pursuant to § 67-8-409(g), has distributed the estate according to the will and obtained and filed receipts for specific bequests as required by § 30-2-707, or has distributed the estate according to the laws of intestate succession; and
      2. That the distributees of the residue acknowledge that the estate has been properly distributed to them.
    2. If the personal representative has made diligent efforts, satisfactory to the court, to obtain an acknowledgement from any distributee, and one (1) or more have failed to comply, the personal representative may move the court for closure of the estate by giving notice of the pending settlement to the non-compliant distributee. Failure of the non-compliant distributee to appear or participate in the hearing shall result in a final order closing the estate.
  1. The filing of this statement, and without the requirement of notice of an accounting by the clerk, relieves the personal representative and all distributees of any requirement of law or rule to file a detailed statement, accounting or receipt of any property, money or other items received from the estate. This section does not apply unless all distributees of the residue of an estate file this statement in lieu of a more detailed accounting that may otherwise be required.
  2. In connection with any final settlement with the court, it is necessary for the receipt of any legatee or distributee to be executed under penalty of perjury or otherwise sworn before the clerk or a notary public, in a form developed by the administrative office of the courts. The form shall be posted on the website of the administrative office of the courts where it can be copied by the legatee or distributee or provided to the legatee or distributee by the court or the court clerk.
  3. In connection with any accounting, to support the financial information reported, the personal representative shall submit with the accounting the original of each cancelled check written on the estate account unless:
    1. The personal representative is a bank to which § 45-2-1003(c) applies or a savings and loan association to which § 45-2-1003(c) would apply if the savings and loan association were a bank, in which case the personal representative shall comply with § 45-2-1003(c); or
    2. The estate account is maintained in a financial institution, as defined in § 34-1-101, that does not return the cancelled checks but provides a printed statement showing the date the check cleared, the payee and the amount, in which case the personal representative shall submit a printed statement from the financial institution.

Code 1858, §§ 2295, 2296 (deriv. Acts 1837-1838, ch. 125, § 1); Shan., §§ 4031, 4032; Code 1932, §§ 8244, 8245; Acts 1972, ch. 464, §§ 1, 2; T.C.A. (orig. ed.), §§ 30-1101, 30-1102; Acts 1985, ch. 140, § 19; 1986, ch. 580, § 1; 1989, ch. 395, §§ 10-12; 1992, ch. 951, § 7; 1995, ch. 177, § 1; 1997, ch. 426, § 11; 1998, ch. 762, § 1; 1999, ch. 491, § 12; 2016, ch. 809, §§ 1-3; 2017, ch. 280, §§ 1-4.

Code Commission Notes.

Acts 2017, ch. 280, § 3 added (b)(3); however, that subsection was added as (b)(2), and related redesignations were made in subsection (b) by authority of the code commission.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendments to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

Amendments. The 2016 amendment substituted “sworn waivers, or statements under penalty of perjury, excusing” for “waivers excusing” in (a)(4)(B); substituted “has, for estates where the death occurred prior to January 1, 2016, filed with the court a final receipt from the department of revenue unless waived pursuant to § 67-8-409(9),” for “has filed with the clerk of the court exercising probate jurisdiction the final receipt and release from the department of revenue evidencing payment of all state inheritance and/or estate tax due from the estate, unless waived pursuant to § 67-8-409(9),” in (b)(1); and added “Except as provided in subdivision (a)(4)(B),” at the beginning of (d).

The 2017 amendment added the last two sentences of (a)(1); inserted “as required by § 30-2-707” near the end of (b)(1)(A); added (b)(2); and rewrote (d) which read: “Except as provided in subdivision (a)(4)(B), in connection with any accounting, it is not necessary for the receipt or voucher of any legatee or distributee to be sworn or otherwise acknowledged before the clerk or a notary public.”.

Effective Dates. Acts 2016, ch. 809, § 8. April 14, 2016.

Acts 2017, ch. 280, § 8. July 1, 2017.

Cross-References. Duties of clerk, § 18-6-106.

Fees of clerks of courts administering probate matters, §§ 8-21-401, 8-21-701, 8-21-702.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 836, 837, 1144.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1310, 4-1311, 4-1313, 4-1315.

Tennessee Jurisprudence, 6 Tenn. Juris., Compromise and Settlement, § 2; 12 Tenn. Juris., Executors and Administrators, §§ 63, 65, 66, 75; 25 Tenn. Juris., Wills, § 168.

NOTES TO DECISIONS

1. Jurisdiction.

The probate court has no jurisdiction to confirm or reject a proposed settlement of the personal representative, until the clerk has taken and stated the account with him, has passed upon his vouchers, and has signed and filed his report of the settlement, for the court has no original jurisdiction to act upon the personal representative's ex parte statement of the account made by himself, though embodied in the form of a petition. Cothran, 57 Tenn. 119, 1872 Tenn. LEXIS 407 (1872).

The question whether the probate court has jurisdiction to pass the accounts of testamentary trustees in cases other than upon the death, resignation, or removal of an old trustee, and the appointment of a new one is reserved, because it is not necessary to consider the question in a case where the evidence satisfies the court that the allowance of compensation to such trustees, made by the county court settlement, was proper. Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

In a suit by a legatee in probate court against an administrator with the will annexed, to open the settlement of the estate, and to compel the administrator to pay to complainant a legacy which the administrator, by misrepresentations to the legatee, caused the legatee to renounce, the county court had no jurisdiction, in view of these sections and § 30-2-701. In re Hodge's Estate, 20 Tenn. App. 411, 99 S.W.2d 561, 1936 Tenn. App. LEXIS 31 (Tenn. Ct. App. 1936).

Propriety of fees and compensation in an estate cannot be determined by a bill in chancery but it is a matter solely for probate court upon settlement by administrator. Fox v. Commerce Union Bank, 186 Tenn. 181, 209 S.W.2d 1, 1948 Tenn. LEXIS 534 (1948).

Administrator was not required to reveal what assets came into its hands from the business of the deceased in a bill in chancery since that was for the probate court to pass upon. Fox v. Commerce Union Bank, 186 Tenn. 181, 209 S.W.2d 1, 1948 Tenn. LEXIS 534 (1948).

Administrator in a proceeding in chancery was not required to show election made by it in reference to continuation of business of deceased since that was a matter for determination by probate court. Fox v. Commerce Union Bank, 186 Tenn. 181, 209 S.W.2d 1, 1948 Tenn. LEXIS 534 (1948).

2. Final Settlement.

When the personal representative makes a full settlement of the estate, by which is ascertained the amount going to distributees or legatees, it is a final settlement in such sense that the statute of limitation of ten years begins to run against the distributees or legatees from its date, as to all matters embraced therein, but not as to amounts subsequently received by the personal representative, no account of which was made in such settlement. Franklin v. Franklin, 91 Tenn. 119, 18 S.W. 61, 1891 Tenn. LEXIS 84 (1892).

3. Duty of Representative.

If administrator did not make just and true account of administration within period required it was a breach of condition of his bond. Newsom v. Dickerson, 7 Tenn. 285, 1823 Tenn. LEXIS 57 (1823).

This section contemplates that the executor or administrator shall voluntarily render his account, and it is his duty to do so after the expiration of the time or times fixed by the statute; and this duty must be discharged within a reasonable time thereafter. Willeford v. Watson, 59 Tenn. 476, 1873 Tenn. LEXIS 95 (1873).

It is the duty of the administrator to make and state his accounts and to distribute the balance as provided by law or by the will of the deceased, after 18 months. State use of Burrow v. Cothron, 21 Tenn. App. 519, 113 S.W.2d 81, 1937 Tenn. App. LEXIS 53 (Tenn. Ct. App. 1937).

4. Time to File.

This provision is simply an economical one, applicable to ordinary cases, and was never intended to be applied in cases where, by the terms of the will, or on account of the condition of the assets or liabilities, it is impossible to close the administration within the time prescribed. Porter v. Moores, 51 Tenn. 16, 1871 Tenn. LEXIS 130 (1871).

The reasonable time after the lapse of the time fixed by statute for rendering account within which the representative must so render account is such additional time as is necessarily consumed in carrying out the proceedings for settling the accounts. Willeford v. Watson, 59 Tenn. 476, 1873 Tenn. LEXIS 95 (1873).

A suit against executor to enforce an express trust filed more than ten years after expiration of 18 month period following qualification of executor is barred by virtue of § 28-3-110, since cause of action accrued upon expiration of 18 month period. Crawford v. Robinson, 191 Tenn. 11, 231 S.W.2d 360, 1950 Tenn. LEXIS 540 (1950).

5. Accounting Requirements.

The accounting requirements exist not only for the beneficiaries' benefit but also for the benefit of the estate's creditors, the taxing authorities, and the courts. They are intended to ensure the correct administration and speedy settlement of estates and to remove the temptation and opportunity for fraud and embezzlement. McFarlin v. McFarlin, 785 S.W.2d 367, 1989 Tenn. App. LEXIS 806 (Tenn. Ct. App. 1989).

It was error to deny a decedent's child's requests for an inventory and accountings of property in the decedent's estate without finding if the child qualified as a residuary distributee or legatee because (1) T.C.A. § 30-2-301 required an inventory if demanded by a residuary distributee or legatee, (2) T.C.A. § 30-2-601(a)(4) only waived an accounting if the will or all residuary distributees waived an accounting, and (3) no copy of the will was in the record, so an appellate court could not find if the child were a residuary distributee or legatee, requiring remand. In re Estate of Dalton, — S.W.3d —, 2016 Tenn. App. LEXIS 436 (Tenn. Ct. App. June 28, 2016).

As for defendant failing to list the gold coins in the final accounting, that was not the office of an accounting; as distinguished from accountings, it is the inventory in which the personal representative is to provide a list of probate assets. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

Collateral References.

Liability of estate for tort of executor, administrator, or trustee. 82 A.L.R.3d 892.

Tort claimant against decedent's estate as person or party interested, or as creditor, entitled to object to account or report of personal representative. 87 A.L.R.2d 1231.

Validity of statutes imposing a graduated probate fee based upon value of estate. 76 A.L.R.3d 1117.

30-2-602. Citation to appear and settle — Punishment for disobedience.

If any personal representative fails to settle the accounts or file a status report as prescribed  in § 30-2-601, the clerk shall cite the personal representative to appear and settle on a given day, to be specified in the citation, and if the personal representative disobeys the citation, the citation being duly returned, with service endorsed on it, or endorsement to the effect that the personal representative avoids service, that disobedience or avoiding of service shall be a contempt of court, and punishable as such. At the clerk's discretion, any citation issued for the appearance of a personal representative pursuant to this section may be served by sending such citation by certified mail with return receipt to the personal representative's last known address.

Code 1858, § 2297 (deriv. Acts 1851-1852, ch. 215, § 6); Shan., § 4033; Code 1932, § 8246; T.C.A. (orig. ed.), § 30-1103; Acts 1989, ch. 395, § 13; 2017, ch. 280, § 5.

Amendments. The 2017 amendment inserted “or file a status report” in the first sentence.

Effective Dates. Acts 2017, ch. 280, § 8. July 1, 2017.

Cross-References. Failure to settle accounts, § 30-2-613.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 667, 838.

NOTES TO DECISIONS

1. Failure to Obey.

If the personal representative fails to make his settlement upon the citation, he is thereunder punishable for contempt in the probate court, and by indictment in the circuit or criminal court. Taliaferro v. Wright, 1 Shan. 178 (1861).

30-2-603. Service of notice of accounting.

  1. No account of any personal representative shall be taken until the clerk of the probate or chancery court, taking the account, or the personal representative or the personal representative's attorney has served the parties interested with notice of taking the account at least five (5) days before the time fixed for taking the account. This notice may be waived in writing by any legatee, distributee or other person interested in the estate.
  2. If addresses of heirs, distributees, or other persons interested in the estate are unknown, the personal representative or the personal representative's attorney shall publish notice of the accounting in a newspaper of general circulation in the county with jurisdiction over the probate proceedings.

Code 1858, § 2298 (deriv. Acts 1851-1852, ch. 215, § 2); Shan., § 4034; mod. Code 1932, § 8247; T.C.A. (orig. ed.), § 30-1104; Acts 1986, ch. 580, § 2; 1997, ch. 407, § 2; 2001, ch. 400, § 2.

Cross-References. Clerk to serve notice of accounts, § 18-6-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 839, 846, 1123, 1144.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1309.

NOTES TO DECISIONS

1. Duty of Clerk.

When the executor or administrator reports himself as ready to state his accounts, this section makes it the duty of the clerk, before taking the account, to have the parties interested served with notice. Willeford v. Watson, 59 Tenn. 476, 1873 Tenn. LEXIS 95 (1873); Bayne v. Sinclair, 3 Shan. 159 (1874). See Cothran, 57 Tenn. 119, 1872 Tenn. LEXIS 407 (1872).

2. Parties Interested.

Upon notice of the clerk, the “parties interested” may appear, but it is not absolutely essential that they appear. If they appear, they may contest the matters involved, and appeal. Bayne v. Sinclair, 3 Shan. 159 (1874).

While this section does not specify who shall be deemed to be “parties interested,” for the purpose of the notice, § 30-2-608 does so specify. Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880).

Children and grandchildren of deceased brother of decedent who died leaving surviving widow had no interest in decedent's personalty and were not entitled to notice under this section. In re Estate of Williams, 213 Tenn. 707, 378 S.W.2d 775, 1964 Tenn. LEXIS 439 (1964).

Collateral References.

Notice of proceedings to settle account, right to, of surety on bond of executor or administrator. 93 A.L.R. 1366.

30-2-604. Examination of representative under oath.

The clerk or commissioner may, and, when it seems to the clerk or commissioner necessary, shall examine the accounting party, upon oath, touching the representative's receipts and disbursements.

Code 1858, § 2299 (deriv. Acts 1837-1838, ch. 125, § 4); Shan., § 4035; Code 1932, § 8248; T.C.A. (orig. ed.), § 30-1105.

Cross-References. Clerk to examine accounting party, § 18-6-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 840.

30-2-605. Continuance of settlement.

On sufficient cause shown by affidavit, the clerk may continue the settlement from time to time.

Code 1858, § 2300 (deriv. Acts 1837-1838, ch. 125, § 3); Shan., § 4036; Code 1932, § 8249; T.C.A. (orig. ed.), § 30-1106.

Cross-References. Clerk continuing settlement, § 18-6-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 838, 840, 1115.

30-2-606. Charges, disbursements, and compensation credited to accounting party.

The clerk shall charge every accounting party with all sums of money the accounting party has received, or might have received by using due and reasonable diligence, and shall credit the accounting party with a reasonable compensation for services, and with disbursements supported by lawful vouchers.

Code 1858, § 2301 (deriv. Acts 1837-1838, ch. 111, § 15; 1837-1838, ch. 125, § 4); Shan., § 4037; Code 1932, § 8250; T.C.A. (orig. ed.), § 30-1107.

Cross-References. Administrator as trustee for children's allowance, § 30-2-105.

Clerk charging and crediting party, § 18-6-106.

Public administrators and public guardians, compensation, § 30-1-407.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 840, 841, 878, 1144.

Attorney General Opinions. Law clerk and paralegal fees in awards of expenses for administering a decedent's estate, OAG 92-56, 1992 Tenn. AG LEXIS 54 (10/6/92).

NOTES TO DECISIONS

1. Jurisdiction.

The probate court possesses the necessary authority and has the requisite facilities to have a full and complete accounting with an administrator, making all proper charges against him, and allowing him credit for all items to which he is entitled. In re Love's Estate, 176 Tenn. 696, 145 S.W.2d 778, 1940 Tenn. LEXIS 121 (1940).

The propriety of attorney's fees and any compensations and the amount thereof is solely a matter originally for the probate court when the administrator makes his settlement in that court, as required by law. Fox v. Commerce Union Bank, 186 Tenn. 181, 209 S.W.2d 1, 1948 Tenn. LEXIS 534 (1948).

2. Funeral Expenses.

The charges and disbursements, for which the personal representative is entitled to credit, include the decedent's funeral expenses paid by him. Stephenson v. Stephenson, 4 Tenn. 122, 4 Tenn. 123, 1816 Tenn. LEXIS 33 (1816); Fite v. Beasley, 80 Tenn. 328, 1883 Tenn. LEXIS 176 (1883).

Expenditures can be lawfully made in erecting a monument to the memory of the decedent. Killebrew v. Murphy, 50 Tenn. 546, 1871 Tenn. LEXIS 112 (1871).

A headstone, tombstone, or other suitable memorial is a proper part of the decedent's funeral expenses. Fite v. Beasley, 80 Tenn. 328, 1883 Tenn. LEXIS 176 (1883). See also Gooch v. Beasley, 137 Tenn. 407, 193 S.W. 132, 1916 Tenn. LEXIS 85 (1917).

Where the personal representative of an insolvent estate has paid, out of his own means, on the funeral expenses, an amount in excess of the personal assets, the same will be refunded to him out of the proceeds of the realty, in preference to the debts that are not specific liens thereon. Loftis v. Loftis, 94 Tenn. 232, 28 S.W. 1091, 1894 Tenn. LEXIS 39 (1895).

The manner of burial and erection of a monument for deceased is a matter largely within the discretion of the personal representative so long as the amount expended is reasonable, but it is subject to the approval of the court. Gooch v. Beasley, 137 Tenn. 407, 193 S.W. 132, 1916 Tenn. LEXIS 85 (1917).

The absence of any direction in the will of the deceased, on the subject of a monument over his grave, does not impair the executor's right to make the expenditure, if the amount be reasonable. Gooch v. Beasley, 137 Tenn. 407, 193 S.W. 132, 1916 Tenn. LEXIS 85 (1917); Wiles Bros. & Co. v. Wynne, 139 Tenn. 397, 201 S.W. 515, 1917 Tenn. LEXIS 115 (1918).

In the absence of any direction in the will, an executor or administrator has the right to use his discretion in incurring funeral expenses, but the amount must be reasonable. Wiles Bros. & Co. v. Wynne, 139 Tenn. 397, 201 S.W. 515, 1917 Tenn. LEXIS 115 (1918).

An expenditure of $1,332 for the funeral of a person who had been an imbecile and an inmate of an asylum for years prior to his death, and whose estate was worth less than $10,000, was an unwarranted extravagance. Wiles Bros. & Co. v. Wynne, 139 Tenn. 397, 201 S.W. 515, 1917 Tenn. LEXIS 115 (1918).

3. General Expenses.

The disbursements, for which the personal representative is entitled to credit, are such unavoidable payments of money as are necessary for the collection and disposal of the estate for the benefit of the parties interested. Funeral charges, charges for the probate of the will or granting letters of administration, for recording inventories and accounts of sale, for orders of sales, for the expense of suits legally brought for the benefit of the estate, or of defending suits brought against the representative, and the like charges and disbursements, and debts against the estate legally paid, and reasonable compensation for the representative's services, are allowable as credits in his settlements. Stephenson v. Stephenson, 4 Tenn. 122, 4 Tenn. 123, 1816 Tenn. LEXIS 33 (1816); Bryant v. Puckett, 4 Tenn. 252, 1817 Tenn. LEXIS 22 (1817); Coffee v. Ruffin, 44 Tenn. 487, 1867 Tenn. LEXIS 72 (1867); German v. German, 47 Tenn. 180, 1869 Tenn. LEXIS 31 (1869); Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

The executor cannot be allowed credit for money paid for the improvident expenditures of a legatee while at college, though such payment was made from a conviction that it was best for the young man, and was done to save him from disgrace, but he must account for the same, with interest. Jones v. Ward, 18 Tenn. 160, 1836 Tenn. LEXIS 112 (1836); Dial v. Wood, 68 Tenn. 296, 1878 Tenn. LEXIS 12 (1878).

The personal representative is not liable for foreign assets, even though he has taken steps to secure them; but where such steps were taken in good faith, he will be allowed credit for expenses incurred thereby, especially if done at the instance of parties in interest. Bowman v. Carr, 73 Tenn. 571, 1880 Tenn. LEXIS 185 (1880).

Where the executors borrowed money for the estate and applied it to that purpose, they are entitled to legal interest from the time of such application; but they are not entitled to a credit for the usury they paid on such borrowed money, because they borrowed the money without authority. Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891).

Where personal representative of a surety who has been released erroneously supposes decedent still liable, he does not by taking security against the liability bind the estate. Administrator has no power to resuscitate the debt. Hoss v. Crouch, 48 S.W. 724, 1898 Tenn. Ch. App. LEXIS 109 (1898).

A decedent's lands in Tennessee cannot be charged the expense of administering his estate in another state. Fidelity Mut. Life Ins. Co. v. Wall, 167 Tenn. 207, 68 S.W.2d 108, 1933 Tenn. LEXIS 27 (1934).

The personal representative of an estate is entitled to reasonable compensation. In re Estate of Roark, 829 S.W.2d 688, 1991 Tenn. App. LEXIS 867 (Tenn. Ct. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 228 (Tenn. Mar. 9, 1992).

Trial courts have the discretion, in the first instance, to determine whether the requested fees and expenses are reasonable. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

This section does not prescribe an inflexible rule for determining reasonableness of fees and expenses. This determination must be made in light of all the relevant circumstances, including the extent of the executor's responsibilities, the nature of the services rendered, the promptness and adequacy of the services, and the value of the benefits conferred. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

4. Representatives' Compensation.

Testamentary trustees are entitled to compensation though there has never been enacted, in this state, any statute giving testamentary trustees compensation. Barney v. Saunders, 57 U.S. 535, 14 L. Ed. 1047, 1850 U.S. LEXIS 1567 (1854); Coffee v. Ruffin, 44 Tenn. 487, 1867 Tenn. LEXIS 72 (1867); Danial v. Fain, 73 Tenn. 258, 1880 Tenn. LEXIS 121 (1880); Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890); Read v. Citizens' St. R.R., 110 Tenn. 316, 75 S.W. 1056, 1903 Tenn. LEXIS 64 (1903); Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

Trustees (including personal representatives) who discharge their duties as such, with promptness and fidelity, are entitled to a liberal compensation, but certainly not otherwise. Coffee v. Ruffin, 44 Tenn. 487, 1867 Tenn. LEXIS 72 (1867); Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

The statute does not fix or limit the rate of compensation of personal representatives. No inflexible rule as to the compensation, alike applicable to all estates and circumstances, could perhaps be justly prescribed, either by the legislature or the courts. The amount of their compensation should, in each particular case, be determined by the extent of responsibility, the nature of the services rendered, and other causes difficult to limit or define. Much discretion as to such compensation is confided to the probate courts, though their action is subject to review and supervision. Matlock v. Rice, 53 Tenn. 33, 1871 Tenn. LEXIS 314 (1871).

Where the estate was large and was greatly involved in debt, and the burden and responsibility of the estate was upon one of two executors, such active executor was allowed a compensation of 7½ per cent on the amount collected, while the other less active executor was allowed the same rate of compensation on the amount collected by him, which was not so much in the aggregate. Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874).

The amount of compensation is properly settled when the account is taken, and the allowance is made, and it does not, as a matter of law, bear any interest prior to that time. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

Where the personal representative deposited the funds of the estate with his own firm, but otherwise performed his duties well, and the county court allowed him as compensation 10 per cent on his disbursements, the Supreme Court allowed him half of these commissions. Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Gwynne v. Estes, 82 Tenn. 662, 1885 Tenn. LEXIS 9 (1885).

Where, by the will, enlarged discretion is given to the executors, together with the express provision that they shall be liberally compensated, nothing but a gross breach of their duty will cut off their compensation for such services as they have rendered; and where there appears to be no breach of their duty, but, on the contrary, good faith and more than ordinary care in the transaction of the business confided to them, their compensation will not be disallowed on exception upon the ground of unreasonable delay in the settlement of the estate, where the delay was explained and met by the fact of repeated litigations and other complications, that would have prevented a complete settlement, if attempted earlier than was done. Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885).

Reasonable compensation will be allowed the personal representative and his attorneys for services necessarily rendered in a suit for the sale of lands of a decedent's insolvent estate for the payment of debts, and the same will be paid as preferred claims out of the proceeds of the realty, where there is no personalty, or it has been exhausted. Such compensation should be fixed with reference to the entire estate and services. Loftis v. Loftis, 94 Tenn. 232, 28 S.W. 1091, 1894 Tenn. LEXIS 39 (1895). But see Porterfield v. Taliaferro, 77 Tenn. 242, 1882 Tenn. LEXIS 46 (1882); Loague v. Brennan, 86 Tenn. 634, 9 S.W. 693, 1888 Tenn. LEXIS 16 (1888).

Executors are entitled to reasonable compensation to be credited upon their settlements. Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

An administrator who is removed after a claim for preference is filed is entitled to a reasonable fee for services rendered prior to removal. In re Estate of Hicks, 510 S.W.2d 263, 1972 Tenn. App. LEXIS 284 (Tenn. Ct. App. 1972).

Where a will specifies that an executor is to receive a certain amount as compensation, or no compensation, for serving as an executor, he, by accepting the appointment, binds himself to the will's terms. In re Estate of Perlberg, 694 S.W.2d 304, 1984 Tenn. App. LEXIS 3254 (Tenn. Ct. App. 1984).

Award of $25,000 to the co-executor for his services as co-executor was inappropriate because over four years passed between the testator's death and the filing of a complaint against the co-executor, during which time he accomplished little toward the administration of the estate and the assets remained captive to the co-executor's inattention to his duties. In re Estate of Ladd v. Marks, 247 S.W.3d 628, 2007 Tenn. App. LEXIS 280 (Tenn. Ct. App. Apr. 30, 2007), aff'd, In re Estate of Ladd, 247 S.W.3d 628, 2007 Tenn. App. LEXIS 428 (Tenn. Ct. App. June 25, 2007).

Fee the trial court awarded an executrix did not exceed reasonable limits because the executrix promptly and faithfully discharged her duties, and the services she provided were reasonable, appropriate, and inured to the estate's benefit; throughout the administration of the estate, the executrix's actions were in good faith. In re Estate of Abbott, — S.W.3d —, 2013 Tenn. App. LEXIS 816 (Tenn. Ct. App. Dec. 18, 2013).

Haywood County, Tenn., Ch. Ct. R. 19:00(H)'s rule of thumb regarding the fees to be awarded to a personal representative is antithetical to T.C.A. § 30-2-606's requirement that the fees be determined on a case-by-case basis taking into account more than simply the size of the estate. In re Estate of Young, — S.W.3d —, 2016 Tenn. App. LEXIS 55 (Tenn. Ct. App. Jan. 29, 2016).

Trial court did not err in holding that an executor's fees were properly paid by the estate so long as the fees were reasonable and necessary because any assertion that the trial court erred in finding that all of the attorney's fees inured to the benefit of the estate, despite the attorneys also representing the individual parties, was waived; a beneficiary failed to include the appropriate citations in the argument section of her brief. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

Trial court did not excessive fees to an executor, and thus, did not abuse its discretion in its award of fees and expenses, because the executor submitted multiple petitions and affidavits outlining the services he provided administering the estate; the executor spent many hours over the last eleven years responding to litigation initiated by the beneficiary, and in addition to defending himself in the litigation, the executor also performed his duties as the executor of the estate. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

Trial court did not err in holding that an executor's fees were properly paid by the estate so long as the fees were reasonable and necessary because the executor completely prevailed against a beneficiary in her claim that the executor breached his fiduciary duty or otherwise acted inappropriately; the trial court specifically found that the beneficiary's actions, rather than the actions of the executor, were the root of the litigation. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

5. —Compensation Denied.

Where the personal representative is the surviving partner of the decedent, and no funds came into his hands except the decedent's interest or share in the partnership business, he is entitled to no compensation for his services. Piper v. Smith, 38 Tenn. 93, 1858 Tenn. LEXIS 126 (1858); Murray v. Johnson, 38 Tenn. 353, 1858 Tenn. LEXIS 189 (Tenn. Dec. 1858); Dodson v. Dodson, 53 Tenn. 110, 1871 Tenn. LEXIS 327 (1871); Berry & Cleveland v. Jones, 58 Tenn. 206, 1872 Tenn. LEXIS 248, 27 Am. Rep. 742 (1872).

Where the personal representative's accounts are unsatisfactory, his statements are conflicting, and there is much evidence tending to show, but not clearly establishing, that he should be charged with a much larger amount than he was charged with, he is entitled to no compensation for his services. Dodson v. Dodson, 53 Tenn. 110, 1871 Tenn. LEXIS 327 (1871).

No compensation will be allowed where the representative delayed the settlement of his accounts for a long period after his resignation and until a bill was filed against him for a settlement. Harrison v. Henderson, 54 Tenn. 315, 1872 Tenn. LEXIS 53 (1872).

Where the personal representative failed to make any settlement before a bill was filed against him (a period of about ten years), or used the money himself, he was held to be entitled to no compensation for his services. Taylor v. Taylor, 69 Tenn. 83, 1878 Tenn. LEXIS 48 (1878); Danial v. Fain, 73 Tenn. 258, 1880 Tenn. LEXIS 121 (1880); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891).

Where the personal representative made his first and only settlement about ten years after his qualification, and through his gross negligence there was a loss of assets, he was, upon either ground, entitled to no compensation for his services. Horton v. Cope, 74 Tenn. 155, 1880 Tenn. LEXIS 222 (1880).

Where an executor did not file an inventory of the estate, did not keep a record of the transactions affecting the estate, and did not file a report until after a bill for an accounting was instituted more than seven years after he had qualified as executor, he was not entitled to compensation for his services and the fact that there had been litigation concerning insurance proceeds would not excuse him. State v. Hardison, 26 Tenn. App. 80, 167 S.W.2d 998, 1942 Tenn. App. LEXIS 33 (1942).

Work of the personal representative (PR) was inadequate and did not add much value to the estate, his actions in remodeling and repairing the decedent's house were outside the scope of his authority, and his handling of the estate's money was questionable; the evidence did not preponderate against the trial court's finding that the PR did not administer the estate in a competent manner, and thus he was not entitled to any further fees. In re Estate of Schorn, — S.W.3d —, 2015 Tenn. App. LEXIS 225 (Tenn. Ct. App. Apr. 17, 2015).

6. —Executor's Legal Expenses.

An estate will not be required to pay the executor's legal expenses incurred to defend his request for fees unless the court determines that all the requested fees were necessary and reasonable. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

If the executor does not prevail completely, or where the executor is partially to blame for bringing about unnecessary litigation, the executor rather than the estate should be responsible for his legal expenses. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

Executors have the authority to retain counsel to assist them in administering an estate. When they retain counsel, they are personally liable for the fees until a court determines that the services were required and that the fee was reasonable. If a court approves the fee, the executor may charge it back against the estate as one of the costs of administration under this section. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

Because defendant successfully defended her conduct as the executrix of the estate, the legal expenses she incurred as the executrix could be charged against the estate. In re Estate of Darken, — S.W.3d —, 2016 Tenn. App. LEXIS 969 (Tenn. Ct. App. Dec. 20, 2016).

Trial court did not abuse its discretion in awarding an executor's lawyers fees, and the fees awarded were not excessive, because it specifically considered the factors of Tenn. Sup. Ct. R. Prof. Conduct 8, 1.5 and the gross value of the estate; the executor ultimately prevailed completely in defending against the multiple claims leveled by a beneficiary, his attorneys were well-equipped to handle the matter, and it was necessary to incur the fees due to the beneficiary's litigation strategy. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

Given the voluminous record, the court of appeals found no error where such errors were not specifically detailed in the argument section of a beneficiary's brief, and all issues regarding redundant charges were, therefore, waived; at no point in her argument did the beneficiary cite a single specific instance of a redundant billing, and with regard to the single sentence contention, she failed to cite to the actual itemized billings to show alleged redundancies. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

7. Attorneys' Fees.

The fees for professional services rendered for the estate may be paid out of the proceeds of land sold to pay debts. Read v. Bostick, 25 Tenn. 321, 1845 Tenn. LEXIS 95 (1845); Hunt v. McClanahan, 48 Tenn. 503, 1870 Tenn. LEXIS 99 (1870).

Counsel fees will be allowed out of the estate for legal services rendered at the instance of a personal representative in a suit for the purpose of effecting a settlement between himself and the representative associated with him in the administration, where such services were for the benefit of all interested in the estate. German v. German, 47 Tenn. 180, 1869 Tenn. LEXIS 31 (1869); Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874).

Where the personal representative is a lawyer, and performs the duties and services of a solicitor, attorney, or counsel for the estate, he will be allowed a reasonable fee for such services, in addition to the compensation allowed him for his services as representative. Where one of three executors was a lawyer, and, by agreement of the others, performed the legal services and duties for the estate, he was allowed compensation for such services. Fulton v. Davidson, 50 Tenn. 614, 1871 Tenn. LEXIS 121 (1871), overruled in part, Holding v. Allen, 150 Tenn. 669, 266 S.W. 772, 1924 Tenn. LEXIS 36, 36 A.L.R. 743 (1924); State use of Meriwether v. Butler, 83 Tenn. 113, 1885 Tenn. LEXIS 28 (1885); Loague v. Brennan, 86 Tenn. 634, 9 S.W. 693, 1888 Tenn. LEXIS 16 (1888); Read v. Memphis Gaslight Co., 107 Tenn. 433, 64 S.W. 769, 1901 Tenn. LEXIS 90 (1901); Lovewell v. Schoolfield, 217 F. 689, 1914 U.S. App. LEXIS 1466 (6th Cir. 1914).

Where the administrator's insolvency bill, so far as it sought the sale of land for the payment of debts was improperly filed, and no valid debts against the estate were established, counsel fees incurred by the administrator for services will not be allowed against the estate, though the administrator's counsel finally took sides with the heirs in resisting the sale. Porterfield v. Taliaferro, 77 Tenn. 242, 1882 Tenn. LEXIS 46 (1882).

Where the personal representative is in no default, and counsel was absolutely necessary to aid in the management of the estate, he is entitled to reimbursement for proper expenditures for counsel. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

Objection to the fees of counsel paid by the executor cannot be entertained, where the only evidence introduced tends to show the performance of the services and the reasonableness of the compensation, and there is no evidence to the contrary, although the court may think that the amount goes to the verge of liberality. Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885).

Counsel fees are not chargeable to the general fund of a decedent's estate, where the counsel, representing creditors of the estate, fails to make a claim to insurance money available as assets for the payment of the decedent's debts. Gwynne v. Estes, 82 Tenn. 662, 1885 Tenn. LEXIS 9 (1885).

A public administrator is not entitled to compensation for professional services rendered by himself as an attorney in the course of his administration of the estate, as for filing bill to sell land to pay debts where he represents himself in such proceeding. Loague v. Brennan, 86 Tenn. 634, 9 S.W. 693, 1888 Tenn. LEXIS 16 (1888); Loftis v. Loftis, 94 Tenn. 232, 28 S.W. 1091, 1894 Tenn. LEXIS 39 (1895).

Counsel fees will not be allowed for services that should have been performed by the testamentary trustee, nor in a suit for his own benefit and protection. Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890).

The executor and testamentary trustee is not entitled to an allowance for counsel fees incurred in a suit unnecessarily and improvidently brought for a construction of the will and for directions as to the administration of the trust. Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890).

A personal representative cannot bind the estate to pay retainer fee to counsel, but only sum for services rendered. Pate v. Maples, 43 S.W. 740, 1897 Tenn. Ch. App. LEXIS 93 (1897).

The executor, saving the estate counsel fees by diligent and efficient legal services rendered to himself as executor, should be allowed greater compensation than that ordinarily allowed an executor or trustee employing other counsel, but should only be compensated as executor. Holding v. Allen, 150 Tenn. 669, 266 S.W. 772, 1924 Tenn. LEXIS 36, 36 A.L.R. 743 (1924).

An attorney who assists an administrator who is removed after a claim for preference is filed is entitled to reasonable attorney fees for services rendered. In re Estate of Hicks, 510 S.W.2d 263, 1972 Tenn. App. LEXIS 284 (Tenn. Ct. App. 1972).

In order for attorney's fees to be allowed as an administrative expense, they must be shown to be required, and the services provided must inure to the benefit of the entire estate, as opposed to one or more of the interested parties. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

The executrix of decedent's estate was entitled to attorney's fees in a suit for breach of fiduciary duty where decedent's wife, with a valid power of attorney, withdrew decedent's separate funds from the decedent's checking account and used the funds for the wife's sole benefit. Martin v. Moore, 109 S.W.3d 305, 2003 Tenn. App. LEXIS 47 (Tenn. Ct. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 440 (Tenn. May 19, 2003).

Trial court erred in approving a personal representative's request for attorney's fees, T.C.A. § 30-2-606, because the fees were all incurred in the process of preparing an agreement not authorized by the will or approved by the court, to pay a claim that was not made, and then defend those actions when challenged; the services rendered were to the benefit of a family trust and did not benefit the estate. In re Estate of Ledford, 419 S.W.3d 269, 2013 Tenn. App. LEXIS 246 (Tenn. Ct. App. Apr. 11, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 791 (Tenn. Oct. 16, 2013).

Trial court did not abuse its discretion in awarding an estate's attorney compensation for his services because his services were necessary and beneficial to the estate; all of the lesser beneficiaries were paid their dollar amounts, distributions were made to the main beneficiaries, deeds were drawn to facilitate matters, and the attorney remained in constant contact with the executrix. In re Estate of Abbott, — S.W.3d —, 2013 Tenn. App. LEXIS 816 (Tenn. Ct. App. Dec. 18, 2013).

Request of the estate's personal representative (PR) for additional attorney's fees for an appeal was properly denied because, even if the initial award of attorney's fees did not include the estimated 40 hours on appeal, there was no proper legal basis to award the PR with further attorney's fees solely from the remaining beneficiary's portion of the estate as the PR knew he intended to appeal and that she intended to leave only his share in the estate from which to seek costs from the appeal, which did not show the utmost good faith that was required from a fiduciary; and the PR did not demonstrate any legal basis to hold the beneficiary individually liable for her attorney's fees. In re Estate of Culp, — S.W.3d —, 2017 Tenn. App. LEXIS 753 (Tenn. Ct. App. Nov. 17, 2017).

8. Liability of Heirs.

The next of kin cannot, in the absence of contract to pay the same, be held liable for expenditures incurred by the resident administrator for expenses and counsel fees paid others, nor for professional services rendered by administrator himself in contesting for and obtaining the ancillary administration in another state, and in thereby getting possession of the property of the decedent in such other state. Johnson v. Williams, 96 Tenn. 339, 34 S.W. 434, 1895 Tenn. LEXIS 35 (1896).

9. Loss of Assets.

The executor is not liable to a legatee for the loss of a debt occasioned by delay in its collection, when the delay was actively assented to by the legatee. Perry v. Wooton, 24 Tenn. 524, 1845 Tenn. LEXIS 118 (1845); Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897).

Where the decedent's foreign debtor comes temporarily into the jurisdiction of the state of the decedent's domicile, or where he has property there subject to attachment, it is the duty of the executor or administrator of the decedent to sue him in the first case, and to attach his property in the second, and for failure to do so, such executor or administrator would be liable for any loss resulting therefrom. Young v. O'Neal, 35 Tenn. 55, 1855 Tenn. LEXIS 12 (1855); St. John v. Hodges, 68 Tenn. 334, 1878 Tenn. LEXIS 18 (1878).

The failure of the personal representative to sue on sale notes considered good, for a month or two after their maturity, when the debtor's utter insolvency was disclosed, does not render him liable for the loss. Mickle v. Brown & O'Neal, 63 Tenn. 468, 1874 Tenn. LEXIS 292 (1874).

Personal representatives acting in good faith should not be held to the utmost degree of diligence. Mickle v. Brown & O'Neal, 63 Tenn. 468, 1874 Tenn. LEXIS 292 (1874); In re Cator, 82 Tenn. 408, 1884 Tenn. LEXIS 141 (1884); Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897).

The personal representative and his sureties are not liable for losses occurring, without his fault or negligence, by the death of livestock, by destruction by fire, storm, or enemies, by theft or robbery, by the failure of a bank in which funds are deposited, or by subsequent insolvency of debtors. Jones v. Douglass, 1 Cooper's Tenn. Ch. 631 (1874); Pearson v. Gillenwaters, 99 Tenn. 462, 42 S.W. 199, 1897 Tenn. LEXIS 52 (1897).

Where the personal representative suffers a loss of the assets of the estate, accidentally by fire, he should within a reasonable time bring the facts to the knowledge of the parties interested; and, if the facts be not admitted, he should perhaps take immediate steps to obtain credit or allowance for the loss from the court having jurisdiction of the subject-matter; but, at any rate, if he fails to communicate the facts to the interested parties, and only sets up the defense to a bill filed against him for an accounting after the lapse of 12 years from the loss, the burden of proof is upon him, and he must make out the defense by proof establishing the facts clearly and satisfactorily, and with convincing certainty. Montgomery v. Coldwell, 82 Tenn. 29, 1884 Tenn. LEXIS 100 (1884).

10. Chargeable Interest.

A personal representative is not liable for compound interest, except in cases of conversion to his own use, of fraud or gross negligence, or very culpable conduct, or where he has had funds in his hands and probably profited by them, or has failed to make a frank disclosure. Turney v. Williams, 15 Tenn. 172, 1834 Tenn. LEXIS 34 (1834); Torbet v. McReynolds, 23 Tenn. 215, 1843 Tenn. LEXIS 57 (1843); Alvis v. Oglesby's Ex'rs, 87 Tenn. 172, 10 S.W. 313, 1888 Tenn. LEXIS 49 (1889).

There are several distinct grounds upon which a personal representative may be charged with interest, as follows: (1) Where he has used the money of the estate for himself, whether to his profit or not; (2) where he has kept the money by him and negligently suffered it to lie idle without a reasonable ground for doing so; (3) where, by long and improper delay in making his settlements, the use of the money by him may be inferred; (4) where he has been negligent in laying out the money for the estate; (5) where he has committed some other misfeasance by acts of negligent or wrongful administration or in the management of the funds by which they were imperiled to the disappointment of the claimants on the assets; (6) where he has actually made interest on the money. However, in specifying or enumerating these grounds, others are not thereby excluded. Turney v. Williams, 15 Tenn. 172, 1834 Tenn. LEXIS 34 (1834); Jones v. Ward, 18 Tenn. 160, 1836 Tenn. LEXIS 112 (1836); German v. German, 47 Tenn. 180, 1869 Tenn. LEXIS 31 (1869); Fulton v. Davidson, 50 Tenn. 614, 1871 Tenn. LEXIS 121 (1871), overruled in part, Holding v. Allen, 150 Tenn. 669, 266 S.W. 772, 1924 Tenn. LEXIS 36, 36 A.L.R. 743 (1924); Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Taylor v. Taylor, 69 Tenn. 83, 1878 Tenn. LEXIS 48 (1878); Bowman v. Carr, 73 Tenn. 571, 1880 Tenn. LEXIS 185 (1880); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Gwynne v. Estes, 82 Tenn. 662, 1885 Tenn. LEXIS 9 (1885); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885).

Where there are no disbursements on which interest should be allowed on the principle of partial payments, and the personal representative is properly chargeable with compound interest, it seems that it would probably be the rule to make the periodical rests for compounding the interest to correspond with the periods required for the settlements, which would be annually after the personal representative's first settlement period of two years from his appointment and qualification. Jones v. Ward, 18 Tenn. 160, 1836 Tenn. LEXIS 112 (1836); Woods v. Rankin, 49 Tenn. 46, 1870 Tenn. LEXIS 187 (1870); Smith v. Thomas, 67 Tenn. 417, 1874 Tenn. LEXIS 391 (1874).

Where the personal representative has used the money of the estate himself, he will be charged with simple interest thereon, although he has not made a profit equal to simple interest; and if he has made more than simple interest, he will be charged with the whole profits, either by charging him with compound interest, or in such other manner as will best carry out the principle of giving the beneficiaries of the estate all the profits; and in cases of doubt, the beneficiaries may elect. Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885).

Where the personal representative is charged with interest upon the entire sum with which he was chargeable, he should be allowed interest on his disbursements, from the time they were made, on the principle of partial payments. Alvis v. Oglesby's Ex'rs, 87 Tenn. 172, 10 S.W. 313, 1888 Tenn. LEXIS 49 (1889).

A faithful, capable, and honest testamentary trustee will not be charged with more interest than he received, where he acted in good faith, was diligent in making investments of trust funds, though he was guilty of a technical breach of trust in depositing the trust funds to his credit in his business house, or with the firm of which he was a member. Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890).

11. Expenses of Nominee Who Does Not Qualify.

Person nominated as executor in will is entitled to reimbursement for attorney's fees and other expenses incurred in defending will contests and injunction suit even though he did not qualify as executor and had no final accounting to make against which disbursements could be credited. In re Estate of Lewis, 45 Tenn. App. 651, 325 S.W.2d 647, 1958 Tenn. App. LEXIS 143 (Tenn. Ct. App. 1959).

Collateral References.

Accountability of personal representative for his use of decedent's real estate. 31 A.L.R.2d 243.

Advances to distributee before obtaining order of distribution, right of executor or administrator to credit on account of. 126 A.L.R. 780.

Agent or attorney employed by executor or administrator, charging latter with loss caused to estate by acts or default of. 28 A.L.R.3d 1191.

Attorney not employed by executor or administrator, allowance out of estate for services of, in connection with settlement of estate or accounting of personal representative. 79 A.L.R. 530, 142 A.L.R. 1459.

Attorneys, allowance of retaining fee paid by executor. 21 A.L.R. 1445.

Attorney's fees or other expenses incurred in unsuccessful attempt to uphold particular provisions of will. 7 A.L.R. 1499.

Broker's commissions or other expenses incurred in sale of real property or collection of rent, right to allowance for. 91 A.L.R. 829, 155 A.L.R. 1314.

Costs and other expenses incurred by administrator or executor whose appointment was improper as chargeable against estate. 4 A.L.R.2d 160.

Death of executor or administrator as affecting right of compensation. 7 A.L.R. 1595.

Depreciation in value of securities, liability for, as affected by appreciation of other securities. 171 A.L.R. 1422.

Employment of attorney at expense of estate, by executor or administrator who is himself an attorney. 18 A.L.R. 635.

Extra compensation for services other than attorney's services, right to. 66 A.L.R. 512.

Interlocutory order of one judge concerning compensation as binding on another judge in same case. 132 A.L.R. 76.

Judgment recovered on unfiled or abandoned claim after expiration of time allowed for filing claims, effect of. 60 A.L.R. 736.

Limiting effect of provision in contract, will, or trust instrument fixing trustee's or executor's fees. 19 A.L.R.3d 520.

Loss or depreciation of assets for which executor or administrator is not responsible as affecting the amount of his compensation. 110 A.L.R. 994.

Mortgage investment, surchargeability of executor or administrator in respect of, as affected by matters relating to value of property. 117 A.L.R. 871.

Personal claim of executor or administrator against estate antedating death of decedent, right to credit. 144 A.L.R. 962.

Personal liability of executor or administrator for fees of attorney employed by him for the benefit of the estate. 13 A.L.R.3d 518.

Power of probate court to require return by attorney to estate of overpayment on account of fees or services. 70 A.L.R. 478.

Preference of legacy to executor as compensation for services as regards abatement of legacies. 34 A.L.R. 1272.

Rents and profits from real estate in another state or country, duty of executor or administrator to account for, at domicile of decedent. 99 A.L.R. 1135.

Revocation of letters of administration, allowance for expenses and disbursement by executor or administrator after. 31 A.L.R. 846.

Right of executor or administrator to extra compensation for accounting services rendered by him. 65 A.L.R.2d 838.

Right of executor or administrator to extra compensation for legal services rendered by him. 65 A.L.R.2d 809.

Right to allowance out of estate for attorneys' fees incurred in attempt to establish or defeat will. 10 A.L.R. 783, 40 A.L.R.2d 1407.

Right to double compensation where same person (natural or corporate) acts as executor and trustee. 85 A.L.R.2d 537.

Rights and liabilities of personal representatives with respect to completion of improvements. 5 A.L.R.2d 1250.

Statute, change in, after decedent's death and before final account as affecting compensation. 91 A.L.R. 1421.

Surcharging account, right of executor or administrator to allowance of attorneys' fees and expenses incident to controversy over. 101 A.L.R. 806.

Tombstone or monument, credit for amount paid for. 121 A.L.R. 1115.

Torts, reimbursement of executor or administrator held personally liable for. 44 A.L.R. 676, 127 A.L.R. 687.

Trustee, exercise of power which one possesses as, but not as executor, before settlement of his accounts as executor, as affecting his rights and liabilities as executor. 94 A.L.R. 1464.

Validity and effect of provision in will regarding attorneys' fees. 148 A.L.R. 362.

Will limiting amount of fees of executor. 19 A.L.R.3d 520.

Will, validity, construction, and effect of provisions of, to effect that legacy or devise to executor is made in consideration of, or contemplation of, services to be rendered after testator's death, in carrying on testator's business or in administering or caring for estate. 116 A.L.R. 361.

30-2-607. Exceptions to account — Appeal from decision of clerk.

Any person interested in the estate may except to the account within a thirty-day period after it has been stated by the clerk, and, if dissatisfied with the clerk's decision on the exceptions, may within an additional thirty-day period appeal to the court. The clerk shall, within five (5) days after the filing of exceptions to the clerk's decision, mail copies of the exceptions to the personal representative and the personal representative's attorney of record.

Code 1858, § 2302 (deriv. Acts 1851-1852, ch. 215, § 3); Shan., § 4038; Code 1932, § 8251; T.C.A. (orig. ed.), § 30-1108; Acts 1985, ch. 140, § 20.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 845.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1316.

Collateral References.

Appeal without bond by executor or administrator from order, decree or judgment affecting his account. 104 A.L.R. 1195.

Consul, right of, to institute or participate in accounting proceedings. 157 A.L.R. 116.

30-2-608. Incomplete inventory.

Any person interested in any deceased person's estate as legatee, distributee, surviving spouse, creditor, or otherwise, may, at any time before final settlement of the estate, show by proof that the personal representative has not returned a complete inventory, and the article or articles omitted in the inventory shall be debited to the personal representative at the value of the article or articles, unless the personal representative can show a sufficient reason for leaving the article or articles out of the inventory.

Code 1858, § 2303 (deriv. Acts 1851-1852, ch. 215, § 1); Shan., § 4039; mod. Code 1932, § 8252; T.C.A. (orig. ed.), § 30-1109.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 665, 666, 839, 845.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1960 Tennessee Survey (Herman L. Trautman), 13 Vand. L. Rev. 1101 (1960).

NOTES TO DECISIONS

1. Jurisdiction.

While the probate court has no jurisdiction of a petition to require the personal representative to charge himself with a sum with which he had charged himself as administrator of another estate, when considered as an independent action drawing into question the title to property, it has jurisdiction of such petition as a suggestion that the administrator has not returned a complete inventory. Black v. Black, 134 Tenn. 517, 184 S.W. 27, 1915 Tenn. LEXIS 175 (1916).

The probate court possesses the necessary authority and has the requisite facilities to have a full and complete accounting with an administrator, making all proper charges against him, and allowing him credit for all items to which he is entitled. In re Love's Estate, 176 Tenn. 696, 145 S.W.2d 778, 1940 Tenn. LEXIS 121 (1940).

The probate court or the circuit or chancery court on appeal has jurisdiction to determine whether an administrator should be charged with the particular item on an exception to the inventory and settlement although the administrator insisted the item did not belong to the estate. Teague v. Gooch, 206 Tenn. 291, 333 S.W.2d 1, 1960 Tenn. LEXIS 364 (1960).

2. Inventory Conclusive.

As against the personal representative, the inventory made out and sworn to by him is conclusive to charge him, unless he can show that he was mistaken in the facts upon which he admitted his liability. Snodgrass v. Snodgrass, 60 Tenn. 157, 1873 Tenn. LEXIS 428 (1873).

30-2-609. Appeal from judgment of court.

  1. In any county having a population of five hundred thousand (500,000) or more according to the 2000 federal census or any subsequent federal census, when the court having probate jurisdiction finally settles an account, any person adversely affected by the settlement may appeal from the judgment to the court of appeals.
  2. In any county having a population of less than five hundred thousand (500,000) according to the 2000 federal census or any subsequent federal census, when the court having probate jurisdiction finally settles an account:
    1. If the judge serving such court is the circuit court judge or chancellor of the judicial district, then any person adversely affected by the settlement may appeal from the judgment to the court of appeals; or
    2. If the judge serving such court is not the circuit court judge or chancellor of the judicial district, then any person adversely affected by the settlement may appeal from the judgment to the appropriate trial court of general jurisdiction in which case the trial judge shall hear the matter de novo.
  3. Except in any county having a population of five hundred thousand (500,000) or more according to the 2000 federal census or any subsequent federal census, the appeal of any decision, ruling, order, or judgment of a probate court that is served by a judge who is not the circuit court judge or chancellor of the judicial district in which the matter arose shall be to the appropriate trial court of general jurisdiction in which case the trial judge shall hear the matter de novo.
  4. The appeal of any decision, ruling, order, or judgment of a probate court that is served by the circuit court judge or chancellor of the judicial district in which the matter arose (or of a probate court in any county having a population of five hundred thousand (500,000) or more according to the 2000 federal census or any subsequent federal census), shall be to the court of appeals as otherwise provided by law or rule of court.
    1. Subdivision (b)(2) and subsection (c) shall not apply in counties having a population of:

      not less than  nor more than

      39,050 39,150

      44,200 44,300

      71,100 71,200

      88,800 88,900

      105,800 105,900

      according to the 2000 federal census or any subsequent federal census.

    2. In any county set out in subdivision (e)(1), any person adversely affected by the settlement or any decision, ruling, order, or judgment of the probate court shall appeal to the court of appeals unless otherwise prohibited by law or rule of court.

Code 1858, § 2304 (deriv. Acts 1851-1852, ch. 215, § 4); Shan., § 4040; Code 1932, § 8253; T.C.A. (orig. ed.), § 30-1110; Acts 1985, ch. 140, § 21; 2002, ch. 754, §§ 1, 2; 2003, ch. 157, § 1; 2009, ch. 396, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 845.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1960 Tennessee Survey (Herman L. Trautman), 13 Vand. L. Rev. 1101 (1960).

NOTES TO DECISIONS

1. Jurisdiction of Appeal.

The appeal from an administration settlement made in the probate court lies to the chancery or circuit court, and from there to the Supreme Court, but not from the county court direct to the Supreme Court, except by consent of both parties entered of record, as provided in § 27-4-102. Young v. Thompson, 42 Tenn. 596, 1865 Tenn. LEXIS 105 (1865); Phillips v. Hoffman, 45 Tenn. 251, 1868 Tenn. LEXIS 3 (1868); In re Bates, 49 Tenn. 533, 1871 Tenn. LEXIS 41 (1871); Swafford v. Howard, 67 Tenn. 326, 1874 Tenn. LEXIS 383 (1874); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Key v. Harris, 116 Tenn. 161, 92 S.W. 235, 1905 Tenn. LEXIS 15 (1905).

The appeal lies from the clerk's decision to the probate court where the estate is solvent, and not to the circuit or chancery court, and after judgment of probate court finally settling account an appeal lies to the circuit or chancery court. Gaines v. Eason, 130 Tenn. 86, 169 S.W. 309, 1914 Tenn. LEXIS 5 (1914).

In an appeal from a probate court's judgment sustaining a claim against a decedent's estate, the circuit court lacked subject matter jurisdiction under T.C.A. § 30-2-609(b)(2) because the probate court's decision did not involve the final settlement of the estate by the personal representative. Instead, the estate was only entitled to appeal to the court of appeals in accordance with T.C.A. § 30-2-315(b). In re Estate of Trigg, 368 S.W.3d 483, 2012 Tenn. LEXIS 379 (Tenn. May 30, 2012).

2. Procedure on Appeal.

The mode of procedure on appeal from county court upon exceptions to reports and settlements is controlled by §§ 27-4-10327-4-108. In re Fox Estate, 161 Tenn. 432, 33 S.W.2d 82, 1930 Tenn. LEXIS 25 (1930).

3. Effect of Appeal.

Where the personal representative excepts to the settlement of the estate made with the clerk on the ground of the amount of allowance for his compensation, and his exceptions are overruled, the settlement is confirmed, and he is ordered to pay over to the clerk the sum found against him, and, from the decision of the court disallowing his exceptions, he appeals to the chancery court, the appeal has the effect to suspend or vacate the entire decree so long as this exception remains undisposed of and undetermined in the appellate court. Bayne v. Sinclair, 3 Shan. 159 (1874).

4. Limitations.

Where the personal representative, appealing from compensation allowance, dies, and the record is not filed in the chancery court, and the distributees of the estate of the first decedent file the record for the purpose of having the decree of the probate court affirmed, and by scire facias against the personal representative of the deceased representative for a revivor, the proceeding is in the nature of a proceeding to revive a pending suit, and the statute of two years in favor of personal representatives is not a bar. Bayne v. Sinclair, 3 Shan. 159 (1874).

Collateral References.

Notice of proceedings to reopen settlement of account, right to, of surety on bond of executor or administrator. 93 A.L.R. 1366.

Self-dealing, failure of executor or administrator to disclose, as ground for vacating order or decree settling account. 132 A.L.R. 1522.

30-2-610. Settlement prima facie evidence when recorded.

The settlement, when so made, and recorded, shall be prima facie evidence in favor of the accounting party.

Code 1858, § 2305 (deriv. Acts 1837-1838, ch. 125, § 5); Shan., § 4041; Code 1932, § 8254; T.C.A. (orig. ed.), § 30-1111.

Cross-References. Clerk to record settlements, § 18-6-106.

Settlements prima facie correct, § 24-5-102.

NOTES TO DECISIONS

1. Effect of Settlement.

The settlement, if formal in detail, and accurate in all its parts, and unexcepted to, and if otherwise unexceptionable, may so far constitute the basis of the clerk and master's report as to authorize the chancellor to direct a decree of sale of land to pay the debts of the estate. Curd v. Bonner, 44 Tenn. 632, 1867 Tenn. LEXIS 83 (1867); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Bloom v. Cate, 75 Tenn. 471, 1881 Tenn. LEXIS 145 (1881); Erck v. Erck, 107 Tenn. 77, 63 S.W. 1122, 1901 Tenn. LEXIS 60 (1901).

The inventories and settlements of personal representatives, when put upon the records of the probate court, have the verity of judicial records, except that they may be impeached by those interested in the estate as not showing the full measure of the personal representative's liability. Snodgrass v. Snodgrass, 60 Tenn. 157, 1873 Tenn. LEXIS 428 (1873).

Any administration settlement, made after the filing of a bill for an accounting, would not affect the rights of the complainants at all, unless indeed they appeared and contested the items. Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885).

The settlements of executors and testamentary trustees, made and confirmed in legal proceedings, have the effect of decrees, and are not impeachable, except as such, even by infants. Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890); Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715, 1891 Tenn. LEXIS 25 (1891); Hurt v. Long, 90 Tenn. 445, 16 S.W. 968, 1891 Tenn. LEXIS 29 (1891); Wilson v. Schaefer, 107 Tenn. 300, 64 S.W. 208, 1901 Tenn. LEXIS 80 (1901).

2. Incomplete Settlements.

An ex parte settlement, made without notice, is prima facie correct, even as against interested parties laboring under disabilities. Elrod v. Lancaster, 39 Tenn. 571, 1859 Tenn. LEXIS 280 (1859); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

Where it is ordered by the probate court that the personal representative be permitted to resign his office and to pass his accounts as such by a final settlement to be made with the clerk, such order contemplated an account of the receipts and disbursements of such representative, and not for his own individual account as a creditor of the estate, and a statement of his such account, made to the clerk and by the clerk presented to the court and by the court approved or confirmed, was void, for settlements, when made not in pursuance of law or order of court, are not evidence. Harrison v. Henderson, 54 Tenn. 315, 1872 Tenn. LEXIS 53 (1872).

An uncompleted settlement before the clerk, never presented to the court for confirmation, is not in any aspect even prima facie evidence of its correctness. Harrison v. Henderson, 54 Tenn. 315, 1872 Tenn. LEXIS 53 (1872).

The settlement, though not final, is, so far as it goes, prima facie evidence in favor of the administrator, as where he makes a partial settlement, but subsequently dies without completing the administration by a final settlement. Alvis v. Oglesby's Ex'rs, 87 Tenn. 172, 10 S.W. 313, 1888 Tenn. LEXIS 49 (1889).

Where annual accounts are first attacked long after they were made and after the death of both executors and trustees and of all others having any personal, intimate knowledge of the facts, and vouchers for disbursements were, in large part, filed with such reports, they were properly taken as prima facie correct, although the record failed to show affirmatively that due and legal notice was given all parties interested prior to their approval by the court. Lovewell v. Schoolfield, 217 F. 689, 1914 U.S. App. LEXIS 1466 (6th Cir. 1914).

3. Incorrect Settlements.

The settlement is conclusive as against the personal representative, and he will not be allowed to falsify it, at least without allegations in his bill minutely and particularly specifying the various erroneous items complained of, and the clearest and most satisfactory proof thereof; especially where the settlement was sworn to, and its correctness was affirmed by a sworn answer, and the personal representative sought relief against such settlement by an amended answer and cross bill. Dodson v. Dodson, 53 Tenn. 110, 1871 Tenn. LEXIS 327 (1871); Snodgrass v. Snodgrass, 60 Tenn. 157, 1873 Tenn. LEXIS 428 (1873); Smith v. Gooch, 74 Tenn. 536, 1880 Tenn. LEXIS 288 (1880); Richardson v. Keel, 77 Tenn. 74, 1882 Tenn. LEXIS 15 (1882); Montgomery v. Coldwell, 82 Tenn. 29, 1884 Tenn. LEXIS 100 (1884).

The burden of proof rests upon the complainants to show the incorrectness of the administration settlement surcharged and falsified by their bill; and a decree of reference, directing the master to take the inventory and account of sales as a basis of charges against the administrator, and requiring of him independent proof of the credits allowed in his settlements, thus casting the burden of proof upon the administrator, is erroneous; and, upon reversal of the decree adverse to the administrator, the case will be remanded for the taking of the account upon the proof in the record, and upon the principles determined by the Supreme Court. Alvis v. Oglesby's Ex'rs, 87 Tenn. 172, 10 S.W. 313, 1888 Tenn. LEXIS 49 (1889).

In suit to impeach the final settlement of the defendant-executor, such settlement is prima facie correct, and the burden is on complainant to show by proof the incorrectness of the account she seeks to surcharge and falsify and it can be disturbed only by evidence of a clear and satisfactory nature. Brown v. Jarvis, 22 Tenn. App. 394, 123 S.W.2d 852, 1938 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1938).

4. Remedies.

Where the parties interested are under no disability, and, either in person or by agent, are present and attend during the settlement of the personal representative with the clerk, and have an opportunity to object to any improper credits, with the right to contest the report of settlement and to appeal to the circuit or chancery court, and if, under these circumstances, they agree to the settlement, and receive and receipt for their respective shares in property and money, the settlement is made, in effect, their own, and should have all the conclusive character, force, and effect of a stated account, so as not to be opened without a bill, filed promptly after the discovery of the mistake, to surcharge and falsify it by pointing out and specifying the particular errors against which relief is sought. Burton v. Dickinson, 11 Tenn. 112, 1832 Tenn. LEXIS 27 (1832); Turney v. Williams, 15 Tenn. 172, 1834 Tenn. LEXIS 34 (1834); Elrod v. Lancaster, 39 Tenn. 571, 1859 Tenn. LEXIS 280 (1859); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

Where the parties do not attend during the settlement, and the settlement is wholly ex parte, it is only prima facie evidence against the interested parties, and it may be questioned, opened, and reviewed by their bill asking for an account generally, without surcharging and falsifying, or specifying and pointing out, in the bill, any particular errors. In such case, the burden of proof rests upon the attacking party, and the settlements are prima facie correct. Where the interested parties are infants and without guardians, or do not attend, by their guardians, the settlements in which they are interested, although notified, they may question such settlements by a bill for a general accounting; but, if they attend by their guardians, they can question such settlements only by a bill to surcharge and falsify the accounts. Turney v. Williams, 15 Tenn. 172, 1834 Tenn. LEXIS 34 (1834); Elrod v. Lancaster, 39 Tenn. 571, 1859 Tenn. LEXIS 280 (1859); Milly v. Harrison, 47 Tenn. 191, 1869 Tenn. LEXIS 32 (1869); Shields v. Alsup, 73 Tenn. 508, 1880 Tenn. LEXIS 174 (1880); Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Murray v. Luna, 86 Tenn. 326, 6 S.W. 603, 1887 Tenn. LEXIS 49 (1887); Alvis v. Oglesby's Ex'rs, 87 Tenn. 172, 10 S.W. 313, 1888 Tenn. LEXIS 49 (1889); Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

Settlements, made and confirmed in legal proceedings, are not open to attack by bill to surcharge and falsify the same, not attacking them as decrees. Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890); Cicalla v. Miller, 105 Tenn. 255, 58 S.W. 210, 1900 Tenn. LEXIS 75 (1900).

Settlements by executors, made in the probate court after notice to all the parties, who were present in the person of their attorney and guardian, are prima facie correct, even as to amount of compensation allowed the executors, and can only be attacked by a bill to surcharge and falsify the accounts; and the evidence to sustain such bill must be clear and satisfactory. Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

Where one of the testamentary trustees presented a claim against the trust estate, which, before it was allowed in the probate court settlement, was fully investigated by the other two testamentary trustees, who were adversely affected by its allowance, and all parties in interest and adversely affected thereby were represented, and there was no fraud, and no new evidence was produced, the claim cannot be stricken out of the account, even under a bill to surcharge and falsify. Leach v. Cowan, 125 Tenn. 182, 140 S.W. 1070, 1911 Tenn. LEXIS 18 (1911).

30-2-611. Fees of clerk.

Besides the fees allowed to the clerk for the clerk's service, as provided in former § 8-21-701(28)-(30) (repealed) for taking and stating accounts, the clerk shall receive such further sum as the court of first instance or on appeal may allow, upon a confirmation of the settlement.

Code 1858, § 2306 (deriv. Acts 1837-1838, ch. 125, § 6); Shan., § 4042; mod. Code 1932, § 8255; T.C.A. (orig. ed.), § 30-1112.

Compiler's Notes. Section 8-21-701(28)-(30), referred to in this section, were repealed by Acts 2008, ch. 924, § 1, which rewrote § 8-21-701, effective July 1, 2008.

30-2-612. Balance payable to clerk's office — Award of execution.

After the settlement of any administrator's or executor's account, the probate court may compel the personal representative to pay into the office of the clerk the balance found against the personal representative, and may, on motion of the clerk or any surviving spouse, distributee, or legatee, after twenty (20) days' notice to the personal representative, award summarily an execution against the representative and the personal representative's sureties for the amount of the balance, as in case of a judgment at law, and when any specific thing is to be done, the probate court may compel the representative, by an order, to perform it, and by process of contempt in case of refusal.

Code 1858, § 2307; Acts 1871, ch. 51, § 1; Shan., § 4043; Code 1932, § 8256; T.C.A. (orig. ed.), § 30-1113.

Cross-References. Suit for distributive share or legacy, § 30-2-710.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 847.

NOTES TO DECISIONS

1. Liability of Representative.

A voluntary payment of a distributive share or legacy to the clerk of the probate court, without any order or decree of such court requiring the payment, is not a good payment, and is no protection to the personal representative as a defense to a suit to recover such share or legacy. Stewart v. Glenn, 50 Tenn. 581, 1871 Tenn. LEXIS 116 (1871).

The personal representative must, at his peril, pay to the right party as distributee or legatee, or he must have the judgment of a competent court upon the question in a proceeding regularly instituted for that purpose. The probate court has no jurisdiction to determine to whom the personal representative should make payment, and its order of approval of the final settlement containing a statement of the distributees already paid or entitled to payment, with the amount thereof, does not protect the personal representative in his payments accordingly made, if not made to the right party and in the right amount. Carr v. Lowe's Ex'rs, 54 Tenn. 84, 1871 Tenn. LEXIS 418 (1871).

The probate court was authorized to require an administrator to pay into the office of the clerk the balance found to be due the estate of his intestate, upon his settlement, and on his failure, and the clerk's motion, was authorized to award execution against the administrator and his sureties for the amount of the balance, upon notice given to the administrator alone, without any notice of the motion to the sureties. Patterson v. Tate, 141 Tenn. 607, 213 S.W. 981, 1919 Tenn. LEXIS 14 (1919).

2. Necessary Parties.

The motion may be made by “the clerk or any distributee,” after the prescribed notice. However, the suit, though it be by petition in the probate court, must make all the distributees parties, because it is required to “be conducted as other equitable actions,” and one distributee cannot sue for his own share alone. Stewart v. Glenn, 50 Tenn. 581, 1871 Tenn. LEXIS 116 (1871).

3. Distribution by Clerk.

The order of the court to compel the administrator to pay into the office of the clerk the balance that may be found against him, upon the settlement of his accounts, is not in the form or nature of a judgment in favor of any particular individuals, but an order to pay the money into the clerk's office for the benefit of those entitled, where the proper parties must appear and satisfy the court of their right to the fund. Bayne v. Sinclair, 3 Shan. 159 (1874).

Where a settlement, made by the personal representative with the clerk of the probate court, was, by the court, approved, and the amount of the shares found due certain parties as legatees was ascertained, and the money was ordered by the court to be paid into the office of the clerk, it may be paid out by the clerk to those so found by the settlement to be entitled thereto, without an order of the court so directing. Bayne v. Sinclair, 3 Shan. 159 (1874); Yoakley v. King, 78 Tenn. 67, 1882 Tenn. LEXIS 143 (1882).

30-2-613. Failure to settle accounts — Indictment — Penalty.

  1. No executor or administrator shall neglect or refuse, for thirty (30) days after service of a subpoena, to appear before the clerk of the probate court and settle the accounts.
  2. The clerk of the probate court shall return to the clerk of the circuit or criminal court, on or before the first day of every term of the court, having jurisdiction, a list of delinquent executors and administrators, and the district attorney general shall, ex officio, prefer against each of them an indictment without a prosecutor.
  3. Upon conviction of this offense, upon indictment or presentment in the circuit or criminal court, the delinquent shall be fined not less than one dollar ($1.00) nor more than twenty-five dollars ($25.00).

Code 1858, §§ 2308-2310 (deriv. Acts 1837-1838, ch. 125, § 3); Shan., §§ 4044-4046; Code 1932, §§ 8257-8259; T.C.A. (orig. ed.), §§ 30-1114 — 30-1116.

Cross-References. Disobedience of citation to appear and settle, § 30-2-602.

Duties of clerk of county court when report is delinquent, § 18-6-106.

Failure to settle accounts indictable without prosecutor, § 40-13-104.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 838.

Law Reviews.

Where There's a Will: Charles Kuralt: On the Road to Taxation (Dan W. Holbrook), 39 No. 8 Tenn. B.J. 14 (2003).

30-2-614. Proration of federal estate taxes and Tennessee inheritance or estate taxes.

  1. For the purposes of this section, “persons interested in the estate” means all persons who may be entitled to receive, or who have received, any property or interest that is required to be included in the gross estate of a decedent, or any benefit whatsoever with respect to any such property or interest, whether under a will, or intestacy, or by reason of any transfers, trust, estate, interest, right, power, relinquishment of power, gift in contemplation of death, gift taking effect in possession or enjoyment at or after death, or any other transfer inter vivos that is subject to federal death taxes, or the proceeds of any insurance policies that are subject to federal death taxes.
  2. Whenever the personal representative of an estate has paid an estate or death tax to the government of the United States under any federal tax law now in effect or hereafter enacted by congress, upon, or with respect to, any property required to be included in the gross estate of a decedent under any federal tax law, the amount of the tax so paid, except in a case where a testator otherwise directs in the testator's will, shall be equitably prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues. This proration shall be made by the personal representative in the proportion, as near as may be, that the value of the property, interest or benefit of each interested person bears to the total value of the property, interests and benefits received by all persons interested in the estate, except that in making the proration allowances shall be made for any exemptions granted by the law imposing the tax and for any deductions allowed by that law for the purpose of arriving at the value of the net estate; and, except that in cases where a trust is created, or other provision made by which any person is given an interest in income, or an estate for years, or for life, or only temporary interest in any property or fund, the tax on both the temporary interest and on the remainder thereafter shall be charged against and paid out of the corpus of the property or fund without apportionment between remainders and temporary estate.
  3. So far as is practicable, and unless otherwise directed by the will of the decedent, the tax shall be paid by the personal representative, as such, out of the estate before its distribution. In all cases in which any property required to be included in the gross estate does not come into the possession of the personal representative, as such, the personal representative shall have the power and the duty, to recover from whomever is in possession, or from the persons interested in the estate, the proportionate amount of the tax, including interest, attorney fees and other costs of collection, payable by the persons interested in the estate with which the persons interested in the estate are chargeable under this section.
  4. No personal representative, or other person acting in a fiduciary capacity, shall be required to transfer, pay over or distribute any fund or property with respect to which a federal estate or death tax is imposed until the amount of the tax or taxes due from the devisee, legatee, distributee or other person to whom that property is transferred is paid, or, if the apportionment of the tax has not been determined, adequate security is furnished by the transferee for this payment.
  5. For a decedent dying before January 1, 2016, Tennessee estate or inheritance taxes, as the case may be, shall be prorated equitably among the beneficiaries and persons interested in the estate, except in a case where a testator otherwise directs in the testator's will, by the same method as described in subsections (a)-(d), except that the proration of the Tennessee tax shall be made in the proportion that the value of the property, interest or benefit of each beneficiary or interested person bears to the total value of the property, interests and benefits taxable in Tennessee and received by all persons interested in the estate. In making the proration, allowances shall be made for any exemptions granted by the Tennessee law imposing the tax and for any deductions allowed by that Tennessee law for the purpose of arriving at the value of the net estate. All definitions and rights or responsibilities of the personal representative applicable to the federal tax, as stated in subsections (a)-(d), shall be applicable to the determination of the prorated Tennessee tax payable by each beneficiary or person interested in the estate.
  6. In the event the personal representative is unable to arrive at a satisfactory allocation of the tax, including interest, attorney fees and other costs of collection, among the beneficiaries and other persons interested in the estate as provided in subsections (b)-(e), the personal representative shall be authorized to file a petition in the probate court of the county in which the estate is being administered for the purpose of securing an adjudication with reference to the allocation. The probate court in such a case shall make a decree or order directing the personal representative to charge the prorated amounts against the persons against whom the tax, including interest, attorney fees and other costs of collection, has been so prorated, insofar as the personal representative is in possession of property or interests of such persons against whom the charge may be made, and summarily directing all other persons, against whom the tax, including interest, attorney fees and other costs of collection,  has been prorated or who are in possession of property or interests of those persons, to make payment of the prorated amounts to the personal representative. The probate court of the county in which the estate is being administered shall have jurisdiction to entertain any proceeding or dispute under this section and to make disposition thereof. All such proceedings shall be maintained according to the forms of chancery.

Acts 1943, ch. 109, §§ 1, 2; C. Supp. 1950, §§ 8350.7, 8350.8; T.C.A. (orig. ed.), §§ 30-1117, 30-1118; Acts 1984, ch. 609, §§ 1, 3; 2005, ch. 99, §§ 4, 5; 2017, ch. 290, § 3.

Code Commission Notes.

Acts 2017, ch. 290, § 16 provided that section 3 of the act, which amended this section, should take effect January 1, 2017. However, since a public chapter cannot become effective on a date prior to becoming law, the code commission deems the amendment by that act to take effect on July 23, 2017, in accordance with Tenn. Const. art. II, § 20.  See Opinion of the Attorney General, June 25, 1982 (OAG 82-191).

Amendments. The 2017 amendment added “For a decedent dying before January 1, 2016,” at the beginning of the first sentence of (e).

Effective Dates. Acts 2017, ch. 290, § 16. July 23, 2017. See the Code Commission Notes.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 969, 986, 988.

Tennessee Jurisprudence, 12 Tenn. Juris., Executors and Administrators, §§ 66, 67; 23 Tenn. Juris., Taxation, § 68.

Law Reviews.

Confused by tax reforms? Follow these 10 key rules for better estate planning in Tennessee (Dan W. Holbrook), 37 No. 8 Tenn. B.J. 12 (2001).

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

The Case of the Disappearing Inheritance Tax (Dan W. Holbrook), 36 No. 12 Tenn. B.J. 22 (2000).

Value definition clauses: The basics (Dan W. Holbrook), 37 No. 3 Tenn. B.J. 33 (2001).

Wills, Estates and Trusts (William J. Bowe), 6 Vand. L. Rev. 1126 (1953).

Wills, Trusts and Estates — 1957 Tennessee Survey (Herman L. Trautman), 10 Vand. L. Rev. 1238 (1957).

NOTES TO DECISIONS

1. Constitutionality.

Tax computed upon portion of an estate does not violate the equal protection clause, since the taxes are computed on the relationship of the share of the estate to the total taxable estate, and this section specifically provides for proration of the tax from the persons “interested in the estate.” Boatman v. Morrison, 746 S.W.2d 706, 1987 Tenn. App. LEXIS 3216 (Tenn. Ct. App. 1987).

2. Direction by Will.

Where although estate was insolvent there were sufficient funds in estate for payment of federal estate and state inheritance taxes and will provided that such taxes were to be considered a debt against estate and not a charge against any beneficiary proceeds of deceased husband's life insurance would not be subjected to prorate allocation for such taxes as between the beneficiary children. Wolfe v. Mid-Continent Corp., 222 Tenn. 348, 435 S.W.2d 836, 1968 Tenn. LEXIS 436 (1968).

Proration provisions of this section did not apply where will provided that personal representative was to pay just debts and expenses of administration including legacy, succession, inheritance, estate and like death taxes and that such charges were to be considered a debt against estate and not a charge against any beneficiary. Wolfe v. Mid-Continent Corp., 222 Tenn. 348, 435 S.W.2d 836, 1968 Tenn. LEXIS 436 (1968).

3. Dissent from Will.

Where will provided that no part of estate or inheritance taxes for which the beneficiary might be liable, whether on life insurance or “any other property not passing by my will,” should be recovered from the widow or any other beneficiary, but should be paid from the residuary estate, widow was not liable for tax even though she dissented from the will. Commerce Union Bank v. Albert, 201 Tenn. 631, 301 S.W.2d 352, 1957 Tenn. LEXIS 343 (1957).

Where will provided that executors were not to charge any devisee, legatee or beneficiary with any portion of federal estate taxes or state inheritance, estate or succession taxes or any other taxes imposed against estate regardless of whether such beneficiary was named in will, was designated in insurance policy or other contract or took by operation of law, widow who was not named in will and who dissented therefrom was not chargeable with inheritance or estate taxes. Marler v. Claunch, 221 Tenn. 693, 430 S.W.2d 452, 1968 Tenn. LEXIS 496 (1968).

Although this section operates to charge an individual for that portion of the federal estate tax which the property he received actually generated, a widow, who had dissented from the will of her late husband, was not subject to the payment of any prorated share of the federal estate tax on property she received from the estate which qualified for the marital deduction. Third Nat'l Bank v. Cotten, 536 S.W.2d 330, 1976 Tenn. LEXIS 625 (Tenn. 1976).

4. General Legacies Consisting of Common Law Annuities.

General legacies consisting of common law annuities are within the exception providing that where a trust is created or other provision made whereby a person is given an interest in income or an estate for years or life or only a temporary interest in any property or fund the tax on both the temporary interest and the remainder shall be charged against and paid out of the corpus of the property or fund without apportionment between the remainders and temporary estate. Moore v. Moore, 204 Tenn. 108, 315 S.W.2d 526, 1958 Tenn. LEXIS 250 (1958).

5. Priority of Payment.

The primary responsibility for the payment of federal estate and Tennessee inheritance taxes is on the executor who must pay these taxes out of assets in his hands prior to the payment of the debts of his estate. Wolfe v. Mid-Continent Corp., 222 Tenn. 348, 435 S.W.2d 836, 1968 Tenn. LEXIS 436 (1968).

6. Action by Executor or Administrator.

Purpose of this section was to enable executor to cause action to be taken in behalf of persons interested in the estate to prorate federal estate and death taxes among themselves on an equitable basis. Wolfe v. Mid-Continent Corp., 222 Tenn. 348, 435 S.W.2d 836, 1968 Tenn. LEXIS 436 (1968).

If a designated part of a residuary estate is insufficient to pay estate taxes, the default statutory rule of apportionment under T.C.A. § 30-2-614(b) controls. Union Planters Nat'l Bank v. Dedman, 86 S.W.3d 515, 2001 Tenn. App. LEXIS 786 (Tenn. Ct. App. 2001).

7. —Rights of Creditors.

This section did not create a cause of action in favor of creditors of decedent's estate or authorize executor to bring action on behalf of creditors to require federal estate and death taxes to be prorated among beneficiaries of the estate. Wolfe v. Mid-Continent Corp., 222 Tenn. 348, 435 S.W.2d 836, 1968 Tenn. LEXIS 436 (1968).

30-2-615. [Repealed.]

Compiler's Notes. Former § 30-2-615 (Acts 1981, ch. 441, § 1; T.C.A., § 30-1119; Acts 1984, ch. 643, § 1), concerning statement of administration and distribution, was repealed by Acts 1985, ch. 140, § 1.

Part 7
Distribution

30-2-701. Distribution of balance — Final settlement.

Upon the payment of all claims that are not contested and upon provision being made for expenses of administration, obligations on account of taxes and assessments that have not been settled, claims not due and undetermined contested claims, together with costs and expenses of litigation, the personal representative shall pay any balance remaining in the personal representative's hands to the distributees or legatees entitled to it, unless granted additional time by the court, or by the terms of the instrument under which the personal representative is acting, and thereafter, when all other legal liabilities have been paid, and the balance remaining has been delivered to those entitled to it or paid to the state treasurer, to be handled in accordance with title 66, chapter 29, part 1, relating to unclaimed property or administered as in § 30-2-402; provided, that in the event of insolvency, the personal representative shall make and file with the court a final settlement of the estate in accordance with chapter 2, part 6 of this title.

Acts 1939, ch. 175, § 7; mod. C. Supp. 1950, § 8196.8 (Williams, § 8196.7); T.C.A. (orig. ed.), § 30-1301; Acts 1987, ch. 322, § 9; 2017, ch. 280, § 6.

Amendments. The 2017 amendment added “in accordance with chapter 2, part 6 of this title” at the end of the section.

Effective Dates. Acts 2017, ch. 280, § 8. July 1, 2017.

Cross-References. Equality in dividing, § 31-5-101.

Jurisdiction of chancery courts of probate and related matters, title 16, chapter 16, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 790, 794, 836.

Law Reviews.

Legal Rights and Issues Surrounding Conception, Pregnancy and Birth, 39 Vand. L. Rev. 597 (1986).

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707 (1978).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

NOTES TO DECISIONS

1. Tort Action.

Whenever the probate court is put on notice of the pendency of a tort action in another court by the filing of a copy of the complaint, or by any other sufficient means, the probate court must hold in abeyance a final distribution of the assets and the final settlement of the estate, pending the outcome of the tort action. Herring v. Estate of Tollett, 550 S.W.2d 660, 1977 Tenn. LEXIS 540 (Tenn. 1977).

7. Attorneys' Fees.

Request of the estate's personal representative (PR) for additional attorney's fees for an appeal was properly denied because, even if the initial award of attorney's fees did not include the estimated 40 hours on appeal, there was no proper legal basis to award the PR with further attorney's fees solely from the remaining beneficiary's portion of the estate as the PR knew he intended to appeal and that she intended to leave only his share in the estate from which to seek costs from the appeal, which did not show the utmost good faith that was required from a fiduciary; and the PR did not demonstrate any legal basis to hold the beneficiary individually liable for her attorney's fees. In re Estate of Culp, — S.W.3d —, 2017 Tenn. App. LEXIS 753 (Tenn. Ct. App. Nov. 17, 2017).

Collateral References.

Ademption of legacy of business or interest therein. 65 A.L.R.3d 541.

Advances or payments made from his own funds to beneficiary, right of executor or administrator to reimburse himself for. 115 A.L.R. 874.

Appreciation or depreciation of assets of decedent's estate before final settlement, but after partial distribution or setting up of trust, effect of. 114 A.L.R. 458.

Construction of will, decree of distribution as res judicata on questions of. 136 A.L.R. 1185.

Consul, right of, to receive distributive share or legacy payable to his national. 157 A.L.R. 118.

Declaration of rights or declaratory judgments affecting the distribution of estates. 12 A.L.R. 52, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8.

Decree directing distribution of estate to person who is dead. 25 A.L.R. 1563.

Delivery or distribution to life tenant, or assent by executor to his possession or to the life interest, as inuring to benefit of the remaindermen and operating to take the remainder out of the estate, absent a trust or will provision retaining it. 68 A.L.R.2d 1107.

Guardian of minor beneficiary of estate, responsibility of executor or administrator or his bond for default of. 54 A.L.R. 1274.

Intestate's estate, family settlement of. 29 A.L.R.3d 174.

Liability of estate for administrator's failure to distribute estate. 44 A.L.R. 676, 127 A.L.R. 687.

Payment or delivery of legacy or distributive share before decree of distribution as defense to action by legatee or distributee against personal representative or surety on his bond. 121 A.L.R. 1069.

Post mortem payment or performance, validity of family settlement as affected by provision for. 1 A.L.R.2d 1178.

Postponing distribution until payment of debts or settlement of estate as violating rule against perpetuities. 13 A.L.R. 1033.

Priority received by creditors as regards ancillary assets of decedent's estate as justification for reducing their claims or dividends upon distribution in the primary or domiciliary jurisdiction so as to effect ultimate equality among creditors. 92 A.L.R. 596, 127 A.L.R. 504.

Right of executor or administrator to appeal from order granting or denying distribution. 16 A.L.R.3d 1274.

Rights in growing, unmatured annual crops as between personal representatives of decedent's estate and heirs or devisees. 92 A.L.R.2d 1373.

Specifically bequeathed personal property not needed for payment of debts, duty of executor or administrator, c.t.a., as to delivery of. 127 A.L.R. 1072.

Specific performance of oral family settlement involving real property as affected by doctrine of part performance. 101 A.L.R. 994.

Time for payment of legacies or distributive shares and reasonableness of delay by personal representative sought to be personally charged with interest. 18 A.L.R.2d 1384.

Validity of agreement among beneficiaries for distribution in manner or proportion other than that provided by will. 29 A.L.R.3d 8.

30-2-702. Distributees who cannot be located, infants or persons adjudicated incompetent — Procedure for payment of shares.

  1. Whenever the personal representative of the estate of any deceased person in this state is ready to make a final report and settlement, and is prevented or precluded from making final settlement, because there is no personal representative of the estate of a deceased distributee to receive the share due that distributee or one (1) or more payees or distributees cannot be located or for any reason refuses to receive the share due that distributee, the personal representative shall pay or deliver the share due any such distributee to the state treasurer, to be handled in accordance with title 66, chapter 29, part 1, relating to unclaimed property, and show the payment or delivery in the report.
    1. In cases involving payees or distributees who are infants or persons adjudicated incompetent and without guardian or conservator authorized to receive the property, the personal representative, before making final settlement, shall file a petition in the court in which the estate is being administered setting out this fact and pray for the appointment of a guardian or conservator, unless petition is made pursuant to § 34-1-104.
    2. The court shall appoint a guardian or conservator, if practicable, or if impracticable, order the property belonging to such infant or person adjudicated incompetent paid or delivered into the state treasury, unless distribution is ordered pursuant to § 34-1-104.
    3. The payment or delivery shall be shown in the report and settlement of the personal representative, exhibiting the receipt of the guardian or state treasurer, as the case may be.
  2. If the personal representative of the estate of a deceased person is unable to locate a distributee and that distributee's share of the estate is either personal property of nominal value or a monetary legacy of nominal value, the personal representative may request instructions from the court concerning the amount, if any, which should be spent in locating the distributee and whether the amount spent in locating the distributee should be a general expense of the estate or a charge against the lost distributee's share and the disposition of the property if the distributee cannot be found, which disposition may include the authority to sell any tangible personal property.

Acts 1945, ch. 126, § 1; mod. C. Supp. 1950, § 8196.9 (Williams, § 8334.1); Acts 1963, ch. 158, § 1; 1974, ch. 438, § 1; T.C.A. (orig. ed.), § 30-1302; Acts 1986, ch. 539, § 1; 1987, ch. 322, §§ 10-12; 1988, ch. 854, § 9; 1999, ch. 491, § 6; 2011, ch. 47, §§ 22, 23.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Cross-References. Accounting by representative, § 30-2-601.

Application for distributive share or legacy, § 30-2-710.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 791, 798, 830.

Collateral References.

Authority of guardian ad litem or next friend to make agreement to drop or compromise will contest or withdraw objections to probate. 42 A.L.R.2d 1319.

Right to partial distribution of estate or distribution of particular assets, prior to final closing. 18 A.L.R.3d 1173.

30-2-703. Disposition of shares — Application and claim for share.

  1. Shares so placed in the state treasury shall not become the property of the state, but shall be and remain trust property demandable at any time by the owner or by the guardian of any owner, distributee or by the personal representative of any deceased owner.
  2. Any person lawfully entitled to receive any money paid into the state treasury pursuant to § 30-2-702 may claim the amount due in accordance with title 66, chapter 29, part 1, governing the disposition of unclaimed property. The state treasurer shall pay the amount, as in other cases, out of any money in the treasury; provided, the state shall not be liable for interest on any fund or funds paid into the state treasury under this law.
  3. Property delivered to the treasurer pursuant to § 30-2-702, may be claimed in accordance with title 66, chapter 29, part 1, governing the disposition of unclaimed property.

Acts 1945, ch. 126, §§ 2-4; mod. C. Supp. 1950, § 8196.10 (Williams, §§ 8334.2-8334.4); T.C.A. (orig. ed.), § 30-1303; Acts 1986, ch. 539, § 2; 1987, ch. 322, §§ 13, 14.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed. Phillips and Robinson), §§ 791, 830.

30-2-704. Refunding bonds.

Every legatee and distributee, or representative of a legatee or distributee, who applies for payment of that person's portion of the decedent's estate, or any part thereof, prior to the time provided by law, shall, before receiving the payment, give bond with two (2) or more sufficient sureties, or one (1) corporate surety, in double the amount to be paid, payable to the state, conditioned that if any debt or debts truly owing by the deceased shall be afterwards sued for and recovered or be otherwise duly made to appear, the legatee or distributee shall refund and pay the ratable part of the debt or debts out of the share or part so allotted to the legatee or distributee.

Code 1858, § 2316 (deriv. Acts 1715, ch. 48, § 7; 1789, ch. 23, § 2); Shan., § 4053; mod. Code 1932, § 8336; mod. C. Supp. 1950, § 8336; T.C.A. (orig. ed.), § 30-1304.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 694, 795.

NOTES TO DECISIONS

1. Construction with Other Acts.

Sections of the act providing for distribution and giving of bonds should be construed together having originally been one act, the provisions being directory and placing considerable discretion with the personal representative. Nashville & American Trust Co. v. Baxter, 171 Tenn. 494, 105 S.W.2d 108, 1937 Tenn. LEXIS 130, 114 A.L.R. 451 (1937).

2. Bond as Prerequisite to Distribution.

The personal representative is not required to make distribution before all debts are barred, and should not do so before that time, unless the distributee, ascertaining or approximating the value of his share, shall tender a refunding bond, with good security, and demand payment. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Murgitroyde v. Cleary, 84 Tenn. 539, 1886 Tenn. LEXIS 142 (1886).

The tender of the prescribed refunding bond and demand for distribution is necessary, after the lapse of two years, to put the personal representative in default. Willeford v. Watson, 59 Tenn. 476, 1873 Tenn. LEXIS 95 (1873); Murgitroyde v. Cleary, 84 Tenn. 539, 1886 Tenn. LEXIS 142 (1886).

3. Liability on Bond.

Each distributee or legatee and his bondsmen are liable under the refunding bond to pay his ratable part of any debts out of the part or share so allotted to him, but where some of the distributees or legatees and their bondsmen become insolvent, the solvent ones are not required to make up the deficiency. Robinson v. Harrison, 2 Cooper's Tenn. Ch. 11 (1874).

4. Improper Payments by Executor.

Where an executor, without right as against creditors, made payments to legatees, he is chargeable therefor though he took refunding bonds. Davis v. Jackson, 39 S.W. 1067, 1897 Tenn. Ch. App. LEXIS 19 (1897).

5. Lien for Attorney Fees.

Chancellor did not err in declaring lien upon trust property to secure solicitors' fees, all of the property being in custody of the court. Hail v. Nashville Trust Co., 31 Tenn. App. 39, 212 S.W.2d 51, 1948 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1948).

6. Personal Obligation of Distributee.

Distributee or heir takes property charged with debts of deceased. American Surety Co. v. Grace, 151 Tenn. 575, 271 S.W. 739, 1924 Tenn. LEXIS 87 (1925).

Under this section petitioner, who was widow of intestate, was personally obligated for debts of the estate, in proportion to the value of her distributive share. Hudson v. Commissioner, 99 F.2d 630, 1938 U.S. App. LEXIS 2942 (6th Cir. 1938), cert. denied, 306 U.S. 644, 59 S. Ct. 584, 83 L. Ed. 1044, 1939 U.S. LEXIS 807 (1939).

30-2-705. Recording, filing, and verity of bond.

The executor or administrator shall bring the bond into the proper court at the next session after its date, and it shall be spread on the minutes, and the original lodged in the office of the clerk, and the bond and the copy on the minutes shall have the verity and character of records.

Code 1858, § 2317 (deriv. Acts 1789, ch. 23, § 3); Shan., § 4054; Code 1932, § 8337; T.C.A. (orig. ed.), § 30-1305.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 795.

NOTES TO DECISIONS

1. Bonds as Protection to Lands.

The refunding bonds, if solvent when taken, stand, as to creditors, in place of the assets, and, to that extent, protect the lands descended, though such bonds were given by distributees who are the heirs, and subsequently become worthless. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

2. Bonds as Protection to Representative.

Where the personal representative, without notice of unpaid debts, distributes the assets among the next of kin, after the expiration of the time within which the domestic creditors can sue the estate, and takes solvent refunding bonds, and reports them to the probate court, such bonds stand in place of the assets, and of the administrator's responsibility and bond, and exonerate him from all liability, and protect him, upon plea of “fully administered,” against the claims of creditors. Johnston v. Dew, 6 Tenn. 224, 1818 Tenn. LEXIS 52 (1818); Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

3. Bonds as Protection to Creditors.

Refunding bonds are intended for the exclusive protection of the creditors of the estate who may come forward after the time for distribution, and establish their claims by judgment against the administrator, and the remedy on such bonds is given alone to the creditors of the estate. Robinson v. Chairman, 27 Tenn. 374, 1847 Tenn. LEXIS 86 (1847).

4. Worthless Bonds — Liability of Co-obligor's Estate.

Refunding bonds taken and becoming insolvent do not affect the liability of a co-obligor's estate; as, where the administrator takes refunding bonds which operate to exonerate the land of a deceased surety, such bond does not inure to the benefit of a deceased cosurety so as to exonerate the land of his estate, because the exoneration of the land of one surety does not operate as payment, so as to exonerate the land of a cosurety. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

5. Representative's Right to Sue on Bond.

Where the administrator makes erroneous distribution to persons supposed to be distributees, upon indemnity or refunding bonds obligating such parties and their surety to refund to him (the administrator) any excess of their distributive shares, such administrator is entitled to recover, at law, upon such bonds, the full amount paid, with interest thereon, because all of the sums so paid were in excess of any shares due the parties. Moss v. Fowlkes, 82 Tenn. 382, 1884 Tenn. LEXIS 139 (1884).

30-2-706. Scire facias against obligors in refunding bond — Execution.

  1. Where an executor or administrator has pleaded fully administered, no assets, or not sufficient assets to satisfy the plaintiff's or complainant's demand, and that plea has been found in favor of the defendant, and judgment has been recovered against the defendent, to be levied on the assets of the deceased, the creditor, on the creditor's motion, may have scire facias against the obligors in the bond, to show cause why execution should not be issued against them for the amount of the judgment.
  2. If there is judgment against the defendants to scire facias, or any of them, execution may issue on the judgment against the proper goods and chattels, lands and tenements of the defendant or defendants.

Code 1858, §§ 2318, 2319 (deriv. Acts 1789, ch. 23, § 3); Shan., §§ 4055, 4056; Code 1932, §§ 8338, 8339; T.C.A. (orig. ed.), §§ 30-1306, 30-1307.

Cross-References. Defense may be made on scire facias, § 25-3-128.

Issue found against representatives, § 30-2-413.

Personalty exhausted, proceeding to subject realty, § 30-2-410.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 796.

NOTES TO DECISIONS

1. Jurisdiction.

Where the plea of fully administered, etc., has been found in favor of the executor or administrator, and judgment has been recovered against him, such judgment creditor may pursue his remedy to enforce such refunding bonds by suit thereon in the chancery court rendering such judgment, but not by scire facias in such court, especially where all the sureties were not parties to the original suit. The remedy by scire facias can only be pursued in the probate court where such bonds are filed and recorded. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

2. Facts Warranting Remedy.

Where creditors of the estate obtain judgments against the personal representative, and where the plea of “fully administered,” etc., is found in favor of such representative, a summary remedy, in favor of such judgment creditor, upon the refunding bond, is provided by this section. Maxwell v. Smith, 86 Tenn. 539, 8 S.W. 340, 1888 Tenn. LEXIS 7 (1888).

30-2-707. Receipt for legacy or share.

Every person interested in the distribution of an estate shall execute to the executor, administrator, clerk, or person whose duty it is to distribute the estate, a receipt for that person's legacy, distributive share, or interest in the estate, upon payment of the same. It shall be necessary for the receipt to be executed under penalty of perjury or otherwise sworn before the clerk or a notary public. In the event that one (1) or more distributees refuse to acknowledge receipt of their respective share, the personal representative shall proceed to close the estate in accordance with chapter 2, part 6 of this title. The receipt shall be in a form developed by the administrative office of the courts. The form shall be posted on the website of the administrative office of the courts where it can be copied by the legatee or distributee or provided to the legatee or distributee by the court or the court clerk.

Code 1858, §§ 2320, 2321, 2323 (deriv. Acts 1853-1854, ch. 49, §§ 1, 2; 1855-1856, ch. 87); Shan., §§ 4057, 4058, 4060; Code 1932, §§ 8340, 8341, 8343; T.C.A. (orig. ed.), §§ 30-1308, 30-1309, 30-1311; Acts 1986, ch. 580, § 3; 2017, ch. 280, § 7.

Amendments. The 2017 amendment rewrote the second sentence which read: “It shall not be necessary for the receipt to be sworn or otherwise acknowledged before the clerk or a notary public.”; and added the third through fifth sentences.

Effective Dates. Acts 2017, ch. 280, § 8. July 1, 2017.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 799, 1144.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1309.

30-2-708. [Repealed.]

Compiler's Notes. Former § 30-2-708 (Code 1858, § 2322 (deriv. Acts 1853-1854, ch. 49, §§ 2, 3); Shan., § 4059; mod. Code 1932, § 8342; T.C.A. (orig. ed.), § 30-1310), concerning the authority of the clerk for recording receipts, was repealed by Acts 1986, ch. 580, § 4.

30-2-709. [Repealed.]

Compiler's Notes. Former § 30-2-709 (Code 1858, § 2324 (deriv. Acts 1853-1854, ch. 49, § 7); Shan., § 4061; Code 1932, § 8344; T.C.A. (orig. ed.), § 30-1312; Acts 1985, ch. 140, § 22), concerning fees, was repealed by Acts 2005, ch. 429, § 1, effective January 1, 2006.

30-2-710. Application to compel payment of distributive share or legacy.

  1. Any distributee or legatee of the estate may, after the expiration of eighteen (18) months from the grant of letters, apply to the probate or chancery court of the county in which administration was taken out, to compel the payment of the distributee's or legatee's distributive share or legacy.
  2. The application shall be by petition or bill, shall set forth the claim of the applicant as legatee or distributee, shall allege that the assets of the estate are more than sufficient to pay the debts, charges, and other claims, if any, entitled to priority, and be verified, by affidavit.
  3. The proceedings under the application shall be conducted as other equitable actions, and heard and determined summarily as soon as practicable.

Code 1858, §§ 2312-2314 (deriv. Acts 1723, ch. 10, § 4; 1762, ch. 5, §§ 23, 26); Shan., §§ 4048-4050; Code 1932, §§ 8347-8349; T.C.A. (orig. ed.), §§ 30-1313 — 30-1315.

Cross-References. Award of execution, § 30-2-612.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 121.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 669, 832-834.

Law Reviews.

Decedent's Estates, Trusts and Future Interests — 1960 Tennessee Survey (Herman L. Trautman), 13 Vand. L. Rev. 1101 (1960).

Equity — 1961 Tennessee Survey (II) (T.A. Smedley), 15 Vand. L. Rev. 896 (1962).

Executors and Administrators — Administrator's Liability for Services Rendered Estate, 15 Tenn. L. Re