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).

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.

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).

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).

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).

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).

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).

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).

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.

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.

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.

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.

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.

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.

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.

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).

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.

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).

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).

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.

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.

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.

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).

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.

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).

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 §§ 30-2-306 — 30-2-321, 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.

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.

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).

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.

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.

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).

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).

30-2-401. 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).

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.
2. 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.
3. 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.
4. 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.
5. 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).

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).

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.

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.

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.

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).

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).

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.

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.

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.

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.

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.

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.

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 §§ 30-2-409 — 30-2-415, 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.

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