NOTES TO DECISIONS

1. Child Born Out of Wedlock.

A child born out of wedlock may inherit from and through its father. Decker v. Meriwether, 708 S.W.2d 390, 1985 Tenn. App. LEXIS 3162 (Tenn. Ct. App. 1985).

2. Heirs.

There is no difference to be made here between the terms “heirs” and “heirs at law.” Wright v. Brandon, 863 S.W.2d 400, 1993 Tenn. LEXIS 346 (Tenn. 1993).

The two terms “per stirpes” and “heirs at law”, used together, do not, absent a clear intent by the testator to the contrary, exclude a surviving spouse of a deceased legatee as a distributee under the terms of a will. Wright v. Brandon, 863 S.W.2d 400, 1993 Tenn. LEXIS 346 (Tenn. 1993).

NOTES TO DECISIONS

1. Construction.

The word “valid” means “of binding force, sustainable and effective in law.” Oakley v. Oakley, 686 S.W.2d 85, 1984 Tenn. App. LEXIS 3151 (Tenn. Ct. App. 1984).

2. Marital Dissolution Agreements.

There might be valid property settlement agreements between spouses executed for limited purposes, and some of these could affect only a small portion of the total assets of the parties; however, only if the agreement purports to conclude all marital rights and to effect a full settlement thereof under all contingencies would it have the effect of waiving the right to dissent or other rights of a surviving spouse. In re Estate of Montesi, 682 S.W.2d 906, 1984 Tenn. LEXIS 909 (Tenn. 1984).

A valid property settlement agreement between spouses does not automatically constitute a waiver of all rights as a surviving spouse. In re Estate of Montesi, 682 S.W.2d 906, 1984 Tenn. LEXIS 909 (Tenn. 1984).

Only an agreement which purports to conclude all material rights and to effect a full settlement thereof under all contingencies has the effect of waiving the right to dissent or other rights of the surviving spouse. In re Estate of Montesi, 682 S.W.2d 906, 1984 Tenn. LEXIS 909 (Tenn. 1984); Hall v. Jeffers, 767 S.W.2d 654, 1988 Tenn. App. LEXIS 635 (Tenn. Ct. App. 1988).

A property settlement agreement which was contingent upon court approval was not a “valid” agreement until the court approved it. Oakley v. Oakley, 686 S.W.2d 85, 1984 Tenn. App. LEXIS 3151 (Tenn. Ct. App. 1984).

3. Prenuptial Agreements.

The terms of the prenuptial agreement were not such as to preclude the surviving spouse from taking an elective share of the estate as provided by statute. Hall v. Jeffers, 767 S.W.2d 654, 1988 Tenn. App. LEXIS 635 (Tenn. Ct. App. 1988).

NOTES TO DECISIONS

1. History of Section.

The genesis of this section is chapter 22, section 8 of the Acts of North Carolina adopted at Hillsborough on April 19, 1784. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

2. In General.

Before this section is applicable, the transfer of property must have been made fraudulently with an intent to defeat the rights of the complaining spouse. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

When deciding, on remand, if a decedent's surviving spouse was entitled to the decedent's bank account, after the decedent changed the account's ownership to the decedent and the decedent's long-term companion, T.C.A. § 45-2-703 was irrelevant because the statute was outside the law of the case, which was T.C.A. § 31-1-105. Simpson v. Fowler, — S.W.3d —, 2014 Tenn. App. LEXIS 222 (Tenn. Ct. App. Apr. 22, 2014).

3. Transfers to Children.

A bona fide advancement of real estate to a child, whereby the husband actually and openly divests himself of the property, and the enjoyment thereof, according to the wants of the child and the condition of the husband's property and family is not necessarily a conveyance made fraudulently with intention to deprive a widow of dower. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

4. Indicia of Fraud.

The lack of full consideration standing alone is not sufficient evidence to infer an intention to defraud. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

The following factors should be considered in determining whether the husband intended to practice a fraud upon his wife: (1) Whether the transfer was made with or without consideration; (2) the size of the transfer in relation to the husband's total estate; (3) the time between the transfer and the husband's death; (4) relations which existed between the husband and the wife at the time of the transfer; (5) the source from which the property came; (6) whether the transfer was illusory; and (7) whether the wife was adequately provided for in the will. Finley v. Finley, 726 S.W.2d 923, 1986 Tenn. App. LEXIS 3362 (Tenn. Ct. App. 1986).

Evidence was not sufficient to carry the burden of proof to show the establishment of the bank account was made fraudulently by the decedent, with an intent to defeat the rights of the complaining spouse. Finley v. Finley, 726 S.W.2d 923, 1986 Tenn. App. LEXIS 3362 (Tenn. Ct. App. 1986).

A transfer, even if supported by either a good or a valuable consideration, may not circumvent the provisions of T.C.A. § 31-1-105. In re Estate of Parsley, 864 S.W.2d 36, 1988 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1988).

A strained marriage relationship does not of itself establish fraudulent intent, but is one factor that a court may consider along with all of the other factors and circumstances. The strained marriage relationship would logically motivate one to attempt to deprive his or her spouse of any share in an estate in favor of a child or other loved one. In re Estate of Parsley, 864 S.W.2d 36, 1988 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1988).

In light of the lack of consideration for husband's transfers of property to daughter while alive, the size of such transfers, the timing of the transfers and the strained marital relationship, the trial court properly ruled that the transfers were fraudulent and made for the purpose of defeating the surviving spouse's right to her elective share of the estate in violation of this section. In re Estate of Parsley, 864 S.W.2d 36, 1988 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1988).

5. Fraud Not Found.

When a decedent changed the ownership of the decedent's bank account from joint with the decedent's spouse to joint with the decedent's long-term companion, the spouse was not entitled to a share of the asset on the decedent's death because no intent to deprive the spouse of a share was shown, since the time between the change in ownership and the decedent's death and the parties' less than acrimonious relationship heavily favored finding the decedent's intent was donative. Simpson v. Fowler, — S.W.3d —, 2014 Tenn. App. LEXIS 222 (Tenn. Ct. App. Apr. 22, 2014).

Transfer of the wife's real property pursuant to a quitclaim deed was not a fraudulent conveyance; the consideration for the transfer was nonexistent or nominal, but the transfer itself was not illusory, the wife acquired the real property before her marriage to the husband and was its sole owner, the transfer was made more than two years prior to her death, and the husband was provided a life estate in the real property under the quitclaim deed and her will. In re Estate of Hillis, — S.W.3d —, 2016 Tenn. App. LEXIS 148 (Tenn. Ct. App. Feb. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 479 (Tenn. June 23, 2016).

6. Evidence.

Other provisions for the surviving spouse, whether made by will or gift, are to be considered on the issue of fraudulent intent on the part of the donor spouse in making gifts to persons other than the surviving spouse so as to avoid her dower rights. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

Plaintiff husband's argument that wife's children should have been held liable for damages and attorney's fees, pursuant to T.C.A. § 71-6-120, was without merit, as the transfers of assets the wife made to her children before she died were all made by the wife personally, and there was no proof that the children took anything by fraud or otherwise. Arndts v. Bonner, — S.W.3d —, 2004 Tenn. App. LEXIS 439 (Tenn. Ct. App. July 7, 2004).

When the evidence did not show a decedent changed the beneficiary of the decedent's life insurance policies to the decedent's long-term companion to deprive the decedent's spouse of a share of these assets, it was nonetheless proper to award the spouse the proceeds of these policies because the decedent intended the policies to cover the decedent's funeral expenses, and the spouse paid those expenses. Simpson v. Fowler, — S.W.3d —, 2014 Tenn. App. LEXIS 222 (Tenn. Ct. App. Apr. 22, 2014).

7. Persons Who May Sue.

The widow was not a creditor under § 66-3-101 so as to have standing for an action to have husband's transfer of property declared fraudulent with intent to defeat wife's distributive share of his estate. McClure v. Stegall, 729 S.W.2d 263, 1987 Tenn. App. LEXIS 2538 (Tenn. Ct. App. 1987).

NOTES TO DECISIONS

1. Constitutionality.

Prohibiting husband who feloniously killed his wife from gaining the conversion of his tenancy by the entirety into a fee simple estate, and instead converting it into a tenancy in common, did not violate Tenn. Const., art. I, § 12 by allowing a forfeiture of vested interest in land. Hicks v. Boshears, 846 S.W.2d 812, 1993 Tenn. LEXIS 27 (Tenn. 1993).

2. Presumptions.

The general assembly has not enacted a statutory presumption that the slayer predeceased his victim. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

3. —Intent to Kill.

The language and purpose of this section requires that a beneficiary must have intended to kill the insured before the beneficiary is barred from taking the proceeds of the policy. Moore v. State Farm Life Ins. Co., 878 S.W.2d 946, 1994 Tenn. LEXIS 169 (Tenn. 1994).

Husband, who was the primary beneficiary under a policy of insurance on the life of his wife, was not barred from receiving the proceeds of the policy even though he was convicted, on a plea of guilty, of vehicular homicide for his wife's death. Moore v. State Farm Life Ins. Co., 878 S.W.2d 946, 1994 Tenn. LEXIS 169 (Tenn. 1994).

4. Constructive Trust.

The Tennessee supreme court has declined to adopt the “constructive trust” theory that has been followed in many other states. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

5. Descendants of Wrongdoer.

The general assembly, by enacting this section, did not intend to prevent certain of the victim's descendants from receiving a portion of the estate when these descendants are also the children of the person who killed the deceased. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

6. Surviving Spouse.

In the event the surviving spouse is found to have intentionally caused the death of his or her spouse, T.C.A. § 31-1-106 excludes the surviving spouse as a beneficiary of a cause of action for wrongful death. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

7. “Next of Kin.”

Natural mother of decedent qualified as “next of kin” pursuant to T.C.A. § 20-5-106 and could maintain an action alleging that the decedent's death was brought about by the intentional act of the surviving spouse. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

8. Tenancy by Entireties.

Husband who feloniously killed his wife was prohibited from gaining the conversion of his tenancy by the entirety into a fee simple estate; instead, the tenancy by the entirety was converted into a tenancy in common by the husband's act in feloniously killing the other tenant, and the result was that an undivided one-half interest in the property was owned by the husband, and an undivided one-half interest, descended by the laws of descent and distribution, or by will, deed, other conveyance. Hicks v. Boshears, 846 S.W.2d 812, 1993 Tenn. LEXIS 27 (Tenn. 1993).

9. Fraud.

Trial court did not err in dismissing a daughter's action seeking to overturn a settlement agreement she entered into with a stepfather based upon fraud in the inducement under Tenn. R. Civ. P. 60.02 because there was no actionable claim for fraud; the daughter never relied on the stepfather's representation that he did not kill her mother, but rather, the daughter's entire case always rested on a scenario whereby the stepfather killed the mother in a manner covered by the “Slayer's Statute,” T.C.A. § 31-1-106. Gentry v. Larkin, 389 S.W.3d 330, 2012 Tenn. App. LEXIS 465 (Tenn. Ct. App. July 13, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 953 (Tenn. Dec. 10, 2012).

Collateral References.

Disqualification of heir who murdered intestate as affecting rights of others in respect of the intestate estate. 156 A.L.R. 623, 161 A.L.R. 448.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter's right in the property. 42 A.L.R.3d 1116.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Killing of insured by beneficiary as affecting life insurance or its proceeds. 27 A.L.R.3d 794.

Marital rights in spouse's estate of husband or wife killing spouse. 71 A.L.R. 283, 139 A.L.R. 486.

Murder of decedent, constitutionality of statute precluding inheritance by. 6 A.L.R. 1408.

NOTES TO DECISIONS

1. Illustrative Cases.

Where decedent died intestate as to the excess property not specifically devised in her will, her sister's children inherited a residence not provided for in the will by intestate succession. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

In a case arising from the distribution of settlement proceeds in which the children of the deceased argued that the settlement proceeds should be distributed in accordance with a document that they propounded was the deceased's will, since that will had not been probated, it had not legal effect. Additionally, since there was no estate opened and no will admitted to probate, the proceeds of the personal injury action passed in accordance with the laws on intestate succession. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

Trial court did not have the authority to approve the distribution of the residue of a self-settled Supplemental Needs Trust established by the co-conservators of a disabled ward to specific charities, when the ward had not executed a will and lacked testamentary capacity, because, after the wards death, any amount remaining in the Supplemental Needs Trust after the wards death and repayment to the State of Tennessee was to be distributed to the ward's estate. In re Wade, 484 S.W.3d 151, 2015 Tenn. App. LEXIS 634 (Tenn. Ct. App. Aug. 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1073 (Tenn. Dec. 14, 2015).

Collateral References.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty. 92 A.L.R.3d 473.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

NOTES TO DECISIONS

1. Born Out of Wedlock.

Illegitimate children may inherit, under § 31-2-105, from and through the father where the rights of inheritance have not finally vested; therefore, the phrase “shall vest immediately upon death” in this section is not the final vesting. To hold otherwise would be to bar illegitimate children from establishing paternity after the death of the father. McCluskey v. Weaver, 667 S.W.2d 747, 1982 Tenn. App. LEXIS 458 (Tenn. Ct. App. 1982).

A child born out of wedlock, whose paternity was not adjudicated prior to the death of the father, can establish the right to inherit by intestate succession by asserting that right against the estate of the deceased owner of the property in which an interest is claimed within the time allowed for creditors to file claims against the estate, and by establishing paternity by clear and convincing proof. Bilbrey v. Smithers, 937 S.W.2d 803, 1996 Tenn. LEXIS 527 (Tenn. 1996).

Trial court properly ruled that a child was an heir-at-law of the decedent, who died intestate, because the inclusion of the decedent's name on the child's birth certificate evinced the execution of a voluntary acknowledgment of paternity that constituted a legal finding of paternity; therefore, the child's portion of the estate vested in him immediately upon the decedent's death. In re Estate of Davis, — S.W.3d —, 2016 Tenn. App. LEXIS 235 (Tenn. Ct. App. Mar. 30, 2016).

2. Vesting Subject to Claims.

Although property owned by decedent at the time of death vested in the beneficiaries, it vested subject to the discharge of claims against the estate, including the surviving spouse's elective share. Gentry v. Gentry, 924 S.W.2d 678, 1996 Tenn. LEXIS 425 (Tenn. 1996).

3. Illustrative Cases.

Where chapter 7 trustee irrevocably abandoned the debtor's interest in certain real property under 11 U.S.C. § 554(a), and subsequently sought to sell the property pursuant to 11 U.S.C. § 363 to pay administrative expenses, the trustee was precluded from relying on T.C.A. § 31-2-103 to retain the property in the estate. In re Racsko, — B.R. —, 2012 Bankr. LEXIS 3494 (Bankr. E.D. Tenn. July 30, 2012).

Personal representative who was appointed to administer a decedent's estate had the authority under T.C.A. § 31-2-103 to place a corporation the decedent established into bankruptcy, even though the corporation had been dissolved, and the bankruptcy court invalidated a foreclosure sale that occurred after the corporation was placed into bankruptcy, pursuant to 11 U.S.C. § 362, even though the buyer did not know that the corporation had been placed into bankruptcy at the time he purchased property at the foreclosure sale. The corporation had the right under 11 U.S.C. § 301 to declare bankruptcy because dissolved corporations were allowed under T.C.A. § 48-24-105(a) to carry on business that was appropriate to winding up their affairs. In re Benchmark Capital, Inc., 490 B.R. 566, 2013 Bankr. LEXIS 1478 (Bankr. E.D. Tenn. Apr. 9, 2013).

Personal representative (PR) complained that the trial court did not award him his requested fees, but when he made the decision to perform house repairs, when the will did not give him any power over the real estate, and he proceeded without approval of other beneficiaries and the trial court, he proceeded at his own risk; as the PR had no authority at law over the real estate, the trial court did not abuse its discretion in equitably allowing the PR $ 6,500 for his work on the house. In re Estate of Schorn, — S.W.3d —, 2015 Tenn. App. LEXIS 225 (Tenn. Ct. App. Apr. 17, 2015).

Because the testator had a will, at her death, under T.C.A. § 31-2-103, the personal property vested in the executor, and the real property vested in the devisees, not in the intestate heir; he did not have a reasonable expectation that he would inherit, but he did have a reasonable expectation that he would have standing to contest the will, and because the retrospective application of the 2016 amendment to T.C.A. § 32-1-104(b) did not impair any of the heir's vested rights, it could be applied retrospectively, which rendered the 2015 will valid. In re Estate of Stewart, — S.W.3d —, 2017 Tenn. App. LEXIS 701 (Tenn. Ct. App. Oct. 20, 2017).

Trial court properly ordered the personal representative (PR) to sell a portion of the decedent's real property sufficient to fund the annuities bequeathed to his daughters, the beneficiaries, because the gifts of the annuities to the beneficiaries were charges on the residuary estate consisting of both the decedent's personal property and real property; no rule of law or public policy contravened the intent of the decedent that the annuities he left to the beneficiaries be funded by his estate, which included his real property; the probate court had jurisdiction to sell the decedent's real property; and the PR could use the decedent's real property to satisfy the obligations of the decedent when the personal property was insufficient. In re Estate of Nichols, — S.W.3d —, 2018 Tenn. App. LEXIS 156 (Tenn. Ct. App. Mar. 22, 2018).

Decedent's adult child was not entitled to reimbursement from the decedent's estate for certain expenses which the child expended on the real estate devised to the child by the decedent because the property vested immediately in the child at the decedent's death and was not part of the probate estate for administration purposes. Furthermore, the decedent's will indicated the decedent's desire to have the property vest in the child immediately on the decedent's death. In re Estate of Mettetal, — S.W.3d —, 2018 Tenn. App. LEXIS 577 (Tenn. Ct. App. Oct. 2, 2018).

Property at issue vested in the decedent's designated heir when the personal representative executed warranty deeds for the property, despite the fact that the deeds were never recorded. The personal representative intended to transfer the property, to the extent the personal representative held any title as personal representative of the estate, when the personal representative executed the deeds and advised the heir of the deeds, while the heir paid the expenses for the property and treated the property as the heir's own. In re Estate of Schubert, — S.W.3d —, 2020 Tenn. App. LEXIS 419 (Tenn. Ct. App. Sept. 18, 2020).

4. Conservatorship to Be Resolved First.

Probate court erred construing the language of a decedent's will as conferring authority on the administrator to sell the decedent's real property because the court's order was premature inasmuch as the conservatorship had be resolved first with any funds remaining in the conservatorship transferred to the decedent's estate before the claims against the estate could be resolved and the disposition of the property determined. In re Estate of Hudson, — S.W.3d —, 2019 Tenn. App. LEXIS 62 (Tenn. Ct. App. Feb. 4, 2019).

Collateral References.

Liability for administration expenses of spouse electing against will, 89 A.L.R.3d 315.

NOTES TO DECISIONS

0.5. Construction.

The 2016 amendment facilitates the intentions and the expectations of the parties to the will at the time of its execution; the intestate heir had no vested right in a law that would allow him to take advantage of a procedural defect, and it was well within the province of the legislature to cure the defect to prevent the heir, and others similarly situated, from gaining an unfair advantage based on a mere technicality, and such laws can be applied retrospectively without running afoul of the Tennessee Constitution. In re Estate of Stewart, — S.W.3d —, 2017 Tenn. App. LEXIS 701 (Tenn. Ct. App. Oct. 20, 2017).

Clearly, the 2016 amendment to T.C.A. § 32-2-104 was intended to provide relief for testators who believed they had executed a valid will prior to July 1, 2016, when the two witnesses duly executed the attestation affidavit at the same time as the will was executed by the testator, but the witnesses failed to sign the will itself; the legislature intended for the 2016 amendment to apply to all wills executed prior to July 1, 2016, notwithstanding whether the testator died before the law went into effect. In re Estate of Stewart, — S.W.3d —, 2017 Tenn. App. LEXIS 701 (Tenn. Ct. App. Oct. 20, 2017).

Because the testator had a will, at her death, under T.C.A. § 31-2-103, the personal property vested in the executor, and the real property vested in the devisees, not in the intestate heir; he did not have a reasonable expectation that he would inherit, but he did have a reasonable expectation that he would have standing to contest the will, and because the retrospective application of the 2016 amendment to T.C.A. § 32-1-104(b) did not impair any of the heir's vested rights, it could be applied retrospectively, which rendered the 2015 will valid. In re Estate of Stewart, — S.W.3d —, 2017 Tenn. App. LEXIS 701 (Tenn. Ct. App. Oct. 20, 2017).

2016 amendment to T.C.A. § 32-1-104 is a remedial statute that can be applied retrospectively without interfering with vested rights. In re Estate of Stewart, — S.W.3d —, 2017 Tenn. App. LEXIS 701 (Tenn. Ct. App. Oct. 20, 2017).

1. “Heirs” Defined.

The legal meaning of the word “heirs” is the class of persons upon whom descent is cast by the statute of descent. Fisher v. Malmo, 650 S.W.2d 43, 1983 Tenn. App. LEXIS 556 (Tenn. Ct. App. 1983).

2. Issue of the Decedent.

The “issue of the decedent” are, unless otherwise limited, all the direct, lineal descendants of the deceased. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

The term “issue of the decedent” differs from the more common reference to “heirs at law,” “heirs,” or “heirs of the body.” Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

Where chapter 7 trustee irrevocably abandoned the debtor's interest in certain real property under 11 U.S.C. § 554(a), and subsequently sought to sell the property pursuant to 11 U.S.C. § 363 to pay administrative expenses, the trustee was precluded from relying on T.C.A. § 31-2-104 to retain the property in the estate. In re Racsko, — B.R. —, 2012 Bankr. LEXIS 3494 (Bankr. E.D. Tenn. July 30, 2012).

3. Child Born Out of Wedlock.

A child born out of wedlock may inherit from and through its father. Decker v. Meriwether, 708 S.W.2d 390, 1985 Tenn. App. LEXIS 3162 (Tenn. Ct. App. 1985).

A child born out of wedlock may inherit from and through its father where paternity is established by clear and convincing proof and where rights of inheritance have not finally vested. Woods v. Fields, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 216 (Tenn. Ct. App. 1990), rehearing denied, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 285 (Tenn. App. 1990).

Plaintiff established paternity by clear and convincing evidence when it was shown that parents of putative father had acknowledged in application filed with Social Security Administration that plaintiff was child of putative father. Woods v. Fields, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 216 (Tenn. Ct. App. 1990), rehearing denied, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 285 (Tenn. App. 1990).

Trial court properly ruled that a child was an heir-at-law of the decedent, who died intestate, because the inclusion of the decedent's name on the child's birth certificate evinced the execution of a voluntary acknowledgment of paternity that constituted a legal finding of paternity; therefore, the child's portion of the estate vested in him immediately upon the decedent's death. In re Estate of Davis, — S.W.3d —, 2016 Tenn. App. LEXIS 235 (Tenn. Ct. App. Mar. 30, 2016).

4. Descendants of Wrongdoer.

The general assembly, by enacting T.C.A. § 31-1-106, did not intend to prevent certain of the victim's descendants from receiving a portion of the estate when these descendants are also the children of the person who killed the deceased. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

5. Illustrative Cases.

Where decedent died intestate as to the excess property not specifically devised in her will, her sister's children inherited a residence not provided for in the will by intestate succession. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

In a case arising from the distribution of settlement proceeds in which the children of the deceased argued that the settlement proceeds should be distributed in accordance with a document that they propounded was the deceased's will, since that will had not been probated, it had not legal effect. Additionally, since there was no estate opened and no will admitted to probate, the proceeds of the personal injury action passed in accordance with the laws on intestate succession. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

When a father established a testamentary trust in his will for the benefit of his son, and the son died thereafter, a trial court erred in ordering a trustee to distribute the corpus of the trust to the father's brother because the father intended that once he survived him and the trust was created, then the son, or the son's beneficiaries, which included the son's estranged wife, would receive the full benefit of the trust, even if the son did not live to the requisite age; the language of the will created a trust for the benefit of the son without providing a mechanism for divesting the son of the trust, once it had been created. First Tenn. Bank, N.A. v. Woodward, 362 S.W.3d 86, 2011 Tenn. App. LEXIS 575 (Tenn. Ct. App. Oct. 25, 2011), appeal denied, First Tenn. Bank N.A. v. Woodward, — S.W.3d —, 2012 Tenn. LEXIS 103 (Tenn. Feb. 16, 2012).

Trial court did not have the authority to approve the distribution of the residue of a self-settled Supplemental Needs Trust established by the co-conservators of a disabled ward to specific charities, when the ward had not executed a will and lacked testamentary capacity, because, after the wards death, any amount remaining in the Supplemental Needs Trust after the wards death and repayment to the State of Tennessee was to be distributed to the ward's estate. In re Wade, 484 S.W.3d 151, 2015 Tenn. App. LEXIS 634 (Tenn. Ct. App. Aug. 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1073 (Tenn. Dec. 14, 2015).

Decedent's grandmother had standing to file a wrongful death action on his behalf against the county because she was authorized to do so by statute and there was no indication that the decedent had other beneficiaries who held a superior right to bring the action and objected to the grandmother doing so Haynes v. Wayne Cnty., — S.W.3d —, 2017 Tenn. App. LEXIS 249 (Tenn. Ct. App. Apr. 19, 2017).

Trial court did not err by reviving a decedent's prior will because it distributed the decedent's property in a manner that was generally consistent with the wishes he expressed close to the time of his death, and he did not want to die intestate; decedent made it clear to his granddaughter that he wanted to have a will, and his desires were never consistent with an intestate distribution; if the decedent died intestate, all of his property would be distributed equally among his children, and he ever expressed a desire consistent with that arrangement. In re Estate of McKelvey, — S.W.3d —, 2018 Tenn. App. LEXIS 276 (Tenn. Ct. App. May 17, 2018).

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

Collateral References.

Ancestral character of property which came to intestate by deed. 122 A.L.R. 820.

Ancestral or nonancestral character of property as affected by charge thereon imposed by will. 67 A.L.R. 1164.

Color of title, possession under descent cast as. 2 A.L.R. 1466.

Constitutionality of statute repealing or changing course of descent and distribution of property. 103 A.L.R. 223.

Contest of will, right of heir's assignee. 39 A.L.R.3d 696.

Damages for wrongful death as affected by receipt of share of estate of decedent. 95 A.L.R. 581.

Death, division among beneficiaries of amount awarded by jury upon account of wrongful death. 14 A.L.R. 516.

Descent and distribution from step parents to step children or vice versa. 63 A.L.R.2d 303.

Descent and distribution: Right of inheritance as between kindred of whole and half blood. 47 A.L.R.4th 561.

Descent and distribution to and among cousins. 54 A.L.R.2d 1009.

Descent and distribution to and among uncles and aunts. 55 A.L.R.2d 643.

Descent and distribution to nieces and nephews as per stirpes or per capita. 19 A.L.R.2d 191.

Fee simple conditional, heirs of grantee of estate in, as taking by succession from their ancestor rather than according to statute of distribution. 114 A.L.R. 611.

Gift over to “survivors” of class or group of designated beneficiaries as restricted to surviving members of class or group, or as passing to heirs or representatives of deceased beneficiary. 54 A.L.R.3d 280.

Heirs of deceased child of intestate, statute providing for taking by, of share of deceased child as entitling one other than grandchild of intestate to take. 93 A.L.R. 1511.

Inheritability or descendability of right to contest will, 11 A.L.R.4th 907.

Inheritance by illegitimate from or through mother's ancestors or collateral kindred. 97 A.L.R.2d 1101.

Leasehold interest under leave from deceased spouse, rights as between holder of, and surviving spouse, in respect of improvements made pursuant to provisions of lease. 92 A.L.R. 1382.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Lessee's covenants to repair or to yield up in repair, right of heirs of lessor to enforce. 34 A.L.R. 793.

Massachusetts or business trust. 88 A.L.R.3d 704.

Option to purchase, death of party between giving and exercise of, as affecting rights of heirs of giver. 50 A.L.R. 1322.

Partition suit or partition deed as affecting character of estate as ancestral estate or estate of purchase. 103 A.L.R. 231.

Possibility of reverter. 77 A.L.R. 344.

Real or personal property, proceeds of sale or condemnation of real property of infant or incompetent as, for purpose of descent. 90 A.L.R. 899.

Release to ancestor by heir expectant. 28 A.L.R. 427.

Renunciation of benefits under statute of descent and distribution. 170 A.L.R. 435.

Right of children of adopted child to inherit from adopting parent. 94 A.L.R.2d 1200.

Right of remote kin equally related to the intestate but belonging to different stocks, to distribution per capita rather than by per stirpes where nearer next of kin survive. 140 A.L.R. 1141.

Rights as between designated beneficiary and heirs or legatees of deceased employee covered by private pension or retirement plan. 72 A.L.R.2d 924.

Spouse deceased as ancestor of surviving spouse within statute providing that kindred of the half blood inherit equally with those of the whole blood, unless the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors. 110 A.L.R. 1014.

Stockholder's statutory added liability as devolving on his heirs at his death. 79 A.L.R. 1550, 96 A.L.R. 1466.

Time of ascertaining persons to take where designated as the “heirs,” “next of kin,” “descendants,” etc., of one other than the testator, trustor, grantor, life tenant, or remainderman. 60 A.L.R.2d 1394.

Who are within terms “relation,” “descendant,” “child,” “brother,” “sister,” etc., describing the legatee or devisee, in the statute providing against lapse upon death of legatee or devisee before testator. 63 A.L.R.2d 1195.

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

Who is minor's next of kin for guardianship purposes. 63 A.L.R.3d 813.

Word “grandchild” or “grandchildren” in will as including great-grandchild or great-grandchildren. 51 A.L.R.3d 1250.

NOTES TO DECISIONS

1. Born Out of Wedlock.

Illegitimate children may inherit, under this section, from and through the father where the rights of inheritance have not finally vested; therefore, the phrase “shall vest immediately upon death” in § 31-2-103 is not the final vesting. To hold otherwise would be to bar illegitimate children from establishing paternity after the death of the father. McCluskey v. Weaver, 667 S.W.2d 747, 1982 Tenn. App. LEXIS 458 (Tenn. Ct. App. 1982).

The holding in Allen v. Harvey, 568 S.W.2d 829, 1978 Tenn. LEXIS 614 (Tenn. 1978), that children born out of wedlock may inherit by and through their father where paternity is established by clear and convincing proof, and where rights of inheritance have not finally vested, was not limited to prospective application, but was to be applied retroactively. Marshall v. Marshall, 670 S.W.2d 213, 1984 Tenn. LEXIS 750 (Tenn. 1984).

A child born out of wedlock may inherit from and through its father. Decker v. Meriwether, 708 S.W.2d 390, 1985 Tenn. App. LEXIS 3162 (Tenn. Ct. App. 1985).

Claimant could be found to have been born out of wedlock to her putative father within the meaning of this section, even though her mother was married at the time of her conception and birth, where her mother was married to someone other than her putative father. In re Estate of Armstrong, 859 S.W.2d 323, 1993 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 223 (Tenn. 1993).

A child born out of wedlock, whose paternity was not adjudicated prior to the death of the father, can establish the right to inherit by intestate succession by asserting that right against the estate of the deceased owner of the property in which an interest is claimed within the time allowed for creditors to file claims against the estate, and by establishing paternity by clear and convincing proof. Bilbrey v. Smithers, 937 S.W.2d 803, 1996 Tenn. LEXIS 527 (Tenn. 1996).

Claimant's evidence that she was not the biological child of her mother's husband, that her mother told her that the intestate decedent was her father, and that her mother had sexual relations with decedent up to the time of his death did not offer clear and convincing proof of paternity. Walton v. Young (In re Estate of Walton), 950 S.W.2d 956, 1997 Tenn. LEXIS 430 (Tenn. 1997).

Probate court erred in holding that a purported grandchild lacked standing to assert a claim of inheritance by intestate succession to the decedent's estate through the decedent's son because the purported grandchild qualified as a person born out of wedlock where, if the decedent's son was the purported grandchild's biological father and he and the purported grandchild's mother were not and never had been married to each other at the time of the purported grandchild's birth, even though the purported grandchild's mother was married to another man when the purported grandchild was born. In re Estate of Tucker, — S.W.3d —, 2015 Tenn. App. LEXIS 901 (Tenn. Ct. App. Nov. 12, 2015).

2. Paternity Suits.

3. —Jurisdiction.

Suit to establish paternity for the purpose of determining intestate succession is properly brought in Chancery and not Juvenile Court. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981).

4. —Limitation of Action.

Ten-year statute of limitations in § 28-3-110 applies to suits to establish paternity for the purpose of determining intestate succession. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981).

Statute of limitation in § 28-3-102 for claims of creditors against a decedent's estate does not apply to suits brought to establish paternity for the purpose of determining intestate succession. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981); McCluskey v. Weaver, 667 S.W.2d 747, 1982 Tenn. App. LEXIS 458 (Tenn. Ct. App. 1982).

Statute of limitation in former § 36-224 (now § 36-2-306) did not apply to suits brought to establish paternity for the purpose of determining intestate succession only. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981).

5. Administration of Estates.

The statutory procedures for establishing heirship in the statutes of descent and distribution relate to estates subject to administration in Tennessee. Ford v. Pace, 672 S.W.2d 219, 1984 Tenn. App. LEXIS 2859 (Tenn. Ct. App. 1984).

The chancery court in Tennessee did not have jurisdiction to determine heirship where the estate was administered in Ohio by an Ohio resident and there was no estate in Tennessee. Ford v. Pace, 672 S.W.2d 219, 1984 Tenn. App. LEXIS 2859 (Tenn. Ct. App. 1984).

No proof was offered on the question of paternity on the alleged heir's claim; therefore, the legitimation issue had to be remanded to the trial court to permit the heir to present her claim pursuant to T.C.A. § 31-2-105 to demonstrate a relationship to the decedent for purposes of establishing intestate succession rights. Lanier v. Rains, 229 S.W.3d 656, 2007 Tenn. LEXIS 583 (Tenn. June 28, 2007).

6. Wrongful Death.

Court of appeals erred in ordering that a father's recovery from a wrongful death action be paid toward satisfaction of his child support arrearages for his children who were unrelated to the decedent spouse because the statute was inapplicable since the father was the surviving spouse of the decedent; the term “parent” as used in subsection (b) is limited to a parent of the decedent child who owes a child support arrearage for the support of that decedent child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

7. Construction.

T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply where a child has died, the parents are separated or divorced, and one parent owes the other child support for the decedent child because they bar the obligor parent from benefitting from the wrongful death of a child whom he or she failed to financially support; legislative intent requires the obligor parent to satisfy his or her child support debt to the other parent before he or she is permitted to benefit from the death of that child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Prohibitions in T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply only when (1) the “parent” who seeks to recover in the wrongful death lawsuit is a parent of the decedent child, and (2) that parent's child support arrearage is owed for the support of that decedent child. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

T.C.A. §§ 20-5-107(b) and 31-2-105(b) apply only to a “parent” of the decedent child, and the child support arrearage must be owed for the support of that decedent child; reading “parent” as the parent of the decedent is consistent with other sections that describe a person's rights and remedies in terms of how they are related to the decedent, and given other relational terms always refer to relatives of the decedent, it is consistent to construe “parent” as the parent of the decedent. Spires v. Simpson, — S.W.3d —, 2017 Tenn. LEXIS 852 (Tenn. Dec. 27, 2017).

Collateral References.

Discrimination on basis of illegitimacy as denial of constitutional rights. 38 A.L.R.3d 613.

Inheritance by illegitimate. 24 A.L.R. 570, 83 A.L.R. 1330, 48 A.L.R.2d 759, 60 A.L.R.2d 1182.

Inheritance by illegitimate from mother's legitimate children. 60 A.L.R.2d 1182.

Inheritance by illegitimate from mother's other illegitimate children. 7 A.L.R.3d 677.

Inheritance by illegitimate from or through mother's ancestors or collateral kindred. 97 A.L.R.2d 1101.

Insurance term “children” as used in beneficiary clause of life insurance policy as including illegitimate child. 62 A.L.R.3d 1329.

Kindred of parents, right of child legitimated by marriage of parents to take by inheritance from. 64 A.L.R. 1124.

NOTES TO DECISIONS

1. In General.

This section neither creates a presumption as to survivorship nor provides a rule of evidence; it is, instead, a rule of substantive law controlling the devolution of property of persons who die in a common disaster, and there is no sufficient evidence that they have died otherwise than simultaneously. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

2. Wrongful Death Action.

Where husband and wife were killed in plane crash and there was no evidence other than that they died simultaneously, cause of action for wife's wrongful death passed to her next of kin as though she had survived husband. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

3. Funeral Expenses of Wife.

This statute does not affect the preexisting law as to the obligation of the husband to pay the funeral expenses of the wife and estate of husband is liable for such funeral expenses even though under this statute they are presumed to have died simultaneously. In re Estate of Deskins, 214 Tenn. 608, 381 S.W.2d 921, 1964 Tenn. LEXIS 512 (1964).

4. Antilapse Statute.

The antilapse statute, § 32-3-105, is applicable in simultaneous death cases where one decedent is the beneficiary of another and should be construed in conjunction with this section. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

Collateral References.

Common disaster, succession to property as affected by death in, in absence of presumption or proof of survivorship. 43 A.L.R. 1348.

Construction, application and effect of Uniform Simultaneous Death Act. 39 A.L.R.3d 1332.

Time interval contemplated by statute of descent and distribution with reference to death of two persons simultaneously or approximately at same time. 173 A.L.R. 1254.

Who is minor's next of kin for guardianship purposes. 63 A.L.R.3d 813.

NOTES TO DECISIONS

1. In General.

The usual rule that the interest of a tenant by the entireties cannot be passed by will does not apply where husband and wife died simultaneously and the husband was the beneficiary of the residuary clause in the wife's will. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

The Uniform Simultaneous Death Act effectively converts a tenancy in the entirety into a tenancy in common. Hicks v. Boshears, 846 S.W.2d 812, 1993 Tenn. LEXIS 27 (Tenn. 1993).

The Tennessee general assembly did not intend for the term “simultaneously” in T.C.A. § 31-3-104 to be defined as meaning “within 120 hours”; instead, the term is properly construed according to its ordinary import, meaning “at the same time”. Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 2002 Tenn. LEXIS 152 (Tenn. 2002).

Because real properties were titled solely to a decedent and were not held as tenants by the entirety or even as tenants in common, and the decedent and his spouse did not die simultaneously in time, the statute had no application. In re Estate of Shell, — S.W.3d —, 2018 Tenn. App. LEXIS 505 (Tenn. Ct. App. Aug. 29, 2018).

2. Antilapse Statute.

The antilapse statute, § 32-3-105, is applicable in simultaneous death cases where one decedent is the beneficiary of another and should be construed in conjunction with this section. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

Collateral References.

Common disaster, death of both tenants in, as affecting devolution of joint estate, community estate, or estate by entireties. 18 A.L.R. 105.

NOTES TO DECISIONS

1. Statute Not Applicable to Tenants by the Entirety.

Because T.C.A. § 31-3-120 applies in specific and limited cases, it does not require a tenant by the entirety to survive the spouse by 120 hours in order to obtain fee simple title to property formerly held by the entirety. Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 2002 Tenn. LEXIS 152 (Tenn. 2002).

2. Applicability.

Spouse predeceased the decedent because she failed to survive him by 120 hours, and thus, the spouse's estate had no interest in the real property titled to the decedent at the time of his death; because the properties were not held as tenants by the entirety, and the decedent left no will, the only manner by which the spouse would have inherited an interest in the properties would be by homestead allowance, year's support allowance, exempt property, elective share, or intestate succession. In re Estate of Shell, — S.W.3d —, 2018 Tenn. App. LEXIS 505 (Tenn. Ct. App. Aug. 29, 2018).

NOTES TO DECISIONS

1. Fee Simple.

The legislature intended for the surviving spouse to take a fee simple title in properties comprising the elective share. Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 1982 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1982).

2. Effective Date.

The effective date for determining the dissenting widow's elective share was testator's date of death. Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 1982 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1982).

The surviving spouse should share in any gains or losses experienced by the decedent's estate prior to the distribution of her elective share, including income generated by property owned by the decedent at the time of his death. In re Estate of Jenkins, 8 S.W.3d 277, 1999 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1999), rehearing denied, Estate of Jenkins,—S.W.3d,— 1999 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1999).

3. Net Estate.

With few exceptions, the net estate includes all of decedent's real and personal property subject to disposition under the terms of the decedent's will. When a spouse dissents, the whole estate is taken into account in order that the dissenting spouse may obtain the statutory benefits as though deceased had died intestate. Hamilton Bank Of Upper East Tennessee v. Milligan College, 821 S.W.2d 591, 1991 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1991).

Under the substantially similar former version of T.C.A. § 31-4-101(b), life insurance proceeds that were paid directly to decedent's former wife should not be included in decedent's net estate, considering that the funds were not payable to a testate estate. In re Estate of Jenkins, 8 S.W.3d 277, 1999 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1999), rehearing denied, Estate of Jenkins,—S.W.3d,— 1999 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1999).

In a will dispute, a trial court erred by reducing the amount of the net estate by two debts owed to a decedent's sisters for the purchase of land because they were not secured debts. In re Estate of Jones, 183 S.W.3d 372, 2005 Tenn. App. LEXIS 445 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 1184 (Tenn.2005).

4. Exemptions.

The exemptions referred to in this section are the exemptions found under § 30-2-101, governing the rights of surviving spouse and minor children to specific property. Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

Even though life insurance under some circumstances may be exempt from the claims of creditors, it is not one of the exemptions referred to in subsection (b). Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

The unsecured debt exemption becomes relevant only after the surviving spouse's elective share is calculated. In re Estate of Jenkins, 8 S.W.3d 277, 1999 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1999), rehearing denied, Estate of Jenkins,—S.W.3d,— 1999 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1999).

5. Priority of Claim.

Although property owned by decedent at the time of death vested in the beneficiaries, it vested subject to the discharge of claims against the estate, including the surviving spouse's elective share. Gentry v. Gentry, 924 S.W.2d 678, 1996 Tenn. LEXIS 425 (Tenn. 1996).

6. Exhaustion of Elective Share.

Where a widow elected against her husband's will and filed a petition for year's support, exempt property, elective share, and homestead, the widow exhausted her elective share and was entitled to no more compensation under T.C.A. § 31-4-101. Estate of Morris v. Morris, 104 S.W.3d 855, 2002 Tenn. App. LEXIS 755 (Tenn. Ct. App. 2002), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 292 (Tenn. Mar. 17, 2003).

7. Disclosure by Personal Representative.

The provision of § 31-4-103 is mandatory and must be strictly complied with by the representative of an estate or the statutory time for filing a dissent will not bar the widow from making that election. Merriman v. Jones, 620 S.W.2d 88, 1981 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1981).

8. Antenuptial Agreements.

Where husband did not disclose full extent of his estate prior to executing antenuptial agreement, the agreement was ineffective and widow was entitled to take elective share as surviving spouse. Williams v. Williams, 868 S.W.2d 616, 1992 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1992).

Trial court erred in determining that an antenuptial agreement executed by a widow was valid and governed by Florida law, because, despite the generally applicable lex loci rule of contracts, Tennessee law applies under circumstances where the law of another jurisdiction contravenes Tennessee public policy. Enforcing the widow's antenuptial agreement violated Tennessee public policy requiring full disclosure. The court noted that under Florida law, a distinction is made as to antenuptial agreements made in a marriage dissolution versus a probate context; however, in Tennessee, no such distinction is made and full and fair disclosure is required in both contexts, as provided in T.C.A. § 36-3-501. In re Estate of Davis, 184 S.W.3d 231, 2004 Tenn. App. LEXIS 585 (Tenn. Ct. App. 2004), cert. denied, Davis v. Davis, 126 S. Ct. 550, 163 L. Ed. 2d 460, 546 U.S. 977, 2005 U.S. LEXIS 7873 (U.S. Oct. 31, 2005).

9. In Terrorem Clause.

In terrorem clause in will providing that, if beneficiaries attempted to contradict bequests under the will they would lose benefits enuring to them under the will, did not bar surviving spouse from seeking elective share provided by this section. Williams v. Williams, 868 S.W.2d 616, 1992 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1992).

10. Valuation of Elective Share for Marital Deduction.

Assuming that an elective share was determined and funded according to law, it passed from the decedent to the surviving spouse, and “an amount equal to” the full value of the elective share qualified for the marital deduction without being reduced by the amount of decedent's secured debts. Estate of Williams v. Huddleston, 938 S.W.2d 415, 1997 Tenn. LEXIS 43 (Tenn. 1997).

11. Benefits Accepted Under Will.

Husband was estopped from receiving an elective share because the husband knowingly and with the advice of counsel sought and obtained his bequest of $ 100,000 pursuant to the provisions of the decedent's will against which he elected to take his elective share. In re Estate of Davis, — S.W.3d —, 2013 Tenn. App. LEXIS 702 (Tenn. Ct. App. Oct. 28, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 237 (Tenn. Mar. 4, 2014).

12. Equitable Estoppel.

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

13. Valuation of Elective Share.

When calculating the value of a decedent's estate, for purposes of finding the elective share of the decedent's widow's estate, a court properly excluded insurance proceeds and retirement benefits distributed by beneficiary designations because these assets never became part of the estate and were not subject to the decedent's will. In re Estate of Ladd, — S.W.3d —, 2020 Tenn. App. LEXIS 186 (Tenn. Ct. App. Apr. 24, 2020).

Collateral References.

Acceptance by surviving spouse of provision of will in lieu of dower or other marital rights as giving spouse priority over other legatees and devisees and creditors. 2 A.L.R.2d 607.

Antenuptial or postnuptial settlement and husband's will, what amounts to widow's election as between. 117 A.L.R. 1001.

Codicil as affecting application of statute as to election to take under or against will. 87 A.L.R. 836, 21 A.L.R.2d 821.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

Construction, application, and effect of statutes which deny or qualify surviving spouse's right to elect against deceased spouse's will. 48 A.L.R.4th 972.

Does surviving spouse who elects against will take by way of distributive share or by way of inheritance from deceased spouse. 160 A.L.R. 429.

Election against will as affecting right to share in lapsed legacy. 26 A.L.R. 91.

Election as predicable upon initiation of or participation in court proceedings. 166 A.L.R. 316.

Election by spouse to take under or against will as exercisable by agent or personal representative. 83 A.L.R.2d 1077.

Extension of time within which spouse may elect to accept or renounce will. 59 A.L.R.3d 767.

Intestate property or property not validly disposed of by will, direction in will that provision for wife shall be in lieu of other rights or claims as requiring electing as between rights in respect of, and provisions of will. 93 A.L.R. 1384.

Joint, mutual and reciprocal wills, election by spouse to take against. 169 A.L.R. 92.

Law as to election in effect at time of execution of will or at time of testator's death as controlling. 129 A.L.R. 871.

Liability for administration expenses of spouse electing against will. 89 A.L.R.3d 315.

Revocation of election to take under or contrary to will. 81 A.L.R. 740, 71 A.L.R.2d 942.

Right to elect against will as barred by separation agreement. 35 A.L.R. 1491, 34 A.L.R.2d 1020.

Surviving spouse who elects to take against will as entitled to increase or profit of estate accruing after testator's death. 7 A.L.R.4th 989.

Trustee, executor, guardian, or the like, renunciation of will by spouse and election to take under statute as affecting provisions imposing upon spouse personal duty as. 71 A.L.R. 665.

Unsuccessful assertion of claim under or against will as an election for or against it. 33 A.L.R. 601.

Validity of election to take under or against will as affected by fact that it was filed before probate of will or grant of letters. 120 A.L.R. 1270.

Waiver or abandonment of, or estoppel to assert, prior renunciation of, or election to take against, spouse's will. 29 A.L.R.2d 227.

What amounts to election by widow to take under or against will. 82 A.L.R. 1509.

When is widow put to her election between provision made for her by her husband's will, and her dower, homestead, or community right. 22 A.L.R. 437, 68 A.L.R. 507, 171 A.L.R. 649.

Who must bear loss occasioned by election against will. 36 A.L.R.2d 291.

NOTES TO DECISIONS

1. Disclosure by Personal Representative.

The provision of § 31-4-103 is mandatory and must be strictly complied with by the representative of an estate or the statutory time for filing a dissent will not bar the widow from making that election. Merriman v. Jones, 620 S.W.2d 88, 1981 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1981).

The provision of T.C.A. § 31-4-103 did not apply as an exception to an untimely filing by a surviving spouse where there was no showing that application was made by the spouse for information, that a proposed inventory made available was erroneous or misleading, or that the spouse was denied any information reasonably necessary to his decision of whether to dissent. Lesce v. Cuozzo (In re Estate of Lee-Cuozzo), 931 S.W.2d 230, 1996 Tenn. App. LEXIS 295 (Tenn. Ct. App. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. App. LEXIS 368 (Tenn. Ct. App. June 14, 1996), rehearing denied, In re Estate of Lee-Cuozzo, — S.W.2d —, 1996 Tenn. App. LEXIS 369 (Tenn. Ct. App. June 12, 1996).

2. Costs Incident to Dissent.

The residuary estate bears the whole loss incident to the dissent unless the intent of the testator is otherwise shown. Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 1982 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1982).

3. Waiving Elective Share.

Where by the terms of an agreement the husband expressly waived any right of survivorship in deceased's one-half undivided interest in the property he cannot defeat this agreement by seeking an elective share. In re Estate of Gray, 729 S.W.2d 668, 1987 Tenn. App. LEXIS 2452 (Tenn. Ct. App. 1987).

4. Antenuptial Agreements.

Where husband did not disclose full extent of his estate prior to executing antenuptial agreement, the agreement was ineffective and widow was entitled to take elective share as surviving spouse. Williams v. Williams, 868 S.W.2d 616, 1992 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1992).

5. Timeliness of Petition.

In a will dispute, a widow's petition to elect against a holographic will was timely filed under T.C.A. § 31-4-102(a)(1) because it was filed within nine months of a trial court's decision appointing several surviving children as qualified to probate a testate estate; the time when the children were qualified to probate an intestate estate did not count. In re Estate of Jones, 183 S.W.3d 372, 2005 Tenn. App. LEXIS 445 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 1184 (Tenn.2005).

Chancery court properly granted summary judgment to a decedent's estate dismissing the surviving spouse's claim against the estate for specific property, year's support allowance, elective share, and application for homestead because the parties agreed that she did not petition the court within nine months of the decedent's passing, and the record contained no evidence by affidavit or otherwise establishing that the surviving spouse made the required application for information related to the state and condition of the estate inasmuch as her motion to compel an inventory of the estate was filed well beyond the nine-month period. In re Estate of Kerby, — S.W.3d —, 2019 Tenn. App. LEXIS 313 (Tenn. Ct. App. June 24, 2019).

6. Elective Share Not Waived.

Husband filed his petition for an elective share four months after his wife's death and never withdrew it, and while the son argued that the husband had already received benefits under the will, the son did not include citation to the record, and there was no evidence that the husband took possession of property, but instead he merely allowed it to remain where it had been for years; the husband did not assert any rights under the will or accept any benefits under it, and thus he was not estopped from claiming an elective share. In re Estate of Hillis, — S.W.3d —, 2016 Tenn. App. LEXIS 148 (Tenn. Ct. App. Feb. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 479 (Tenn. June 23, 2016).

Collateral References.

Extension of time within which to accept or renounce will. 59 A.L.R.3d 767.

NOTES TO DECISIONS

1. Section Mandatory.

This section is mandatory and must be strictly complied with by the representative of an estate or the statutory time for filing a dissent will not bar the widow from making that election. Merriman v. Jones, 620 S.W.2d 88, 1981 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1981).

2. Section Deemed Inapplicable.

The provision of T.C.A. § 31-4-103 did not apply as an exception to an untimely filing by a surviving spouse where there was no showing that application was made by the spouse for information, that a proposed inventory made available was erroneous or misleading, or that the spouse was denied any information reasonably necessary to his decision of whether to dissent. Lesce v. Cuozzo (In re Estate of Lee-Cuozzo), 931 S.W.2d 230, 1996 Tenn. App. LEXIS 295 (Tenn. Ct. App. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. App. LEXIS 368 (Tenn. Ct. App. June 14, 1996), rehearing denied, In re Estate of Lee-Cuozzo, — S.W.2d —, 1996 Tenn. App. LEXIS 369 (Tenn. Ct. App. June 12, 1996).

3. Motion to Compel Inventory.

Chancery court properly granted summary judgment to a decedent's estate dismissing the surviving spouse's claim against the estate for specific property, year's support allowance, elective share, and application for homestead because the parties agreed that she did not petition the court within nine months of the decedent's passing, and the record contained no evidence by affidavit or otherwise establishing that the surviving spouse made the required application for information related to the state and condition of the estate inasmuch as her motion to compel an inventory of the estate was filed well beyond the nine-month period. In re Estate of Kerby, — S.W.3d —, 2019 Tenn. App. LEXIS 313 (Tenn. Ct. App. June 24, 2019).

NOTES TO DECISIONS

1. Intent of Statute.

The provision in this section was the mere announcement of a rule of law of effective existence without the statute, and was not intended to enlarge or restrict the law as to advancements. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

This statute was passed by the legislature with a view to the estate owned by deceased at the moment of his death, and upon the idea that no advancements had been made by him in his lifetime. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

2. Evidence of Advancement.

Declarations of the father, made after the execution of a note to him by his son, and not in the son's presence, as to whether the sum furnished was intended as an advancement, are not admissible. And where the note was taken for a sum he paid for land, the father receiving in the face of the note a lien on the land to secure its payment and the note was held until both died, the evidence outlined did not overcome the legal force of the note as a debt. Garner v. Taylor, 58 S.W. 758, 1900 Tenn. Ch. App. LEXIS 51 (1900).

3. Effect of Will.

Equality cannot be defeated at all, except by a will clearly and unmistakably showing the testator's purpose to exclude the operation of these statutory provisions. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

4. Additional Assets Discovered.

Where at the time of a first collation the distributees were not equalized because the funds of the estate had been used to pay debts, and later a new administrator, appointed for that purpose, realized on a war claim of decedent which had not been deemed an availing asset and therefore had not been disclosed to the court or known to complainants, such complainants are entitled to be equalized out of such claim. Neither the statutes of limitations nor plea of res judicata are sustainable defenses. Daniels v. Pickett, 59 S.W. 148, 1900 Tenn. Ch. App. LEXIS 66 (1900).

5. Gift or Advancement.

Fact that there is a gift and conveyance of the title does not exclude the idea of an advancement, but a gift and the title conveyed is an essential feature of it, and in order to exclude the idea of an advancement there must be shown not only a gift, but a gift with a purpose that the property so given shall go to that child as something over and above the share of the other children of the donor. Laman v. Craig, 30 Tenn. App. 353, 206 S.W.2d 309, 1947 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1947); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

Collateral References.

Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise. 98 A.L.R.2d 273.

NOTES TO DECISIONS

1. Effect of Will.

There can be no collation of advancements in cases of total testacy, unless provided for in the will. Bank of Commerce & Trust Co. v. Demarchi, 2 Tenn. Civ. App. (2 Higgins) 301 (1912); Scholze v. Scholze, 2 Tenn. App. 80, 1925 Tenn. App. LEXIS 96 (1925).

2. —Partial Intestacy.

Where testator dies intestate as to a part of his estate, the devisees and legatees, if they are also his heirs and distributees, and wish to share in that part of the estate undisposed of by the testament, will be required to account for, and bring into contribution, any advancements made to them by him, either in his lifetime or by his will. Gold v. Vaughan, 36 Tenn. 245, 1856 Tenn. LEXIS 90 (1856); Perry v. High, 40 Tenn. 349, 1859 Tenn. LEXIS 95 (1859).

3. Advancements Defined.

An advancement is an irrevocable gift by a parent to his child, by anticipation, in whole or in part, of what it is supposed the child will be entitled to out of the estate on the death of the parent making the advancement, and to be taken in account for equalization among his children in the final division and distribution of the estate, where such parent afterwards dies, either wholly or partially intestate, unless the provisions of the will render such equalization impossible. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Yancy v. Yancy, 52 Tenn. 353, 1871 Tenn. LEXIS 268, 13 Am. Rep. 5 (1871); Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

An advancement is an irrevocable gift by a parent who dies afterwards intestate of the whole or a part of what it is supposed the child will be entitled to on the death of the parent making the advancement. Laman v. Craig, 30 Tenn. App. 353, 206 S.W.2d 309, 1947 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1947).

4. Advancement or Gift — Determination.

Money laid out by a father in land, the title of which is taken in the name of an infant child, or land procured to be conveyed to his child (infant or adult), and paid for by a parent, is an advancement to such child. Hamilton v. Bradley, 6 Tenn. 127, 1818 Tenn. LEXIS 48 (1818); Thompson v. Thompson, 9 Tenn. 96, 9 Tenn. 97, 1826 Tenn. LEXIS 12 (1826); Haywood's Heirs v. Moore, 21 Tenn. 584, 1841 Tenn. LEXIS 74 (1841); Dudley v. Bosworth, 29 Tenn. 9, 1848 Tenn. LEXIS 31 (1848); McCoy v. Pearce, 1 Shan. 87 (1858).

The money or property given to a child is, prima facie, an advancement, and must be accounted for in the distribution and partition of the giver's estate; yet it may be shown to have been a mere gift, but the burden of proof is upon him who claims it as a gift to show that it was not intended as an advancement. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

A contingent provision for a child in a marriage settlement is an advancement pro tanto. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

Money or property given to a child is considered as an advancement where not shown to be a gift. Chadwell v. Chadwell, 9 Tenn. App. 181, — S.W. —, 1927 Tenn. App. LEXIS 227 (Tenn. Ct. App. 1927).

Where mother's joinder in execution of father's deed to his daughter was for purpose of releasing mother's homestead rights, no advancement in favor of mother's estate could be charged to daughter by reason of such joinder in absence of agreement by which daughter would be bound in equity and good conscience to permit herself to be so charged. Coward v. Hamblen, 21 Tenn. App. 239, 108 S.W.2d 885, 1937 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1937).

Deed which conveyed property to grantor's wife for life with a reversion to the grantor if he should outlive her and with a provision that if she should not outlive her the property should go to a named son of the grantor and his heirs in fee simple constituted a valid conveyance to the son where the grantor predeceased the wife and not an advancement since an advancement is a perfect and irrevocable gift while the interest of the son was only contingent at the time the deed was executed. Thornton v. Thornton, 39 Tenn. App. 225, 282 S.W.2d 361, 1955 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1955).

Money or property given to a child is prima facie an advancement yet may be shown to have been a gift, but the burden of proof is upon one who claims as a gift to show that it was not intended as a gift. Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

5. —Gift to Another for Use of Child.

A gift to grandchildren, reserving to their mother, the donor's daughter, the use, during her life of the property so given, as a means of enabling her the better to support, raise, and educate her children, the donees, is not an advancement to the daughter, with which she will be chargeable in the distribution of the donor's estate. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

The father cannot make an advancement to his child by a gift to somebody else, not even by gift to the child of his child, merely because he chooses to say that it is intended as a gift of what he supposes would be the share of his child in his estate at his death. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

6. —Provisions of Will.

A direction in a will that the testator's estate should be reduced to money, and the same divided as follows: To testator's daughter one half of the money, less the present value of the slaves previously given her; to his three grandchildren, the children of a deceased daughter, the balance of the money, etc., must not be literally interpreted, but the letter must yield to the spirit of the instrument, so as to carry out the evident intention of equality. The value of the slaves must be regarded as an advancement, and collated as such. Campbell v. Watkins, 1 Shan. 121 (1859); Hadley v. Hadley, 100 Tenn. 446, 45 S.W. 342, 1897 Tenn. LEXIS 135 (1897).

Under a will bequeathing $10,000 to a daughter “in addition to the advancement heretofore made her,” money paid to her by her husband as the maker of a note held by the testator, who directed him to pay the amount of the note to her, was not an advancement where such direction was made prior to the execution of the will. Gibson v. Parkey, 142 Tenn. 99, 217 S.W. 647, 1919 Tenn. LEXIS 39 (1919).

7. Presumptions.

Where a parent pays a debt against his child whether he is liable thereon as surety, indorser or otherwise, or not, and no note or other obligation therefor is taken from the child, the law, in the absence of proof to the contrary, presumes such payment to be an advancement to the child. Johnson v. Hoyle, 40 Tenn. 56, 1859 Tenn. LEXIS 18 (1859); Mann v. Mann, 59 Tenn. 245, 1873 Tenn. LEXIS 50 (1873); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887).

The language of § 31-5-101 would seem to require that, even in a strong case, there be very clear and weighty evidence to overturn the presumption of our law, and the evident policy and purpose of absolute equality underlying it. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

It is presumed that a gift by testator to legatee after execution of will was intended as ademption of legacy in will, where it set forth: “Whatever amount I do pay will be credited,” etc., and clear and convincing proof required to rebut the presumption. Gibson v. Buis, 142 Tenn. 133, 218 S.W. 220, 1919 Tenn. LEXIS 43 (1919).

Where father, as surety on his son's note, paid it and preserved the note among his other papers, in absence of proof of father's intention, this was presumed to be an advancement to son. Huffman v. Ramey, 157 Tenn. 183, 15 S.W.2d 746, 1927 Tenn. LEXIS 64 (1928).

Since the statute creates a presumption that any transfer or conveyance of property by a parent to child is to be treated as an advancement, the burden of proof is on such child to show by competent evidence that the transfer or conveyance made by a parent to him is not to be so treated. Thornton v. Thornton, 39 Tenn. App. 225, 282 S.W.2d 361, 1955 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1955).

Where deed from parents to daughter contained provision which would make the gift of the property an advancement to the daughter against her future inheritance from the parents, also contained provision that in the event the daughter should die without issue, the property would revert back to the parents to be redistributed to their legal heirs, the provision for reverter would be effective only if the daughter predeceased the parents, and where parents died first it would be assumed that daughter either made an accounting or the accounting was waived. Collins v. Smithson, 585 S.W.2d 598, 1979 Tenn. LEXIS 483 (Tenn. 1979).

8. Evidence of Advancements.

Notes given by children to the father for property were debts, and not advancements, though the father declared that he did not intend to collect them, but that he held them as receipts to show the amounts they had received of his estate, where he reserved to himself the right, if his necessities required it, to collect them, or such parts thereof as he might need. House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867).

In a sale and conveyance of land by a father to a son, the difference between the actual value and the price paid will not be treated as an advancement merely because of inadequacy of price. Merriman v. Lacefield, 51 Tenn. 209, 1871 Tenn. LEXIS 150 (1871).

If title is not perfected by adverse possession under a parol gift of land, it will not be an advancement, except as to rents. Yancy v. Yancy, 52 Tenn. 353, 1871 Tenn. LEXIS 268, 13 Am. Rep. 5 (1871); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890).

Where the only evidence to support advancement is that a father, who had furnished the son $500, taking his note therefor and retaining a lien on the land purchased by the son with the funds, had made advancements of equal amounts to his other children, and that he had never taken steps to collect the note, the same is insufficient to support a finding that there was an advancement. Garner v. Taylor, 58 S.W. 758, 1900 Tenn. Ch. App. LEXIS 51 (1900).

Evidence to effect that decedent indicated through actions and conversations on and about the time of transfers that he was attempting to achieve equality among children and to effect that other children had received substantial gifts was sufficient to establish that transfers were gifts and not advancements. Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

9. —Intent.

In general, where a parent takes and holds the notes or other obligations of his child for the indebtedness contracted and owing by the child to the father, they are evidences of debt; and, in the absence of proof to the contrary, they are not to be regarded as advancements. Vaden v. Hance, 38 Tenn. 300, 1858 Tenn. LEXIS 178 (1858); Johnson v. Hoyle, 40 Tenn. 56, 1859 Tenn. LEXIS 18 (1859); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887).

Donor's statement at the time of the act is competent to prove the intention to make an advancement of his son's purchase-money note to him. Jennings v. Jennings, 49 Tenn. 283, 1871 Tenn. LEXIS 6 (1871); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

Where a father conveyed to his son a tract of land for a recited consideration, and took the son's note for the difference between such and the actual value agreed upon by them, but declared that he took the note only as a sham, and that he wanted nothing more, the transaction was held to be an advancement, and the note was held as evidence of the amount of the advancement. Jennings v. Jennings, 49 Tenn. 283, 1871 Tenn. LEXIS 6 (1871).

The donor's intention must be determined from his conduct and conversation at or about the time of the gift. The agreement must depend on the circumstances at the time, and cannot be made better or worse by subsequent facts. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884). See House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Jennings v. Jennings, 49 Tenn. 283, 1871 Tenn. LEXIS 6 (1871); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

Money paid by a father as a surety for a son-in-law is not chargeable to the daughter as an advancement, nor to their child after her death. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

The mere fact that a father has, for a nominal consideration, conveyed land to his son-in-law will not, without more, be sufficient to charge the daughter, or, if she be dead, her child, with the value of the land as an advancement, especially where it is not shown that the father intended the conveyance of the land as an advancement to his daughter, or that she agreed to accept it as such. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

To constitute an advancement, there must be an intention on the part of the parent to make an advancement, and the gift by advancement must be made to his child, or to a third person, with the consent of such child. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

To make an advancement, the intention and gift must concur. The gift alone will not suffice where the intention is clearly to the contrary. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

The testimony of parties as to statements made by decedent touching advancements is competent. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

The provision in a parent's deed that the property therein conveyed to his son in trust for his son's then wife, and their issue, shall not be regarded as an advancement is good. Aden v. Aden, 84 Tenn. 453, 1886 Tenn. LEXIS 124 (1886); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Statements by decedent to her daughter, testified to by draftsman of a deed, was competent on point whether debtor and creditor relation existed, rather than advancement. Bank of Commerce & Trust Co. v. Pope, 20 Tenn. App. 652, 103 S.W.2d 586, 1936 Tenn. App. LEXIS 56 (Tenn. Ct. App. 1936).

10. —Subsequent Declarations.

Whether a transaction is a resulting trust or an advancement depends upon its character in its inception, and it cannot be changed by subsequent acts or declarations, especially, if they be unsatisfactory and equivocal. Dudley v. Bosworth, 29 Tenn. 9, 1848 Tenn. LEXIS 31 (1848).

Subsequent declarations of the parent are inadmissible to create or destroy an advancement, to the prejudice of the absent child. Merriman v. Lacefield, 51 Tenn. 209, 1871 Tenn. LEXIS 150 (1871); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882).

Subsequent declarations are inadmissible, it seems, to declare a sale to be an advancement. Merriman v. Lacefield, 51 Tenn. 209, 1871 Tenn. LEXIS 150 (1871); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882).

11. Valuation.

In distributing the surplus of an intestate's estate, advancements should be estimated at their actual value when made, where the value was not fixed at that time, and such surplus at its value at the intestate's death. If the value was fixed at the time of the advancement, such value will control. Burton v. Dickinson, 11 Tenn. 112, 1832 Tenn. LEXIS 27 (1832); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885); Roberson v. Nail, 85 Tenn. 124, 2 S.W. 19, 1886 Tenn. LEXIS 21 (1886); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Where advancements have been made, the net value of the estate for distribution and descent as it exists at the death of the decedent, with the value of the advancements when they were made, constitutes the fund for division, and the children (those advanced and those not advanced) are entitled to share in the subsequent increase and profits accruing to the estate in the proportion in which they were entitled to share in the corpus of the estate as it existed at the decedent's death, and after deducting their respective advancements. If a will fixes the value of the advancement, that value will prevail. Burton v. Dickinson, 11 Tenn. 112, 1832 Tenn. LEXIS 27 (1832); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Andrews v. Andrews, 54 Tenn. 234, 1872 Tenn. LEXIS 42 (1872); McNairy v. McNairy, 1 Shan. 329 (1874); Rice v. Steger, 3 Cooper's Tenn. Ch. 328 (1877); Granberry v. Jordan, 3 Shan. 267 (1879); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885).

Life estate is to be valued as such, unless a contrary intention is manifest. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874).

If a child is placed in possession and he holds adversely for a period of seven years, the land becomes his to the extent of his inclosures. In such case, he is to be charged with the land as an advancement at its value, or the value put upon it, at the time of the parol gift and the taking of the possession under it, and not at its value when the gift was perfected by the statutes of limitations. Haynes v. Jones, 39 Tenn. 372, 1859 Tenn. LEXIS 228 (1859); Keys v. Keys, 58 Tenn. 425, 1872 Tenn. LEXIS 280 (1872); O'Neal v. Breecheen, 64 Tenn. 604, 1875 Tenn. LEXIS 137 (1875); Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

If a father puts his child in possession of land under a parol gift, and afterwards makes a deed of conveyance of the land to such child, the advancement must be treated as made when the possession was given under parol gift, and the child must be charged with the value at that time, and not when the deed was made. MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Where an advancement is made by life insurance policies, such insurance must be valued at the net amount due and realized from the policies after the death of the insured father, and at the time so received. Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Even if transfer of certain notes had been advancements the recipients should not have been charged with the full value of the notes or interest on the entire value where they agreed to decedent's request that decedent receive income therefrom during his lifetime and recipients had collected only a portion of the principal. Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

12. Interest.

Interest is not chargeable upon advancements previous to the death of the testate or intestate parent making the same. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

As a general rule interest should be computed on all money advancements and on the value of all property advancements, from the death of the parent making the same. McNairy v. McNairy, 1 Shan. 329 (1874); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885); Roberson v. Nail, 85 Tenn. 124, 2 S.W. 19, 1886 Tenn. LEXIS 21 (1886); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890).

Where there is no profit or interest accumulated on the corpus for division, because it has all been absorbed in paying the annuity due the widow charged upon the testator's estate for her support during life, no interest will be chargeable upon the advancements. McNairy v. McNairy, 1 Shan. 329 (1874).

After the death of the parent, or after the time for division fixed by the will in cases of testacy, the same rate of interest is chargeable upon the advancements as the rate of interest or profit earned upon the corpus of the estate for division. Each one should receive the profits that his share in the corpus has earned or accumulated, estimating the profits as having been accumulated upon the whole corpus. McNairy v. McNairy, 1 Shan. 329 (1874); Rice v. Steger, 3 Cooper's Tenn. Ch. 328 (1877); Granberry v. Jordan, 3 Shan. 267 (1879); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885).

Where, by a consent decree, the profits are paid out in compromise of adverse claims for the benefit of all the heirs and distributees, or the devisees and legatees, equally, a division of the balance of the fund, with a collation of the advancements without interest, equalizes all the parties. Granberry v. Jordan, 3 Shan. 267 (1879).

A stipulation in a receipt by a married daughter, for an advancement from her father, that it shall bear interest from a particular date, is not binding because an advancement is not a contract, but a gift with the intention that it shall be taken as an advancement. Roberson v. Nail, 85 Tenn. 124, 2 S.W. 19, 1886 Tenn. LEXIS 21 (1886).

The court will allow the interest, though the report of the clerk and master was not excepted to, on the ground that interest was not reported on the advancement, because advancements, as a matter of law, bear interest from the death of the parent, where interest is properly chargeable thereon. Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887).

13. Rents.

The rent of land placed by a father in possession of his son, for the use of his son and his children, and not given to the son because the father feared he would waste it, must be accounted for as an advancement to the son; but rents accrued since the death of the father are not to be included in the account, for as to them, the occupier of the land is liable to its new owner, the heirs. Robinson v. Robinson, 23 Tenn. 392, 1843 Tenn. LEXIS 125 (1843). See Yancy v. Yancy, 52 Tenn. 353, 1871 Tenn. LEXIS 268, 13 Am. Rep. 5 (1871); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890).

Where the collation or adjustment of advancements was omitted in the distribution of the proceeds of a sale for partition, the same may be made in the distribution of the rents. Evans v. Evans, 48 Tenn. 577, 1870 Tenn. LEXIS 115 (1870).

14. Rights of Widow.

The widow of an intestate is not entitled to have advancements made by him in his lifetime to his children collated, so as to form one mass of the advancements and the residue of the estate to be divided between her and the children. She is only entitled to a share of what remains after deducting the advancements, and exclusive of them. Brunson v. Brunson, 19 Tenn. 630, 1838 Tenn. LEXIS 99 (1838); Richards v. Richards, 30 Tenn. 429, 1850 Tenn. LEXIS 144 (1850), superseded by statute as stated in, Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981); De Vault v. De Vault, 48 S.W. 361, 1898 Tenn. Ch. App. LEXIS 90 (1898).

If the husband gives his personalty to his children, whether as an advancement or an absolute gift, for the fraudulent purpose of excluding his widow from any share therein, she is without remedy. Richards v. Richards, 30 Tenn. 429, 1850 Tenn. LEXIS 144 (1850), superseded by statute as stated in, Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

Unless a contrary intention appears in the will, the widow of intestate is not entitled to have advancements collated. Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874).

Receipt in full of interest in estate, as to widow, comes within the meaning of “advancement.” De Vault v. De Vault, 48 S.W. 361, 1898 Tenn. Ch. App. LEXIS 90 (1898).

15. Rights of Grandchildren.

Advancement to son of deceased acknowledged by son and his wife as “being in full and final settlement and adjustment of any and all right, title, claim or interest” in property of deceased barred children of son from share in estate of deceased. Anderson v. Forbes, 169 Tenn. 223, 84 S.W.2d 104, 1935 Tenn. LEXIS 35 (1935).

16. Purchaser of Expectancy.

The purchaser of the estate in expectancy of an heir apparent, or the purchaser of the heir and distributee after it has vested in him, takes it subject to advancements made to the heir and distributee, but takes the realty, though not personalty, free from debts due from the heir to the ancestor's estate. Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887); Irvin v. Palmer, 91 Tenn. 463, 19 S.W. 326, 1892 Tenn. LEXIS 15, 30 Am. St. Rep. 893 (1892).

17. Creditors.

Advancements are to be collated before an attaching creditor of an heir or distributee, a purchaser from him, can have satisfaction of his debt. The interest of the heir or distributee is what is due him after charging him with all advancements, and it is this interest only that a creditor can reach and subject, or that a purchaser can hold. Johnson v. Hoyle, 40 Tenn. 56, 1859 Tenn. LEXIS 18 (1859); Nashville v. Potomac Ins. Co., 61 Tenn. 296, 1872 Tenn. LEXIS 375 (1872); Mann v. Mann, 59 Tenn. 245, 1873 Tenn. LEXIS 50 (1873); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887); Irvin v. Palmer, 91 Tenn. 463, 19 S.W. 326, 1892 Tenn. LEXIS 15, 30 Am. St. Rep. 893 (1892).

18. Advancements in Another State.

Advancements made in another state by an intestate living and dying there, where his estate is administered, will not be collated here, even though the property in such other state is insufficient to equalize the advanced and unadvanced children. Parkes v. Gilbert, 60 Tenn. 97, 1873 Tenn. LEXIS 417 (1873).

Collateral References.

Account, items in form of, as advancements. 49 A.L.R. 574.

Ademption of bequest of proceeds of property. 45 A.L.R.3d 10.

Agreement that one's share in estate shall be equal to share of certain other person as affected by gift to latter during lifetime of decedent. 5 A.L.R. 1436.

Grandchild's interest in grandparent's estate as affected by advancement to child. 68 A.L.R. 410.

Intent as a factor in determining whether there is an advancement. 26 A.L.R. 1089.

Parol or extrinsic evidence to show testator's intention as to advancements. 94 A.L.R. 183.

Pretermitted child or grandchild entitled by statute to share which he would have received if testator had died intestate, applicability of doctrine of advancement in case of. 88 A.L.R. 375.

Release to ancestor by heir expectant. 28 A.L.R. 427.

Satisfaction or ademption of general legacy by inter vivos gift, transfer or payment to the legatee or another. 26 A.L.R.2d 9.

Testate succession applicability of doctrine of advancements to. 32 A.L.R. 730.

Valuation of property for purposes of advancement. 26 A.L.R. 1178.

Widow's distributive share as affected by advancements to others. 76 A.L.R. 1420.

Will charging distributee's share with advancement to or debt owed by him as invoking doctrine of hotchpot. 165 A.L.R. 899.

Will, doctrine of “advancements” as applicable to transfer by testator to devisee or legatee after execution of. 142 A.L.R. 524.

NOTES TO DECISIONS

1. County Court (now Chancery Court).

As the county court (now chancery court) has jurisdiction to partition real estate and order distribution among heirs and distributees, it would seem that this section confers upon the county court (now chancery court) jurisdiction to equalize advancements, whenever it has jurisdiction to partition real estate and order distribution among heirs and distributees. However, in Parkes v. Gilbert, 60 Tenn. 97, 1873 Tenn. LEXIS 417 (1873), this jurisdiction is questioned. See Bowers v. Lester, 49 Tenn. 456, 1871 Tenn. LEXIS 32 (1871); Dean v. Snelling, 49 Tenn. 484, 1871 Tenn. LEXIS 35 (1871); Stewart v. Glenn, 50 Tenn. 581, 1871 Tenn. LEXIS 116 (1871).