NOTES TO DECISIONS

1. Personal Representatives.

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

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

2. —Rights Prior to Appointment.

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

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

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

3. —Necessity for Appointment.

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

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

Appellate court lacked jurisdiction to consider an appeal because, inter alia, neither a decedent's daughter nor an attorney satisfied the statutory standing requirement since the decedent died more than nine months before the notice of appeal was filed, there was no evidence that an estate was opened for the decedent much less that her daughter obtained letters of administration or letters testamentary, and there was no indication that the attorney who filed the appeal represented the decedent at any point in the case. In re Estate of Lake, — S.W.3d —, 2020 Tenn. App. LEXIS 570 (Tenn. Ct. App. Dec. 15, 2020).

4. —Qualification.

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

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

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

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

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

5. —Powers.

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

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

6. —Suits By and Against.

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

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

7. — —Pleadings.

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

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

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

8. — —Parties.

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

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

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

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

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

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

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

9. Intermeddlers.

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

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

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

10. —Liability.

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

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

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

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

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

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

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

11. —Defenses.

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

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

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

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

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

12. —Judgments.

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

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

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

13. Letters Testamentary.

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

Collateral References.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES TO DECISIONS

1. In General.

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

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

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

2. Jurisdiction.

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

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

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

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

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

3. Application for Letters.

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

4. Letters on Living Persons.

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

5. Revocation of Letters.

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

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

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

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

6. —Proceedings for Revocation.

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

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

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

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

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

7. —Causes for Revocation.

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

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

Collateral References.

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

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

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

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

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

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

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

NOTES TO DECISIONS

1. Definitions.

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

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

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

2. Jurisdiction over Nonresidents.

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

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

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

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

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

3. —Extent of Jurisdiction.

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

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

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

4. —Administrator Pendente Lite.

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

5. Effect of Administration in Other State.

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

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

6. —Rights and Powers of Foreign Representatives.

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

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

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

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

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

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

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

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

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

7. —Rights of Creditors.

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

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

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

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

8. —Control of Assets.

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

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

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

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

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

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

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

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

9. — —Removal of Assets.

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

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

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

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

10. —Payment of Debts.

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

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

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

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

Collateral References.

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

NOTES TO DECISIONS

1. In General.

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

2. Construction.

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

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

3. Application.

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

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

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

4. Suits.

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

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

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

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

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

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

5. —Pauper Oath.

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

6. —Limitation of Action.

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

7. —Actions for Benefit of Statutory Beneficiaries.

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

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

Collateral References.

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

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

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

NOTES TO DECISIONS

1. Failure to Record.

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

2. Proof of Appointment.

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

NOTES TO DECISIONS

1. In General.

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

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

2. Application.

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

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

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

3. Preference.

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

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

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

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

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

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

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

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

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

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

4. —Widow.

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

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

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

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

5. —Widower.

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

6. —Next of Kin.

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

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

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

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

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

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

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

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

7. — —Determination of Preference.

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

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

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

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

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

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

8. —Other Persons.

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

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

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

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

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

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

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

9. Failure to Qualify.

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

10. Costs of Determination.

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

11. Removal of Administrator.

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

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

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

12. Foster Son.

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

Collateral References.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES TO DECISIONS

1. Appeal to Circuit Court.

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

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

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

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

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

2. Proceedings in Circuit Court.

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

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

3. Appeal to Appellate Court.

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

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

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

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

Collateral References.

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

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

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

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

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

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

NOTES TO DECISIONS

1. Appointment Authorized.

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

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

2. Appointment Not Required.

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

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

3. Duties.

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

4. Appeal.

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

Collateral References.

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

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

NOTES TO DECISIONS

1. Jurisdiction of Courts.

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

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

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

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

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

2. Grounds for Appointment.

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

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

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

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

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

3. Practice and Procedure.

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

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

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

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

4. —Evidence to Support Appointment.

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

5. Presumption of Valid Appointment.

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

6. Extent of Authority.

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

7. Compensation.

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

NOTES TO DECISIONS

1. In General.

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

2. Application of Section.

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

3. —Probate of Wills.

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

4. Attack on Appointment.

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

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

5. —Collateral Attack.

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

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

6. Suit against Executor De Son Tort.

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

NOTES TO DECISIONS

1. In General.

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

2. Death of Personal Representative.

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

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

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

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

3. Settlement of Accounts.

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

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

4. Successor Administrators Generally.

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

5. —Powers and Duties.

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

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

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

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

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

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

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

6. —Actions against Former Administrator.

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

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

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

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

Collateral References.

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

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

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

NOTES TO DECISIONS

1. Failure of Old Administrator to Account.

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

NOTES TO DECISIONS

1. Execution of Trust.

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

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

2. Power of Sale under Will.

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

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

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

3. —Will Failing to Provide for Executor.

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

4. —Executor Failing to Qualify.

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

5. —Liability for Failure to Sell.

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

6. —Ejectment.

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

Collateral References.

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

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

NOTES TO DECISIONS

1. Verified Petition.

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

NOTES TO DECISIONS

2. Construction.

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

30-1-201. When bond required.

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

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

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

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

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

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

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

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

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

Law Reviews.

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

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

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

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

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

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

Collateral References.

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

30-1-203. Form of bond.

The bond must be substantially in the following form:

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

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

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

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

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

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

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

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

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

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

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

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

30-1-206. [Repealed.]

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

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

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

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

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

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

30-1-208. Suit on administration bond.

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

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

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

Part 3
Appointment by Chancery Court

NOTES TO DECISIONS

1. Application of Statute.

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

2. Antenuptial Agreements.

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

3. Exemptions.

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

4. Insurance Proceeds.

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

5. Entitlement to Elective Share.

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

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

Collateral References.

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

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

NOTES TO DECISIONS

1. In General.

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

2. Purpose.

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

3. Construction.

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

4. Antenuptial Agreements.

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

5. Husband Seeking Support.

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

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

6. Condition of the Estate.

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

7. Maintenance.

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

Collateral References.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30-2-201. Assignment of homestead.

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

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

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

Homestead Act, title 7, ch. 66.

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

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

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

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

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

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

Law Reviews.

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

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

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

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

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

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

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

30-2-202. Jurisdiction.

The probate court, at any of its sessions, shall have jurisdiction concurrent with the circuit and chancery courts, of applications for laying off of homestead.

Code 1858, § 2407 (deriv. Acts 1849-1850, ch. 77, § 1); Shan., § 4150; mod. Code 1932, § 8367; Acts 1976, ch. 529, § 13; T.C.A. (orig. ed.), § 30-902.

Cross-References. Chancery courts' concurrent jurisdiction over partition and sales of estates, § 16-11-111.

Circuit court, partition and distribution, § 16-10-109.

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

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1960 Tennessee Survey (Herman L. Trautman), 13 Vand. L. Rev. 1101 (1960).

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

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

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419 (1978).

30-2-203. Notice of application.

1. When an application for homestead is filed pursuant to this part, it shall be served upon the personal representative, if one has been appointed, and to the heirs or devisees and distributees or legatees who reside in this state. If there is a minor interested, the guardian shall also be served, and, if no guardian has been appointed, the courts shall appoint a guardian ad litem for the minor. Service of the application upon the parties named pursuant to this subsection (a), shall constitute adequate notice of the application for homestead.
2. It shall not be necessary to serve the application for homestead upon nonresidents, but any nonresident interested in the estate and not so served shall have three (3) years from the date of the application to move for a rehearing of the cause. The filing of a petition for a rehearing and service of the petition on all interested parties shall constitute adequate notice of the rehearing. The cost of the rehearing shall be taxed as may be deemed just by the court.

Code 1858, §§ 2408 — 2410 (deriv. Acts 1849-1850, ch. 77, § 3-5); Shan., §§ 4151 — 4153; mod. Code 1932, §§ 8368 — 8370; impl. am. Acts 1976, ch. 529, § 1; T.C.A. (orig. ed.), §§ 30-903 — 30-905; Acts 2002, ch. 735, § 14.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 652, 1078.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1101, 4-1103, 4-1110.

30-2-204. Application for homestead — Action to set aside property so designated.

1. The surviving spouse may make application to any one of the courts named in § 30-2-202 in the county where the husband or wife, as the case may be, last resided before death, for the appointment of two (2) freeholders or householders of the county, unconnected by affinity or consanguinity with those interested in the estate of the deceased, to allot and set apart the homestead to the applicant, in connection with the county surveyor, or the surveyor's deputy.
2. Any action to set aside the property designated in this section shall be brought within the time limits set by § 31-4-102.

Code 1858, § 2411 (deriv. Acts 1849-1850, ch. 77, § 2); Shan., § 4154; mod. Code 1932, § 8371; Acts 1976, ch. 529, § 14; T.C.A. (orig. ed.), § 30-906; Acts 1999, ch. 491, § 3.

Cross-References. Circuit court, partition and distribution, § 16-10-109.

Concurrent jurisdiction of chancery court over partition and sales of estates, § 16-11-111.

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

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

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1102, 4-1103.

30-2-205. Appointment of substitute surveyor.

If the surveyor is connected with any of the parties interested, either by affinity or consanguinity, the court shall appoint some competent surveyor, other than the surveyor's deputy, in the surveyor's place.

Code 1858, § 2412 (deriv. Acts 1849-1850, ch. 77, § 2); Shan., § 4155; mod. Code 1932, § 8372; T.C.A. (orig. ed.), § 30-907.

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

30-2-206. Proceedings summary.

The proceedings upon applications for homestead are summary, unless the applicant is the personal representative, and shall be heard and determined at the first term after notice.

Code 1858, § 2413 (deriv. Acts 1784 (Apr.), ch. 22, § 10); Shan., § 4156; mod. Code 1932, § 8373; T.C.A. (orig. ed.), § 30-908.

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

30-2-207. Order delivered to surveyor — Commissioners notified to lay off homestead — Oath.

The clerk of the court shall, within forty (40) days after the adjournment of the court, deliver to the surveyor a copy of the order, and thereupon the surveyor shall notify the two (2) commissioners of the time and place, to be designated by the surveyor, of laying off the homestead; before entering upon that duty, the surveyor shall administer to the commissioners an oath for the faithful and true performance of that duty.

Code 1858, § 2415 (deriv. Acts 1849-1850, ch. 77, § 6; 1851-1852, ch. 95, § 1); Shan., § 4158; mod. Code 1932, § 8375; impl. am. Acts 1976, ch. 529, § 1; T.C.A. (orig. ed.), § 30-909.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 655.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1103.

30-2-208. Out-of-county lands.

Should any of the lands to which the applicant may be entitled as homestead lie out of the county where the application is made, the commissioners, if so directed in the order of court, shall view and take them into estimate.

Code 1858, § 2415 (deriv. Acts 1849-1850, ch. 77, § 6; 1851-1852, ch. 95, § 1); Shan., § 4158; mod. Code 1932, § 8375; Acts 1976, ch. 529, § 15; T.C.A. (orig. ed.), § 30-910.

30-2-209. Assignment out of sale proceeds.

If real estate is so situated that homestead cannot be set apart, as provided in this part, then the realty shall be sold and five thousand dollars ($5,000) of the proceeds invested in real estate, under the direction of the court having jurisdiction to be held as homestead subject to the law governing homestead, or if the court deems it more desirable and practical, it may order the payment of five thousand dollars ($5,000) in cash or other personal property outright and in fee to the surviving spouse, if any, otherwise to the minor children, if any, in lieu of all other homestead rights in the realty of the deceased.

Acts 1873, ch. 98, § 1; Shan., §§ 3808, 4145; mod. Code 1932, §§ 7729, 8357; impl. am. Acts 1933, ch. 72, § 1; C. Supp. 1950, § 7729; Acts 1976, ch. 529, § 16; 1979, ch. 61, § 9; T.C.A. (orig. ed.), § 30-912; Acts 1985, ch. 140, § 11.

Cross-References. Extent and limitation of exemption, § 26-2-306.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 496.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 654, 1078.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1102, 4-1110.

Law Reviews.

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

Rights of Creditors in Insurance — The Tennessee Exemption Statutes (Paul J. Hartman), 5 Vand. L. Rev. 760 (1952).

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

30-2-210. Assignment of homestead and plat recorded.

The commissioners shall, in their report, exhibit a plat of the homestead, and also plainly set forth the same by metes and bounds where the homestead can be so assigned, and if the report is confirmed by the court, the clerk shall enter it in full with the plat on the records of the court.

Code 1858, § 2417 (deriv. Acts 1849-1850, ch. 77, § 7); Shan., § 4160; Code 1932, § 8377; Acts 1976, ch. 529, § 17; T.C.A. (orig. ed.), § 30-913.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 655, 656.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1104.

30-2-211. Costs.

The costs of the application shall be paid by the applicant unless the court otherwise adjudge.

Code 1858, § 2418 (deriv. Acts 1815, ch. 85, § 3); Shan., § 4161; mod. Code 1932, § 8378; T.C.A. (orig. ed.), § 30-914.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 652, 656.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1105.

Part 3
Inventory and Management

NOTES TO DECISIONS

1. Modification of Common Law.

This part expressly modifies the common law rule by abolishing the seven-year presumption of death. Armstrong v. Pilot Life Ins. Co., 656 S.W.2d 18, 1983 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1983).

2. Personalty and Life Insurance Distinguished.

Distinction between the absentee's personalty on one hand, and the proceeds of a life insurance policy on the other, is consistently carried throughout the Uniform Act as adopted in Tennessee. Armstrong v. Pilot Life Ins. Co., 656 S.W.2d 18, 1983 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1983).

NOTES TO DECISIONS

1. Effect of Federal Statutes.

Beneficiary was not precluded from introducing evidence that presumed death was earlier than that specified in National Service Life Insurance Act. Peak v. United States, 353 U.S. 43, 77 S. Ct. 613, 1 L. Ed. 2d 631, 1957 U.S. LEXIS 1729 (1957).

2. Presumption of Death.

Subsection (c) of this section permitted the rebuttable presumption of death to remain in effect for purposes of distributing the funds and other personalty of the absentee coming into the hands of court clerks, administrators and executors after the person has been missing for seven years, but did not reinstate the rebuttable presumption for all purposes. Armstrong v. Pilot Life Ins. Co., 656 S.W.2d 18, 1983 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1983).

3. Res Judicata.

Claimed “presumption of death” of insured did not preclude the plea of res judicata in a subsequent suit trying to establish the insureds death after an earlier suit trying to establish his death. White v. White, 876 S.W.2d 837, 1994 Tenn. LEXIS 134 (Tenn. 1994).

Where issue litigated at the first trial and the issue alleged in the later suit were not the same, in that in the later case, the proof necessary for recovery was different than that required in the first case, the jury's finding in the first suit did not preclude a subsequent finding on the same issue, and the judgment in the prior case would not bar the subsequent suit. White v. White, 876 S.W.2d 837, 1994 Tenn. LEXIS 134 (Tenn. 1994).

4. Death Not Shown.

Where the very best that could be said of the evidence in plaintiff's behalf regarding her husband's absence since 1974 was that it did not preponderate either way, even if viewed in the form desired by plaintiff, plaintiff failed to establish his death under existing law in Tennessee. Armstrong v. Pilot Life Ins. Co., 656 S.W.2d 18, 1983 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1983).

Collateral References.

Domestic troubles as affecting presumption of death from seven year's absence. 64 A.L.R. 1288.

Evidence, presumption of death as. 115 A.L.R. 404.

Fugitive from justice, presumption of death of, from absence. 44 A.L.R. 1488.

Insurance policy, forfeiture of, for nonpayment of premium during seven year period following disappearance of insured, as affected by presumption of his death and burden of proving time thereof. 75 A.L.R. 630.

Insured's death, presumption of, before lapse of seven years from his disappearance. 34 A.L.R. 1389, 61 A.L.R. 1327.

NOTES TO DECISIONS

1. Res Judicata.

Where issue litigated at the first trial and the issue alleged in the later suit were not the same, in that in the later case, the proof necessary for recovery was different than that required in the first case, the jury's finding in the first suit did not preclude a subsequent finding on the same issue, and the judgment in the prior case would not bar the subsequent suit. White v. White, 876 S.W.2d 837, 1994 Tenn. LEXIS 134 (Tenn. 1994).

2. Statute of Limitations.

Where notice was given to insurer of insured's absence on March 9, 1984, less than a year after the insured's disappearance, and since the statute of limitations for suits on insurance policies was six years, suit could have been brought anytime prior to March 10, 1990; however, the suit was not filed until November 20, 1990, approximately eight months after the time for filing had expired, and consequently, the cause of action alleging “the fact of absence” as evidence of the insured's death was barred. White v. White, 876 S.W.2d 837, 1994 Tenn. LEXIS 134 (Tenn. 1994).

30-3-201. “Absentee” defined.

As used in this part unless the context otherwise requires, an “absentee” is:

1. Any person serving in or with the armed forces of the United States, in or with the Red Cross, in or with the merchant marines or otherwise, during any period of time when a state of hostilities exists between the United States and any other power and for one (1) year thereafter, who has been reported or listed as missing in action, interned in a neutral country, beleaguered, besieged or captured by the enemy; and
2. Any resident of this state, or any person owning property in this state, who disappears under circumstances indicating that the person may have died, either naturally, accidentally or at the hand of another, or may have disappeared as the result of mental derangement, amnesia or other mental cause.

Acts 1972, ch. 785, § 1; T.C.A., § 30-1901.

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

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

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 930, 931.

30-3-202. Jurisdiction — Grounds for appointment.

The chancery or probate court has jurisdiction to appoint a conservator of the estate of an absentee as defined in this part upon a showing that:

1. The absentee has an interest in any form of property in this state, or is a legal resident of this state, or has a spouse or next of kin who is a legal resident of this state, and the absentee has not provided an adequate power of attorney authorizing another to act in the absentee's behalf with regard to the property or interest or the term of any such power of attorney has expired; and
2. A necessity exists for providing care for the property or estate of the absentee or care for or judgments concerning the absentee's spouse and children; or if the absentee has no spouse and children, the absentee's mother or father.

Acts 1972, ch. 785, § 2; T.C.A. (orig. ed.) § 30-1902.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 930.

Law Reviews.

Pleadings, Motions and Pre-Trial Procedure, 4 Mem. St. U.L. Rev. 219 (1974).

30-3-203. Transfer of property without conservatorship.

1. If the spouse of any person defined as an absentee in § 30-3-201(1), or next of kin if the absentee has no spouse, wishes to sell or transfer any property of the absentee that has a gross value of less than five thousand dollars ($5,000), or requires the consent of the absentee in any matter regarding the absentee's children, or in any other matter in which the gross value of the subject matter is less than five thousand dollars ($5,000), the spouse or next of kin may apply to the chancery or probate court for an order authorizing the sale, transfer, or consent, without opening a full conservatorship proceeding as provided by this part. The spouse or next of kin may make the application without the assistance of an attorney.
2. The application shall be made by petition on the following form, which form shall be made readily available to the applicant by the clerk and master of the chancery court and the clerk of the probate court:

   In re:  , case number

   absentee

   PETITION FOR SUMMARY RELIEF

   Petitioner,  whose residence is  (street and number)

   (city or town), and   (county) Tennessee, and who is the

   of the absentee,  ,

   describe relationship to absentee           name

   states that the absentee has been  (imprisoned or missing in action)

   since  (date) when  (describe details)

   Petitioner desires to sell/transfer  (describe property)

   of the value of  because

   value           give reasons

   The terms of sale/transfer are  (give terms)

   Petitioner requires the consent of the absentee for the purpose of  .

   Petitioner

   State of Tennessee

   County of

   The above named,  (petitioner's name), being by me duly sworn, says the

   foregoing petition is true and correct to the best of his/her knowledge and belief.

   Notary Public

   My commission expires  .

3. The court shall, without hearing or notice, enter an order on the petition if it deems the relief requested in the petition necessary to protect the best interests of the absentee or the absentee's dependents.
4. The order shall be prima facie evidence of the validity of the proceedings and the authority of the petitioner to make a conveyance or transfer of the property or to give the absentee's consent in any matter prescribed by subsections (a) and (b) of this section.

Acts 1972, ch. 785, § 3; T.C.A., § 30-1903.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 935.

30-3-204. Limited conservatorship for specific property.

1. If the spouse, or the next of kin if there is no spouse, of any person defined as an absentee under § 30-3-201(1), wishes to sell, lease, or mortgage specific property having a gross value of five thousand dollars ($5,000) or more, owned by the absentee or in which the absentee had an interest, or take specific action with respect to the absentee's interest having a gross value of five thousand dollars ($5,000) or more, the spouse or next of kin may petition the chancery or probate court for an order authorizing the action with respect to that property or interest.
2. The petition shall be sworn to by the petitioner and shall state:
   1. The names, addresses, and age of the spouse, children, mother, father, brothers, and sisters, or if none of these are living, the next of kin, of the absentee;
   2. The name, address, and age of any other person who would have an interest in the property or the estate of the absentee if the absentee were deceased;
   3. The exact circumstances that cause the person missing to be an absentee under § 30-3-201, including the date the absentee was first known missing, interned, beleaguered, etc.;
   4. The reasons for the action for which the petition seeks authorization;
   5. Whether or not the person alleged to be an absentee has a will, the whereabouts of the will and contents if known; and
   6. A statement of all property constituting an asset of the alleged absentee's estate or in which the absentee has any interest and the approximate value of that property.
3. Notice of the hearing on the petition shall be given to all persons named in the petition by registered mail or certified mail with return receipt requested.
4. The judge shall hear evidence on the question of whether the person alleged to be missing, interned, beleaguered, etc., is an absentee as defined by § 30-3-201, and on the question of whether the action in question should be authorized. Any person interested in the proceedings may intervene with leave of the court.
5. The court may in its discretion appoint a guardian ad litem to represent the alleged absentee at the hearing.
6. If after hearing, the court is satisfied that the person alleged to be an absentee is an absentee, as defined in § 30-3-201, and that the action in question should be authorized, and that there is no necessity for a full conservatorship as provided by § 30-3-205, the court shall enter an order appointing the petitioner as conservator for the purposes of the action that is the subject of the petition and authorizing the conservator to take the action requested in the petition. The court shall require the conservator to account for the proceeds of the sale, lease, or other action, but the conservator shall not be required to subject the other property of the absentee to a conservatorship proceeding.
7. The court may retain jurisdiction of the proceeding to make such further orders as it deems proper.

Acts 1972, ch. 785, § 4; T.C.A., § 30-1904.

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

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 935.

30-3-205. Petition for appointment.

1. The jurisdiction of the court shall be invoked by the filing of a petition by any person who would have an interest in the property or estate of the absentee were the absentee deceased, or any person who is dependent on the absentee for maintenance or support.
2. The petition shall be sworn to by the petitioner and shall state:
   1. The names, addresses, and age of the spouse, children, mother, father, brothers, and sisters, or if none of these are living, the next of kin, of the absentee;
   2. The name, address, and age of any other person who would have an interest in the property or the estate of the absentee if the absentee were deceased;
   3. The exact circumstances that cause the person missing to be an absentee under § 30-3-201, including the date the absentee was first known missing, interned, beleaguered, etc.;
   4. The necessity for establishing a conservatorship;
   5. Whether or not the person alleged to be an absentee has a will and the whereabouts of the will; and
   6. A statement of all property constituting an asset of the alleged absentee's estate or in which the absentee has any interest and the approximate value of that property.

Acts 1972, ch. 785, § 5; T.C.A., § 30-1905.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 932.

30-3-206. Hearing on petition — Notice — Appointment.

1. Notice of the hearing on the petition to appoint a conservator shall be given to all persons named in the petition by registered mail, certified mail with return receipt requested or by personal service of legal process.
2. The judge shall hear evidence on the question of whether the person alleged to be missing, interned, beleaguered, etc., is an absentee as defined by § 30-3-201, and on the question of who is entitled to appointment as conservator. Any person interested in the proceedings may intervene with leave of the court.
3. The court may in its discretion appoint a guardian ad litem to represent the alleged absentee at the hearing.
4. If after hearing, the court is satisfied that the person alleged to be an absentee is an absentee, as defined in § 30-3-201, and that it is necessary that a conservatorship be established, the court shall appoint a conservator of the estate and property of the absentee to take charge of the absentee's estate and property under the supervision and subject to the further orders of the court.
5. In the appointment of a conservator, the court shall give due consideration to the appointment of one (1) of the next of kin of the absentee if the next of kin is a fit and proper person and is qualified to act.

Acts 1972, ch. 785, § 6; 1978, ch. 649, § 1; T.C.A., § 30-1906.

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

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 932.

30-3-207. Oath and bond.

1. Every conservator, before exercising authority as conservator, shall take oath to faithfully perform the duties of conservator and to render true accounts whenever required according to law, which oath may be administered by any officer authorized to administer oaths under the laws of this state. The oath shall be filed with the court.
2. The court may require the conservator to give bond in the same manner as that required of incompetents as set forth in title 34, chapter 4 [repealed].

Acts 1972, ch. 785, §§ 7, 8; T.C.A., §§ 30-1907, 30-1908.

Compiler's Notes. Title 34, chapter 4, referred to in this section, has been repealed. For present provisions governing guardian's and conservator's bonds, see §§ 34-1-105, 34-5-110, 34-6-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 933.

30-3-208. Duties.

The conservator shall have all the rights, powers, and duties of a guardian of the property as established in title 34, chapters 1 and 2, and an absentee and an absentee's dependents shall be entitled to all benefits accruing to a ward or a ward's dependents under those chapters. The court shall have the same responsibility as to a conservatorship as with respect to the guardianship of the property under those chapters.

Acts 1972, ch. 785, § 9; T.C.A., § 30-1909.

Compiler's Notes. Title 34, chapter 3, referred to in this section, has been repealed. For present provisions governing guardian's and conservator's bonds, see §§ 34-1-105, 34-5-110, 34-6-106.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 933.

30-3-209. Resignation and discharge.

The provision for resignation and discharge of conservators for estates of incompetents as set forth in § 34-4-113 [repealed] shall apply in the chancery or probate court for the resignation and discharge of a conservator appointed under this part.

Acts 1972, ch. 785, § 10; T.C.A., § 30-1910.

Compiler's Notes. Former § 34-4-113, referred to in this section, was repealed by Acts 1992, ch. 794, effective January 1, 1993. For new provisions, see title 34, chapter 1.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 933.

30-3-210. Termination of conservatorship.

1. At any time upon petition signed by the absentee, or on petition of an attorney in fact acting under an adequate power of attorney granted by the absentee, the court shall direct the termination of the conservatorship and the transfer of all property held under the conservatorship to the absentee or to the designated attorney in fact.
2. Likewise, if at any time subsequent to the appointment of a conservator it appears that the absentee has died and a personal representative has been appointed for the absentee's estate, the court shall direct the termination of the conservatorship and the transfer of all property of the deceased absentee held under the conservatorship to the personal representative.
3. When the need for a conservatorship terminates, the conservator shall promptly file final accountings and application for discharge with the court. If it appears to the court that the accountings are correct and that the conservator has made full and complete transfer of the absentee's assets as directed, the court may approve the accountings and discharge the conservator. If objections to the accountings are filed, the judge shall conduct a hearing under the same conditions for a hearing on objections to annual accountings.
4. The discharge shall operate as a release from the duties of the conservatorship and as a bar to any suit against the conservator or the conservator's surety, unless the suit is commenced within one (1) year from the date of discharge.

Acts 1972, ch. 785, § 11; T.C.A., § 30-1911; Acts 1985, ch. 140, § 24.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 934.