Summary
ERROR TO THE SUPREME COURT OF' THE STATE OF TENNESSEE.
In 1857, William Newton Morcer uJnveyed certain lands in Illinois to Ayres P. Merrill, in trust for the latter’s daughter, Anna M., to the sole and separate use of -said Anna M., and the heirs of her body, free from the control, debts, liabilities or contracts of any husband she might have, with power in the trustee to sell and dispose of the same, in whole or in part, and reinvest the proceeds in either real or personal property, to be held for the same uses and purposes and upon the same trusts, and providing that in the event of the death of Anna M., leaving no surviving issue, the property so conveyed in trust or the proceeds thereof, should descend to her brother, William Newton Mercer Merrill, and be held by the trustee or his successor for the use and benefit of the said William upon the same conditions and trusts, with power of appointment.
A. P. Merrill sold and conveyed the lands described in the deed in 1861 and 1864, for an aggregate of $6200, but never accounted to said Anna M., or any one for her, for the amounts received and interest.
Anna M. subsequently intermarried with one Carpenter, now deceased.
A. P. Merrill had resided in Memphis, Tennessee, and subsequently became a citizen of the State of New York, where he died in November, 1873, leaving there some personalty and holding title at the time to a considerable amount of real estate in Memphis. In December, 1867, Merrill executed a deed to another daughter, Mrs. Strange, dated December 3, and acknowledged December 27, of lot 59, Madison Street, Memphis, without valuable consideration, and which was not recorded until December 27, 1873, after Merrill’s decease.
In 1871 Merrill made his last will and testament.
By the first item, he bequeathed to Mrs. Carpenter a life estate in lot No. 98, Madison Street, Memphis “ upon condition that she renounce all claim upon my estate for moneys accruing from .the sale of a tract of land in Illinois conveyed to me in trust for her benefit by Dr. W. N. Mercer,” and upon her decease or declining the condition, it was provided that the property be sold “ for the benefit of the daughters then surviving of my several daughters.”
By the second item he devised to Mrs. Strange lot No. 59, Madison Street, being the same lot described in the deed of December, 1867; and also all his personal property.
By the third item he bequeathed to Mrs. Strange certain moneys in trust for his grandchildren.
The fourth item was: “ All other property may be sold for the benefit of my own children, equally, who may survive me.”
By the fifth item he appointed Mrs. Strange sole executrix, without bond, and requested her to give to his son and three grandchildren certain specified articles.
Mrs. Strange was a citizen of New York, and there proved the will and qualified as executrix in February, 1871.
Shortly after the letters testamentary issued, Mrs. Carpenter, also a citizen of New York, brought suit in the Supreme ■Court of that State against Mrs. Strange, as executrix, for the recovery of the trust moneys.
The amended complaint alleged the decease of A. P. Merrill in December, 1873, testate; that Mrs. Strange was sole executrix; that the will was admitted to probate in February, 1871, a copy being annexed ; set up the trust created in 1857 by Mercer ; the sale by Merrill of the lands and the receipt of the money ; charged that Merrill converted the money to his own use, and that it became absorbed in his business and materially enhanced the value of his estate; that he had rendered no account to her of the trust estate; and that he left real estate of large value in Memphis,, and large sums of money and personal property in New York.
She then set forth the clause of the will in relation to No. 98 Madison Street, and stated “ that she has not renounced said claim, so as aforesaid required to do, nor has she refused to renounce said claim, for the reason that plaintiff claims that by virtue of the deed,of trust it is impossible for plaintiff •to release said trust funds, and for the further reason that such a. condition as aforesaid required is against conscience and justice.” She further alleged that Mrs. Strange was unfit for the position of trustee, and that her interests were opposed to plaintiff’s interests; that at the time of Merrill’s death plaintiff was informed and believed he was free from debt, except plaintiff’s claim for the trust moneys and other money she had put into his hands in trust, and a balance due her brother William for money held upon a similar trust created by Mercer simultaneously with that in plaintiff’s favor, and that if any debts had existed they had been paid except- as aforesaid. She charged that the executrix refused to account for these sums of money, and denied the liability of the estate for the same, and in proving the will claiméd and declared that-she owned as devisee the -real- estate specifically devised to her, but suppressed mention of the fact that a deed of the same property had been made to her. Complainant further alleged that if the deed of December, 1867, was obtained at all from the testator, it was.so obtained by collusion with him and for the' “fraudulent purpose of defeating the collection of the plaintiff’s just and legal claim against the estate of the said testator, and to. take so much of his estate as said property represents from liability to said claim,” and plaintiff alleged and charged’-that said “conveyance was made without any valuable consideration in law; ” that said deed, if made at all, was made, while the trust existed and was á just claim and lien against testator’s estate; and that Mrs. Strange had notice and knowledge thereof.
Plaintiff prayed that the court might adjudge and decree that the bequest of the life estate “ be taken and held free from all and every condition thereunto attached in said will; that the said condition be decreed as void, and that the title to the life estate be absolutely vested in this' plaintiff, and that she be relieved from renouncing any claim for said trust money, and that the trust estate be declared unaffected by said condition in said will and a charge upon the estate of the said testator;” that Mrs. Strange, executrix, be compelled to account; that the deed from Merrill to Mrs. Strange be set aside and-be declared inoperative and void and of no effect,,as against the claims of plaintiff against testator’s estate; and that the sums of money found due plaintiff be made a lien on the property described , in the deed to Mrs. Strange and in the will, and the decree be enforced against the same; that the cause be referred, and Mrs.- Strange compelled to account as the representative of A. Pi Merrill as trustee, and a suitable trustee be appointed to carry out the trust; that on .the rendition of the account, the sums reported due be paid over to the trustee or to the cestui que trust, as the court should direct; and for general relief.
Mrs. Strange was personally served and answered fully. She denied the trust; alleged that the trust moneys had been paid over to plaintiff; averred that testator’s personalty was insignificant; set up a counter-claim; alleged the validity of the. deed of Merrill to herself; and as to the devise to plaintiff, insisted'that it ought to be taken and accepted by plaintiff as a complete satisfaction of all her claims against Merrill’s estate, and that there was no obstacle to plaintiff’s renunciation of such claims; and further alleged that decedent was solvent and had sufficient property to pay his debts aside from the real estate conveyed to her; and also set up the statute of limitation. She prayed that the complaint be dismissed as to' her individually as well as executrix, and for judgment on her counter-claim as executrix; “ and that it may be adjudged and declared by this court' herein that the devise to, and the provisions made for, the plaintiff by said last will and testament was and is, as it was' intended by said testator to be, in full satisfaction of any and all claims and demands which the plaintiff had against him at th.e time of the death- of the testator or now has against his estate', or against this, defendant in her capacity of executrix of his'last will, and testament; that in the event that the plaintiff shall elect to take, or in the event that it shall be ad jüdged-that' plaintiff take and accept, the devise contained in said;last'will ..and testament'so. intended to be in satisfaction, of all her claims‘and demands against the estafé of said testator, the plaintiff'in'that case be required and directed-by the judgmenkof this court-to execute and deliver to this defendant, in her'representative capacity, as the executrix of .said last will and. testament, and also to this defendant in her individual capacity, a-release in due form of law of this defendant' and rite-estate of said, testator from. all her claims and demands, as in said last wi-ll-and-testament provided, as to the testator’s estate; and that in the event that plaintiff shall not elect to take or accept nor be required to take or accept, the devise to and provisions for her contained in said last will and testament, and it be found that the plaintiff, is entitled to an accounting as to said alleged trust estate as found, and to recover any amount for or on account thereof, this defendant prays that in such case” her counter-claim be set off against such recovery.
To this answer a special replication was filed.
The cause was referred on January 29, 1880, to a referee, who- made his report July 1, 1880, whereupon it was ordered and adjudged:
“ 1st. That Anna M. Carpenter, the plaintiff in this action, do recover of or against the estate of the said Ayres P. Merrill, deceased, and of the executrix as such, or of any person or persons» having the possession, custody- or control of said estate or part thereof, the sum of sixteen thousand four hundred and thirty-six dollars and- seventy cents, hereby adjudged to be due to plaintiff, or so much thereof as said estate or any p^rt thereof will pay.
“2d. That all of the above-mentioned sum of $16,436.70 be paid to the said plaintiff or her said attorney, except sixtvtwo hundred dollars thereof, which last-mentioned sum shall be paid to a suitable person to be appointed by.said, court as, trustee for the purposes above referred to, and that such appointment be made on notice by plaintiff to defendant, William N. M. Merrill, or his attorney herein.
“3d. That the above-mentioned deed of conveyance by Ayres P. Merrill to Maria E. Strange is hereby adjudged to be absolutely null and void from the beginning, so far as the same in anywise affects the above-mentioned indebtedness of said estate to said plaintiff.
“4th. That any bequest or devise in said last will and testament of said. Ayres P. Merrill contained in favor of any person or persons whatever is subject to the payment of the whole amount above-mentioned as due from said estate to plaintiff, and to interest thereon at the rate of six per cent per annum until paid.
“ 5th. That plaintiff have execution against the property which,was of said Ayres P. Merrill at the time of his death for "the amount last above-mentioned, and interest thereon until paid, besides sheriff’s fees and expenses as provided by law.”
On January 15,1875, Mrs. Carpenter filed a bill in the Chancery Court of Shelby County, Tennessee, No. 1805, against Mrs. Strange as executrix, setting forth in substance the same matters as alleged in her suit in New York, and praying, among other things, that the real estate be attached and held “to secure the recovery that complainant may recover on account of this suit or any other one complainant has brought or may bring on account of the premises set forth.”
The writ of attachment was issued as prayed for and levied upon the real estate described.
The bill was taken jpro confesso April 30, 1875, and a. receiver appointed. In October this decree was set aside upon the motion of Mrs. Strange and she filed a full answer. On the 14th of February, 1876, the receiver was, on her motion, discharged from exercising custody and control over lot No. 59, and directed to deliver possession thereof to her, but it was ordered that the discharge should in no way affect the attachment of the property.
In January, 1881, Mrs. Strange caused the will of her father to be probated in Tennessee, where she had then taken up her 'residence, and letters were issued to her there.
On February 2, 1881, Mrs. Carpenter. filed her bill in the Chancery Court of Shelby County, Tennessee, No. 3912,. against Mrs. Strange as executrix and individually, and the heirs, distributees and legatees under Merrill’s will. This bill set forth the death of Merrill in New York in November, 1873, testate; the probate of the will in February, 1874, by Mrs. Strange; and its probate.in Tennessee in January, 1881; and that complainant had “never renounced her claim upon the testator’s estate and has never claimed anything under said will or received anything.” She averred that she was á creditor of said estate on account of trust funds received by Merrill in his lifetime, and that the claim had been reduced to judgment in a suit brought against Mrs. Strange, as executrix, in the Supreme Court of the county and State of New York, which judgment was for the sum of $16,436.70. A certified copy of the record in the New York case was made an exhibit to the bill and prayed to be taken as a part thereof.
It was then stated that Mrs. Strange became possessed of Merrill’s property soon after his death; that complainant, being informed that Mrs. Strange had qualified as executrix in Tennessee, filed her bill, No. 1805, against her as such executrix to recover the amount due from Merrill, and among other things sought to attach the real estate of the testator, and-'that it was attached and a receiver appointed; that by the said proceedings she sought to impound the real estate and hold it subject to the judgment sought to be recovered in New York against the estate and Mrs. Strange, who was a nonresident of Tennessee, and said suit No. 1805 was ancillary and auxiliary to the suit in New York; -that judgment was recovered in the latter; and that there was no need of proceedings to recover-judgment in No. 1805.
Complainant further alleged that Mrs. Strange had been collecting rents 'of all the real estate in Tennessee, and as to lot No. 59, the New York court, in the suit referred 'to, had declared the deed • to her of that lot fraudulent and void. Complainant reiterated that she was a creditor of the estate of Merrill in the sum of over $16,000 by judgment recovered, to the record of which she again referred, and said that “ she seeks to recover on said judgment just as if specially sued on in a law court. Said judgment is . still owned by complainant and is unsatisfied and unpaid, together with cost and interest. Complainant believes there are other creditors of said estate, the names of whom and the amounts due same she has not been able to learn.”
Complainant .charged that the insolvency of the estate had been duly suggested in the county court of Shelby County; that the personalty had been exhausted in the payment of debts, and that there remained nothing but the real estate to pay such debts; and averred that she “files this bill in behalf of herself and all other creditors and persons interested in the estate who may wish to come in and be parties herein.” Complainant further represented' that lot No. 59 had become, by virtue of the judgment of the New Tork court, assets of Merrill’s estate, and liable for the payment óf debts, together with the other real estate,, and prayed that the administration and settlement of the estate be transferred from the county court to the Shelby chancery court; that an account of the assets and liabilities be begun, and a settlement had with Mrs. Strange as executrix, and that she pass her accounts and settlement in the latter court; that Mrs. Strange be made to account for the money left her in trust; that the legatees under the will account for legacies turned over to them and be postponed until the debts were paid; that the creditors and others interested be permitted to become parties to. the proceedings ; that the clerk and master make publication for all creditors to file their claims on or before the 15th of May, 1881; that the judgment recovered by the complainant in. New Tork be allowed and a decree rendered thereon against the estate; and that the realty be sold to pay complainant’s claim, and also any other bona fide debts and claims. Complainant further prayed that the receiver in charge of part of ' the, property be put in' charge of lot No. 59, and that the receiver in No. 1805 be made and continued receiver in this case; that a new trustee be appointed to manage the trust fund recovered for complainant in the suit in New York, under the control and supervision of the court; and for general relief.
Publication of notice to creditors' to prove their claims was thereupon ordered. All parties defendant appeared, and the minor heirs, by their guardian ad litem, moved to dismiss so much of the bill “ as seeks to. enforce the alleged rights of complainant as a devisee of A. P. Merrill, deceased, for the reason that it appears by the bill that the devise to complainant was conditioned upon the renunciation by her of all claim against the estate of said testator for the fund held by him in trust for complainant. The bill not only fails to show a compliance with this condition, but affirmatively shows the contrary, to wit, that complainant has elected to claim and sue for said trust fund. The bill shows no sufficient reason for non-compliance with the said condition, nor for setting it aside as null and void.” This motion was heard by the court and overruled, the order reciting that the “ solicitors for Mrs. Carpenter insisted that no such claim was asserted, and that for their client they disclaimed any right or purpose to hold or claim a devise under the will.” A motion by Mrs. Strange to dismiss the bill in No. 3912, because of fhe pendency of the other bill, was overruled as premature.
Mrs. Strange answered as executrix and in her own right, admitted that she had made no settlement as executrix in New York, and that the personalty was disposed of, and among other things pleaded and relied upon, as executrix and individually, the statutes of limitation of the State of Tennessee, and as executrix that no personal assets whatever had come to her hands to be administered in Tennessee; and she further averred that the bequests in item No. 3 of the will had not been paid, either in whole or in part; claimed lot No. 59 as her own under the deed made to her in 1867, and stated that the will left no realty belonging to Merrill except Nos. 9S and 100 Madison Street. Answers were filed for the other defendants, adopting Mrs. Strange’s answer, and pleading all of the statutes of limitation of the State of New York and of the State of Tennessee applicable in any way to the case. The answer of the minors submitted their case to the court, and also relied on the statutes of limitation. W. N. AL Ateiirill filed a claim in the suit, setting forth a trust created by Alercer in 1857] by conveyance to A. P. Alerrill for the benefit of claimant, and that the lands described in the conveyance were sold in 1860 for $6000 or thereabouts. And he insisted that any surplus remaining after the payment of the judgment in favor of his sister Anna AT. should be paid into court in trust for him and the heirs of his body, or for his sister Anna AT. in default of such heirs.
By consent of the parties the two cases, Nos. 1805 and 3912, were consolidated and ordered to be heard together, and upon the hearing an authenticated copy of the record, proceedings and judgment in the Supreme Court of New York in the case of GarOenter v. Strcmge, Executrix, et al., which has been hereinbefore referred to, and was filed as an exhibit to the bill in No. 3912, was put in evidence. This transcript, although the record in this court shows that the suit in New York was brought shortly after February, 1874, commences 'with an amended summons, dated Alarch 19, 1878, and an amended complaint, which was sworn to cn that day. The caption runs in the name of the people of the State of New York and recites that they “ having examined the records and files in the office of the clerk of the county of New York and clerk of the Supreme Court of said State for said county, do find a certain judgment roll there remaining in the words and figures following, the same being a full and perfect record, to wit,” (and then follows the record) and the conclusion is: “ All of which we have caused by these presents to be exemplified and the seal of our said Supreme Court to be hereunto affixed.” This is tested in the name of the presiding justice of the Supreme Court for the city and county of New York and subscribed by the clerk and the seal of the court affixed, and accompanied by the certificate of said justice to the effect that the clerk whose name was subscribed to the exemplification was the clerk of the county of New York and of the Supreme Court, duly appointed and sworn, and that full faith and credit were due to his official acts, and that the seal affixed to the exemplification was the seal of the Supreme' Court and the attestation; was in due form of law; and a further certificate of the clerk was attached under the seal of the court, that the judge who certified was presiding justice of the Supreme Court.
When the record of the New York court was offered in evidence in No. 3912, counsel for the defendants objected to its admission “upon the ground that neither the executrix in Tennessee nor'‘the heirs or legatees were, bound by it, and that it was incompetent and inadmissible as evidence in this cause for the reason that it was not in any way binding upon said respondents in this proceeding, and for the further reason that the said record shows upon its face that the judgment was erroneous and ought not to have been rendered.” The chancellor, however, admitted the record, and, being of opinion that Mrs. Carpenter was entitled to recover from Mrs. Strange, executrix, according to the tenor and effect of said proceedings and judgment, decreed that she recover the sum of $16,436.70. with interest. The chancery court further held that the statutes of limitation constituted no valid defences against the recovery; and further held and decreed “ that the filing of this bill was an election by. complainant to renounce all benefit under the will of said Merrill, and she is barred and precluded from ever claiming anything under its provisions.” It was further ordered that a trustee be appointed to receive and control $6200 of the recovery when realized, according to the terms of Mercer’s deed of settlement for the benefit of complainant, and that the balance. of the recovery belonged to Mrs. Carpenter as her own individual property; and that this branch of the cause be referred to a master to take proof and report: (1) What assets have come or should have come to the hands of said executrix in this State. (2) What debts are due and owing to the creditors of said Merrill, deceased. (3) What realty belongs to said estate, and upon what terms should a sale be made. (4) What debts of said Merrill have been paid in this State.
( The chancellor further ordered that upon the third inquiry either party might submit proofs as to the ownership of lot' No. 59, the court refusing to set aside the deed to Mrs. Strange by force of the judgment or decree in the New York court, holding that the order of that court declaring the deed void was inoperative in this case, and reserving the question as to its validity as to complainant and other creditors of Merrill, and also all other questions not adjudged, including costs.
The' record in No. 1805 was read by defendants upon the hearing.
An appeal to the Supreme Court of the State was taken by the defendants from so much of the decree in No. 3912 as -¡awarded a recovery to complainant against Merrill’s estate, and ordered the settlement of the accounts of his personal representative; and by complainant from so much of that decree as refused to declare the deed of Merrill to Mrs. Strange Void by force of the New York judgment.
In No. 1805 the court ordered complainant’s bill to be dismissed, and an appeal was prayed therefrom. The appeals having been duly prosecuted, the cases were referred to commissioners under the Tennessee practice, who made an elaborate report, holding that the chancellor erred in not decreeing that the deed to Mrs. Strange was void as to Mrs. Carpenter’s debt, and that he should have held the land therein conveyed liable ánd subjected it to the payment of her debt; and also that the bill in No. 1805 should not have been dismissed except Without prejudice, and, with' these modifications, that the decree should be affirmed and the cause remanded for further proceedings, the estate wound up and administered as an insolvent estate, and, upon exhaustion of the personalty, that the lands should be sold to pay the debts.
Exceptions were filed to the report of the commission, and the Supreme Court of Tennessee heard the cause -upon the chancery court record and the report and exceptions, and April 16, 1887, set aside the report and reversed the decree of the court below, but on the 20th of April, on motion of the defendants, vacated that decree' and entered another in lieu and stead thereof, which stated that the court was of opinion (1) That the record of the proceedings in New York was fatally incomplete and defective in that the transcript commenced with an amended complaint, and because the certificate was insufficient; (2). That the New York court had no power or jurisdiction to adjudge the conveyance by Merrill to Mrs. Strange fraudulent and void as to creditors, and - did not have power, by force or virtue of its judgment or decree alone, to annul Mrs.' Strange’s claim of title under said conveyance.
“III. That upon the pleadings, proceedings and evidence as the same appear in the transcript of this cause the complainant has elected to claim, assert and sue for a life estate, under the devise of the same to her in the first item of the will' of said A. P. Merrill,.in and to the property described in said will as ‘ the western portion of the double tenement purchased of Adlai. O. Harris, being the house and dot No. 98, on Madison Street, Memphis, Tennessee;’ and that by the terms of said will said devise to complainant was made upon condition that said complainant should renounce and surrender the claim against the estate of said testator for which she sues in these proceedings, and that complainant, having thus elected to .claim and assert title,,as devisee under said will, must give effect to and perform the condition upon which said devise to her was made, and must renounce and surrender her said claim against the testator’s estate.
“ Complainant, therefore, is entitled to recover a life estate in the premises as aforesaid, but is hot entitled to recover upon' her alleged money demand against the testator’s estate, as shown in the record.
“ IY. The several questions arising upon the record touching the alleged bar of the statute of limitations, the force and effect of the money judgment rendered in the court of New York in favor of complainant and against defendant, Maria E. Strange, as executrix of said will, and whether said judgment, if duly authenticated and admitted in evidence, would be conclusive or of prima facie force only against the executrix of the same will in Tennessee, and the further question whether said judgment in New York against the executrix there qualified would be of any force, either prima facie or conclusive, as against the heirs or devisees of the- realty in Tennessee, or whether the said proceedings .in- New York would, as against said heirs or devisees, operate to arrest the running of the statutes of limitation of this State, the court does not deem- it necessary here to pronounce any opinion.” '
A final order and decree was then rendered in accordance with these propositions and the cause remanded to the Chancery Court of Shelby County with directions. A petition for rehearing was made and .overruled, and a writ of error allowed to this court.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
