Opinion
November 27, 1942. Petition for Certiorari denied by Supreme Court, February 27, 1943.
1. Wills.
Where wife left will and husband dissented therefrom, husband's rights were fixed by act under which he was given right of dissent (Code 1932, sec. 8359).
2. Wills.
Husband dissenting from wife's will was entitled to only a third interest in personal estate of wife who left no children, notwithstanding if wife had died intestate husband would have taken all her personalty (Code 1932, secs. 8359, 8389 (2), 8460-8462).
3. Wills.
The common law principle that marriage amounts to an absolute gift by wife to husband of her personalty was not applicable in determining rights of husband who dissented from wife's will, in view of Married Women's Emancipation Act (Code 1932, secs. 8359, 8389 (2), 8460-8462).
4. Husband and wife.
The Married Women's Emancipation Act has totally abrogated the common law as to rights of married women, with exceptions contained therein (Code 1932, secs. 8460-8462).
5. Wills.
Where wife died testate and left collateral kindred as her heirs-at-law, the husband who dissented from the will took no interest in the realty, no right of curtesy having attached (Code 1932, sec. 8382).
6. Descent and distribution.
"Heirs-at-law" as used in statute providing that if intestate died leaving no heirs-at-law capable of inheriting realty, it shall be inherited by husband or wife, is not limited to children or issue, since statute was intended to cover case of an intestate who left no kindred capable of inheriting realty (Code 1932, sec. 8382).
7. Wills.
Where suit was filed by beneficiary in his own right, in behalf of testatrix' collateral kindred, who took under will, to obtain declaratory judgment fixing rights of parties under will and dissent thereto by husband who claimed whole estate, decree allowing solicitor for successful complainant an attorney fee to be charged as part of "costs" to be paid from personal estate in which husband had a one-third interest was erroneous.
FROM CARTER.Appeal from Chancery Court, Carter County; Hon. S.E. Miller, Chancellor.
Suit by Daniel G. Elliott, in his own right and in behalf of collateral kin of Loretta Hinkle Markland, deceased, against Frank Markland and others, to obtain a declaratory judgment fixing the rights of the parties under the will of the deceased and her husband's dissent thereto. From the decree, Frank Markland appeals.
Decree modified and, as modified, affirmed.
Allen, Nelson Allen, of Elizabethton, for appellants.
Seiler Hunter, of Elizabethton, for appellees.
Mrs. Loretta Hinkle Markland died testate, leaving her husband Frank Markland and certain collateral kindred as her heirs-at-law. No children were ever born to her and her husband. By her will she gave her husband a life estate in her real and personal property, with the remainder to the complainant Daniel Elliott, whom she raised, and to her brothers and sisters. The husband dissented from the will and claimed all her estate, real and personal. The Chancellor held that he took only a third interest in the personal estate and no interest in the realty, no right of curtesy having attached. The husband appeals.
By Section 8359 of the Code it is provided:
"The husband may likewise dissent from the will of his wife within one year after the probate thereof, and in which case if the wife died leaving no child or not more than two, the husband shall be entitled to one-third part of her personal estate, in addition to his curtesy in the real estate as provided by law. But if the wife has more than two children, the husband shall share equally with all the children in said personal estate, he being entitled to a child's part."
This Section is based upon Chap. 44, Acts of 1923, which was held unconstitutional because of a defective caption in the case of Schaffler v. Handwerker, 152 Tenn. 329, 278 S.W. 967, but was subsequently included in the Code and is now a valid enactment. If Mrs. Markland had not died testate, her husband would have taken all her personal estate. Code Sec. 8389(2). But as she left a will and as her husband dissented therefrom, his rights are fixed by the very Act under which he was given and exercised the right of dissent.
Reliance is placed on the common law principle that marriage amounted to an absolute gift by the wift to the husband of her personal property, citing D'Arcy v. Connecticut Mutual Life Insurance Company, 108 Tenn. 566, 69 S.W. 768. This has no application. The Married Women's Emancipation Act, Code, Sec. 8460, totally abrogated the common law as to the rights of married women, with the exceptions contained in Secs. 8461, 8462. It is clear that upon the husband's dissent he was entitled to only one-third of the personal estate.
It is next contended that the husband took the real estate under Sec. 8382 of the Code:
"If the intestate died leaving no heirs at law capable of inheriting the real estate, it shall be inherited by the husband or wife in fee simple."
This contention is refuted because (a) Mrs. Markland died testate and (b) left heirs-at-law who would have taken her property in case of intestacy. It is argued, however, that "heirs-at-law" as used here mean children or issue. No such limited meaning can be given this section, which was intended to cover the case of an intestate who left no heir-at-law, i.e., kindred capable of inheriting the real estate.
It results, that the decree of the learned Chancellor in these respects is affirmed, but we think an error was committed in allowing the solicitor for the complainant an attorney fee to be charged as a part of the costs to be paid from the personal estate. The suit was filed by Daniel G. Elliott in his own right in behalf of the collateral kindred of the testatrix, who took under her will, to obtain a declaratory judgment fixing the rights of the parties under the will and dissent thereto. Frank Markland claimed the whole estate. While his claim was ill founded, we do not think it proper to penalize him by charging the personal estate of the testatrix with attorney fees for the successful litigants. We think under these conditions each person should pay his own attorney's fees. It would not be equitable to tax complainant's attorney's fees against the personal estate, as by doing so, Markland would be paying one-third of the fee of the opposing counsel and in addition would have to pay his own counsel.
With the exception noted, the decree of the Chancellor will be affirmed, at appellant's cost.
McAmis and Burnett, JJ., concur.