Source: THE SOUTHWESTERN REPORTER,
VOLUME 54,
CONTAINING ALL THE CURRENT DECISIONS OF THE
SUPREME COURTS OF MISSOURI, ARKANSAS, AND TENNESSEE, COURT
OF APPEALS OF KENTUCKY, SUPREME COURT, COURT OF CRIMINAL APPEALS, AND COURTS OF CIVIL APPEALS
OF TEXAS, AND COURT OF APPEALS
OF INDIAN TERRITORY,
PERMANENT EDITION.
JANUARY 1—FEBRUARY 12, 1900.
A TABLE OF STATUTES CONSTRUED IS GIVEN IN THE INDEX.
ST. PAUL:
WEST PUBLISHING CO.
1900.
ELLIS et al. v. ELLIS et al.
JOHNSON et al. v. SAME.
(Court of Chancery Appeals of Tennessee. Dec. 9. 1899.)
CLAIMS AGAINST DECEDENT—FUNDS BELONGING TO FOREIGN ADMINISTRATOR.
Where for the fraudulent purpose of removing into Tennessee funds of decedent, a resident of another state, an administratrix was appointed in Tennessee, who commenced an action in the courts thereof on insurance policies on deceased's life, to which the administrator appointed in the foreign state made himself a party, and in which action the money was paid into the court, and litigated for between the administratrix and administrator, resulting in a decision that it should be paid over to the administrator, it cannot be impounded and reached by creditors of deceased in a suit in Tennessee against the administrator and administratrix.
Appeal from chancery court, Sumner county; J. S. Gribble, Chancellor.
Two bills—one by John B. Ellis and others, and the other by George R. Johnson and others—against Sallie Ellis, administratrix of Irby T. Ellis, deceased, and others. Bills dismissed, and complainants appeal. Modified.
J. J. Turner, for appellants John B. Ellis. George R. Johnson, and others. Dismukes. Stokes & Stokes and W. W. Pardue, for appellee Sallie Ellis.
BARTON, J. These two bills were filed by the creditors of the estate of Irby T. Ellis, deceased, to reach assets alleged to belong to the estate, and alleged to be within the jurisdiction and control of the chancery court of Sumner county. The causes were consolidated, and both, aside from the amount of the debts claimed, present exactly the same question for determination, were heard together, and may be disposed of together. In substance, the bills allege that all of the complainants were creditors of the estate of Irby T. Ellis, deceased, and state their debts. Aside from these differences, the allegations of both bills are substantially the same, and are about as follows: They allege that Irby T. Ellis died intestate in Alabama In May. 1806; that he married the defendant Sallie Ellis (then Foster) about January, 1895, in Sumner county, Tenn.; that they did not have any children; and that after the death of her husband the defendant Sallie Ellis moved back to Sumner county, to her father's home. In Gallatin, Tenn. It is alleged that Irby T. Ellis at the time of his death was a resident and citizen of the state of Alabama, and that he did not own any estate In Tennessee,—real, personal, or mixed, present, prospective or in remainder; that he had no character of estate in Tennessee whatever, and nothing on which to administer; that immediately after the death of Irby T. Ellis his wife ??me back to Tennessee, and applied to the county court of Sumner county to administer on his estate In Tennessee, but it is alleged that he had no estate in Tennessee to administer on. It is further alleged that the widow, Sallie Ellis, did take out letters of administration in the county court of Sumner county, Tenn. And it Is said that inasmuch as there was no estate in Tennessee, and inasmuch as he was a resident of the state of Alabama at the time of his death, the grant of these letters of administration was null and void. It Is further __(?) that the complainants in these bills have given notice, and propose, in the county court of Sumner county, to move to set aside these letters of administration granted her, on the grounds here alleged,—that there was no estate here, and that Irby T. Ellis was not a resident of Sumner county. It is alleged that the reason actuating Sallie T. Ellis in procuring administration In Tennessee was to collected two policies of insurance due the estate of Irby T. Ellis; that, under the law of Alabama, if he was a citizen, at the time of his death, of that state, the policies would go to his estate, and for his creditors, but that, under the law of Tennessee, if he was a resident of the latter state the proceeds of the policies would go to his widow; that It was a race or fight between the widow and his creditors; and that the widow had hoped that, by getting letters of administration in Tennessee, she could get the funds impounded here, and get the Tennessee law, and not the Alabama law, to apply. It was further averred that, before the letters of administration were granted in Tennessee, letters of administration had issued at Selma, Ala., the place of the residence of Irby T. Ellis at the time of his death, to one Saffold, of Selma, who is made a party defendant to one of these bills. It Is further averred that Irby T. Ellis took out policies of Insurance, while he lived, in Alabama, and not in Tennessee; that in 1896 Sallie Ellis had filed her bill In the chancery court of Sumner county against the Insurance companies and the Alabama administrator to secure and collect the policies of Insurance, which amounted to some $4,042; that the companies did not desire to contest the payment of the policies, and had agreed, by a decree entered in the cause, to pay the face of said policies into the hands of the clerk and master of the court, to be decreed on by the court; that the fund had been paid, and was now In the court, awaiting a decree to settle to whom it should go,—whether to the Tennessee or Alabama administrator; that much proof had been taken in the cause, and the cause had been submitted to the chancellor on briefs. The debts of the complainants are then set out, against the estate of Irby T. Ellis. It Is averred that, If Sallie Ellis gains the case against the Alabama administrator, the creditors will get nothing, but that, if the Alabama administrator gains It, he will take It to Alabama to administer, and they will be cut out of the same, as nonresident creditors; that the estate was largely in debt. They asked that Irby T. Ellis be declared a citizen of Alabama, and that it be decreed that the Tennessee administration was void; that the funds then in the hands of the clerk and master of Sumner county, paid in by the agreement under the litigation commenced by Sallie T. Ellis, be impounded; and that their debts be first paid out of the funds. It Is further alleged by way of amendment that the policies were in Alabama when he died, but that one of his attorneys succeeded in getting hold of the same at Selma, and brought the same to Sallie T. Ellis, in Tennessee, and delivered them to her, and that she then administered and sued, but that this did not give her any right at all, as the policies In question were for the creditors, and not the widow, and that this could not change the status of things. There was a demurrer filed to this bill.
On January 28, 1898, an amended bill was filed, setting out the previous allegations, and averring that at the time they filed their original bill there was a case pending in the court by Mrs. Sallie Ellis, administratrix of I. T. Ellis, deceased, against the Northwestern Mutual Life Insurance Company et al., involving the right of three policies of insurance on the life of Irby T. Ellis, amounting to the sum of $4,050; that the Insurance companies did not desire to contest the payment of the policies, and had Intimated their readiness to pay the same into court; that Mrs. Sallie Ellis, administratrix of I. T. Ellis, deceased, or her solicitor in Tennessee, had charge of the three policies, and that the same were at Gallatln; that the suit was brought against the Northwestern Mutual Life Insurance Company, but that at the time Saffold, administrator of I. T. Ellis, deceased, was not a party to the cause; that Mrs. Sallie Ellis, administratrix, claimed the policies under the laws of Tennessee, but that under the laws of Alabama the proceeds of the policies went to the administrator; that about this time H. P. Saffold, the administrator in Alabama, came in and made himself a party to the cause (he and her attorneys agreeing and consenting to all of this), and by agreement the sums due on the insurance policies were paid into court, the proceeds there to be litigated over; that Saffold came In voluntarily, and that proof had been taken in the cause as to the citizenship of Irby T. Ellis, the matter had been decreed on by the chancellor, had been appealed to the supreme court, and the cause assigned to the court of chancery appeals, and that that court had held and decreed that Irby T. Ellis at the time of his death was a citizen of Alabama, and that the three policies passed to the Alabama administer, Instead of to the Tennessee administratrix; that from this decree an appeal was had to the supreme court, where the decree of the court of chancery appeals was affirmed (43 S. W. 7G6); that when the complainants had filed their original bill, as before shown, they did so as creditors of I. T. Ellis .In Tennessee, and had made both administrators parties to their cause, and procured an injunction restraining the payment of __(?) much of the fund as might be necessary to satisfy their claims to either the Tennessee or the Alabama administration; that they had sought in the bill to remove Mrs. Sallie Ellis, administratrix, upon the ground stated in the original bill, but that they had now dismissed that branch of the cause, and had withdrawn all charges and all attempts to annul her letters of administration, and that she was now In fact and of right administratrix In Sumner county, Tenn.; and that there were now no proceedings pending to remove her, or to annul the administration granted to her. It was averred that the funds now In the hands of the clerk and master of this court, paid In on the Insurance policies, had been paid In voluntarily, and by the consent of the Alabama administrator, and were now In Tennessee, subject to administration on behalf of Tennessee creditors. It was further alleged that there were some $4,000 of these funds; that In the administration In Alabama there had been some $1,800 of debts and claims filed against the estate of I. T. Ellis, and it was charged that there were no other Just debts In Alabama to be filed, and that said sum of $1,800 was made up of a number of items or claims sent there from Tennessee; that complainants were informed that the widow had claimed or would claim an allowance out of the funds In Alabama, 'under the laws of Alabama, not to exceed $1,000, and that her claim and the debts and expenses would not exceed some $3,000; and that this would leave a fund of some $1,500 to go to the creditors and the widow. Complainants set out debts against the estate of Irby T. Ellis, and say that they"1 are advised that under these facts and circumstances they are not compelled to go to Alabama to file their claims, when there are funds In Tennessee to pay the same, and when It Is not necessary to take all the funds to Alabama to pay the creditors or the widow. They ask that their original bill be amended accordingly.
Saffold, the Alabama administrator, answered the bill. He admitted the proceedings set out In the former suit, and his appointment as administrator In Alabama, and admitted the result of the other suit as stated, and Insisted that by reason of the adjudication in the former suit he was entitled to the funds Impounded in the chancery court of Sumner county, and entitled to have them removed to Alabama for administration and disposition. In the answer he further relied on the demurrer filed.
The parties entered Into an agreement as follows: "It Is agreed that, If complainants were examined, they would testify as follows, and that this be used in lieu of their depositions: (1) That Mrs. Sallie Ellis, wife of I. T. Ellis, deceased, administered on his estate In Sumner county, Tennessee, June 11, 1896, and that said administration has never been revoked, and there are no proceedings pending to revoke the same. (2) That Irby T. Ellis was a son of Thos. S. Ellis, and a nephew of J. B. Ellis and W. R. Ellis. (3) That Irby T. Ellis was born and raised in Sumner county, Tennessee, and lived there till a few years before he died, when he went to Selma, Alabama, to act as express agent of the Southern Express Company. (4) That said Irby T. Ellis came to Sumner county In September, 1896, and purchased a number of horses to take to Selma, Alabama, and did take them there, viz.: He purchased some from G. S. Johnson, September 7, 1895, and gave his notes for $180.50, and due In 12 months, and bearing interest from date, and securing a reasonable attorney's fee, and T. S. Ellis and J. B. Ellis and W. R. Ellis became his securities on the same; and a Judgment was rendered on the same before J. W. Gllmore, J. P., for $172.09, February 9, 1897, and costs of suit, against them. He also purchased some horses of J. B. Donelson, and gave his note for the same for $350, and T. S, Ellis, W. R. Ellis, and J. B. Ellis became his securities on the same; and Judgment was rendered on the same against them before J. W. Gilmore, J. P., February 9, 1897, for $396.90, and costs of suit, and no part of said note or Judgment has been paid by the estate of I. T. Ellis. (5) That at the time they became securities for said I. T. Ellis he promised to insure his life so as to secure them In the event of his death before he paid said claim. (6) That T. S. Ellis holds a note against the said estate of I. T. Ellis for $125, dated January 13, 1894, and due In 30 days, and which Is unpaid. (7) That Irby T. Ellis at the time of his death, In May, 189G, had three policies of Insurance on his life, viz. two for $1,000 each in the New York Life Insurance Company (in all, $2,- 000), and that he had a policy of $2,038 In the Northwestern Mutual Insurance Company; that said three policies in question were brought to Tennessee by said Mrs. Sal- lie Ellis, or her attorney, and the necessary proofs of his death were furnished to said companies by said R. P. Saffold, administrator. (8) That said Sallie Ellis, administratrix of said I. T. Ellis, filed a bill In the Sumner chancery court against said three insurance companies to collect and appropriate to her use the proceeds of said three policies, and thereon said two companies came In and paid the proceeds of said three policies Into the hands of G. W. Boddie, clerk and master of this court. (9) That R. P. Saffold administered on the estate of said I. T. Ellis in Selma, Alabama, and that be voluntarily ??me Into the Sumner chancery court, by attorney, and consented that said proceeds, viz. §4,038, should be paid Into the hands of G. W. Boddie, clerk and master of the court. (10) That as I. T. Ellis had creditors In Tennessee, and as he (Saffold, administrator) consented and agreed voluntarily for said policies to be paid In Sumner county, Tennessee, as per decree In said cause, the said policies were removed to Tennessee as aforesaid prior to the time the said companies could be sued for collection of same In Alabama. (11) That I. T. Ellis was the express agent at Selma, Alabama, and gave as his security the Guaranty Company of North America; and upon his death the said company claims to have paid for his default $3,123, and has filed said claims at Selma, Alabama, against his estate. (12) That said I. T. Ellis paid said guaranty company for said insurance or indemnity from time to time as it was paid for said risk."
The proceedings had in the former case were made a part of the record in this case. The cause was tried by the chancellor, who dismissed the bill. Complainants have appealed, and assigned errors.
We find that the previous suit was brought by Mrs. Sallie Ellis, administratrix of the estate of Irby T. Ellis, deceased, she having been appointed administratrix in Sumner county, Tenn.; and it was also brought in her own right to reach the funds in question. A full statement of that case and the proceedings had therein is found In our opinion and findings of fact filed In that case, and now of record In this court; and we make that opinion and finding a part of this opinion and find- tog, adopting the findings there made. The result was, as stated at the amended bills In these cases, that this court directed the funds to be paid over to the Alabama administrator, for the reasons and on the ground set out In that opinion, which are here again reasserted; the principal ground being that the attempt to remove the funds Involved Into this state, and administer upon them here, was a fraud upon the Alabama Jurisdiction, and that It was an attempt on the part of the administratrix in this state to draw into this state, for administration, and out of the proper state for Its administration, an asset to which she had no __(?), and which was not hers as a fact, nor under any correct theory of law. There Is nothing In this case which In our opinion at all changes the case there presented; the only difference being that these suits in this case are by creditors of the estate of Irby T. Ellis, who are now seeking through the administratrix to reach funds which the administratrix In that case was directly seeking to reach. Such being the case, we can see no reason why this court should not reach on exactly the same case the same results reached before. The supreme court affirmed our findings In that case upon the same principles that this court did. We are therefore of opinion that the same reasons that were given by both courts for dismissing the bill In that case require the dismissal of the bill in this case. In addition to that, as we say, the complainants are seeking to reach the fund through the administratrix; and, If it has been decided that she cannot reach It directly, we are unable to see how or why a creditor can reach it through her. As to the assets she represented, of course, a decision as to these assets against her would, we think, under the law, be binding upon them. So we are of the opinion that the case is not only the same that we had before us in the other cause, but that the matter has been adjudicated.
Some points are raised in the case in regard to claims presented In the administration suit in Alabama, which it is said are not valid claims, and should not be allowed. Without passing upon the points raised as to the validity of these claims, It is sufficient to say that, In our opinion, we cannot assume that the Alabama court will allow illegal or unjust claims, and that In no event can we undertake to anticipate or revise the action of the Alabama court in such matters. The simple question presented in this case Is whether these funds now in the hands of the clerk and master can be lawfully and properly detained here for administration, or whether they must be transmitted to the state of Alabama, from whence they have been, our opinion, unlawfully attempted to be drawn; and, for the reasons given In our former opinion, we do not think this can be successfully done, or should be allowed.
The chancellor dismissed both bills outright. The complainants are entitled to a decree against the Tennessee administratrix for the amounts of their debts, which are set forth in the bills. Otherwise, the decree of the chancellor Is In all respects affirmed. And, It appearing from these bills that there are no other assets, we think it is a proper case for the adjudication of all the costs against the complainants and the sureties on their bonds, which will accordingly be done. All concur.
Affirmed orally by supreme court, December 23, 1899.