
    PINKERTON et al. v. FOX et al.
    
    129 S. W. (2d) 514.
    Middle Section.
    January 14, 1939.
    Petition for Certiorari denied by Supreme Court, June 10, 1939.
    
      J. J. Jewell, Jr., and Alvin B. Collins, both of Murfreesboro, for appellant Mrs. Fox.
    Walter Hancock, of Woodbury, for appellee Pinkerton.
    
      
      On July 1, 1939, the Supreme Court filed an opinion denying the petition for a rehearing, in which that Court stated that it only passed on the first assignment of error and did not pass on the merits of the case.
    
   CROWNOVER, J.

This is a suit by the heir at law and administrator to set aside or cancel a contract and conveyance on the grounds of insanity, fraud, duress, and undue influence.

The original bill in this cause was filed in the Chancery Court of Cannon County by J. F. Pinkerton, a resident of Cannon County, who had been appointed in Rutherford County as administrator of the estate of his son, James F. Pinkerton, deceased, in his own right and as such administrator, against J. H. Jernigan, executor of the will of A. J. Jernigan (of Cannon County), deceased, a resident and citizen of Childress, Texas, and Mrs. Rosa Fox, a citizen and resident of Rutherford County, Tennessee, defendants, to have set aside and rescinded a contract and a deed executed by James F. Pinkerton, deceased, conveying bis property to Mrs. Fox, on tbe grounds of insanity, fraud, duress, and undue influence, and to enjoin tbe executor, Jernigan, from paying tbe legacies to Mrs. Fox.

It was alleged in tbe bill that James F. Pinkerton, son of tbe complainant, J. F. Pinkerton, bad recently died in Rutherford County and that J. F. Pinkerton bad been appointed and qualified as bis administrator; that James F. Pinkerton was of unsound mind; that a short time before bis death, on November 17, 1933, be bad executed two instruments, one conveying and transferring about $5,000 in bonds and notes, and conveying a one-sixtb interest in a bouse and lot in Cannon County, to bis axurt, Mrs. Rosa Fox, one of tbe defendants, in consideration that she should take care of him for the rest of bis life; that James F. Pinkerton was entitled, under tbe will of bis grandfather, A. J. Jernigan, deceased, to tbe sum of about $1450, and Mrs. Rosa Fox was entitled to about $250 under said will, which sums were still in the bands of tbe executor; and that J. PI. Jernigan, a resident of Childress, Texas, and a son of A. J. Jernigan, deceased, bad been appointed and qualified in Cannon County, Tennessee, as executor of the will of A. J. Jernigan. Tbe complainant asked for an injunction to restrain Mrs. Fox from disposing of any of her property and tbe property she bad received from James F. Pinkerton; for an injunction restraining tbe executor, ’ J. H. Jernigan, from paying over to Mrs. Fox tbe funds in his bands conveyed by tbe will of A. J. Jernigan to James F. Pinkerton and to Mrs. Fox; that the conveyances to Mrs. Fox be declared fraudulent and void; and for a judgment against Mrs. Fox for $4,352.67; and that tbe executor be required to pay over to tbe Clerk & Master tbe amount in bis hands belonging to Mrs. Fox, to be applied on said decree ; and that the injunction against the executor be made perpetual.

No attachment was prayed for or levied on said property, and no non-resident publication was bad.

Subpoena to answer was issued for tbe defendants and delivered to tbe Sheriff who made return that tbe defendants were not to be found in Cannon County and that he had served notice of tbe suit upon tbe Clerk of the County Court in accordance with Code, sec. 8148. Thereupon counterpart subpoena to answer was issued to Rutherford County for Mrs. Rosa Fox and served upon her.

Mrs. Fox filed a plea in abatement on tbe grounds that J. II. Jerni-gan, executor, was a non-resident of tbe State of Tennessee and service on tbe Clerk of the County Court would not authorize tbe issuance of counterpart summons to Rutherford County for her; and that said executor was not a material defendant in the cause; therefore tbe process was void and the court bad no jurisdiction; that she was a resident of Rutherford County and tbe subject-matter in controversy was in Rutherford County, and that tbe courts of that County bad jurisdiction, and Cannon County bad no jurisdiction of tbe cause.

J. IT. Jernigan, executor, filed a plea in abatement on the grounds that be was a -non-resident of tbe State of Tennessee and bad not been served with process, bad not entered bis appearance, and therefore tbe court bad no jurisdiction of tbe case.

Tbe two pleas in abatement were overruled by tbe Chancellor.

"Whereupon tbe defendants filed demurrers on tbe grounds that tbe Chancery Court of Cannon County bad no jurisdiction for tbe reasons above stated, which demurrers were overruled.

Mrs. Fox filed her answer denying that James F. Pinkerton was of unsound mind, and alleging that the conveyances to her from him, on November 17, 1933, bad been made for a valuable consideration: that she should take care of him in his illness, pay nurses’, medical, and doctors’ bills, and pay bis funeral expenses — all of which she bad done.

Tbe cause was tried to a jury. Two issues of fact were submitted, as follows:

(1) Was James F. Pinkerton, on November 17, 1933, mentally competent to make a valid transfer of bis property?

(2) Did James F. Pinkerton make or execute tbe deed, contract or agreement, in question, to bis property, same being tbe instrument dated November 17, 1933, filed in tbe record as exhibit No. 2 to tbe original bill, to Mrs. Rosa Fox, by bis own free will?

Tbe jury answered “No” to tbe first issue, and, under tbe instructions of the court, did not answer tbe second issue.

Tbe Chancellor found and decreed that in accordance with tbe verdict of tbe jury on the issue of fact James F. Pinkerton was a person of unsound mind and was not possessed of sufficient mental capacity on the night of November 17, 1933, to execute said deed and contract, and both instruments were null and void, and decree was entered in favor of J. F. Pinkerton and against Mrs. Rosa Fox in tbe sum of $4,352.67, with interest from February 24, 1934, less tbe sum of $500, tbe amount paid by Mrs. Fox in discharge of a note to tbe bank executed by James F. Pinkerton.

It was further decreed that tbe complainant, J. F. Pinkerton, administrator, recover of tbe defendant, Dr. J. H. Jernigan, executor, tbe net amount that remained in bis bands belonging to tbe estate of James F. Pinkerton, deceased; that said executor pay into tbe bands of tbe Clerk & Master tbe balance in bis bands belonging to Mrs. Fox, to be held in payment of said decree against her; and that tbe injunctions be made perpetual.

Mrs. Fox filed motions for a new trial and in arrest of judgment, which were overruled, to which she excepted, and appealed to this court, and has assigned errors, which raise tbe following propositions :

(1) Tbe court had no jurisdiction of the defendants by service of process on the County Court Clerk for the defendant executor, and then by service of counterpart subpoena to answer on Mrs. Fox in Rutherford County.

(2) There is no evidence to support the verdict, in that James F. Pinkerton had sufficient mental capacity to execute the conveyances.

The defendant executor, Jernigan, did not appeal. '

James F. Pinkerton died on January 26, 1935, at the age of about forty-five years.

He was the son of the complainant, J. F. Pinkerton, of Cannon County. A. J. Jernigan, of Cannon County, now deceased, was his grandfather.

His mother had died when he was about three weeks old, and he was reared at the home of his grandfather.

At the age of three years he developed epilepsy, and had epileptic convulsions or fits at intervals all his life.

On account of these attacks he was not sent to school, and as a result was almost totally uneducated.

As he grew up, he and his grandfather bought and sold cattle in partnership, he relying on the judgment of his grandfather.

It appears that he made some money and saved it, and was given $2,000 by his grandfather.

In May, 1928, his grandfather, A. J. Jernigan, died, leaving a will in which Dr. J. H. Jernigan was named as executor. He left a legacy of $2,000 to each of his six children, the heirs of those deceased to take the parent’s share. He made his wife residuary legatee in a clause which is as follows:

“I give and bequeath to my beloved wife, Jane Jernigan, all of the remainder of my estate to hold in trust so long as she may live, to have and to use the proceeds thereof if she desires which includes a house and lot in Bradyville, bank stock, bonds, notes, cash, and accounts of every kind and character she may use the income from all of this if she needs it or so much as she may need and desire and at her death, I desire that the corpus or body of said estate shall go into the hands of my executor to be equally divided my six children or the heirs of any that might be dead the said child or children to take the deceased parents share only but before this division is made, all of the expenses of sickness and burial of my said wife shall first be paid out of said estate, either its income or corpus.”

After the death of his grandfather, James F. Pinkerton exercised judgment about his financial affairs — he made good investments; when he made loans he required the best security; he carefully kept his check stubs and cancelled checks.

It appears that he had a violent temper and some idiosyneraeies, which will be discussed under section 2 hereof.

In the summer of 1934 he underwent a medical examination and it was discovered that he was afflicted with cancer of the bladder.

His miele, J. H. Jernigan, of Childress, Texas, was a physician. When Dr. Jernigan, heard of his illness, he wrote him a. letter advising him that the cancer would cause his death; that he might have a long illness, that he would have to be nursed and taken care of, and incur medical and doctors’ bills; that he could not take his money with him; that, in his opinion, he should arrange with somebody to look after him in his illness and pay his funeral expenses in return for his transferring all of his property to him or her.

He was operated on in August, 1934, and afterwards carried to the home of his aunt, Mrs. Rosa Fox.

He decided on the course advised by Dr. Jernigan, and procured lawyers to draw up a contract between himself and Mrs. Fox, transferring to her his bonds and notes, and a deed conveying to her his interest in a house and lot in Cannon County, formerly owned by his grandfather, in consideration for her nursing him and earing for and looking after him in his illness and paying his funeral expenses.

Mrs. Fox took possession of the bonds and notes, cashed the bonds and collected the notes — the whole sum totalling $4,352.67.

He remained at Mrs. Fox’s home until his death, in January, 1935.

His father, J. F. Pinkerton, instituted this suit to recover the property from Mrs. Fox, alleging that his son had been of unsound mind all his life.

1. We are of the opinion that the first assignment of error is well made and should be sustained.

It was attempted to give the Chancery Court of Cannon County jurisdiction by the service of process on the County Court Clerk for the non-resident executor, in accordance with Code, see. 8148. We do not think that that section applies 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. We think it was the clear intention of the legislature to make it apply only to suits by creditors and others who had claims or demands against the decedent, as the statute states: “in case it is desired by any citizen or resident of this state to sue said administrator or executor in his official capacity for any debt or demand, due or owing to. any citizen or resident of this state, from his testator or intestate, ’ ’ then service may be had on the County Court Clerk, in the event personal service cannot be had on the administrator or executor.

This statute is in derogation of the common law and must be strictly construed and strictly complied with. 50 C. J., 490, 491,. sec. 94.

Personal service of process was required by the common law and in equity. Grace and Anderson v. Hunt, 3 Tenn. (Cook), 341; Grewar v. Henderson, 1 Tenn. Ch., 76.

It is stated in the Restatement of the Law that, with one exception, “all creditors regardless of where they, are domiciled, can prove, their claims in any state in which administration proceedings have been instituted,” but, “if the claim arises out of transactions occurring after the decedent’s death and is therefore against the administrator in his personal capacity, it cannot be proved in the administration proceedings in another state.” Restatement of Law on Conflicts of Laws, see. 495.

A suit for a distributive share or legacy may be instituted in the county, probate, or chancery court of the county in which the administration was taken out, and is governed by section 8347 of the Code (Gibson’s Suits in Chancery (4 Ed.), sec. 177, subsec. 21), but in order for the court to have jurisdiction there must be personal service of process, or attachment and publication. Gibson’s Suits in Chancery (4 Ed.), sec. 60. This is a suit against the executor. Code, sec. 9396.

As previously stated, the jurisdiction of the court was sought through service on the County Court Clerk for the non-resident executor and by counterpart subpoena issued to Rutherford County and served on Mrs. Fox. Of course, if the executor was not a material defendant, and the court had no jurisdiction by service of process on the County Court Clerk, then it did not acquire jurisdiction by the service of the counterpart on Mrs. Fox. Code, sec. 8653; Yancey v. Marriott, Frisby & Co., 33 Tenn. (1 Sneed), 28; Gibson’s Suits in Chancery (4 Ed.), sec. 188.

However, it will be observed that the bill alleges that James F. Pinkerton conveyed a one-sixth interest in a house and lot in Cannon County of the value of about $1200 to Mrs. Fox as a part of the consideration for her caring for him, and this conveyance, as well as the contract conveying the bonds and personal property, was attacked in this bill. If he had owned any interest in the house and lot in Cannon County, then the filing of the bill in Cannon County would have been proper, and that court would have acquired jurisdiction.

“All bills filed in any court seeking to divest or clear the title to land, or to enforce the specific execution of contracts relating to realty, or to foreclose a mortgage or deed of trust by a sale of personal property or realty, shall be filed in the county in which the land, or a material part of it, lies, or in which the deed or mortgage is registered.” Code, see. 10388, subsee. (2); Gibson’s Suits in Chancery (4 Ed.), sec. 177.

And, of course, if the court had acquired jurisdiction of the suit to set aside a deed conveying an interest in land, it would have gone further and has acquired jurisdiction for all other purposes, such as setting aside the conveyance or transfer of the bonds and notes. Gibson’s Suits in Chancery (4 Ed.), secs. 36 and 38.

But, after an examination of the whole will of A. J. Jernigan, especially the paragraph above set out, we are of the opinion that this house and lot was devised to the executor and he was to take it at tbe death of tbe testator’s wife and sell it and distribute tbe proceeds among’ tbe six beirs. "We tbink it fairly inferable from tbe will that tbe testator intended that tbe widow, Mrs. Jernigan, should have tbe use of tbe income of tbis bouse and other property so long as sbe lived and at ber death tbe executor should take tbe property, including tbe bouse and lot, sell it, and divide tbe proceeds. Tbe bouse and lot in tbe village of Bradyville was worth only about $1200, and, of course, it was not susceptible of partition in kind among six beirs, so tbe only rational conclusion to be arrived at is that tbe testator intended that tbe executor sell tbe propery and distribute tbe proceeds.

Tbe authority of tbe executor to sell and convey land must come from tbe will, but it may, however, be given by necessary implication as well as by express language. So, where tbe testator requires such disposition of tbe property as manifestly cannot be made without a sale, tbe power of sale necessarily results and devolves upon the executor charged with tbe execution of tbe will. Sizer’s Pritchard on Wills and Executors, sec. 715.

‘ ‘ Tbe intention of tbe testator need not be declared in express terms in tbe will, but it is sufficient if tbe intention can be clearly inferred from particular provisions of tbe will, and from its general scope and import. Tbe courts will seize upon tbe slightest indications of that intention which can be found in tbe will to determine tbe real objects and subjects of tbe testator’s bounty.. Tbe inference as to tbe intent need not be irresistible or such as to exclude all doubts possible to be raised, but must, nevertheless, be such as to leave no hesitation in tbe mind of the court, and must not rest on mere conjecture. In discovering the intention of tbe testator by judicial construction, tbe courts should apply natural methods of finding and weighing evidence.” 28 R. C. L., 217, 218, sec. 176; McClure v. Keeling, 163 Tenn., 251, 255, 43 S. W. (2d), 383.

We do not tbink that tbis case is governed by tbe case of Alexander v. Wallace, 76 Tenn. (8 Lea), 569, as in that case tbe testator owned several hundred acres of land and be directed that bis executor divide tbis land among bis beirs, and there was no reason for tbe executor to sell tbe land to distribute tbe proceeds.

Now, having held that tbe executor was empowered to sell tbis bouse and lot, it results that, under tbe doctrine of equitable conversion, tbe legatees’ interest in tbe bouse and lot was personal property, and must be treated as such. Sizer’s Pritchard on Wills and Executors, sec. 457.

It results that both tbe contract and deed conveyed James F. Pinkerton’s personal property, and Code, sec. 10388, subsec. (2), does not apply, and tbe Chancery Court of Cannon County bad no jurisdiction.

' It was strenuously insisted that tbe executor Jernigan was not a material defendant, therefore the Chancery Court acquired no juris--diction of Mrs. Fox. "We think there is no doubt about his being a material defendant. Helm & Pickle v. Barnes, 69 Tenn. (1 Lea), 388; Gibson’s Suits in Chancery (4 Ed.), secs. 90, 91. But this question becomes immaterial.

This disposes of the case, and the suit will be dismissed, but as the case may be carried to the Supreme Court we will pass upon the assignment as to his sanity.

It results that all the assignments of errors are sustained, the decree of the Chancellor is reversed and the suit is dismissed on the first assignment of error.

The costs of the cause, including the costs of the appeal, are decreed against the complainant, J. F. Pinkerton.

Faw, P. J., and Felts, J., concur.  