Ball v. Cooter , 185 Tenn. 631 ( 1947 )

The original bill was filed by the Complainant as Executrix, against the Defendants as Legatees and Devisees under the will of Callie Dyer, who died a resident and citizen of Washington County, in November 1946. The bill alleges certain doubts as to the disposition of property and the execution of the will, as well as of the duties of the Complainant as Executrix thereunder. Complainant asserts that before the hearing "a certified copy of the will and of her letters testamentary" will be filed. After asking for the appointment of a receiver, the principal relief prayed is:

"(3) That at the hearing of this cause, an order be entered declaring and adjudging what property which the said decedent died seized and possessed of was included and passes under her said will, a well as the rights of the legatees named therein, and the duties of complainant with regard to a proper distribution of the assets of the estate which may come into her hands as the executor thereof.

"(4) That the Court may make all such other and further orders as may be necessary to protect, secure and enforce the rights and equities of all of the interested parties resulting from the execution of said will of the decedent; and complainant prays for all such other, further and different relief as she may be entitled to, and she prays for general relief."

From these prayers of the bill, it is clear that Complainant establishes a right to file the bill only in her capacity of executrix, and that the only relief sought was dependent on the validity of the will to dispose of the estate of Callie Dyer.

In the argument before us, it developed that there was now pending and undecided, a contest, devisavit vel non, in the Circuit Court to determine whether or not the instrument presented here for construction, was or was not the last will and testament of Callie Dyer. Evidently, with the law case intervening, the Complainant-Executrix could not file a certified copy of the will, nor a copy of her letters testamentary issued under authority thereof. No valid certification of the will or letters could be made until the decision of the law case. Yet, consideration of these documents was an indispensable basis for a decision by the Chancellor of the questions presented.

Since the interest of the Executrix is wholly dependent upon the establishment of the will, she has at present no interest that justifies her in filing the bill, nor is there "a present controversy" which the Court can finally settle by making the declaration sought. Code sec. 8835; cf. Sternberger v. Glenn,175 Tenn. 644, 137 S.W.2d 269; Commerce Union Bank v.Gillespie, 178 Tenn. 179, 191, 156 S.W.2d 425. The construction of the document is at present "not justiciable."United States Fidelity Guaranty Co. v. Askew, 183 Tenn. 209, 191 S.W.2d 533; Coleman v. Henry, 184 Tenn. 550,201 S.W.2d 686, 687. A judgment in the Circuit Court adverse to the will, would render any decree in this Chancery cause purely theoretical. The Court will make no declaration in such circumstances. McClung v. Elizabethton, 171 Tenn. 455,105 S.W.2d 95. The declaration must be a final determination of rights and will not be given in aid of another proceeding.Hodges v. Hamblen Co., 152 Tenn. 395, 277 S.W. 901;Nashville Trust Co. v. Dake, 162 Tenn. 356, 36 S.W.2d 905;Miller v. Miller, 149 Tenn. 463, 261 S.W. 965.

For these reasons, Courts in other states have expressly held that a declaration will not be made to construe a will "when another suit is pending on the same problem." Bouchard Declaratory Judgments, Ch. 10, Wills, p. 514; Stewart v. Herten, 127 Neb. 88, 249 N.W. 552;In re Dempsey's Estate, 288 Pa. 458, 137 A. 170, The case here is not now "ripe" for a declaration. In re Brown's Estate,289 Pa. 101, 137 A. 132.

The appeal was taken from a decree of the Chancellor sustaining a demurrer filed by some of the named Defendants or their representatives. We affirm the action of the Chancellor in sustaining the demurrer for the reasons heretofore stated in this opinion, and the cause is remanded to the Chancery Court for further proceedings consistent herewith. The Complainant will pay the cost of the appeal and the Chancellor may adjudge the costs below in his final decree.

All concur.