Alexander v. Rhodes

Carney, P.J.

(dissenting).

I respectfully disagree with my learned colleagues. I think His Honor the Chancellor correctly held that the public policy announced in Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755, applies with equal force to the case at bar. In the Tate ease the son contended that the niece had by fraud and undue influence overreached the 81-year-old father and made herself principal beneficiary under the father’s will. The will of the father contained a condition that the son would forfeit his interest under the will if he contested it. The son did contest the will in violation of the condition but the case never went to trial because the niece, by compromise, gave up most of the benefits she had obtained under the will.

I understand our Tennessee Supreme Court in the Tate case to hold that the forfeiture provision was against public policy under the facts of the Tate case because the alleged perpetrator of the fraud upon the *466testator might have used the forfeiture provision as a means of discouraging investigation into her evil acts, namely the alleged fraud and undue influence of the niece. In the instant case the appellee, Harry James Alexander, is the only son of his deceased mother, Elizabeth Alexander Rhodes. Elizabeth Alexander Rhodes inherited considerable property from one J ohn J. Donnelly. Shortly thereafter the deceased, Charles T. Rhodes, an inspector of the Police Department of the City of Memphis, left his wife and five children and assumed a meretricious relationship with Elizabeth Alexander who was an alcoholic. Later he divorced his wife and married Elizabeth Alexander Rhodes in August, 1962.

Some witnesses said Mrs. Rhodes drank over a fifth of whisky per day and also used drugs. Elizabeth Rhodes signed a paper writing dated August 15,1963, purporting to be a will leaving all of her property to her new husband, Charles T. Rhodes, to the exclusion of her only son and natural heir, the appellee Harry Alexander. On August 30, 1963, just fifteen days after the execution of the alleged will, Elizabeth Alexander Rhodes executed a deed of conveyance creating tenancy by the entireties with her husband Rhodes on certain real estate which she had inherited under the will of John J. Donnelly and this deed was withheld from registration until after the death of Elizabeth Alexander Rhodes. There is no proof of any reason why Elizabeth Alexander Rhodes would have completely disinherited her only son.

On March 28, 1964, Elizabeth Alexander Rhodes died in a drunken stupor from carbon monoxide poisoning in a fire in the Rhodes home. There were many mysterious *467circumstances surrounding Mrs. Rhodes’ death. Inspector Rhodes left her at home at 1:00 A.M. unattended and returned at 3:30 A.M. to find her in bed with the mattress burning. Harry Alexander had reasonable grounds to and did believe that both the will and the deed had been obtained by the deceased, Charles T. Rhodes, from his mother, Elizabeth Rhodes, as a result of fraud and undue influence practiced upon her while in a state of continued drunkenness. One of Mrs. Rhodes’ bankers said the signature on the will was her “drunk” signature and that she also had a sober signature.

Harry Alexander instituted suit in the Chancery Court to set aside the deed and instituted proceedings in Circuit Court to contest the will of Elizabeth Rhodes. The money and property which Charles T. Rhodes devised or bequeathed to Harry James Alexander was the same money and property he received under the deed and will of Elizabeth Alexander Rhodes. Admittedly, under the Tate case if the forfeiture provision had been incorporated into the will of Elizabeth Rhodes, it would be held invalid because in contravention of public policy.

I see no material distinction in principle in the fact that the alleged evil doer, Charles T. Rhodes, attempted to shut the door on investigation of the circumstances of the execution of the will of Elizabeth Rhodes by a bequest with the forfeiture clause in his own will instead of a bequest with a forfeiture clause in the will of Elizabeth Rhodes. If Charles T. Rhodes had not been the alleged evil doer and alleged perpetrator of a fraud upon Elizabeth Rhodes in the execution of her will and if the prop*468erty and money by which. Inspector Rhodes sought to cnt off investigation into the execution of the will of Elizabeth Rhodes had not been property which Charles T. Rhodes received under the will of Elizabeth Rhodes, then I think the opinion of the majority would be correct.