author: HENRY, Justice. HENRY, Justice.

text:
    Homer COLE et al., Petitioners, v. David W. DYCH et al., Respondents.
    Supreme Court of Tennessee.
    Feb. 17, 1976.

      Frank B. Bird, Bird, Navratil, Tate & Bird, Maryville, William R. Holt, Jr., Holt, Gilreath & Brooks, Sevierville, for petitioners.
    R. B. Hailey, Hailey, Water, Jarvis & Sykes, Gatlinburg, for City of Gatlinburg.
    William P. Newkirk, Donald F. Paine, Egerton, McAfee, Armistead, Davis & McCord, Knoxville, for respondents.
   OPINION

HENRY, Justice.

This suit in chancery, brought and sustained as a class action, seeks to preserve an easement of ingress and egress by the issuance of a mandatory injunction commanding respondents to restore it to its former condition. Involved is a roadway to the Gatlinburg Cemetery. The Chancellor found the issues in favor of petitioners and granted the injunction. The Court of Appeals concurred in the finding of the Chancellor that there had been a dedication by implication for cemetery purposes but reversed as to the injunctive relief.

We reverse the judgment of the Court of Appeals and sustain that of the Chancellor, with modifications.

I.

The Gatlinburg Cemetery, which has been in use for more than a century, is located in the center of downtown Gatlin-burg. It is deeply rooted in the history and tradition of that fabulous and fascinating resort area. There the “forefathers of the hamlet sleep” and this suit is prompted to a significant extent by sentiment. It represents an unfortunate collision between the expansion and development of an area whose growth has been phenomenal and the preservation of the last resting place of the mortal remains of the pioneers of the area and their progeny.

The respondents are the owners and operators of “The Village”, a most unique and delightful shopping center located on the Parkway, Gatlinburg’s main thoroughfare and generally in front of the cemetery. In process of adding additional units to The Village, respondents considered it necessary and desirable to excavate and level the rear of their property which is adjacent to the cemetery. In so doing they excavated to a considerable depth some seventy-five feet of the road leading to the cemetery, rendering it impassable and unusable. This suit ensued.

The origin of the roadway is sketchy. The record fairly establishes that the cemetery was in existence as early as 1865, long before anyone had any reason to believe that Gatlinburg would ever be more than a mere hamlet nestled in a picturesque valley in the Great Smoky Mountains. At this time and for many years thereafter, the property was used for general farming purposes.

The eastern boundary of respondent’s property, and other property contiguous thereto, is Baskin Creek Road. At its intersection with the Parkway (U. S. Highway 441) there has stood for many years a Baptist Church. The cemetery is on a hill located southwest of the church. It is apparent from the testimony of some of the “old-timers” that for many years there was no well-defined route from the church to the cemetery. Funeral processions, led in the old days by wagons or other horse-drawn vehicles, simply made their way across the open field by the most convenient route. Later commercial expansion apparently forced the roadway up the hill, and nearer the cemetery, and gradually it became better defined.

It was not, however, until around 1952, after R. L. Maples inherited the property from his mother, Cora L. Maples, and after what is known in the record as the “Stone House” was built, that the roadway took its present form. For a number of years prior to that the road had been in existence over a well-defined route. The construction of the “Stone House” necessitated a change of a portion of roadway. The road, in its present form, was constructed or improved by Maples and was subsequently graveled by Sevier County. Later the City of Gatlin-burg placed oil on it.

R. L. Maples, respondents’ predecessor in title, was fifty-seven years old at the time of his testimony. His father, mother, grandfather and other members of his family are buried there. He testified to a recollection of the road for fifty years, and said:

I considered the road was for the use of the people that were interested in using the cemetery for any purpose . I felt like the road had always been there and always would be. It did not dawn on me that there would ever be any question coming up about moving or closing the road or anything.

At all times the Baskin Creek Road entrance was blocked off by removable bars, or a gate, or a chain, or a spiked treadle. These obstructions served various purposes. In earlier times they served to contain grazing cattle. In more modern times Mr. Maples operated an amusement park, or a miniature train system, and still later he and/or respondents used a portion of the area as a parking lot to which admission was charged. It is further suggested in the record that these and other obstructions served to keep intruders and joyriders from entering in the night-time. Regardless of the reason it apparently was blocked off at all times and much of the time was locked.

On occasions when burials were conducted, the Church or its minister, or the janitor, or the funeral home, or some member of the family picked up the key as a matter of course. The proof shows conclusively that no one has ever been denied access to the roadway. There is a sharp dispute over whether those using cemetery for burials, decorations and other normal cemetery purposes, had to get permission or used the road as a matter of right. We regard this as being largely semantic and, in the view we take of the matter, of no consequence. The indisputable fact remains that the general public used the roadway as a matter of custom and practice and without let or hindrance.

This roadway is approximately ten feet wide — just wide enough for a single line of vehicular traffic. There is no vehicular entrance to the cemetery proper and the turnaround is on the property of an adjoining property owner. See infra. Respondents knew of the existence of this road before they purchased their property in 1965.

The Chancellor’s decree recites his finding of fact as follows:

1. The public has an easement for cemetery purposes only .
2. The public’s said right to use said road is declared to be for any and all reasonable cemetery purposes .
3. The defendants and their successors in interest may use the easement for any purpose so long as said use does not interfere with the use of the roadway by the public for cemetery purposes .
4. (Relates to relief)
5. The Court finds that there was an implied dedication of the road for public use for cemetery purposes.

The record fully supports the Chancellor in these findings and we concur therein.

The Chancellor, among other things, ordered and decreed that the respondents restore the roadway to its former condition and that they maintain and repair it after restoration.

The Court of Appeals concurred generally in the Chancellor’s findings of fact. It specifically affirmed “his finding of a dedication by implication for the public to use the roadway for cemetery purposes only.” That court, however, held that the equitable remedy of mandatory injunction was not available, reversed the Chancellor and dismissed the lawsuit. It is our disagreement with this latter conclusion that prompted this Court to grant certiorari and that now prompts us to reverse the Court of Appeals.

II.

We first address the issue of dedication. Distinguished counsel for the respective parties ably, earnestly and violently differ as to this issue. Notwithstanding the concurrence of the Court of Appeals with the conclusion of the Chancellor, we feel that this case is of sufficient importance to justify a full discussion of this issue, particularly in view of the sharp dispute among counsel.

As we narrow the issues, we point out that we are not dealing with a conventional public road and that the cases involving such roads are not necessarily controlling. A public road has generally been defined to be a way open to all people, without distinction, for passage and repassage at their pleasure. Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W. 412 (1918). This is not such a road.

Nor do we deal with a way of necessity or easement by implication. It is the policy of our law to restrict the doctrine of implied easements as they are not favored in the law. Such easements basically are founded on conveyances and are premised upon the presumption that they were within the contemplation of the parties, and must be supported by a unity of title. Line v. Miller, 43 Tenn.App. 349, 309 S.W.2d 376 (1957). As is more fully discussed hereinafter, it was the failure to recognize these principles that prompted the Court of Appeals to reach the ambivalent conclusion that petitioners had acquired a right-of-way by dedication but that respondents were not required to reopen and restore it.

There also lurks in this record the suggestion that petitioners and the general public have another access to the cemetery and, therefore, they have no right to the continued use of the one in controversy. Again, we do not deal with a way of necessity which terminates when the reason for the servitude no longer exists. McGiffin v. City of Gatlinburg, 195 Tenn. 396, 260 S.W.2d 152 (1953). Where an easement exists, its continuation is not dependent upon the necessity for its use. Cottrell v. Daniel, 30 Tenn.App. 339, 205 S.W.2d 973 (1947).

We are dealing with an easement acquired by dedication as found by the Chancellor and the Court of Appeals.

A bench mark in the law dealing with the dedication of easements is McKinney v. Duncan, 121 Tenn. 265, 118 S.W. 683 (1908) wherein Justice John K. Shields, subsequently Chief Justice and United States Senator from Tennessee declared:

. Dedication is the appropriation or gift by the owner of land, or an easement therein, for the use of the public. It may be express, where the appropriation is formally declared, or by implication arising by operation of law from the conduct of the owner and the facts and circumstances of the case. To establish it by implication, there must be proof of facts from which it positively and unequivocally appears that the owner intended to permanently part with his property and vest it in the public, and that there can be no other reasonable explanation of his conduct. In other words dedication is a question of intention, and the intent must be clearly and satisfactorily proven. 121 Tenn. at 271, 118 S.W. at 684.

Another case which has been cited down through the years is Johnson City v. Wolfe, 103 Tenn. 277, 52 S.W. 991 (1899), where Justice Beard quoted with approval from Elliott on R. & S. as follows:

The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. 103 Tenn. at 282, 52 S.W. at 992.

In Woolard v. Clymer, 35 S.W. 1086 (Tenn.Ch.App.1895) the Court held the law to be “well settled that, when a road runs across private property, and is used by the public as a common road, without interruption, for 50 years, the owner acquiescing in such use, the law will presume a dedication . for such purpose.” 35 S.W. at 1088.

These early cases have continuing validity. No formal document, deed or act is required to complete the dedication. The controlling criterion is the intention to dedicate and, while this must be unequivocal, it may be gleaned from the surrounding facts and circumstances. Among these circumstances is long use by the public or a portion thereof. Indeed, from long use, without objection of the owner, it may be inferred or presumed that such use and enjoyment had a legal origin. McCord v. Hays, 202 Tenn. 46, 302 S.W.2d 331 (1957).

In Doyle v. City of Chattanooga, 128 Tenn. 433, 161 S.W. 997 (1913) the Court held:

A user by the general public . may operate as an acceptance on its part, binding the dedicator by way of consummating the dedication, and placing it beyond revocation on his part. 128 Tenn. at 440, 161 S.W. at 998.

In the narration of facts, supra, it is pointed out that R. L. Maples fixed and established the road in its present route. This action on his part was tantamount to a rededication and, upon the acceptance and use by those going to and from the cemetery, the dedication became unqualified and complete and could not be withdrawn. See MeDavid v. McGuire, 526 S.W.2d 474 (Tenn. App.1973).

The fact that all owners of the subservient estate maintained gates or other forms of obstructions to prevent unauthorized entry does not alter the character of this roadway. The maintenance of gates is not necessarily inconsistent with the existence of an easement. Generally speaking, the owner of land subject to a right-of-way may maintain gates, if necessary to his use and enjoyment and where such obstructions do not unreasonably interfere with the use of the way. Ogle v. Trotter, 495 S.W.2d 338 (Tenn.App.1973); Luster v. Garner, 128 Tenn. 160, 159 S.W. 604 (1913). In Burkitt v. Battle, 59 S.W. 429 (Tenn.Ch.App.1900), the Court recognizes the right to dedicate with a reservation of the privilege of maintaining gates.

A substantial part of the respondents’ case is premised upon the permissive use of this roadway. Again, we are not dealing with a prescriptive right. It is not necessary that the use be hostile or adverse to the claim of the owner. Where permissive use defeats a claim based on adverse possession, it tends to establish dedication.

Finally, since we are not dealing with a prescriptive right, the time element is of secondary importance to the crucial element of intent. No particular period is controlling. Use for twenty years might be insufficient to establish dedication in one case and yet it might be established in another in one year. Dedication is not dependent upon the duration of use. Use for a long period of time is, however, a circumstance tending to show the fact of dedication. Scott v. The State, 33 Tenn. 629 (1854).

An excellent statement of the law in this regard is found in Johnson City v. Wolfe, supra:

No specific length of time is essential to constitute a valid dedication, all that is required is the assent of the owner of the soil to the public use and the actual enjoyment by the public for such a length of time that the public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment. (Emphasis added).

It is interesting to note that substantially the language italicized in this quotation appears in 23 Am.Jur.2d Dedication, Sec. 30, with cases from Pennsylvania, South Dakota and Texas (but not Tennessee) cited as authority. We think this Tennessee case is unquestionably the correct rule of law.

In Nicely v. Nicely, 33 Tenn.App. 589, 232 S.W.2d 421 (1949), the Court declared a dedication at the end of five years use, along with other circumstances, including road grading with public funds.

Finally, in Payton v. Richardson, 49 Tenn. App. 514, 356 S.W.2d 289 (1961), the Court, citing Johnson City v. Wolfe, supra, held:

The manner of its use is more material than the length of time the use has continued. 356 S.W.2d at 291.

We are convinced that under the totality of the proof, and when consideration is given to all the facts and circumstances, there was a clear and unequivocal dedication by respondents’ predecessors in title to the public use of this roadway for cemetery purposes, with the right implicitly reserved to maintain gates or other barriers which cause a minimum of inconvenience to the users, and that there has been a public acceptance for the limited purposes of the grant. That dedication may not be withdrawn or the use infringed by unilateral action on the part of the owner of the fee.

We, therefore, concur in the conclusion reached by the Chancellor and the Court of Appeals that there was a dedication.

III.

We part company with the Court of Appeals when we reach the point of considering the remedy for the redress of a wrong done to this recognized right.

As a prelude to its discussion of the remedy of a mandatory injunction, the Court of Appeals made an additional finding as follows:

As noted, the defendants are bounded on the west by Hattie Ogle McGiffin. The McGiffin property extends from U.S. 441 as its northern boundary to the cemetery as its southern boundary. The gate in the cemetery fence is on the McGiffin line. For approximately the past 30 years the owners of the McGiffin property allowed people to go to the cemetery by a route extending southwardly from Highway 441 up the hill to the cemetery and along the cemetery fence to the gate entering the cemetery. There was also a turnaround on the McGiffin property so vehicles could turn around and leave by the route by which they approached the cemetery. There developed over the years a well defined roadway and turnaround as result of the use made of this route to the cemetery. (Emphasis supplied)
There is also a pedestrian entrance to the cemetery from the south where concrete steps have been constructed.
The proof fairly establishes the approach to the cemetery could be over McGiffin from U.S. 441, turn around and leave over the same route, or continue on across the defendants’ land to Baskins Creek Road. Or, the approach could be from Baskins Creek Road across the defendants’ land, turn around on McGiffin and return, or continue across McGiffin to U.S. 441. There is evidence the public used any one of the methods of travel they chose. Regardless of how the public might have approached and left the cemetery, the record establishes there were two routes of ingress and egress, established at different times over different lands and independent of each other; one over the defendants’ land, and one over McGiffin. (Emphasis supplied).

Basically we concur in these findings. After this recitation the Court proceeds to detail the course of certain litigation over the McGiffin right-of-way, which culminated in “an agreement whereby she would restore the road.” As to this the Court said:

A final consent judgment was entered . wherein a right of way for ingress and egress to and from the cemetery over the land of McGiffin was decreed. This right of way is over the newly constructed black top road, 10 feet wide, from U.S. 441 southwardly to the cemetery line and eastwardly along the cemetery line to the boundary between the McGiffin property and Dych and Gerding. This road is the one built by Mrs. McGiffin under her agreement with the plaintiffs who sued her. The right of way was limited to 10 feet in width, and any turning outside of 10 foot width is to be by permission only, which permission may be withdrawn.
The decree is particular to recite that: Said roadway is expressly limited to said ten feet and no vehicular turning outside of said ten feet may be made except with the permission of the owners of the fee, and any such permitted usage outside of said ten feet shall be considered permissive only, and not a matter of right and the owners of the fee may withdraw any such granted permission at will. (Emphasis supplied)

The Chancellor ruled that all portions of the record in the McGiffin suit were inadmissible and refused to permit any testimony about it or the McGiffin right-of-way. In so doing, we think he was partially in error. The final decree should have been admitted as bearing upon the relief. The Court of Appeals so held and we agree.

The Court of Appeals held that “(t)he final consent order in Huskey v. McGiffin established in the public a definitive route of ingress and egress to and from the cemetery.”

We disagree with this conclusion. It confirmed to the public a definite right of ingress over a ten-foot right-of-way, with a permissive and precarious right to a turnaround. If Mrs. McGiffin or her heirs elect to exercise the right to deny the use of a turn-around, then all the public has left is the right to a one-way trip to the cemetery. Funeral processions perforce of necessity would then back their cars away from the cemetery, down the hill and into U.S. Highway 441, or the Parkway, the main street of Gatlinburg.

The Court of Appeals states, that “(neither the public nor the plaintiffs in behalf of the public has a right to demand multiple routes of access to the cemetery.” Assuming arguendo the correctness of this statement, it assumes a complete access which must encompass some means either of turning around or continuing.

Again, we do not deal with a way of necessity and the existence of other routes is material only to the relief. We would not decree the admittedly harsh remedy of mandatory injunction if the McGiffin right-of-way included a permanent turnaround, or if there were another reasonable and usable approach to the cemetery. Instead we would leave petitioners to their remedy at law for damages.

This Court is acutely aware of the rules governing the issuance of mandatory injunctions. Chancellor Gibson points out that they are never issued except when the injury is irreparable, but he also points out that equity will not suffer a wrong without a remedy.

Perhaps the leading recent Tennessee case dealing with mandatory injunctions is King v. Elrod, 196 Tenn. 378, 268 S.W.2d 103 (1953), wherein Justice Burnett, later Chief Justice of this Court, spoke for the Court, declining to issue a mandatory injunction to compel the restoration of a cemetery which had been completely obliterated or as Justice Burnett phrased it, “had been completely wiped from the face of the earth.”

In substance the Court correctly held that mandatory injunctions are not favored by the courts; that they will not be granted except in extreme cases, and when the injury complained of cannot be compensated in damages; that their issuance rests in the exercise of sound judicial discretion; that the Court must act in a careful and constructive manner and award them in clear cases where such relief is the only real remedy to prevent irreparable injury. The text of 47 Am.Jur.2d, Injunctions, Sec. 20, tracks King v. Elrod, supra, and cites it in five footnotes.

However, in spite of its harshness it is still a viable extraordinary process and our courts have not hesitated to use it. For example, in Jones v. Ross, 54 Tenn.App. 136, 388 S.W.2d 640 (1963), the Court of Appeals, speaking through Judge Carney, the Presiding Judge, upheld the action of a chancellor in ordering the removal of a brick fence. And in Collins v. Thomas, 495 S.W.2d 201 (Tenn.App.1973), the Court, speaking through Matherne, J. (the author of the opinion in the instant case), ordered the erection of a fence.

We hold that a mandatory injunction is the only available and viable remedy in this action. To say that petitioners have a right-of-way, but respondents could dig it up with impunity, and cannot be required to restore it, gives petitioners the fruits of a hollow victory and is a triumph of shadow over substance.

Let the mandatory injunction issue.

IV.

This Court expressly approves all findings made in the judgment of the Chancellor, and of the mandate thereof, with the exception of so much of paragraph b. as places the duty of maintenance upon respondents and so much of paragraph c. as gives the respondents the right to relocate the right-of-way.

We think it unjust to place the burden of maintenance upon respondents. This burden is cast upon the City of Gatlinburg.

Giving respondents the right to relocate this roadway is potentially productive of further litigation. On remand — by agreement of the parties if possible, by order of the Chancellor if necessary — the precise route of the roadway will be fixed and determined by survey; a plat will be made accompanied by a metes and bounds description and lodged in the office of the Clerk & Master at Sevierville, with a certified copy placed on record in ROSCT. Any roadway so surveyed shall connect with the Hattie Ogle McGiffin right-of-way. Petitioners will pay the costs incident to the survey and the recording of the plat.

As an alternative, the respondents may procure, and deed to Trustees for the use and benefit of the cemetery, a substitute right-of-way, providing ingress and egress. This alternative procedure may only be followed with the prior approval of the Chancellor and under such criteria, consistent with this opinion, as he may establish. Any such substitute right-of-way will be surveyed, platted, filed and recorded as herein-above provided.

The decree of the Chancellor is modified and affirmed; that of the Court of Appeals reversed.

PONES, C. J., and COOPER, HARBI-SON and BROCK, JJ., concur.

OPINION ON PETITION TO REHEAR

HENRY, Justice.

Counsel for respondents have filed a dignified, courteous, forceful and persuasive petition to rehear.

It does not however raise any question that has not heretofore been fully considered by the Court.

It is in the nature of the appellate judicial process that the issues are generally arguable from the vantage point of either side to any given case or controversy; that the facts are susceptible of differing interpretations; and that it is a rare case indeed wherein the Court can say to a mathematical certainty that either party is entirely correct. Under the rules governing appellate review, such certainty is not required. Indeed, an appeal where either the law or the facts are not susceptible of a bon a fide dispute tends to be frivolous in nature, and most assuredly this appeal presented a bona fide and justiciable controversy. This Court has reached a decision upon the matter after thorough and painstaking attention and consideration. It has reconsidered in the light of the petition to rehear, and upon that reconsideration, feels that it must adhere to the original opinion.

The petition to rehear is respectfully overruled.

All concur.

      . The attorney’s certificate of title on the interim title insurance under “other liens, objections, and defects” makes specific reference to this “road to the graveyard through subject property.”

      . For an interesting and enlightening discussion of the various criteria which the Tennessee Courts have used in determining the status of a road, see Judge Miller’s opinion in Outlaw v. Louisville and Nashville Railroad Company, 448 F.2d 1284 (6 Cir.1971).

      . A finding of an intention to dedicate is a finding of fact. Guinn v. Eaves, 117 Tenn. 524, 101 S.W. 1154 (1906). Thus there is a concurrent finding which is virtually conclusive upon this Court.

      . The cemetery itself contains no space in the vicinity of either right-of-way for a turnaround.

      . The City of Gatlinburg intervened in this suit and counsel for the city, at the bar of this Court, tendered the city’s offer to maintain.


source: Caselaw Access Project

author: FONES, Chief Justice.

license: Public Domain

text:
    LAKE HIWASSEE DEVELOPMENT COMPANY, INC., Petitioner, v. PIONEER BANK, Respondent.
    Supreme Court of Tennessee.
    March 8, 1976.

      Harry Weill, Weill, Ellis, Weems & Copeland, Chattanooga, for petitioner.
    Eugene N. Collins, Chattanooga, for respondent.
   OPINION

FONES, Chief Justice.

The single issue presented in this case is whether the purchase of notes at a discount beyond the legal rate of interest, and guaranteed at face value by the indorser, constitutes a “loan” rather than a “sale” so as to bring the transaction within the operation of our usury statutes.

Petitioner, Lake Hiwassee Development Company, Inc. a Tennessee Corporation, was engaged in the sale of lots in a development adjacent to Lake Hiwassee, North Carolina. Petitioner sold lots in the development taking a small downpayment, and the balance of the purchase price was evidenced by promissory notes secured by deeds of trust.

In 1962, Lake Hiwassee and respondent, Pioneer Bank, entered into an agreement whereby Pioneer Bank would purchase, at its discretion, promissory notes at a discount offered to it by Lake Hiwassee who would transfer title to Pioneer Bank by endorsement. Pioneer Bank had the right of full recourse against Lake Hiwassee should the maker of the note (purchaser of real estate) default. Additionally, a reserve fund agreement executed between Lake Hi-wassee and Pioneer Bank gave Pioneer Bank the right to withhold up to thirty (30%) percent of the face amount of the note. This reserve fund was held as security against Lake Hiwassee’s contingent liability on its endorsement.

The amount of money that Lake Hiwas-see received depended upon the length of the note (many of the notes were for a period of three (3) to five (5) years). If a note was payable over a period of five (5) years, the number of years would be multiplied by six (6%) percent, or a discount of thirty (30%) percent. Pioneer Bank would subtract the discount from the face of the note, along with the reserve, and the remainder would go to Lake Hiwassee in cash. Lake Hiwassee was entitled to the amount in this fund which exceeded thirty (30%) percent of the total of the unpaid notes, and would eventually receive all of it, or have it applied to reduce its liability as endorser on the notes. The reserve fund was also to secure loans made by Lake Hiwassee, Stainless Steel Metal Products, Inc., and Hiwassee Resort Village, Inc., which loans are not in dispute in this lawsuit.

The bank had complete ownership of the notes and could re-discount them if it wished. Upon acquiring title to the notes Pioneer Bank notified the makers and proceeded with the collection of the payments due. The record indicates that some of the makers defaulted and those notes were resold to Lake Hiwassee by debits to the reserve account.

It should be noted that Lake Hiwassee did not bring this suit to avoid the repayment of excess interest as compensation for the use of money. The theory of the bill is that Pioneer Bank has collected from the makers of the notes sums in excess of the amount paid Lake Hiwassee or, as alleged by it, the amount of money advanced. In short, Lake Hiwassee seeks to recover the profit the bank has made as a result of the transactions between the parties.

The Chancellor found that the sale of the instruments to Pioneer Bank did not constitute a subterfuge to avoid the usury statutes of this state, and that the transactions constituted valid sales of commercial paper.

The Court of Appeals affirmed, holding that absent a finding that the transaction was actually a loan in an attempt to exact usurious interest, a transfer of a negotiable instrument with recourse does not convert an otherwise valid sale into a loan; thus, the usury statutes are inapplicable.

The general rule is stated in 45 Am. Jur.2d Interest and Usury § 146 at 122:

“It is a general rule that the sale or purchase of negotiable or assignable commercial paper or other chose in action or evidence of indebtedness transferable in trade and business transactions, for a valuable or legal consideration after its first negotiation, is not usurious although the price or other consideration determined upon is less than the nominal or face value of the instrument purchased. The courts, however, always look beyond the form of the transaction and to its substance, when it is challenged as usurious, and even though it is in the form of a sale at a discount or a sale in the nature thereof of commercial paper or other choses in action, if it is in substance and purpose a loan in excess of the legal rate of interest it will be condemned as usurious.”

Petitioner argues that by endorsing the notes with recourse it became liable to the bank for repayment, and the money the bank advanced petitioner for the notes constituted a loan. To constitute usury there must be a requirement that the money loaned be repayable absolutely. If it is payable only upon some contingency, the transaction is not usurious. The basic definition of “loan” is an advance of money with an absolute promise to repay. Lake Hiwassee was not required to pay anything unless the maker of a note sold to Pioneer Bank failed to pay. It is well established that the courts of this State will disregard the form of the transaction and look to the substance of the dealings between the parties. Mallory v. Columbia Mortgage & Trust Co., 150 Tenn. 219, 263 S.W. 68 (1923).

Petitioner relies upon Campbell v. Read & Gray, 8 Tenn. 392 (1828) for the proposition that when a transfer of a note is made with recourse at a greater than legal rate of discount, the transaction is in reality a loan. The Court in that case, however, was upholding a factual determination by the jury that the transaction actually amounted to a loan. There an underlying debt owed by the endorser to the endorsee was the reason the note in question was discounted. Later cases have looked to the substance of the transaction and distinguished between a note which at its inception constituted a real transaction and a note made for the purpose of raising money by sale in the market. Holeman v. Hobson, 27 Tenn. 127 (1847). As this Court stated in Wetmore v. Brien & Bradley, 40 Tenn. 723 (1859):

“The purchase must be actual, and made in good faith, and not merely colorable, to cover a usurious transaction. A note made in the course of a real business transaction, for which the original party has given a valuable consideration, is regarded as property; and, like other property, the owner may sell it for the most he can get, and whatever profit the purchaser may make on his purchase, there is certainly nothing usurious in it. The owner may be induced, by doubts as to the solvency of the maker, or by the pressure of his necessities, to sell the note for less than its face, or less than its market value, and, in the absence of all fraud, this will not affect the validity of the transaction, or impart to it the character of usury. But if the note were made for the purpose of being sold, to raise money, or as an artifice to evade the usury laws, under the color of a sale and purchase of the paper, this will not avail . . . .” 40 Tenn. at 727.

We agree with the following statement of the Court in Coast Finance Corporation v. Ira F. Powers Furniture Company, 105 Or. 339, 209 P. 614 (1922):

“It is a general rule that, after a negotiable instrument has once been validly negotiated by transfer for a valuable consideration it becomes an article of commerce and can be bought and sold as freely as any other property, the rate of discount being governed by the market value of such instrument, and upon principle and authority the owner of such property has a perfect right to name the price for which he is willing to sell and to refuse to accede to any other. The sale and assignment of such choses in action are not within the letter or spirit of the usury law.” 209 P. at 615.

Thus, our courts look to the purpose for which the note was originally made. If executed and delivered in the course of a valid business transaction, it is not considered a loan; but if it is made for the purpose of raising money, then the form will be disregarded and it will be treated as a loan. Smith v. Price, 49 Tenn. 293 (1870); Cantrell v. Ford, 46 S.W. 581 (Tenn.Ch.App. 1898). For cases in other jurisdictions, see 165 A.L.R. 626 at 684.

Our commercial law shows that endorsement with recourse is standard procedure in this state and others that have adopted the Uniform Commercial Code:

“Unless otherwise agreed any transfer for value of an instrument not then payable to bearer gives the transferee the specifically enforceable right to have the unqualified indorsement of the transfer- or.” T.C.A. § 47-3-201(3).

T.C.A. § 47-3-414 provides:

“Unless the indorsement otherwise specifies (as by such words as ‘without recourse’) every indorser engages that upon dishonor and any necessary notice of dishonor and protest he will pay the instrument according to its tenor at the time of his indorsement to the holder or to any subsequent indorser who takes it up, even though the indorser who takes it up was not obligated to do so.”

The presence of a reserve fund is not determinative of the question of whether the transaction constituted a loan or sale. Lake Hiwassee, at the time of the initial negotiations, was a corporation with zero assets. The establishment of a reserve fund was a valid method whereby the bank insured that it would receive payment on the notes endorsed by Lake Hiwassee, and is not sufficient to convert an otherwise valid sale into a loan. See Jenkins v. Dugger, 96 F.2d 727 (6th Cir.1938).

We hold that, based upon the undisputed facts and the documentary evidence, the transactions were bona fide sales of commercial paper, not loans. Interest is compensation for the use of money which may be demanded by the lender from the borrower, and usury is interest in excess of the lawful rate. T.C.A. §§ 47-14-103, 47-14-104. A loan involving compensation for the use of money must be found to exist as a prerequisite to a finding of usury.

The Chancellor and the Court of Appeals have found that, in substance and in purpose, the transactions between the parties to this litigation were sales of commercial paper and not loans, and that Lake Hiwas-see failed to carry the burden of proof establishing a violation of the usury statutes of this state. Such a concurrent finding of fact, and the inferences reasonably to be drawn therefrom, are conclusive upon this Court if there is any material evidence in support thereof. T.C.A. § 27-113. Hoover Motor Exp. Co. v. Clements Paper Co., 193 Tenn. 6, 241 S.W.2d 851 (1951). The evidence abundantly supports that finding.

The decree of the Chancery Court of Hamilton County is affirmed. The costs are adjudged against petitioners.

HENRY and HARBISON, JJ., concur.

HYDER, Special Justice, concurs.

BROCK, J., not participating.

      . 45 Am.Jur.2d Interest and Usury § 156.


author: HARBISON, Justice.

text:
    Alan D. HILL, b/n/f Ronald G. Hill, and Ronald G. Hill, Individually, Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    Supreme Court of Tennessee.
    March 15, 1976.

      James A. Ridley, III, Knoxville (Kramer, Johnson, Rayson, Greenwood & McVeigh, Knoxville, of counsel), for appellants.
    Jerry A. Farmer, Knoxville (Poore, Cox, Baker, McAuley, Ray & Byrne, Knoxville, of counsel), for appellee.
   OPINION

HARBISON, Justice.

This case involves the validity of an exclusion in the uninsured motorist provisions of an automobile insurance policy. The trial court upheld the exclusion against a contention that it conflicts with the uninsured motorist statutes of the state.

The facts of the case are stipulated. The suit arises out of an accident which occurred on September 5,1973, when a motorcycle driven by appellant Alan D. Hill collided with an automobile owned by Mary E. Troutt and operated by her husband, Edgar L. Troutt.

At the time of the accident Alan D. Hill was a minor, fifteen years of age. The motorcycle which he was operating was titled in the name of his older brother, Randell G. Hill. The two brothers lived in the home of their parents, Mr. and Mrs. Ronald G. Hill.

Appellants Alan D. Hill and his father sued Mr. and Mrs. Troutt and recovered a judgment against them, which is outstanding and unpaid.

Mr. and Mrs. Troutt had no liability insurance on their automobile. The appellants are claiming coverage under a liability policy issued to appellant Ronald G. Hill on his family automobiles, up to the policy limit of ten thousand dollars.

On the date of the accident, Mr. Hill held a liability insurance policy issued by appel-lee covering two scheduled automobiles. This policy contained uninsured motorist coverage as required by the Tennessee statutes, T.C.A. §§ 56-1148 et seq. This coverage, referred to in the policy as “Family Protection Coverage”, extends to the named insured, Mr. Hill, and, while residing in the same household, his spouse and relatives. His younger son, Alan, therefore, was within the general coverage of the family automobile policy, subject to its terms and conditions.

Under the stipulated facts, the motorcycle which Alan was operating was not listed upon or covered with liability insurance under the policy issued by appellee. It was titled in the name of Alan’s older brother, but was actually scheduled upon and covered by a separate liability insurance policy, issued to Mr. Hill by another company. The stipulation shows that Mr. Hill had expressly rejected uninsured motorist insurance coverage in connection with the policy covering the motorcycle. There seems to be little question but that Alan D. Hill was covered with liability insurance while operating his brother’s motorcycle, under this separate policy, but there was no uninsured motorist protection provided to anyone under that policy.

Contained in the uninsured motorist provisions of the family automobile policy are four exclusions from coverage, only one of which is pertinent here. The exclusion relied upon by appellee in the present case is as follows:

“This endorsement does not apply: . (b) to bodily injury to an Insured while occupying a land motor vehicle (other than an insured land motor vehicle) owned by a Named Insured or any relative resident in the same household . .

It is conceded that the motorcycle being operated by Alan D. Hill was a “land motor vehicle” within the meaning of the exclusion. It was admittedly owned by a relative residing in the same household. The exclusion, therefore, is clearly applicable, precluding coverage under the stipulated facts, if it complies with the state law.

The sole attack made upon the exclusion by appellants is that it contravenes the provisions of T.C.A. § 56-1148, and is not authorized by any other provision of state law, so that it is, in effect, illegal and contrary to the public policy of the state as contained in the uninsured motorist statutes.

At all times pertinent here, T.C.A. § 56-1148 provided that no automobile liability insurance policy should be issued in the state, covering any motor vehicle registered or principally garaged in the state, unless prescribed uninsured motorist coverage was provided therein, or unless “any insured named in the policy shall reject the coverage . . . .” The statute prescribes minimum limits for such coverage and requires that it be provided:

“. . . subject to provisions filed with and approved by the insurance commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. . ..”

Alan D. Hill was a person insured under the automobile policy issued to his father. Therefore, the statute mandates that uninsured motorist coverage be extended to him also, but “subject to provisions filed with and approved by the insurance commissioner . . .”

It is stipulated by the parties that the policy of insurance issued by appellee to Mr. Hill “was approved by and is on file with the Tennessee Commissioner of Insurance.” The exclusion in question, therefore, according to this stipulation, has official approval in the state.

Nevertheless, it is contended on behalf of appellants that such official approval is not determinative. It is insisted that the purported exclusion denies coverage to one who is otherwise covered, simply because he is occupying a vehicle owned by the named insured or a member of his family, but not scheduled on or covered by the underlying liability insurance policy.

Appellants insist that a person protected by the uninsured motorist endorsement is covered under most circumstances if injured by an uninsured motorist, and that the exclusion operates to produce arbitrary and illogical results. If the insured person is riding in a vehicle covered by the liability policy, and is struck by an uninsured motorist, he is usually covered; similarly, if he is a pedestrian on a sidewalk or street, and is struck by an uninsured motorist, he is covered. Coverage is denied, however, if he is riding in another family vehicle not carried on the family liability insurance policy. It is insisted that such a result is contrary to the legislative purpose and intention, and to the underlying public policy of providing protection against injuries by uninsured motorists.

The issue presented has been the subject of a very large number of cases in the United States, and there is a substantial split of authority among the courts with respect to the validity of an exclusion such as that involved here.

On behalf of the insurance industry, it is argued that if the exclusion is stricken, then complete unrestricted coverage is provided to all members of the insured’s family, while riding in an unscheduled family vehicle, although no premium was charged for such unscheduled vehicle and the vehicle itself is not covered by the liability insurance features of the policy. This position has been accepted by a number of courts, and in a very recent case, sustaining an exclusion similar to that involved here, the Arizona Court of Appeals, referring to earlier cases from that state, said:

“We reasoned that to hold otherwise would allow an insured to purchase one liability policy with uninsured motorist coverage and thereafter have such coverage extended to cover himself and occupants while driving any number of vehicles owned by him without paying any additional premium for this added coverage and risk.” Rodriquez v. Maryland Indemnity Insurance Company, 24 Ariz. App. 392, 539 P.2d 196, 198 (1975).

Authorities accepting the rationale of the case just cited point out that vehicular liability insurance is ordinarily written upon and follows particular scheduled vehicles. It is not written upon named individuals, and is not like general health or accident insurance coverage. The liability policy covers a scheduled vehicle, and extends its protection, through omnibus clauses, not only to the named insured but to members of his family and other persons using the vehicle with permission, subject to prescribed conditions and exclusions.

Other authorities, holding that exclusions such as that involyed in the present case are not valid, have reasoned that uninsured motorist coverage should be analogized to broad personal insurance, and that it should not be geared to or limited by coverage on particular scheduled vehicles. They emphasize that the statutes speak in terms of “protection of persons” rather than vehicles.

Both lines of authority are supported by cogent reasons. By statute, uninsured motorist insurance coverage is appended to or made supplemental to vehicular liability insurance, so that the concepts of vehicular coverage do have relevance; on the other hand, the statutes refer to the protection of persons, not vehicles.

Faced with these somewhat mixed concepts, the courts have had to construe statutory language in an attempt to carry out legislative policy. Each case, in the last analysis, turns upon the terms and provisions of a particular state statute and its language with respect to uninsured motorist coverage.

The Tennessee statutes on uninsured motorist insurance have been the subject of a number of reported cases. In addition to the general provisions of T.C.A. § 56-1148, prescribing uninsured motorist coverage, T.C.A. § 56-1152, at all times pertinent here, provided that none of the other statutory provisions on the subject should be construed as requiring insurance companies to afford limits in excess of those which “would be afforded had the insured thereunder been involved in an accident with a motorist who was insured under a policy of liability insurance with the minimum limits described in § 59-1206.”

T.C.A. § 56-1152 further provides:

“Such forms of coverage may include such terms, exclusions, limitations, conditions, and offsets, which are designed to avoid duplication of insurance and other benefits.”

The uninsured motorist statutes of most states do not contain provisions similar to those contained in T.C.A. § 56-1152. In previous cases, this Court has noted the difference in statutory provisions, and has construed T.C.A. § 56-1152 as denoting “a legislative purpose to provide less than broad coverage.” Terry v. Aetna Casualty and Surety Company, 510 S.W.2d 509, 513 (Tenn.1974). In the latter case, the Court sustained a policy provision providing an offset against the uninsured motorist coverage for any amount recovered under workmen’s compensation.

In the recent case of State Automobile Mutual Insurance Company v. Cummings, 519 S.W.2d 773 (Tenn.1975), this Court again gave effect to T.C.A. § 56-1152 stating:

“While we do not applaud either the draftsmanship or the existence of T.C.A. § 56-1152, we must give it the effect that its reasonable construction demands. The Legislature has stated that nothing in the Uninsured Motorist statutes is to be construed as requiring coverage beyond the sum of $10,000, either alone or in combination with similar coverage, and has expressly authorized all policies to contain provisions to avoid duplications of insurance and other benefits.” 519 S.W.2d at 775.

In the case of Smith v. Allstate Insurance Company, 224 Tenn. 423, 456 S.W.2d 654 (1970), the Court sustained an exclusion in a policy provision requiring “physical contact” between an insured vehicle and an uninsured vehicle before uninsured motorist protection was applicable.

It was insisted that such a limitation on coverage was not valid under the Tennessee statutes. The Court held otherwise, citing cases from a number of jurisdictions, and also emphasizing that the Insurance Commissioner had approved the “physical contact” requirement.

The Court noted, in that opinion, that approval by the Commissioner “will not render policy endorsements invulnerable if they are violative of existing law.” The Court found no conflict, however, between the statutes and the policy provision. It found that the limitation on coverage was reasonable, designed to protect the insurer from spurious claims. The provision was upheld although the Court recognized that in some cases “our ruling will work a hardship and likewise seem inequitable

In the case of Holt v. State Farm Mutual Automobile Insurance Co., 486 S.W.2d 734 (Tenn.1972), the Court upheld an exclusion in a liability insurance policy, denying coverage to members of the family or household of the insured. It also denied recovery under uninsured motorist coverage to a family member. As to the son’s claim against the insurance carrier on an automobile owned by his mother which was not involved in the collision, the Court simply said:

“Certainly Jimmy cannot recover on the policy covering the automobile which was not involved in the accident.” 486 S.W.2d at 736.

As to the automobile which was in the accident, the family exclusion was held valid, as was the definition of “uninsured motor vehicle”.

In the Holt case the Court concluded that uninsured motorist coverage is closely related to the underlying liability insurance coverage to which it is appended. The exclusion of family members from the liability coverage effectively excluded them from uninsured motorist coverage under the facts of that case. The Court said:

“Considering the Act as a whole, it would be a strained construction of the Act to say it requires an ‘uninsured motor vehicle’ be defined as to include uninsured motorist coverage for a person specifically excluded from liability coverage by the terms of the policy.” 486 S.W.2d at 737.

The foregoing cases make it clear that the Court has given force and effect to the provisions of T.C.A. § 56-1152, the statutory authorization for exclusions from uninsured motorist coverage such as that involved here. The Court has also considered approval by the Insurance Commissioner to be a factor, although not conclusive, in determining the validity of policy provisions.

We do not attach controlling significance to the fact that the named insured in the present case, Mr. Hill, specifically rejected uninsured motorist coverage on his son’s motorcycle. It is apparent, however, that had such coverage been purchased, it would have covered his son Alan, since it would have been appended to the liability policy on which the motorcycle was scheduled. In that event, one of the reasons for the exclusion now under consideration becomes apparent; the family automobile policy exclusion would then have operated according to its terms so as to prevent a “duplication of insurance” as authorized by T.C.A. § 56-1152.

Under all of the circumstances, therefore, we are unable to say that the policy provision in question was not “designed” to avoid such duplication, or that it so conflicts with the underlying purpose of the uninsured motorist statutes, as construed in this state, that it must be deemed illegal and void.

We recognize that there is no duplication in the present case, because of the absence of uninsured motorist coverage on the motorcycle. Further, as recognized in the Smith case, supra, application of the exclusion results in there being no coverage at all under these particular circumstances. The statute does not speak in absolute terms, however, but authorizes the Commissioner to approve policy provisions and exclusions which “are designed to avoid duplication of insurance and other benefits.” We cannot say that the present policy exclusion violates this statutory provision.

It accordingly results that the judgment of the trial court is affirmed at the cost of appellants.

FONES, C. J., BROCK and HENRY, JJ., and HYDER, Special Justice, concur.

      . The liability coverage of the policy protected the named insured and residents of his household while operating the two automobiles scheduled on the policy. As previously stated, this policy did not provide liability coverage to anyone in the family while operating the motorcycle.

      . But see Holt v. State Farm Mut. Automobile Ins. Co., 486 S.W.2d 734 (Tenn. 1972), discussed later in this opinion, disallowing recovery if the injured person is excluded from the coverage of the underlying liability policy.

      . For other cases sustaining an exclusion similar to that in the present case, see Holcomb v. Farmers Insurance Exchange, 254 Ark. 514, 495 S.W.2d 155 (1973); Nunley v. Turner, 57 Mich.App. 473, 226 N.W.2d 528 (1975); Shipley v. Am. Standard Ins. Co. of Wisconsin, 183 Neb. 109, 158 N.W.2d 238 (1968).

      . The cases striking the exclusion usually turn upon definitions and terms used in the particular statutory provisions under consideration. Illustrative of the cases voiding an exclusion similar to that involved in the present case are State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974); Elledge v. Warren, 263 So.2d 912 (La.App.1972); Doxtater v. State Farm Mut. Automobile Ins. Co., 8 Ill. App.3d 547, 290 N.E.2d 284 (1972); Lowery v. State Farm Mut. Automobile Ins. Co., 285 So.2d 767 (Miss.1974).

      .T.C.A. § 59-1206 is part of the State Financial Responsibility Law.

      . See discussion of the Holt case and many other cases on the subject in Note, 23 Drake L.Rev. 850 (1974), at pp. 856 et seq. The case was cited and followed in Miles v. State Farm Mutual Ins. Co., 519 S.W.2d 378 (Mo.App. 1975); Kay v. Kay, 30 Utah 2d 94, 513 P.2d 1372 (1973). Its rationale was rejected in Rod-man v. State Farm Mut. Automobile Ins. Co., 208 N.W.2d 903 (Iowa, 1973).


author: COOPER, Justice.

text:
    Wilburn Lee BURKETT, Appellant, v. Honorable R. A. ASHLEY, Jr., Attorney General of Tennessee and Wanda Daugherty Burkett, Appellees.
    Supreme Court of Tennessee.
    March 22, 1976.

      J. Victor Barr, Jr., James V. Barr, III, Nashville, for appellant.
    William C. Koch, Jr., Asst. Atty. Gen., Nashville, for appellees.
   COOPER, Justice.

OPINION

This is an appeal from a decree of the Chancery Court of Davidson County dismissing an action for declaratory judgment.

Appellant, Wilburn Lee Burkett, filed an action against his former wife, Wanda Daugherty Burkett, and the Attorney General of the State of Tennessee seeking a declaration that the alimony statutes in effect in this state discriminate against husbands as a class and, consequently, are unconstitutional. The complaint filed contains statements to the effect that appellant was divorced by his wife and was ordered to pay alimony to her by decree entered in the Circuit Court of Davidson County on June 24, 1970. Subsequently on July 5, 1975, the circuit court denied appellant’s petition for a decrease in the amount of the alimony payments. There is no allegation that appellant requested alimony be awarded him in the divorce action, or that appellant had been refused alimony as the result of the operation of Tennessee’s alimony statutes.

The attorney general moved to dismiss the action on several grounds, the material one being lack of standing of appellant to bring the action. The chancellor sustained the motion and entered a decree dismissing appellant’s complaint.

The declaratory judgment act provides in T.C.A. 23-1103 that:

“Any person . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction and obtain a declaration of rights, status or other legal relations thereunder.”

In order to invoke action by a court under the declaratory judgment act, the person seeking a declaratory judgment must allege facts which show he has a real, as contrasted with a theoretical, interest in the question to be decided and that he is seeking to vindicate an existing right under presently existing facts. See generally West v. Carr, 212 Tenn. 367, 370 S.W.2d 469 (1963), appeal dismissed 378 U.S. 557, 84 S.Ct. 1908, 12 L.Ed.2d 1034 (1964); Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949). Appellant failed to do this. As heretofore noted there is no allegation in the complaint that appellant requested alimony be awarded him in the divorce action or that he was denied alimony under circumstances which would have entitled him to alimony if he were a member of the opposite sex.

Further, having granted the decree of divorce and made the initial award of alimony to Mrs. Burkett, the Circuit Court of Davidson County retains jurisdiction of the action and has the present power to modify the alimony award or to order its cessation on application of either party, on a showing of a material change in circumstances having a bearing on the alimony issue. T.C.A. 36-820. According to his complaint, appellant sought relief from the alimony award from the circuit court and, having failed, now seeks to avoid the judgment by filing an independent suit asking for a declaration that the alimony statutes of this state are unconstitutional. Such relief is not available to the appellant. A declaration of rights under the declaratory judgment act must be a final determination of rights and a declaration will not be given in aid of another proceeding then pending. See Johnson City v. Caplan, 194 Tenn. 496, 253 S.W.2d 725 (1952); Ball v. Cooter, 185 Tenn. 631, 207 S.W.2d 340 (1948).

Decree affirmed. Costs are adjudged against the appellant and his surety.

FONES, C. J., and HENRY, BROCK and HARBISON, JJ., concur.


text:
    Patricia Elaine HARVEY, Petitioner, v. Jerry BIRCHFIELD, Respondent.
    Supreme Court of Tennessee.
    March 29, 1976.
    Charles B. Dungan, Jr., Meares & Dun-gan, Maryville, for petitioner.
    D. K. Thomas, Maryville, for respondent.
   OPINION

FONES, Chief Justice.

This case arises under the uninsured motorist provision of T.C.A. § 56-1153. The issue presented is whether an insurer served with process pursuant to said code section is required to raise the defense of lack of insurance coverage in the tort action and upon failure to do so is bound by the judgment, or whether the plaintiff can only obtain judgment against the uninsured motorist in the tort action and must bring a second lawsuit against the insurer wherein the insured is permitted to litigate the issue of coverage.

We hold that the insurer must raise the defense of absence of coverage under the insurance policy in the tort action or be estopped from later relying on it as a defense.

On November 13, 1972, Patricia Harvey was riding as a passenger in her automobile being driven by one Larry Wilson. The Harvey automobile was struck by an automobile driven by Jerry Birchfield, an uninsured motorist.

Petitioner filed suit against Jerry Birch-field on December 20, 1972, for damages arising out of that collision, and pursuant to T.C.A. § 56-1153, caused a summons to be issued against respondent, State Farm Mutual Insurance Company, as the uninsured motorist carrier.

Neither Birchfield nor respondent filed an answer within the thirty (30) days after service of summons, and a default judgment was entered against both parties on February 13, 1973. Respondent’s claim superintendent did notify petitioner’s attorney by letter dated January 23, 1973, that respondent would not defend petitioner’s claim against Birchfield: “It is our position that the uninsured motorist coverage carried by our named insured, Truman Wilson, under which is son, Larry Wilson, would have protection, would not provide any benefits to Patricia Harvey under the uninsured motorist provisions.”

On May 7, 1973, the trial court, sitting without a jury, found damages for plaintiff in the amount of nine thousand ($9,000) dollars personal injury and one thousand five hundred ($1,500) dollars property damage. This judgment was entered on May 8, 1973. Respondent filed a motion to set aside judgment on August 14, 1973, which was overruled by the trial court on May 7, 1974.

The Court of Appeals reversed the trial court, holding that in the tort action, the insurer is bound by the judgment only as to the liability of the uninsured motorist; that the insurer may raise the issue of coverage either in the tort action or at a later date.

The applicable code section is T.C.A. § 56-1153, which reads in part:

56-1153. Service upon the insurance carrier — Arbitration not required. — Any insured intending to rely on the coverage required by §§ 56-1148 — 56-1153 shall, if any action is instituted against the owner and operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name; provided, however, that nothing in this paragraph shall prevent such owner or operator from employing counsel of his own choice; provided, further, that the evidence of service upon the insurance carrier shall not be made a part of the record.

Three Tennessee cases have construed this section. In the first, Glover v. Tennessee Farmers Mutual Insurance Company, 225 Tenn. 306, 468 S.W.2d 727 (1971), the insured brought an action directly against the insurer. The Court held this was not authorized by the statute, and in response to the insurer’s argument that any other construction would require that two lawsuits be maintained, said:

“This interpretation of the act will not, as the Glovers argue, require a suit against the insurance company after recovery of a judgment against the uninsured motorist. It is clear that when the requirement of § 56-1153, with respect to affording the insurance carrier the right to defend the uninsured motorist is complied with, the insurance carrier is bound by the judgment. The whole intent and purpose of the uninsured motorist act, is, in essence, to provide protection by making the insurance carrier stand as the insurer of the uninsured motorist, with two necessary consequences. (1) The suit has to be brought against the uninsured motorist, with the fact of insurance excluded as a possible prejudicing factor, as in any other such case; and (2) the insurance company is bound by the judgment rendered in that suit, to the extent of its policy limits, where it is afforded the statutory opportunity to defend the uninsured motorist.” (citations omitted) 468 S.W.2d at 730.

The Glover case held that the act does not require a suit against the insurance company after recovery of a judgment against the uninsured motorist and that the insurance company is bound by the judgment to the extent of its policy limits. No distinction was made between being bound as to coverage or as to liability.

The insurance carrier in Thearp v. Travelers Indemnity Company, 504 S.W.2d 763 (Tenn.App.1972), maintained that no coverage was provided by either of two policies issued by it, pursuant to which the plaintiff’s might claim, and made a motion for severance in order to litigate the coverage issue separately. This motion was denied, and the Court of Appeals held the motion for severance should have been granted so that the presence of insurance coverage would not be brought before the jury. The Court then looked to the effect of the Glover decision:

“Since we construe the opinion of the Supreme Court in the Glover case to hold that Travelers would have been bound to the extent of its coverage by the judgments in favor of the plaintiffs in the tort cases against Green, we hold that Travelers, after being regularly served with process, became legally a party defendant in the tort cases though not so designated by name. Section 56-1153 provides that the evidence of service of process shall not be made a part of the record. We interpret this provision of the statute to mean that process should not be part of the record for the consideration of the jury trying the tort cases.
Our opinion is fortified by the fact that Section 56-1153 expressly provides ‘. such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name . . ’
We hold that Travelers had a right under the statute to file a plea in abatement or other pleadings necessary to present the question whether or not Travelers did, in fact, have uninsured motorist coverage in the tort cases then before the Circuit Court. It is our opinion the Travelers would have been estopped to deny coverage after the judgments became final if it had not made application to the Trial Judge for permission to litigate its coverage in tort cases.” 504 S.W.2d at 766, 767.

In McCall v. Maryland Casualty Company, 516 S.W.2d 353 (Tenn.1974), the appellants were unable to obtain service of process upon the uninsured motorist, and alleged that because the insurance carrier had been served with process, it was under an obligation to appear and defend on behalf of the uninsured motorist. This Court rejected that contention and summarized, but in no way limited, the holding of Thearp :

“The statutes in question do provide for service of process upon .the insurance carrier affording coverage for uninsured vehicles. It was held by the Court of Appeals in the case of Thearp v. Travelers Indemnity Co., 504 S.W.2d 763 (Tenn. App., W.S.1972), that insurance carriers served with process under the provisions of T.C.A. § 56-1153 became legally parties defendant in a tort action. The Court in that case held that the insurance carriers were entitled to raise questions of coverage by appropriate pleadings in the tort cases, and that if they were erroneously denied this right, they could later raise such questions when sued upon judgments rendered against the uninsured motorist.
Nothing in either the Glover case or the Thearp case, supra, indicates that insurance carriers, served with process under T.C.A. § 56-1153, have any duty or obligation to defend the action on behalf of the uninsured motorist. They are given that right, but there is no duty on their part to do so, nor is service of process upon the uninsured motorist dispensed with by the statutory provisions.” 516 S.W.2d at 354, 355.

The quoted language in McCall merely points out that the statute does not make it mandatory that the insurance carrier defend the uninsured motorist; it may do so in its discretion. If, however, the carrier chooses not to defend, it is bound by the judgment. Glover and Thearp make that clear.

We hold that respondent had sufficient notice that it would be bound by the judgment in the trial court as to any additional defenses that it might assert. The decision in Thearp v. Travelers Indemnity Company, supra, was released five (5) months before respondent received service of process from the Commissioner of Insurance. Glover v. Tennessee Farmers Mutual Insurance Co., supra, had been decided approximately one and one-half years prior to the service of process. Additionally, the summons itself required respondent to answer the complaint within thirty (30) days, or “[i]f you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.”

Our holding today that an insurance carrier served with process under T.C.A. § 56-1153 must assert any defenses in the trial court that it might have, or be estopped from later raising them comports with equitable principles. See Staunton v. Clark, 56 Tenn. 669 (1872); Evans v. International Trust Co., 59 S.W. 373 (Tenn.Ch.App.1900).

The proper procedure in the instant case would have been for the respondent to have filed a motion or an answer denying coverage under the uninsured motorist provision of the policy, and a motion for severance to try the issues separately.

Having sustained petitioner’s first assignment of error, we pretermit the second assignment asserting that respondent’s motion for relief under Rule 60 T.R.C.P. was untenable.

The judgment of the Court of Appeals is reversed and that of the trial court is reinstated. Costs are adjudged against respondent, State Farm Mutual Insurance Company.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.

      This was amended by Acts 1975, ch. 164 § 1. That Act provides that when service of process on an uninsured motorist is returned unserved, . . the service of process against the uninsured motorist carrier, pursuant to this section, shall be sufficient for the court to require the said insurer to proceed as if it is the only defendant in such case.” T.C.A. § 56-1153.


text:
    Al S. BARGER et al. v. Ray L. BROCK, Jr., et al.
    Supreme Court of Tennessee.
    March 30, 1976.
   OPINION AND ORDER

FONES, Chief Justice.

This action involves the right or power of the Chancery Court to declare a Rule of the Supreme Court to be violative of the Constitution of Tennessee and enjoin its enforcement.

The plaintiffs, Al S. Barger, Leon W. Davis, Jr., U. L. McDonald, Joe M. Parker and Richard H. Winningham are practicing attorneys in Chattanooga, Hamilton County, Tennessee and are solicitors and officers of this Court.

The defendants, Ray L. Brock, Jr., Robert E. Cooper, William H. D. Fones, William J. Harbison and Joseph W. Henry, constitute the Supreme Court of Tennessee and are sued in their official capacity as such Court. There is no allegation or suggestion that they, or any of them, have any pecuniary or property interest in the issues here presented.

The defendant, R. A. Ashley, is sued in his official capacity as the Attorney General of the State of Tennessee and is made a party “in case the Court should find it necessary to pass upon the constitutionality of any statute of the State of Tennessee.”

I.

Inter alia, the Complaint filed over the signature of Thomas A. Harris, their solicitor of record, and also a solicitor and officer of this Court, alleges:

At some time unknown to the plaintiffs, and without notice to them, the defendant Justices as the Supreme Court of Tennessee undertook consideration of an original “petition” presented to said Court under circumstances not fully-known to your plaintiffs, calling for the defendants to impose an annual “license fee” or tax upon the plaintiffs and all other attorneys practicing within the State of Tennessee. Your plaintiffs are advised that on December 18, 1975, the defendants adopted a so-called “Rule of Court” called “Rule 42,” which in Section 20 thereof purports to levy an annual fee or tax upon all practicing attorneys in this State. (Emphasis supplied).

It is further alleged with respect to this Court:

(T)heir ex parte action in purporting to levy a tax on lawyers is wholly without and beyond their authority and is an exercise of arbitrary power which is prohibited by our Constitution . . . (Emphasis supplied).

They further allege:

The portions of “Rule 42” purporting to impose a tax or “annual fee” on lawyers are void as an affront to the Constitution of the State of Tennessee (Emphasis supplied).

It is alleged that only the Legislature has the power to tax, citing Article 2, § 28, Article 2, § 2, and Article 6, § 2.

The prayer is (1) “that so much of Rule 42 as purports to levy a tax or ‘annual license fee’ on the plaintiffs, or to suspend them from the practice of law, be declared void as contravening the Constitution of this State”; (2) that “the defendant Justices be enjoined from imposing the tax or license fee” and (3) for such other relief as “the Constitution of the State and the preservation of liberty may require.” There is no prayer for process.

II.

On 9 May 1974, the Tennessee Bar Association filed a petition in this Court requesting and recommending the adoption of a Rule of Court establishing a comprehensive disciplinary procedure to be funded and maintained by an annual license fee payable by members of the Bar.

On 6 November 1974, thirteen (13) members of the Bar of this Court filed an intervening petition urging that this Court promulgate a Rule organizing, unifying or integrating the State Bar of Tennessee.

By supplemental petition filed 12 December 1974, the Bar Association asserted the inadequacy of the then Rule 42 and urged the Court to replace it with Rules of Disciplinary Enforcement exhibited with the petition.

This Court, being acutely aware of the impact of these recommendations upon the members of the Bar and their direct relationship to the public welfare, and being desirous of giving all concerned a full opportunity to be heard, and being unwilling to proceed on an ex parte basis and without notice, entered an order on 22 November 1974, granting leave to all interested parties to file amicus curiae briefs and gave notice that oral argument would be heard upon the issues thus presented. Pursuant to this solicitation, numerous briefs, affidavits and letters in support of or opposition to these proposals were filed.

We digress at this juncture to address the matter of whether the profession had notice of these proceedings. First, it should be pointed out that at all stages, the news media, by editorial comment and by news stories, gave these matters massive publicity.

The voluntary Tennessee Bar Association kept its membership fully informed through its most excellent publications.

The December 1974 issue of the Tennessee Lawyer (Vol. 23, No. 4) devoted the entire front page to a story headlined INTERVENING PETITION TO UNIFY T.B.A. FILED BY GROUP OF LAWYERS. The ensuing story pointed out that this petition was filed “in the pending matter of: In Re: The Petition of the Tennessee Bar Association, Ex Parte.” The concluding paragraph reads as follows:

The Court has granted interested parties leave to file amicus curiae briefs. Those supporting the petitions are to be filed on or before December 27, 1974, those in opposition on or before January 17, 1975. The Court will hear oral arguments on Thursday, January 23, 1975. Proponents will be heard from 9:00 a. m. until noon. Those opposing will be heard from 1:30 p. m. to 4:30 p. m. Lawyers desiring to present oral argument should notify the Clerk of the Court at Nashville.

Oral argument was heard on 23 January 1975, and at this time the Court was the beneficiary of numerous presentations and all issues were fully and ably discussed. It is of significance that among those appearing at the Bar of this Court was the then President of the Chattanooga Bar Association. It is of further significance that the Chattanooga Bar Association filed an intervening petition.

Again realizing that these were issues of overriding professional and public concern, the Court conducted numerous conferences and proceeded with deliberation in its consideration of these vital matters. Finally, after all concerned had been afforded full opportunity to be heard in person, by petition, letter, affidavit and brief, the Court on 18 .December 1975, three hundred and twenty-nine (329) days after argument, released its opinion, which inter alia announced the adoption of Rule 42, relating to Disciplinary Enforcement. See In Re: Petition of Tennessee Bar Association, etc., 532 S.W.2d 224 (Tenn.1975).

The basic legal issue presented to the Court was its right, power and authority to unify the Bar and/or adopt a disciplinary rule. The Court’s ruling was clear:

We respectfully overrule all issues raised in this proceeding questioning the authority of the Court to unify the bar of-this state or to require annual registration and license fees as a condition to the continued practice of law.

The holding in this case, is the established law of Tennessee and is binding upon all the courts of the state.

III.

Tennessee’s judicial structure is established by our constitution and statutes on a three-tiered basis. In ascending order of power and authority they are: (1) nisi prius or trial courts (circuit and chancery); (2) intermediate appellate courts (Court of Appeals and Court of Criminal Appeals) and (3) a Supreme Court.

The Constitution of Tennessee obviously contemplates the supremacy of the Supreme Court.

The judicial power of this State shall be vested in one Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish; . (Art. 6, Sec. 1).

Thus the Supreme Court is a direct creature of the Constitution and constitutes the supreme judicial tribunal of the state and is a court of last resort. All other courts are constitutionally inferior tribunals subject to the actions of the Supreme Court. Its adjudications are final and conclusive upon all questions determined by it, subject only to review, in appropriate cases by the Supreme Court of the United States. Railroad v. Bryne, 119 Tenn. 278, 104 S.W. 460 (1907).

Chancellor Gibson lists the Great Duties of the Supreme Court. See § 1376, Gibson’s Suits in Chancery, Fifth Edition (1956). One of these “great duties”, to the extent here applicable, is:

To keep . . . the courts within their constitutional and lawful jurisdiction.

In the ensuing section he discusses the objects of the people in ordering and establishing the Supreme Court. He suggests that the first object was:

(T)o have a tribunal to supervise all the other Courts of the State; to keep them within the limits of the law and the Constitution .

Then by footnote 17 to the same section he lists the considerations prompting the Court. Among these:

To so rule that all inferior courts will be kept within the orbits of their respective jurisdictions.

Judge Abraham Caruthers, in History of a Lawsuit, Sec. 20 (Eighth Edition 1963) expresses it thusly:

The power to enforce its judgments includes the power to protect them from interference, and the Court may use any process to secure that protection and enforcement; the court is supreme in fact as well as in name. (Emphasis supplied).

It is a controlling principle that inferior courts must abide the orders, decrees and precedents of higher courts. The slightest deviation from this rigid rule would disrupt and destroy the sanctity of the judicial process. There would be no finality or stability in the law and the court system would be chaotic in its operation and unstable and inconsistent in its decisions. Personal and property rights would be insecure and litigation would know no end.

Fortunately our courts recognize and apply the rule that lower courts are bound by the decisions of higher courts. As held in Bloodworth v. Stuart, 221 Tenn. 567, 428 S.W.2d 786 (1968) “the Court of Appeals has no authority to overrule or modify Supreme Court’s opinions.”

The principle by which the procedural aspects of this case must be controlled was announced by the Supreme Court, meeting in Sparta, in August 1832, in Dibrell v. Eastland, 11 Tenn. 507. A Circuit Judge had ordered the issuance of a supersedeas of a decree of the Supreme Court ordering property sold for the satisfaction of certain money judgments.

The opinion of Chief Justice John Catron, who later served as an Associate Justice of the Supreme Court of the United States for twenty-eight years, is a model of brevity and clarity. It reads, in full, as follows:

This Court is of opinion, that a circuit judge has no power or jurisdiction to grant an order for a supersedeas to the judgments or decrees of this Court, more than a justice of the county court has power and jurisdiction to cause to be superseded the decrees and judgments of the circuit courts. The power did not exist in this case, and it will equally apply to every decree and judgment, civil and criminal, that the Supreme Court has or may render. Let the supersedeas be quashed. 11 Tenn. at 507.

In Hurt v. Long, 90 Tenn. 445, 16 S.W. 968 (1891), the Court, in passing upon a bill filed in chancery court to review a decree of the Supreme Court, said:

(T)hat exact question was made in a case at Knoxville in 1847. It was there held that no bill of review lies in the chancery court to review a decree of the supreme court. Wallen v. Huff, Thomp.Tenn.Cas. 21.
This is obviously correct, as, among the numerous methods for the correction of errors of law and fact committed in the inferior courts, the appeal is the last and final one, and it could not be on any ground assumed that this might be tried; and then all the others, practically included in this, might be tried again. This practice would be productive of intolerable evil, and would make litigation endless ... 90 Tenn. at 449, 16 S.W. at 969.

In Ser-Nestler, Inc. v. General Finance Loan Company, 167 So.2d 230 (Fla.App.1974), involving a Florida rule of civil procedure, the Court said:

The Supreme Court is vested with the sole authority to promulgate, rescind and modify the rules, and until the rules are changed by the source of authority, they remain inviolate. 167 So.2d at 232.

In Soft Water Utilities, Inc. v. LeFevre, 293 N.E.2d 788 (Ind.App.1973) the Court, referring to a rule of the Supreme Court, said:

The rules of the Supreme Court are binding on the courts as well as on the litigants. No court except the Supreme Court can alter, amend or change the rules. No inferior court may circumvent the rules and thereby avoid them. 293 N.E.2d at 790.

Again, in Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973), the Court made this pithy observation:

(I)t is not considered good form for a lower court to reverse a superior one. Such actions are unsettling in the law which we ought to strive to make certain, and result in a disorderly judicial process. 507 P.2d at 779.

The authority of this Court to make rules governing the practice of law is traditional, inherent and statutory. Such power is indispensable to the orderly administration of justice.

We hold that the inferior courts of the state may not entertain any suit or action challenging the validity of .any Rule of this Court. Such a suit would be in the nature of a bill of review or to impeach a judgment of this Court, and, in effect, would constitute an appeal to the chancery court from the action of this Court. Such a proceeding is unknown to the law.

This is not to say, however, that there can be no relief from a Rule of this Court deemed to be arbitrary, illegal or improvident.

This Court welcomes the continuing criticisms of its Rules. They never become final, and are always subject to change. We solicit advice and suggestions from the Bench and Bar for their improvement. When any individual deems any Rule of Court to be objectionable from any standpoint, it is his privilege to petition the Court for its elimination or modification. Indeed, it is the duty of the solicitors at the Bar of this Court to make suggestions and recommendations on the orderly administration of the appellate judicial process.

IV.

We would be false to our duty and recreant to our trust as the people’s highest tribunal if we were to permit this suit to stand.

Accordingly, we order and direct the Chancery Court at Chattanooga to enter instanter an order of dismissal, taxing all accrued costs to the parties plaintiff. A certified copy of the order so entered will be forwarded to the Clerk of this Court at Nashville.

However, in order that the parties may have their insistences considered, we direct that all pleadings in this cause be delivered to the Clerk of this Court at Nashville forthwith. This Court will treat the pleadings as constituting a motion to vacate or modify Rule 42.

This matter will be docketed for oral argument, in Knoxville, at the heel of the calendar on 7 May 1976. Briefs will be filed with the Clerk in Nashville by 23 April 1976. The sole issue before the Court is the constitutionality of Rule 42.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concurring.

      . Constitution of Tennessee, Art. 6, Sec. 11; Chumbley v. Peoples Bank & Trust Co., 165 Tenn. 655, 57 S.W.2d 787 (1933).

      . Three of the five plaintiffs are members of the Tennessee Bar Association as is their attorney of record.

      . This paragraph, with slight modification was taken from the Court’s order of 22 November 1974.

      . The Honorable C. S. Carney was designated to sit upon this Court vice Mr. Justice Henry, who recused himself from consideration of the matter of unification of the Bar. After this Court promulgated its opinion of 18 December 1975, Justice Henry signed the order adopting Rule 42.


author: PER CURIAM.

text:
    MUSE, CURRIE AND KOHEN, Petitioner, v. Millard L. DRAKE, Respondent.
    No. B-5736.
    Supreme Court of Texas.
    March 31, 1976.
    Rehearing Denied April 28,1976.
    Currie & Neilon, Ralph W. Currie and William J. Neilon, Jr., Dallas, for petitioner.
    True & Zable, Roy J. True, Dallas, for respondent.
   PER CURIAM.

This case comes to us from the Probate Court of Dallas County, where Elizabeth Holt, as the administratrix of the estate of Eugene Dixon Duncan, made application for authorization to pay certain expenses incurred by her from funds of the estate. The probate court approved the claim, but the Court of Civil Appeals has reversed. 532 S.W.2d 369. We agree with the result reached by the court below and therefore refuse petitioner’s application for writ of error, no reversible error. Because we disagree with certain statements made by the Court of Civil Appeals, we deem it appropriate to express our views more fully.

The facts of this case may be found in the opinion of the Court of Civil Appeals, 532 S.W.2d 369. Briefly, petitioner Muse, Currie & Kohen (hereinafter referred to as the law firm) is complaining of the Court of Civil Appeals’ denial of its claim against the estate of Eugene Dixon Duncan for expenses incurred by Elizabeth Holt, the ad-ministratrix of Duncan’s estate, in the trial and appeal of a will contest suit. The law firm represented Holt in her contest of an alleged will of decedent, and it contends that Holt’s claim for attorney’s fees, and for costs of appeal advanced by Holt in the will contest suit, are proper claims against the estate under Section 242 of the Texas Probate Code.

The point upon which we disagree with the Court of Civil Appeals is its statement that Holt, as administratrix, had a right to appeal the will contest suit in her representative capacity, “as an interested party.” 532 S.W.2d at 373. The Probate Code provides that only “interested persons” may contest the probate of a will. Tex.Prob. Code §§ 93, 100 (1956). That term is defined in Section 3(r) of the Code as follows:

“Interested persons” or “persons interested” means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor or incompetent ward.

In Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212 (1947) at page 215, this Court stated:

In this and other jurisdictions where will contests are limited to “persons interested in the estate of the testator,” the term “person interested” has a well-defined but restricted meaning. The interest referred to must be a pecuniary one, held by the party either as an individual or in a representative capacity, which will be affected by the probate or defeat of the will. An interest resting on sentiment or sympathy, or any other basis other than gain or loss of money or its equivalent, is insufficient. Thus the burden is on every person contesting a will, and on every person offering one for probate, to allege, and, if required, to prove, that he has some legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired or benefited, or in some manner materially affected, by the probate of the will.

See also Pena y Vidaurri’s Estate v. Bruni, 156 S.W. 315 (Tex.Civ.App.—San Antonio 1913, writ ref’d).

Thus, while one may have occasion to contest a will in a representative capacity, such would be the case only when the person represented has a pecuniary interest in the estate. Holt, as administratrix, represented the estate, not the heirs of the estate; even though a successful contest of the will may result in pecuniary benefit to the heirs, it results in no pecuniary benefit to the estate. There is no reason to believe that the estate would not be preserved and protected just as well by the executor as by the administrator. It is apparent, therefore, that an administrator has no right or duty to contest a purported will of the decedent. To the extent that Hodge v. Taylor, 85 S.W.2d 799 (Tex.Civ.App.—Fort Worth 1935, no writ), and Barney v. Huff, 326 S.W.2d 617 (Tex.Civ.App.—Austin 1959, writ ref’d n. r. e.) contain language inconsistent with this opinion, they are hereby disapproved.

In addition to its claim for attorney’s fees, the law firm submitted a claim for $771.10 as costs of appeal which it advanced on Holt’s behalf in the will contest proceedings. These costs of appeal were taxed against appellee Drake by the Eastland Court of Civil Appeals when it reversed and remanded the case for a new trial. 505 S.W.2d 650. According to the law firm’s application, the costs taxed against Drake were paid by him to the estate, rather than to Holt; the law firm contends that it is entitled to reimbursement from the estate for these costs as an expense incurred by the personal representative on behalf of the estate, under Section 242 of the Code. Although the opinion of the Court of Civil Appeals did not discuss the law firm’s claim for these costs of appeal, it is clear that these costs were not incurred by Holt as the representative of the estate “in the preservation, safe-keeping, and management of the estate” under Section 242; such costs are therefore not properly recoverable as a claim against the estate under that Section. The Court of Civil Appeals’ denial of the claim is in accord with this conclusion, and will therefore not be disturbed.

The fact that the expenses advanced by the law firm are not a proper claim against the estate under Section 242 does not mean that Holt, as the winning party in the appeal of the will contest proceedings, is not entitled to reimbursement for costs advanced by her (through her account with the law firm) in that appeal. Since the mandate of the Eastland Court of Civil Appeals is not before us, we cannot determine whether Drake’s payment of $771.10 to the estate satisfies the provisions of the mandate. If costs of the appeal were taxed against the losing party in accordance with TEX.R.CIV.PROC. 448, Holt, as the winning party, should be entitled to reimbursement for these costs regardless of whether she was representing the interests of the estate. Since Holt is not entitled to reimbursement from the estate under Section 242 of the Probate Code for these costs, it is apparent that Drake’s payment of costs of appeal to the estate would not benefit Holt. We leave these matters to be sorted out by the parties in accordance with the mandate.

The application for writ of error is refused, no reversible error.

      . See Holt v. Drake, 505 S.W.2d 650 (Tex.Civ. App. — Eastland 1973, no writ).

      . The court’s statement was made in justification of its denial of the executor’s motion to dismiss Holt’s appeal in the will contest suit on the ground that Holt had failed to post an appeal bond. Our disapproval of the court’s statement does not necessarily mean that we disagree with the court’s refusal to dismiss the prior appeal. The court’s ruling in the will contest case is not before us on this appeal, and it may be justifiable on other grounds.