28 Tenn. 195 | Tenn. | 1848
delivered the opinion of the court.
On the 3d day of January, 1845, William Park made and published his last will and testament in substance as follows:—
“It is my will and desire that my beloved wife, Jane Crozier Park, shall, from and after my decease, have and enjoy the exclusive and uncontrolled possession of my dwelling house, and the lot on which it stands, with all the appurtenances thereunto in any wise belonging to the same, during her natural life, and that all legal, State, county and corporation taxes that may, from time to time, during
“I further bequeath to my said wife the absolute title, property, and interest that I may have to and in all slaves of which I may be possessed, or the owner at the time of my decease, and all of my household and kitchen furniture and my books, and my carriage and horses, and cows, and such like property that I may own at the time of my death.
“ It is also my desire that my executors, for the space of twelve months, from and after their qualification as aforesaid, shall furnish my said wife such sums of money as she may from time to time desire to contribute for the support of the gospel, and such other religious and benevolent purposes, after which time it shall be the duty of my executors to pay over to my said wife for her support and maintenance, so long as her life shall continue, annually the sum of one thousand dollars, and the same shall be paid at such times in each year as she may direct; and in order to give them the means of doing so punctually and without failure, my executors are hereby directed to retain and set apart the sum of twenty thousand dollars out of any monies that may be due my estate, or vested in stocks at the time of my decease, which said sum of twenty thousand dollars shall be loaned and continued by my
“ I have also advanced several other sums of money to James H. Armstrong, for all of which I hold his obligations
“My executors are requested fully and punctually to comply with all the foregoing bequests and provisions in my will, and especially to endeavor to carry out my intentions in the manner herein directed, relative to each and all the foregoing permanent fúnds, for I desire that they shall be kept up and the principal of them in no way diminished so long as the objects of them shall exist. And now I will state to my executors, my will and desire concerning all the remaining portion of my estate. My desire is, that as soon as my executors shall, by due diligence in the collection and realizing monies due and belonging to my estate, or which may be the proceeds of my real estate aforesaid, or which may result from all or either of the foregoing permanent funds, after the decease of either
“ At the end of every six months, should they have so much as $1000, or more on hand (after keeping and supplying the permanent fund before mentioned, they shall make a division of the money on hand into three equal parts, one part, or third of which shall be loaned at interest by my executors, the interest to be collected annually and loaned out again, which fund and all accruing interest thereon will be held and managed by my executors, for the benefit of my grand-children William Park Baker, Betsy Jane Baker, and Leonidas Boyle Baker, to be paid to them, in equal portions, as they severally arrive at the age of twenty-one years, or as soon thereafter as the nature of the funds appropriated to their use will admit of it. My will and desire is, that my executors shall pay over to my three grand-children above named, such amount of said funds as thejr shall have in their hands at the time above mentioned, and the remainder as speedily as it may thereafter be in their power. And one other third to be loaned out at interest, and managed by my executors in the same manner, and which shall be held and controlled by them as a permanent fund for the sole, exclusive, and separate benefit and advantage of my daughter Sophia Moody Churchwell and her children, should she have issue,
“ The interest in this fund may be paid to her annually if she requires it, and if at any time my said daughter should become a widow, in that event the whole of this fund, with the interest thereon, shall be paid to her, but in the event of her demise before her husband, leaving no issue, it shall then be the duty of my executor to pay half of said fund and interest, and all others held by them
The testator having published this his last will and testament, departed this life afterwards, viz — in the month of September, 1846, and his will was duly admitted to probate at the September term,' 1846, of the County Court of Knox. At the October term, 1846, of said County Court of Knox, Jane C. Park, widow and relict of the said testator William Park, appeared in open court and signified her dissent to the said will and testament of the said William Park in due form. Afterwards, at the December term, 1846, of the County Court of Knox, it appearing to the court that the executors named by the testator in said will, had refused to accept of the trust and declined acting as such; letters of administration with the will annexed, were duly granted to Drury P. Armstrong, who now files this bill for a construction of the will, preparatory to its execution. There is, iii our opinion, but little difficulty in arriving at the true construction of this will: all the obscurity which has been supposed to exist in it, results, we apprehend, from a very strong and natural
1. We think the dissent of the widow, to the provisions
2. We think that, inasmuch as she has dissented from the will, all the property devised to her, as well that which is specific, as her annuity of one thousand dollars a year during her life, falls back to the estate; and that the fund of twenty thousand dollars, directed by the will jo be set apart by the testator’s executors, out of whi/ifi pay the annuity, remains an integral part of the estáte, ^ not to be charged with the annuity; that the objepfj^y SC'HOOFi which it was solely created having failed by the dissent of the widow as completely as it could have failed RAB.Y* death without such dissent, this fund cannot and ought%©fc=&v ,*f*~*** to be separated from the estate, but must be left to pass under the will as other portions of the estate, after the widow’s right to dower, and her distributive share are satisfied. The corpus of this estate consists of all the lands, tenements, and hereditaments of which the testator died seized and possessed, or to which he had any interest, either legal or equitable, all personal property of every kind and description, whether in possession or in action, all debts and demands, of whatever kind and description, whether due by account, bill, bond, note, or other security, of all sums advanced in his life-time to his three sons-in-law, James C. Moses, George W. Church well, and James H. Armstrong, over and above the sum of one thousand
3. We think that James C. Moses takes under this will all sums of money given by the testator to him in his lifetime, which does not exceed five thousand dollars; for any surplus above that amount he must account in manner as prescribed by the will. That James II. Armstrong takes in a like manner; the land given to him being estimated at .$1000. And for any sums over and above five thousand dollars, he must account in manner as prescribed by the will; that George W. Churchwell takes all sums of money •advanced to him by the testator in his life-time; and that whatever of difference there is between this amount with interest thereon, when letters were granted to Drury P. Armstrong, and five thousand dollars, is a bequest to Sophia Moody Churchwell, wife of George W. Churchwell, for her sole, exclusive, and separate benefit, that this amount is to constitute a fund to be loaned for this purpose, the interest of which may be paid to said Sophia Moody Churchwell if she -desire it, if not, it is to accumulate. That if she survive her husband, this fund, with all accruing interest is hers, — absolutely in her own right, and as such is to be paid over to her. But if she die, living her husband, and without issue, this fund is to be equally divided, and the one half given to the children of Susan Wells Moses, and the other half given to the children of Ann Eliza Armstrong, in equal portions to each. We also think that Sophia Moody Churchwell takes as devisee under the will, one third part of the whole of the estate not set apart for the dissenting widow as well real as personal (except the house and lot which is specifically
We think the other third of the testable estate is given by the will to the testator’s, three grand-children, William Park Baker, Betsy Jane Baker, and Leonidas Boyle Baker, to be paid to them in equal portions as they shall severally arrive at the age of twenty-one years.
We think that the dwelling house and lot of the testator, in the town of Knoxville, where he resided at the time of his death, is given by the will to his three daughters, Susan Wells Moses, Ann Eliza Armstrong, and Sophia Moody Churchwell as tenants in common, subject, to be sure, to a discretion in his executors, who are empowered to sell the same if in their opinion it would be impracticable to partition and divide said dwelling and lot among his heirs (who are his said three daughters) so that the same can be enjoyed profitably by them, in which event he
4. By the provisions of the will a discretionary power is given to the executors to sell, lease, or dispose of in any way they may think best for the estate, all the testator’s interest in any and all lands, town lots, or real estate of any description of which he might die seized and possessed.
This trust is personal, confined to the executors appointed by the will, and cannot be exercised by the administrator cum testamento annexo, but by the advice and consent of the Chancellor. It will be seen from this view of the rights of the conflicting parties under this will, that we hold that the testator did not die intestate, as to the twenty thousand dollars directed by the will to be set apart as a fund, charged with the payment of the annuity of one thousand dollars a year to the widow.
Independent of the principle, that the presumption is against an intestacy as to any portion of the estate, we are well satisfied that the testator not only did not intend to leave so large a portion of his estate undisposed of, but that he has devised it in express terms, after the expiration of the trust for which it was created.
By the words of the will, this sum of money is to remain a permanent fund during the natural life of the wife only; then upon her death, of necessity, the fund having performed what was required- of it, fell back into the general mass
This is unquestionably a clear bequest of both these funds after the event had happened, which released them from the trust imposed upon them, to wit, the death of the wife or daughter. The dissent of the wife to the