92 Tenn. 715 | Tenn. | 1893
Thomas S. Compton died in 1888 leaving a widow. He had been twice married, and
The .exempt property was assigned to the widow, and she retained, used, and in part disposed of it during her life. She married again in 1890, and died in 1893. Her second husband was the defendant, ~W. W. Perkins. He retained such part of the exempt property as was on .hand at the death of his wife, claiming it jure mariti.
The complainants brought the bill in this cause to replevy the property, and have their right to it determined as children of the original owner, Thomas S. Compton. They averred substantially the facts stated, and insisted that upon the death of their step-mother (with whom it was not averred that they had ever at any time resided) they wer.e entitled to the property.
The defendant demurred, on the ground that the bill showed no right in complainants, but, on the contrary, that defendant was entitled to the property.
The Chancellor overruled the demurrer, and allowed defendant to appeal, which he did, and assigned error to the same purport as the demurrer.
The decree is erroneous. Exempt personal property, on the death of the head of a family, who leaves a wife and children surviving, goes to the widow, for herself, and in trust for the benefit of the children of the deceased, or of the widoio, or of both. Code (M. & V.), § 3128.
This is clearly indicated by the further provision that where there is no widow the property is to be exempt for the benefit of the minor children •under fifteen.
In this instance we have the case of á widow surviving, but no children of either of the classes •entitled to share with her in the beneficial use and -enjoyment of the exempt property. By the plain ..terms of the statute, she was therefore entitled to
The exempt property is to serve a special pur-’ pose of benefit to the family . of a deceased, or that of which he was the head. The widow takes it as a trust ’ for this special use — her own and that of those thus declared entitled to share it with her as a family. If one die, an interest is not distributed. It remains an entirety for use of survivors. Sneed v. Jenkins, 6 Pickle, 137.
If there be no family but the widow surviving, she is the sole object of the. provision of the statute — the sole beneficiary for whom she holds, and, therefore, the absolute owner.
The decree is erroneous. It is reversed, and the bill dismissed with cost.