107 Tenn. 486 | Tenn. | 1901
On October 19, 1873, Lucy A. Tate, a widow, died testate at her residence in Memphis, Tenn. Her will, which was duly probated in September, 1874, is in the following language, namely:
“Tuesday, June 27, 1871.
“I, Lucy A. Tate, of the county of Shelby and State of Tennessee, and city of Memphis, being of*488 sound mind and memory, and considering the uncertainty of this frail, transitory life, do, therefore, make, ordain, publish, and declare this to be my last will and testament. That is to say: First, after all my lawful debts are paid and discharged, the residue of my real estate I loan to my two sons,, Jesse M. Tate and Bowden G. Tate, during their natural lives. I desire a trustee appointed, and the-places rented out, and, after the taxes, are paid, the remainder, whatever it may be, divided equally between my two sons. My estate consists of eight and a half acres, more or less, known as my home place, on the north side of Tate street, between Orleans and McKinley streets, and at their death then to go to the heirs of their body — if said heirs should live to be of age — and said children must be of lawful marriage. If my two sons should have no such heirs as I have mentioned, 1 then will and devise the above described home place to the Cumberland Presbyterian University at Lebanon, Tenn. r the same to be sold or kept as the said trustees of said university shall think best. And I further order that this devise be used as a fund for the education of young men in the said university studying for the ministry of said church, and for none other. This is my will, and I leave it all in the hands of God, to do with it as he in his infinite wisdom may direct. Amen. Lucy A. Tate.”
Jesse H. Tate, one of' the two sons of the testatrix, died in the month of September, 1878, leaving-
Subsequently, in the year 1900, Glasscock, the trustee, filed the original and amended bills in the present cause against Bowden G. Tate, his wife and daughter (then seventeen years of age), Jesse M. Tate and his wife and vendee, to vacate and annul the decree construing the will, for the alleged reason that it ‘ ‘ appears to have been a consent construction,” when, in' reality, as alleged, Bowden G. Tate
Jesse M. Tate and other defendants severally demurred to these bills and assigned, substantially, the same grounds, which, briefly stated, are: (1) That the complainant has no title under the will, but is only an agent; (2) that the decree ' construing the will binds all interested parties; (3) that whether that decree be 'res adjucbieata or not, the construction it placed on the will is the correct one; (1) that the Probate Court had plenary jurisdiction to partition the property. The demurrers being sustained and the bills dismissed, the complainant was allowed an appeal.
It is entirely clear that the testatrix intended each of her two sons to have one-half of the net income of the devised property during his. life, and that he should receive this from the contemplated trustee, to whom she gave dominion and control of the property for that purpose. Though her sons are the first and principal objects of her bounty, the testatrix makes them less than legal owners, and, though the trustee is not a beneficiary at all, she makes him more than a mere agent. By the words, “The residue of my real estate I loan to my two sons . . . during their natural lives,” and, “I desire a trustee appointed and the places rented out., and, after the taxes are paid, the remainder, whatever it may be, divided equally between my two sons,” she devolved upon the trustee the duty of letting the
Such a trust being valid in thé first instance, as this one . undoubtedly was, could not, while yet alive and capable • of excution, be terminated, nor the trustee, without cause, denuded. of his title and powers, or any part thereof, by the decree of any court. The jurisdiction of a court of equity is always available for the conservation of a trust like this one, but never for its destruction. Cuthbert v. Channet, 18 L. R. A. (N. Y.), 745, and note; Gerord v. Buckley, 137 Mass., 475; Outcalt v. Appleby, 36 N. J. Eq., 75.
The consent of Bowden G. Tate made the decree purporting to construe the will neither better nor worse, so far at least as the title and powers of the trustee were concerned. This is true, for the twofold reason that he, as alleged, was mentally incapable of consenting, and, besides, that the trust was such that it could not be changed by the mere consent of a single beneficiary.
A trustee takes an estate exactly co-extensive with the duties to be performed by him, or just
The proposition of the trustee is that this trust, since the death of Jesse M. Tate, as before, embraces the whole of the devised property, and that since that event Bowden Gr. Tate has been and is entitled to the whole of the net income during his natural life. The adverse contention is that the death of Jesse M. Tate terminated the trust, if not entirely, at least to the extent of one undivided half of the property previously embraced, and that the fee simple title of that half, with the right of present possession, passed at once to his son, Jesse M. Tate, Jr., subject alone to the contingency of his death before becoming of age. To the latter effect, in the main, was the consent construction now assailed for invalidity.
Both views are partially correct, neither of them entirely so. Though the “two sons” are always mentioned collectively, and the benefaction is to them equally “during their natural lives,” the testatrix, knowing that in the course of nature they would hardly die in the same month , or year, evidently intended to provide for each of them separately during his own life and not for both of them jointly during their joint lives; and, as the bounty
Strictly interpreted, the collective words, ‘ ‘ at their death,” would refer to the first point of time when both of the sons shall be deceased, and would make the date of the death of the longer liver the time for the whole property “to go to the heirs of their body,” etc., per capita; but on slight indication of a contrary intention, the same words are construed distributively, and the respective remain-dermen let in per stripes from the death of each separate life tenant. This latter construction is especially appropriate when the respective life tenants and the remaindermen sustain the relation of parent and child, as in this instance. 2 Jarman on Wills (R. & T.), 758; Willes v. Douglas, 10 Beav., 47; Anow v. Mellish, 1 De. Get. & Smale, 355; Loving v. Collidge, 99 Mass., 192.
The words, “at the death,” used in like connection, were given a contrary construction in Loring v. Coolidge, supra, but that was done, in part at least, because the beneficiaries under the will there considered did nót sustain the relation of parent and child to each other — a fact, which alone is sufficient to differentiate that case from this one. It was also ruled in that case that on the death of one of the cestui que trust the survivor became entitled to the whole income for life, because there was “no other party to claim an interest in the income, as income, and no apparent intent that the principal should be broken, or the trust in part terminated, until the death of both of the beneficiaries for life. 99 Mass., 193.
There is a difference between the two cases on this point also. In the first place, the general •tenor of this will impresses the Court that the testatrix intended to limit the benefaction of each of her sons, in any and every event, to that expressly made for him; and, in the next place, the provision that the devised property shall, at the death of
There is no express direction in the will, either that the trust shall survive in soUdo or that it shall cease pro tcmto after the death of one of the life beneficiaries; but the fact that the child of such deceased cestui que trust is given only a defeasible interest during minority and an absolute estate after majority, justifies the inference that the testatrix intended the trust, which must continue for her sur
After considering the different provisions of the will, in connection with and as applicable to the facts alleged, we conclude: (1) That the legal title to the devised property was vested in the trustee for the purposes of- the trust; (2) that Jesse M. Tate and Bowden G. Tate the sons of the testatrix, each took a separate, non-surviving, equitable life interest to the extent of one-half the net income of the trust estate; (3) that the son, and only child, of Jesse M., and daughter, and only child, of Bowden G. each took a remainder in fee, per stripes, with limitation over to the trustees of Cumberland University as to each in case of death during minority; (4) that, notwithstanding the death of Jesse M. Tate., Sr., the trust continued in solido until Jesse M., his son, attained his majority, and then ceased p>ro tanto, he being entitled, after fhe death of his father and during his minority, to one-half of the net income, and, after his majority, to one-half the devised property in fee absolute; (5) that
Bowden G. Tate filed a cross bill in the present case, seeking practically the same relief as that sought in the original and amended bills, and asking, additionally, for an account with the trustee and his predecessor. Demurrers like those already stated were filed against the cross bill, and in like manner they were sustained and the complainant allowed an appeal.
For the reasons stated the decrees are reversed, the demurrers to original, amended, and cross bills overruled, and the cause remanded for further proceedings.
Decree overruling demurrer to that part, of cross bill seeking an account is affirmed.