110 Tenn. 50 | Tenn. | 1902
delivered the opinion of the Court.
This bill was filed to obtain a construction of the will of the late John Overton, who died in Davidson county, in this State, during the year 1900. The deceased left a large and valuable estate, all of which he undertook to dispose of in his will. After designating a' fund for the payment of his debts, and giving to his wife absolutely certain personalty, the testator then provided that she was to enjoy an estate for life in all of his “other property and estate.” Subject to this life estate, he made six divisions of certain of his real estate, and allotted to each -of his children one of these divisions. The will then provides as follows:
“The corpus of my estate given to my wife for life, not including the foregoing divisions, I wish after her death to be equally divided among my children.
“My executor is hereby authorized to sell any part thereof not susceptible of division and make title*53 thereto, and be is hereby instructed to invest any money going to either or all of the shares as he may think best.
“The land devised to each of my children, together with the share going to each in the corpus of my estate, is hereby settled on each of them for their sole and separate use during life and vests absolutely in their children after their death. Should either of their issue die leaving issue, the issue shall inherit the interest of the parent.
“The shares going to my daughters to be free from the debts, contracts and liabilities of their present or any future husband.
“Should any one or more of my children die without isue at the time of his or her death, his or her share shall pass to and vest in my living children, and if any child has died leaving issue, said issue to represent and take the share of the parent.” j
The widow of the testator died a short time after the probate of .the will, and the record discloses that at the time of the filing of the present bill the executor had in his hands, ready for disposition, about $80,000, derived from what is called in the will the “corpus” of the estate, with other sums from the same source, to come at an early day into possession. . ■' -j-j
The question presented by complainant is, what is his duty, under the will? It is axiomatic that the intention of the testator, if not inconsistent with some settled rule of law, is to be carried into effect; and it is true, if it is fairly inferable from the present will that the testator
Another purpose, altogether consistent with that just named, and a complement to it, apparent on the face of the will, is that the money derived by his executor was not to pass into the hands of the tenants for life. Whatever else may be true, these parties are not entitled, either with or without security, to their several shares of the money now in the possession of the executor. This follows from the language of one of the paragraphs of the will quoted above, to wit:
“He [the complainant] is hereby instructed to invest any money going to either or all of the shares as he may think best.”
By this clause the executor is converted into a testamentary trustee, and the duty of investing the money so received is imposed upon him; the only discretion left him being as to the character of the investment. The
But let it he conceded the will is silent on this subject; then what direction will a court of equity give with regard to this money? Where there is a specific bequest for life, with or without limitation in remainder, of articles, such as wine, corn, etc., whose use consists in being consumed, the first taker is entitled absolutely. Henderson v. Vaulx, 10 Yerg., 30. But where there is a bequest for life of articles not consumable in the use, such as books, plate, etc., with a limitation over, the first
The modern practice, however, in such case, is only to require an inventory of the articles, specifying that they belong to the first taker for a limited period only, and afterwards to the remainderman, and security will not be required unless there is danger that the articles may be averted or otherwise lost to the remainderman. Foley v. Burnell, 1 Brown, Ch. 279; Covenhoven v. Shuler, 2 Paige, 124, 21 Am. Dec. 73.
But when the bequest is residuary, and not specific, then such chattels must be sold, and the interest on the proceeds paid to the first taker, and the principal be preserved to the remainderman. Henderson v. Vaulx, supra ; Covenhoven v. Shuler, supra.
In the present case the court is not called to deal ,with specific bequests, but with a residuary fund realized by the executor from property coming into his hands, in which legatees for life and in remainder are interested. In such case, why does not the principle in the citation last above apply and control? Why should not the court see that this property be so managed as that, while the life tenants derive from it the fullest advantage to which they are entitled, yet it shall be preserved intact to those in remainder? We can see no reason for a refusal to do so.
A decree will therefore be entered remanding this cause to the chancery court of Davidson county. The testamentary trustee will be directed to invest the shares of the respective parties in such income-bearing property as he may select, taking title to himself as trustee, or, on his declining to execute the trusts, then they will be executed under the decree of that court.