36 Tenn. 209 | Tenn. | 1856
delivered the opinion of the Court.
Washington Turner, a free man of color, died in Wilson county in 1853. He was possessed at the time of his death of a small personal estate, which hy his last will and testament he bequeathed jointly to his wife and children.
The will was properly proved and admitted to record, and the defendant qualified as executor thereof. The complainant, who is likewise a free person of color, is the widow of the testator. The children provided for in the will are in the condition of slavery: they are not the issue of the complainant, hut of a female slave, the property of a stranger to the testator, to whom they also belong. The widow dissented from the will, in the mode prescribed hy the statute, and has brought this bill, upon the assumption that, upon the foregoing state of facts, she is entitled to take the entire estate under the act of 1844, ch. 211.
It is clear that the “children” of the testator, being slaves, with no right to freedom present or prospective, are incapable in law of taking any benefit under the will; and inasmuch as, by the dissent of the widow, the will can have no legal effect or operation whatever, there is certainly much plausibility in the position that, the property which the will assumes to dispose of being left in the same condition as if no such will had existed, the widow is entitled to take as in case of actual intestacy.
It is furthermore insisted for the complainant that she has a right to have “a year’s provision” set apart to her out of the personal estate, in addition to and exclusive of her “one-third” part, under the act of 1784. To this she is clearly entitled by force of the act of 1841, ch. 4, which in express terms gives “one year’s provision” to widows dissenting from the wills of their husbands, in like manner as if they had died intestate. But this year’s provision must be taken out of the aggregate personal estate before division, and not out of the remaining two-thirds, after setting apart one-third of the entire estate to the widow.
Again, it is insisted that the complainant is entitled, in addition to the foregoing provisions, to all such articles of personal property, etc., as are by law exempted from execution; and in this view of the law we concur. The
But the various articles of property, etc., secured to the widow under these statutes, must also he taken from the aggregate personal estate before division. The remaining two-thirds, in favor of the widow, will he charged with the proper expenses of the administration. And the residue thereof will he declared to have escheated to the State for the benefit of the “ common school fund,” the testator having died leaving no person capable in law of inheriting from or through him, or of taking either under his will or under the statute of distributions.
The decree of the Chancellor will be reversed; and the cause will be remanded, to the end that the parties entitled to claim the escheated fund may he brought before the Court. The costs of this litigation in this Court, as well as in the Court below, will be paid out of the residue of said fund.