Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-10-12
DECISIONS OF THE sUPnEszn coUnT
OFFICIAL.
Opinions OF the Supreme Court OF the
state of Tennessee, at jackson, April
TeFms 1883.


| Opinions OF the Supreme Court OF the
state OF Tennessee, at jackson, April
Terms 1859.
BsIOAls, ct al W White.
This is an action of ejectment, by the plaintiffs to
recover 500 acres of land in the county of Hender
son; and Judgment being against them, they have
appealed in error, to this Court
The decision of the depends upon con-
structOn of those parts of the win OF Samuel Dick
ems, which relate to the deyises and requests, in
favor of his daughter Elizabeth B. Beloate, and her
children
They are, as follows: II give and bequeath to
John d. Martini Andrew L. Martin. and Edmund IL
V. Dickens, the survivor or survivors Of them, in
| trust, for the and annual support OF my dangh-
ter, Elizabeth B. Bel0ate, and her children, my stock
in the Planters Bank of Tennessee consisting of 40
shares. also give TO the said trustees 20 shares
of theresiduc of my stock, in the Farmers and Aer
chants Bank of Memphis-the dividends OF said 60
shares of Bank Stock, if needed to be applied to the
support and maintenance of my said daughter, Eli
zabeth and her present and future children, and 10
their education also vest the said trustees, with
| the power to sell the whole, or any part OF said
Bank Stock If they deem it eXpedient and 10 invest
the proceeds in that way they may deem advisable,
and to the interest of my said daughter Elizabeth,
and her children and if not sold before the exDra-
ton of the charter of said Banks to reyest the said
! amounts or proceeds, as they may judge best
give and bequeath the said Trustees, for the said
uses and purposes, all the property, both real and
personal, may own at the time OF my death IN the
/ State of Indiana
| After various devises and requests to his other
children the testatOr then provides as follows: "AA
the rest of my lands and real estate, give and be
oueath to my said sons, Thomas Dickens, Robert +.
Dickens Samuel b. Dickens Edward Ii. v. Dickens,
and to my daught ers, Martha Ia Bugg, Ann Mar
tin. Salle Martin, Mary Jane Dickens, and To the
said trustees, John ID. Martin, Andrew L. Martin,
! and Edmund II. v. Dickens, in trust for the uses
and purposes heretofore mentioned-which give
and bequeath to them, my said children, and SAID
trustees, and their heirs resPectVely-to be divided
between them respectively"
He then provides, for the equalization of his
estate among his children because Of certain adj
vancements, heretofore made then The testator,
then in like manner, gives the residue OF his per-
sona estate to his children, and TO the said trustees
tees of his daughter Elizabeth B. Beloate, and her
children save the estate he had, in the wi given
his wife; and provides, that all Of his children shall
be made equal in his estate-the said trustees TO
represent and be substituted for his said daughter
Elizabeth B. Beoate
Finally: ne directs that call the property both
rea and personal herein devised to John d. Martin
Andrew l.. Martin, and Edmund H. V. Dickens
they are 70 hold in trust for the use and benefit OF
nv daughter Elizabeth B. Beloate, and her children
present and future and they, the said trustees, or
any two of them, the survivor are hereby vest
ed with full power and authority TO sell aud convey
the whole or any part thereof for the and ben
eft of the said Elizabeth and children TO vest and
re-vest the proceeds, and to manage the whole in
any way they may think will promote the interest
and comfort of NV said daughter Elizabeth. fur
Their give the said trustees power and authority,
they think proper, and If 1t be the wish OF my SAID
daughter Elizabeth, to aOt to any one or more of
her children as they may settle of, of part OF the
said property not to exceed a chid's part, before
the death of the said Elizabeth; and after her death
the whole of the aid property to be equally divided
| between all her living children, and the heirs of
| those which NAV be dead-the said heirs taking
their ancestors share, or the share the ancestor
! would have been entitled to, if aliye-and where
Announcements have been made, the same to be ac-
| counted for by the parties TO whom made
! This will was executed on the l4th of January,
| 1859, and proven at the August Term Is4O OF the
| Cauntv Court of Madison county, and John d. Mar
| tin the exsnHtnr named therein, qualified.
The testatOr died sieIed Of the tract of land, in
dispute and in the division of his estate, among
his isees the same was allotted 10 the said trus-
| tees for Mrs. Beloate, and her children.
The plaintiffs, Samuel d. Bel0ate, Vim. d. Beloate,
Charles r. Relaate, and Reginald H. Beloate. are the
Only children of the said Elizabeth B. Beoate, living
at her death. She died femnle-eovert, in Weakley
county on the 18th of August, ls49 having been so
! from the year 1926.
! The said Samuel D. Beloate was born March the
! 9Th 1927 William d. Beloate, FEBRUARY 23d, 1879;
Charles r. Beloate, August 9th, 1888; and Reginald
! H. BelOate, May I'd, 1888.
Elizabeth B. Bel0ate had two other children, to-
| wit Beatrice Z. born the l4th June 1882, and I'D
muRd v born the I'd Nov. 1874, both of whom died
| in infancy before the death of their mother.
The first question is, what estate did John d. Mar
| tin. Andrew L. Martin, and Edmund Ii. V. Dickens,
az the trustees of Mrs. BelOate, and children take
What estate did she take9 And what estate did her
| children take
However we think it clear, the trustees took the
legal estate the entire property only during the
life of Mrs BeiOate; and that At her death the legal
! title and the trusts of every kind imposed upon
! them by the will, ceased and were at an end; ana
entire estate legal and equitable freed OF the trusts
| become invested in the plaintiffs This Is so by
! the express language and limitations in the Will
The words "and after her death, the whole of the
property be equally divided between all her llY-
| ing children" can have no other meaning. And
upon the authority of the cases of Smith Ct al vs.
| Thompson, Swan, 1856; Aiken ct al VS., Smith,
Snced 304; and Ellis Fisher, Sneed 23l; there
can we think be question: that this Is the proper
construction of this will
We think it equally plain that at the testatOr;s
death-Ezabeth B. Beloate and the plaintiffs, who
were then her only chidren-tOOk an equitable es-
tate, as tenants in common, in this property, IN
shares of 18th eRoh her interest being for life only
with the remainder to that to them, and their es-
ates in fee that the estate was subject to open for
after born children and did open upon the births OF
| Beatrice r. and Edmund ", in 1912 and in 1874,
| and that upon their deaths, their shares, blythe
terms of the will, devolved upon the plaintiff.
So they owned all equitable estate Of 6-lths; and
She for life in l-7th and the entire estate legal and
equitable, as before stated, being invested IN the
plaintiffs at their mothers death, Hill on Trustee,
oh. 2 sec. 2, pages $685. HaywoOds heifs vs.
Moore, Hume, 5S4
This much, we think is clear. We are also m
eIned the opinion upon proof in this record that
Edmund H. Y. Dickens, with Andrew L. Martin,
must be held to have accepted the trusts OF tins VIII
for Mrs Beloate and ehidren and that the decree in
the Chancery Court at Huntingdon IN lS44' under
the pPoeeodings instituted by John d. Martin Ed
mund II, V, Dickens and Ann V. Martin, the widow
andgexecutrix of Apdrewil. Martin, and by Mrs Be
lOate for herself and children, had the effect to in
vest Joseph H. Talbot with the legal title and trusts
of the estate in the way, and TO the same ex-
tent as held by his predecessors, q Sneed ZS)
though as we shall presently see, not t0il TIE same
LOlceTs But in the view we take of the case, 1t
cannot be very material to consider the effect OF this
decree since the result is the same-whetheF the le
gal estate remained with Edmund H. V. Dickens or
with him and John d. Martin, or with the heirs Of
Andrew l.. Martin or with, by decree, to Talbot
TholIGh the trusts in this will for Mrs BelOate and
children were imperative and well defined, and
such as Court of Chancery might execute, yet the
pOtoer of sale conferred upon the trustees was IN
our opinion, discretionary, and thing entlreiy Oh
| personal truth and confidence in Andrew L. Martin,
John D. Martin and Edmund H. V. Dickens, or any
two of them, the survivor and could be executed
| by no one else.
1t could not be devOlved upon others, either by
the deed or WILL other act of the trustees or be
executed by their heirs personal representatives;
because the will did not prOvid Nor could Court
of Uhancery as we appPehend have forced the tIus-
tees TO execute it, execute ITSELF by Its Clerk
and Master, or otherwise. Nor could trustee APP
or refusal act of the trustees the power becomes
extinct and gone. And in this ease, If we allow that
the legal title and trusts lawfully, by the de-
cree, devolved upon Talbot yet he could not sell
this land the power being incapable OF transmission,
or delegation to him. Hill on Trustees edition of
1886 by Talbot) 472 as, 49, 49, 4S 4S6, 497, 4sS
49, 495 Cole vs. Wood L. Yes. g. 46, $780, IS; Combs
ease Alexander Alexander, 2, Yes. CAB; Cox VS.
! boy, b. East ll3; DOFen vs., Warretf, Mylue and
/. sci. Bergio va. Duff 4, Johns CHI Rep 1863. The
case of Cole VS. Wood shows that very clear dis
tinction exists between pOloer and the estates and
trusts the subject matter Of it, and that while the
power may be gone, or incapable of transmission,
. the trusts may still remain and be executed.
How could a Court of Chancery here substitute
the master. or another trustee for Andrew L. Mar
tin John d. Martin and Edmund Il. V. Dickensl 1t
was not inperaiUe that a sale should be made.
: The testator intended that Mrs. Beloate and her
children should have the benefit Of the Judgment OF
these trustees or two of them OF the survivor
as to the necessity and prOprety of the sale. But
how could TalbOt's Judgment be their judgment?
We think therefore, that the sale by him, as
, | AGAINST the plaintiff, unauthorized and is void
and that Dudley s. Williams the purchaser, acquired
| no title. ,