Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-29

This is bill for the construction of the win of

Jubilee Rogers
Y In the second clause he bequeaths to his wi
Harriet, during her life, or widewhOod, seven
, groes BY name, and at her death OF marriage. TO
I disposed of as he should afterwards direct in sa
will-unless she died his widow and in viii
, event he gave her the privilege of giving the sa
negroes to whom she pleased among his children
grandchildren.
The fourth clause of the will is general resi-
uary, one to his four sons, John A. Pheeg \
Benz NJ, and Jubilee W., or their legal represe
tatives.
In the fifth clause he directs that in case of Il
marriage of his wife. Harrit the slaves shall
equally divided among his children, If living. ar
ii any of them be dead leaving issue, that ;ssue
receive the share Of its parent.
The testator died in June, 1855 and the said Ha
riet died the 18th Of February, 1858, without di
posing OF said slaves under the power given hel
In the second clause OF the viii, and without havin
again married.
The question to be decided is what becomes of tn
! slaves! Do they go to the testatoPs children an
grandchildren under the second clause or to hi
| four sons under the residuary clause or to hi
! children under the fifth clause which only direct
to whom they shall go in case Of the second mar
rage of said HARRIET Or did the testator die ines
| tate as to them.
The Chancellor beld that as to these slaves tbs
| testatOr died inteStQts
In this we think he erred From an examination
of this we believe the testat0r intended t.
die intestate to any of his property and the lie
gal presumption is that he did not so intend Such
IS the viii in all cases where man engages in an
| act SO important to the execution of his will
| Williams VS.. Williams, TO- Yer. 25.
Nor do We think they pass under the resi- iuary
clause to the testatOrs four sons it being apparent
from the context, that they not intended so ia
pass. As it is clear they do not go to his children
under the fifth clause for that could only be in the
event his widow married again. and she never did
mary.
We have had much difficulty in arriving at what
we suppose to have been the meaning of the tesla
tor in this will At one time we were inclined to
concur with the ChancelioP's decree. But a more
careful examination Of the WILL and the authorities
leads US 10 the conclusion that under the second
clause OF the WILL these slaves, upon the death of
the testator's widow. went per capita to his chill
dren and grand children then living
1t isa well established principle that where trust
Is created for certain class of Objects and the di-
rectonary power applies only to the selection from
or distribution amongst those objects. the Court
while it disclaims the exercise Of the discretion re
posed in the trustees, will If necessary, enforce the
performance of the trust by decreeng the distribu-
ton OF the property amongst all the objects equally
Hill on Trustees, 4s6. Brown vs.. Higgs, 4, Yes
708 Yes. 494, s Yes. SCI, lS Yes. 1872
The difficulty here, is. TO determine whether Har-
riet the widow Of the testator, had power, simply
as SUCH or power in the nature of a trust or if
it be not power in the nature of q trust whether
over to the objects of it in default OF any appoint
ment by her. In many instances it sdHcult TO dis
tinguish the cases upon these questions Sagden on
Powres, 3S4, 397.
If the testator intended it 10 be condition preee-
dent to the gift of these slaves his children and
grand children that his widow should exercise her
power in their favor, then interest could vest in
them until the power duly exercised; and she
having died without exercising it. the gift cannot be
enforced Hill on Trustees, 400. And so if it were
81,
Higgs, Yes. $40. But if it be power in the ma
ture of a trust-which IL was her duty to execute
or power with Request over to the objects of it
in default of any appointment by her and of her
failure to marry again, then, though she might by
the exercise of the power at her death have given
her slaves to whom she pleased among the testatOr
children, or grand chdren-being confined to that
Olassyet having omitted to exercise it, the entire
class will take. Hill on Trustees 81. 10 Yes. 5gj;
do. SCI Jarngan Conway, Ham. So
In some of the decided cases on this subject there
appears to be manifest distinction between those
cases when the absolute interest is given TO the dOnee
of the former, and when consequently the exercise
of the power take effect only out of that inter-
est and when the person by whom the power is to
be exercised. takes only previous estate for life to
which power is only collateral
In the former case the donee of the mower him
self would be entitled henefcially upon his refusal
or omission to exercise it; and the intention wish
of the testator to qualify the gift TO him would thus
be disappointed. Consequently in such cases, the
Court has ALWAYS endeavOred to give effect TO the
apparent intentions of the estatoF by treating the
doneu as 2 trustee for the objects Of the power
But when the executioHo of the power is not 10 take
effect out Of the interest of the person by whom it
is to be exercised as when If was given 10 a tenant
for life to be exercised after the determination
of his life estate; portion when the party
to whom it is given takes no beneficial interest
tho same argument on behalf OF the objects of the
power, does not hold good, and the decisions in
fayOrot their takes in default of the exercises OF
power are said not to be so uniform.
And it is said that indeed when they have been
held entitled in default of appointment the decision
has proceeded on the ground that the power was
IN the nature of trust in their power hut that the
bequest operated direct gift to the objects in
default of the exercise OF the power. Hill or
Trustees, CO, o.
But the above distinction between an absolute OF
less interest in the donee of the power seems now
not to be attended to, and at the present day the
Courts will endeavOr if possible, to cOnstrue be
quest of this description into gift by implication to
the objects of the power in default of its being eY
ercised. Hill on Trustees, SO, Sagden On Powers
3ss-9, Walsh vs.. Wellington, Mylue H. Kennedy
vs.. Kingston JAG. and Walker 43l, Brown VS.. Pc
coch Lin PSI, Craft vs. Adam IL Lin. G39, Bren
ough VS.. Philcox Ny. and Cry, ~. Notes to Har
ding vs. Glyn in White and Tpd1rs EQUITY. Case
reported In Y Law Library 344 to 352, top pages.
In Brown VS.. Riggs the words authorize and EN-
power were held TO create an imperative trust, OF
gift in favor of the objects of the power in default
of its exercise So In Brown VS.. PhileOx. the word
" shall have power to dispose of by will > had this
effect Note to Harding VS.. Glyn " Law Library
1913, 344
And so also in Brown vs. POcoch Lin. 257. A
Request 10 one f1B ifs tsb Tie palss az sggR3 mo
biety of the property TO and for the benefit
his wife and children in such manner rs he should
by will, duly executed. give and bequeath the same
ia default of appointment, was held gift TO IN:
wife and children by implication. The Vice Chan
cellor said, - the eodcIl contains no express gift
over in default of appointment but it is clear that
the teStatrix intended the wife and children to taks
the fund. end therefore, am Of opinion, that theirs
is gift To- them, by implication, subject 10 The pow
err" And in Kennedy VS.. Kingston, JAG anC
Walker 43l, upon bequest to Ann Rawlings foI
life of 500 C. and at her decease to divide it iI any
portions as she shall choose TO her children" thu
Master of tie Rolls held that power to appoint thC
propOrtiOns in which definite objects are TO take
iacly includes gift to them, in default Of appointment
And in Borough VS.. Philcox the same rule applies
when there Is power Of selection from class, o.
from one class of pesOns or another IN the alterna
tive Hill on Trustees 20 Jones TORN, Lin 255
| Long Us. Brown Yes. l25
With these authorities how are we to construe
the present wills
Here is no express gift in default of appointment
| but only upon her second MARI iage which never
having takeRsplace neither the fourth or fifth CLAUSE
touch these slaves; for L she died his widow they
I
/ Now can there be doubt if we look to the entire
| will that the tes.at0r intended, III the events tina
| have happened to dispose of them! And that upol
the death of his wife his children and grand child
rem should have them. We think not and that j
must be held gift to them by implication, subjeo
to the power which the testat0r for wise and Obyi
Gus reasons intended she, at her DEATH might exeT
| else among her children and grand children How
the subject of the power, and Of the gift the sever
slaves admits of no uncertainty. And 50 as to the
objects or persons to be benefited towit; children
or grand children OF the testatOr not has children
and grand children at his DEATH but at his 's deaf
J for the rule is that when-as in this case-the do
nee of the power has life interest in the subject
! the power which is 10 be exercised by the will,
her DEATH or at or before her DEATH the objects vii
be considered to be those who answer the particular
description at the death of the donor and there will
| be uncertainty. Notes TO Harding ". Glyn. White
! and Feeders Ed, cases, " Law Library $685. $40,
JAG and Walker Az Rqse and sMylue rs; 6 Lin
| 257.
But who are the objects of the power and of thu
| testator's bounty here?
| What is the meaning of children or grand ohildFel
as used in the second clause of this will. Are tn
grand children to take with their parents? Or ar
tae grand children mentioned merely as substitute
for children and to take only in the event of the pa
| rents being dead? The latter is, we think. the rul
BY which this will should be construed. This is W
think, the intention upon the whole will, and upO
the authority Of Jones VS.. TORN, Liv. Zjj an
Goethwaitt vs.. Robinson, Liv. 49, though it ma
seem To be against LOngmOre vs.. Brown. Yes. IL