Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-27
Test NJ D wrLca. Clerk,



Albert q. Mcclellan ct. al. Charles D. Mclean, ct. al.
II appears from the record in this case that James
D. Mcclellan and Isabella Mclean, inseFmarried IN
lS3l-that they lived together very dfectOnately
and By their industry and energy accumulated an
estate worth from seventy to eighty thousand dol
lars.
They had no children
In February, 1859, he died Of Consumption with
which lie had been afflicted considerable time
She survived him, until October, 1857, when she
died
He LETT viii dated the 2sd day Of August, 1871
to which he made codicH dated the 18th day Of
January, 1852. a
The operative words Of TIE vii are as follows:
II viii and bequeath to my dearly beloved wife lisa
bella Caroline Mcclellan, al the property, both real
and personal legal and equitable, that I may die
seized or possessed Of or in any measure whatever
entitled TO- ali the money notes accounts chooses IN
action, and every other species Of property that
may be entitled TO- her, and her heirs fore YER 20
dispose Of as she may think proper
! BY the codIci he makes two requests to ether
| persons, one for $1,000, and one for 500.
This bill is fled BY the brothers and the sisters
and the heirs of deceased brothers and sister 0.
James d. Mcclellan, who charge that before and al
the date Of said will there was a mutual agree
rnent and understanding between the testator and
his WIFE, that at the death OF the survivor their
| property should be equally divided amang their
respective relations; giving one half % HIS and the
other half 10 her relations That in consequence sf
her death he made his viii giving the whole Of his
estate 10 her, in fee simple.
The conversation between The parties, their de-
claratsons and acts proven. estabsl very satisfac-
torily the fact, that such an agreement or under
standing did exist between them.
And the proof discloses the fact that he was very
sOlicitous upon the subjects that when he about
to leave home on journey to Florida for the bene
fit OF his health from which he did not expect to
return alive, nc exacts from her a renewal Of the
promise, and upon hearing of bis death, she would
have her VIII written giving TO his relations one
half AMI to hers the other half OF their property.
At her death she Left viii, in which with some
incOnsiderable exceptiOns) she gave the property te
her relations, aud those Of her deceased husband
but not equally. She gave more to the McLeans
than to the McClellans
The oomplainants seek an equal division Of the
estate between the two families insisting that Mrs
Mcclellan took tie estate clothed with trust in
favor Of his and her relations, equally raised by
the agreement or understanding, between her and
her husband.
It insisted on the part OF the defendants that as
the gift is absolute in the win, trust cannot be
raised by paroL
We are of the opinion, from authority, that such
trust can be created by paarol agreement and the
agreement being in parcel must Of Necessity be
proven by par0l evidence, and that in this case Isa-
bella g Mcclellan took the estate in trust be d.
vidcd at her death equally between her relations
and those Of her deceased husband.
The subject and object of the testator's bounty
being subject to no uncertainty, aad the proof Of
the agreement being satisfactory.
The ease Of PadmOre VS.. Canning SIMON GA, is
very similar to the case under consideration. The
facts stated in that case are, that the tesator
communicated TO his wife his desire and determine
ton 10 give the whole of his property real and per-
sOna to his two natural daughters after the death
Of his wife. and upon receiving thar communication
she proposed that he should leave his property to
her, and undertook and promised, that if he would
do So she would carry into effect his desire and de-
termination in favor Of his said natural daughters;
and upon the faith of such undertaking and prom
Use, he made his WILL which after other provisions,
concluded thus " And as 20 the rest. residue and
renaindeFofmy estate, ofevery nature and kind and
all the property have givelevise and bequeath
the to my dear wife, her heirs administrators
and assigns, for her own separate use and ENJOY
m6nt-haying a perfect confidence she will act up
to those views which have communicated to her,
in the ultimate disposal Of my property, after her
iecease'
It was held that such a state of facts would ere
ate doubt, which Court Of equity would enforce.
Here was an absolute gift Of the property on the
face Of the will and the trust was created BY a
parol agreement The clause that he had perfect
confidence that she would act up to his views. &c.
in the ultimate disposal Of his property after his de-
cease could not aid in discovering what those views
were. The object of his bounty, and the means
Of the disposal were left to be discovered by parOl
evidence, and this provision tends to give discre-
ton to the devisee, TO act up to his views not
The terms are not imperative nor do they convey
the idea of any promises ON her part 70 act up to
his views.
To the same effect in principle are the cases of
Thyun Thyun l Nerusa. 279; Drakeford VS..
Wilkes. Atkins Rep. $780, Wicket vs. Raby, 3
Brownies Parliamentary Cases. Is, and Richardson
vs.. Adams and wife, 10 Yer. 273.
The decree Of the Chancellor sets up the trust so
far the decree is right but that part which excludes
from the account the profits accrung after the death
Of James D. Mcclellan. and includes any of the es-
tate converted used by Isabella C. Mcclellan in
her lifetime, is erroneous
An account of the estate should be taken as 1t ex
listed at the death of Isabella C. Mcclellan giving
one half in value to the complainants to be divided
among them according to the statute Of descents
and distributions, and commissioners wiz be APP
pointed to value the property, and make the divis
ion. S. W COCHRANE, Special Judge.
Test NJ D. WELCH, Clerk