Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-05-23
DECISIONS OF THE SUPREME COURT.
OFFICIAL.

OFFICIAL.
Decisions OF emo Supreme Court of Ih'
state OF Tennessee at Nashville De
cember Term. 1850.
Porter and others Greer and others.
The questions for our determination in this csus
arise upon the following clause OF the last viii snC
ferd county in 1924, viz:
II deposit in the hands of my executors hfty-fouI
and three quarter acres Of land, whereon my daugh
ter Elizabeth Porter lives, who directed to
let her. the said Elizabeth, remain said land, il
she thinks proper so to do, rent free, until keT
said land seld on q credit Of twelve months, and
the proceeds thereof equally divided between the
heirs Of my said daughter Elizabeth Porter. But
if she should not choose 10 continue thereon, nay
executors a. Aforesaid are dir eed 10 put the same
to rent until her youngest child as aforesaid be-
GENES Of age, then to be sold and divided as above
stated r ..
Elizabeth Porter, above named, was a married
woman ct the date Of the before mentioned will
wife Of Resce Porter, ard she and her husband are
stl living They had several children, who the
conplanants in the present BILL the TWO youngest o
whom had not quite attained full sgs at the time Of
fling the bill
The bill seeks re iaf against John Tsllaferro the
executor and others, in respect TO various matters
on the part Of the executor but the decree Of the
Chancellor has been scquiescsd in, except that par
OF il which aAjrdic tes the rights Of the complain
sats under the foregoing clause Of the will.
II appears that shortly after the testator's death
EIizabeth Porter aad her husband and family re-
moved to West Tennessee, and thenceto Texas And
on the 9th Of September, 1928, Porter and vii
Joined in the absolute sale and conveyance of ssiG
t-act Of land to John and SpeLeer Eakin; and afeI
versl Intermediate sales it was sold and conveyed
| 20 the defendant Greer, on the 18Th Of February
1858. The proof shows that the land hiss bsen sd-
yersely held and clsimed By Greer and those under
whom he derives titls since the sale by Porter and
wife in 1925 the executor having wholly disregard
ed his trust in this respect.
This bill was fled in March, 1859, after an sd-
verse possession Of thirty years from the convey
.nee By Porter and wife.
The Bill seeks to stay the commission Of waste
upon the lsud By defendant Greer, until the young
est of the complainants shall STRIVE st sge. and thai
the land shall then be sold, and the proceeds divi-
ded a. directed by the will The eomplainants also
set up elsim to The rents Of the land against de-
| fendsrt Greer and the other previous occupants.
The Chancellor denied the complaiusnt's demand
for rent being pf opinion that in virtue Of the con
veysncs by Porter and wife, and the several inter
| mediate conveysnces down to the defendant, tbs
latter had an estate in said land defessible in th'
coming Of age Of the youngest child Of Elizabeth
| Porter, at which time the complsinsuts would b
entitled TO be let into the possession thereof and 4
| hsye the same sold uHder the will.
For defendant Greer, it is insisted, thst the de
cree in this respect is erroneous; upon the sssumP
ticn thst his title had ripened inte perfect, inde
feasible title by operation Of the statute Of limits
| tIcns.
This defence presents question by no mean
| free of difficulty. If ss assumed By the decree
| The effect OF the will was 20 createsn estate II
Elisabeth Porter until her youngest child sbOLld ar
rive at fall age then il is clear that the statute
iimtsions could have application, as against th
| complsinsnts, the youngest child not having ye
attained its age; and onsequenty their right 10 de
snd posssssion or sale Of tho land hss not yet sc
orued liz this view the doctrine ofthe csseof McCo-
4 rv vs. kings Hum, would sustsin the decree. Bu
il il argued that under the will 40 estate or ili
was vested in Elizabeth Porter; and We think tn'
| argument is correct. 1t seems to US that she va
| vested With nothing more than mere aslfrs'et o
y;obt af epioyiaz the possession and nrof.s lon
a. he minority Of her youngest child lasted, II sh
1 tbon ght proper to do so. This was obviously tn
extent OF her right; for, by the express terms o
the will IL she declined to occupy the land, II va
made the duty Of the executor to rent 1t out unit
the youp geet child should come Of age Nor, upoI
her electing net to occupy the lSed' could Sne Sc
M su7 claim to the reEts, the will makes no sue
provision, nor does it contemplate any such thing
True the rents of the land, in that event, are no
specifically disposed Of but it is clear that the.
Tould 20 into the residuum Of the estate, and pas
under the residusry clause Of the will.
II is asked, II the estate did not vest ia Ezabet
Porter, until the majority Of her youngest child
where did it gos We answer, 6rst, that it did no
20 to the executor, as trustee, IS has been sug
gested.
The words EI deposit in the hands OF my exeeu
tor the tract Of land, &C., import nothing NOR
than mere right Of superintendence and control
subject TO the directions of the WILL till the MAJOR
ty of the youngest child Of Elizabeth Porter N
| estate in the land vested in the executors. Trae
the land was to be sold when the younges. chill
should come Of age; and. by implication, the pOWe
| of sale in such case would dsvolve upon the exc
cutor-l Sneed, 31S, 800; Humph., o6S; Sug. o.
Powers, 134. Bot, if one BY vi ! deviseth that hi
executors shall sell his lands, the executors hav
neither right nor title, but only bare authority
Co. Lit., 2e5, b; . naked power without an inter
est Yerg, Is, q.
We answer in next place. that, on the death {
the teststor the title to the land in question des
cepded tc his heirs-st law, in trust for the CON
pisinsuts, Who, when sll should come Of sge, migh
esct to take the land, dispensing with tho sale,
have it sold ss provided By the will
| The Argument 10 altogether fsllsoious, however
that. upon this hypothesis, the right Of TIE oOm
nIaina1t il barred because, as is alleged, the sta
ute has barred the action Of the tEsCesthe heirs
| at-lav of tbs teststor-in whom the legal title We
vested and who, it Is assumed. we're all free froI
disability with the exception Of Eizlbeth Porter
at the date Of the sale BY Porter aud wife, IN lo2e
There is q mistaken conclusion, based upon m
application of the principle Of the case of William
~ Otey. Humph 563. That was case in rel'
tiou 10 slaves The legal title runs 10 the trustees
An express conveyance; the technical, conventions
relation of trusee and e6st gut fgest existed. Th
henefciaries had . present right OF actual posses
SION and enjoyment; and the trustees bad not onl
the power but it was their imperative duty, By tn
L . -. "a kaNt fhA frua
But, In the present case, the heirs-st-sW Of th
tesLstor were trustees for the complsiusnts, mere
by construction, upon the fac, Of the dry legal tl
having by operation of Law, been cast upon then
to the land in controversy And, while il s tru'
that they night have sued upoH the wrongful amer
stion By Porter and wife, yet they were not oouI
10 do 90 the lsw imposed no active duty or ooiig'
lion upon them: they we're simply the SipO'toTy ,
the naked legal title trust whatever was sctua
Iv delegated 70. or devolved upon them; snd cor
sseusniIv. they were subject to no duty or respol
aibility in the events that happened in respect
the land. ,.
And, furthermore. the cOrplainants had no pre-
emf iutsFest TO be affected by the wrongful sale ?
Porter and wife, and the omission OF the trustees
sne. their interest was future-upon the haPpef
ipe of the contingency provided In the WILL
IN. st,tute of limit atoms could no more opera
IN snch = case. than in the case Of remainde
man where the tenant for life had stood PASSIVE
hv fer more than seven years ana suHertu DIS ssts
70 be barred In the latter case it IS conceded tb'
| ths tights Of the remainder man would not De Q
s.stsS hy the bar intsrpOsed, in favor Of the po
session, against the tenant for life. The remaind
nan. IN such case can remain passive, beeau
the statute osnnot attach begin TO operate again
him until his right Of possession or erJ'ynent shs
have accrued.
The executor, in the present case, might hs
sued. In equity: and it was 9 culpsble neglect
dnty not 70 have done 50, immedisisly upon q
Abandonment Of the possession and sale OF the laE
by Porter and wife, True, the executor hsd !
little, as We hsvs seen; but he hsd power to lea
the land, and it wAs his express duty to have oO1
ao. vbenever Mrs Porter ceased to occupy it.