Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-07-17
DECISIONS OF THE SUPREME COURT.
OFFICIAL.
Decisions of the Supreme Court OF the
state OF Tennessee, at Knoxville, Sep.
Gember Term, IseO.
Tipton vs.. Tlpton and Other..

Upton Upton and others.
The questions in this case arise upon the constrnc
lions of portions of the viii of Jonathan Upton de-
| ceased. o. .--.- -.-.--1
| The first question is upon the following clause
| viz Il do hereby givs and bequesth to my wife
Margaret Upton tie amount of estate and property
| got with her in marriage that now have in pos
session or Sol Be al nay death. Rurrel Rose Sophy
| and her three children Minerva, Lucy and Simon
and all the property OF every description that got
with her in marriage. Also half the tract of land
where now live, containing $40 acres, to be laid
of at the lower end to suit her convenience to in
clude halt the cleared land, and all the buildings,
her life timeo
After the making of the will and before the death
of the testator, the woman Minerva named in She
WILL gave birth to two children, MariAh and Gilbert
and the woman SOphy named IN the viii, gave birth
to child named Montgomery.
Upon this clause Of the WILL we are of opinion,
that the three children born after the date of the
will, passed to the widow, together with the other
slaves specifically named and that she take them all
absolutely, and not for life, only as held by the
chancellor. The Limitation of ifs interest in the
real estate devised in the following member of the
clause has reference to the preceding Request Of
the slaves
3D. The next question j. uRoa the following be-
quest to the WjdOW-"alsO the amount Of the fol-
lowing notes; John Stephens two hundred and
ninety-three dollars Robert POrter's note S4SS,
Ruth and LIZARDS 1885,"
After the execution of the will the testator trans
feFred the above mentioned note on Ruth and Lii
lard to his son, j. c. Upton, taking the of the
latter for the amount of said Roef and this note Of
J. G. Upton remained amongst the valuable papers
Of the testator s. ais death.
The question is was this an GdenptiOn, so far as
regards the note on Ruth and Lillard. The sOlu
ton of this question depends upGn whether the
legacy Is to be regarded as general or specific. The
rule of adeEptiOn does not apply to general or
deEOnstatYe legeCes that is to legacles OF much
reference n
payment; as if the legacy be gwen out of partie
ular STOCK or debt, for in such case, although the
particular fund be not in existence st the testatOrs
death. the legatee viii be entitled to satisfaction out
of the general estate.
But if a bond or note or debt be specifically
bequeathed and it be collected or disposed of by
the testator, after the making of the will il will he
ademptOn Of the legacy the subject Of the
legacy "a eztinguished, and nothing remains 10
which,the words of the will can apply. Sec. Will
liaIls on Exri 800 8, al.
According to the weight Of authority, the bequest
in the present instance, specific 6e4uest of the
notes debts evidenced thereby: consequently the
disposition OF the note on Ruth and Lilard. By the
tests in his lifetime was an ademptiOn pro tGI5O.
81. The word children does not in IL legal Sigui
fcatiOn, include grand chilifeE." but it may be
held to include grandchildren, when there IS an
ambiguity in the will and the manifest intention of
the VIII cannot otherwise be satisfied 2, Jarman
wills, Oh. 81 notes. Williams On EX. az ct sew.
Taking the cOdicil and will together it is perfectly
clear that, by the word 'childrep' in the body Of
the will the testatOF Intended TO include the chill
dren of his deceased and daughter; the Codicil
demonstrates this beyond all question: and upon
any other construction the cudicil is rendered
wholly imperative,
The children of Sarah Wilkinson, daughter OF
eEtatOF) will take by representation the interest Of
their deceased parents; and George B. Upton,
(testatOrs grandsOn) will take under the codIoil
share equal to the share Of each Of the Wilkin-
son grand children.
The decree will be modified accordingly.
MCkINSEY.
4 true copy: W Il. CASwELL, Clerk.