Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1867-11-27
SUPREME COURT OPINION.
r. Knoxville, TENNESSEE, SEPTEMBER TERN, 1867.
THOMAS II. COLDwELL, ATTORNEY GENERAL AND REPORTER
JOHN VANSEL EFT AL, VS.. TIGHLMAN II. EVANS EFT
HAWKINS,
Judge, &c

/
The contest in this arises out of the
the will of Elias Vanse who died September 1852 pos
essed of considerable personal estate leaving his
widow Ia6itha, who afterwards inermarried with
endant, Ighlman H. Evans, and five surviving him.
The hTst clause OF the will reads follows 81 win
Deuah unto my beloved wife, Tabha the land
which now live also two negroesone by Of
Ral-one negro woman by the of Jane
| hood, and no longer"
y, Elias Vansel, John Vansel Roland Vanse Samuel
sci and Alexander Yanse after the death marriage of
beloved wife, Tsbitha all that tract parcel
wled wife, Tabitha, to have and hold the
ALSO the two 10 be sold and the proceeds
equally between my five sons after the
death marriage of my wife, Tabtha,'
In the Sd clause of the WILL the testatOr provides Tha
either both Of the above named negroes have wed
to my wife Tabitha shouldecome dsspated and dsobedn
the said negro or negroes shall be hired out the
proceeds said hire shall to the and support my
The 4h clause is In following language "My further
will and desire is that all just debts be paid
and my wife, Tabitha whom hereby appoint sole executor
of this my last will and testament"
the testator death was delivered Of pOsthumous
under decree Of the Chancey Court held entitled
Elias Yanse died unmarried and without ssue leaving af
ly five children to share in the testator's bounty
Under this state of facts this bill brought by chill
dren Of the teator, who minors sued by their
friend Allen Hurst tier the marriage of their moth
er with the defendant IlShman Evans, up
tate and have the rights of the PARTIES declared the
The esato prior his DEATH and after the execution of
tract of land and i've undivided in another tract
and sheep with the ordinary farming mpements household
and kitchen furniture, ct Get.
amounts to nothing. The clause could made
palmer unequvocal and direct that
tempted Interpretation it would ouly
1t clear the estator Intended to create limited estate in
the land which he then lived and the two negroes
named in his will as well as in all the personal property
or marriage. The language is and comprehensive
enough to include every species of property, money
second and third clause equally free from difficulty
and ambiguity In fact they the t and demon
property of whatever kind description he then owned
should under his will wife, for her natural life or
widowhood and the happening event over to his
children share and share alike.
me only magnsole dlhic1lty arises the fourth clause
which after ior the payment Of the debts
declares ha what money the tetator may have
sha go 10 the use and support of his five children wife
without in terms expressing any limitation over.
with the first clause construction thai the
last clause Of will must prevail therefore
lnappLcable This rule applies only two
that reason stand together Henry et al bv nf or
Hogan ct all Hum. EOS Redield Wills Yes IO5
s Yes. 1O2.
The prev aing rule governing the construction of tesla
mentary papers is that the intention f the tesao shall
be carried into effect when he fairly ascertaned un
less 1t be IN violation OF some established principle Of law
this there be doubt his primary object was to
othe ns wle win oenehcal estate for life during her
Wdo"hooa IN All ms real and personal estate including the
money on hands with remandeToyer if any death
the termination of her wdowhood children equally
This construction only conformity to the clear in
tention of the testor but in harmony with authority for
limitation parties second legacy given in general
terms, will go tothe parties, and mted in the
MGR legacy it will be construed subject same cond
tons the former. Crowder Clawes 2d Yes Jr 40
Redheld on Wills, $50 and authorities cited Il
The next question presented in this record is the
rights of the remainder the termination of the
particular estao this question we are not left TO
inference It has been repeatedly before Court and we
need do but tte more than follow adudicatons
In general where perishabe property given one for
ne and remainder to another it is the duty Of the
or 10 sell te estate anu vest the fund the interest Of which
'ny will belong to the person entitled estate
lermaB S
ButwheTe the win indicates the intention Of the testator
such sale can be made and the remandermen entitled
such part OF the property originally given after the life
hall fail Woods Sullivan, Swan 5o7 I'd Kents
ON. $50 to 35f. | T
In view principle and the construction we have 3
iven to the will it results that the reuanderman in M
only entitled to such parts of the personal property
rgnay given remained the death OF the tenant
life and If the wasted or converted any
the chattes to unauthorized her liable
onsumed in the intended to be made them or per-
ned py te or me death OF animals OF wear and tear Of
ana farming implements the rights of the remain
eran are defeated to such property They entitled
particular estate the original stock or compenstio
ut Of the lfeenan estate for such She
inverted to unauthorized uses. Il
The rents and use of the lands the hire
ave te aocesGns crops young animals the eaprng Of ~
alongs to the tenant for life absolutely in
institute part testators estate and the remainder
an therefore have claim under the any Of
em " F. Forsey snd wife Jesse LHton Exccrs ct gr
8. Yaulx and wife 10 Yer. 30 / Hum. l9s. %
As to the real estate it appears that estator was
owner OF one tract Of land and hyeeyehs undyi sr
ID interest in another At the time Of bis death and for pr
Guiding the interest had no titlc
iter his death and the qualification Of his executor III
interest in the land conen ted e decree whereby the
trx became bound to pay to the complainants In the bin
$780, the Of the counsel fees and
title TO the wosevsnhs undivided interest tic
vested in her and her six children by Rames err
re then living the
The objecof this purchase after the filing Of tbe bin for
rton rents &c, two-fod. First to release the cat
tors estate from its liability for rents and oad On
re the ute to the outstanding twosevenhs undivided in
est Tor the tenant OF the particular estate with remainder
er to the children Of the estaor. This of the
nsacton as well as the decree dvesting and vestB title
But if it not SO apparent the law would raise trust M
ee Cox vs. Cox and Talbot Pecks R. 1881; Hale vs.
The purchase price the wosevenths Of the and a. it bro
ary appears, was paid out Of the 70 which the ~.
settlement County Court Clerk a. execu the
the VIII she charged the estate With the
out and received credit FOR y, and she cannot ere
le' after voluntarily terminating her lie estate and az.
ths unasidea interest purchased ~ the funds Of the &
for the benefit Of herself and the remanderman Had uc
not required the money paid for these shares for the %
maintenance herself children have sign
ned and received the interest absolutely IN
aud to invest it in the land and in lieu Of the interest eTro
the rents and profits So upon hypothesis 10
now entitled to any interest in the land Chal
hose two shares Of the land, IN the Of Court u
y, viii be held to belong to the remanerraan aud The Test
will charged with whatever the original peona NJ
lery passed to her under the will flr widowhood
'h remained at The date Of her second such
any, che may have wasted during her tenancy or
erted to unauthorized uses and credited with the
Is Of the widow hood estate. Con
be hands due which passed Che tenant for me
i0cf ls viii otheE chattelas
ideEman, less the interest which accrued subsequent 20 Pre-
Fdows second marriage The interest ~ other scces 49,;
3, Is hers absolutely iitil
charge wall b allowed against the remandermsn for
support and maintenance during their minority and the
ence Of the limited estate be held re-
he for expenditures for herself chill
which were in reasonable conformity the amount Of
atei The rank and position % the family occupied In
~. trial
decree Of the Chancellor viii be reversed and d = '''
'rein indicated and rcmanded for an rropef
lnts.
true copy. MILICAN "a
L. PArTKHsoS, Clerk. ''ass' ves-