Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-05-20


Henderson, Attorney at Law.
DowinR. Executor. ~. Sally Johnson, Fl al
lc0NCLUDED.l
lie was then owner Of a small estate which
had been acquired by the Joint industry and
economy Of the husband and the wile-the lat
ter of whom in 1859, the date Of the viii, was
about seventy years of age. BY one clause Of
his will he gives his entire estate, real and per-
s0nal, 10 his wife for life, to be by her freely
possessed and enjoyed; by the next clause he
directs that after the death Of bis wife his lands
be divided, and gives one portion 10 ono OF his
daughters If living, bat if she be dead then to
her children. And 10 another daQghtsr IN inc
same manner. he gives the remaining portion Of
his land.
And by the fourth clause he says :: "The bal
ance OF my property money or other elects
dispose Of ia the following manner that b,
direct that my negro boy Charles, and al the
rest OF my property, be sold TO the highest bid
der, on a credit Of twelve months, and the pro-
ceeds disposed of as follows" etc. Now, IN the
first place. il viii be observed. the testat0r gives
his entire estate, real and personal, to has wife
for life 10 be by her freely possessed and enjoyed
and IA the second place, IL will be observed, the
testator does not give an estate 10 remainder IN
any OF ms property except the land, the pro
cceds Of the boy Charles. and the balance Of bis
property which might be on hand at the death
of his wife.
We think il was most clearly the intention Of
the testatOr 20 provide for tho support and
maintaipanoo Of his wife out Of his property,
and 10 that end gave her life estate in It, ami
declared that il should be freely possessed and
enjoyed by her, and as II anticipating the cor
pus of portion Of il AZ least must be consumed
by his wife, in he= support and maintenance IN
her declining years. ne only gives such balance
AS may be on hand at the death Of his wife IN
remainder. Therefore. Sally johnson the de-
PENDANT. is under the will of her deceased hus
band, entitled 10 the possession, use and enjoy
ment during her life. fall the property belong
ing % her husband at the time Of bis death, and
If her support and maintenance in her dscre-
ton require 10, she may consume tho corpus OF
the entire estate, except the land, and should
there DE any balance on hand at the death Of
the wife, II passes under the Will to the re
maindermen.
We do not say in a proper case made out, that
a Court ul ChanCcry would not interfere 10 re-
strain fraudulent and eXtTavagant waste OF
the property given to Mrs. johnson, for her snp-
port during her life in order 20 protect the an
tcrests Of the remaiBdermeh, but no such case
is made out IN this record, as will authorize any
such intcrposition.
The record. SO far from showing that Mrs.
johnson has been wastetul or eXtraVagant, shows
that she Is remarkably careful. industrious and
The ground upon which the Chancellor basis
his decree. requiring her TO give bond with secu-
1Tity. IN double the value of the estate cOndi-
toned for the forthcoming Of the corpus of the
estate at her death, 20 wit. that she claimed in
her answer that the estate was hers absolutely
and had made some imprudcnt remarks abort I
destroying the property, we think when taken |
In connection with the facts Of the case, are
wholly insufficient 60 authorize the imposition
of such burthcns IherC lS no proof
that she ever set up an absolute ownership over
the property az any time, or under any crcum- 1
stances, except through her answer 10 this bill
nor is there any proof showing that she intended
OF desired 90 dispose OF the property IN any man
ncr so as 10 defeat tho rights, or prejudice the
interests, Of those entitled 10 the balance on /
hand nj her death Surely Der remarks about
burning destroying Of the notes cannot be tor
tured even into a purpose on her part 10 defeat
the romaindermen. She was rightiully in pos
session Of the notes. accounts, etc, which her
husband bad given her by his win. ans Of the
notes given for the purchase money Of property
given her in like manner for life. To which she
rightiully looked for q support. When the com
plainant wronglully demanded them Of her she /
refused TO give them up and doubtless. irritated
she well may have been by the injustice Of the
demand. said something about burning them,
rather than giving them up 10 the complainant /
in obedience to his command.
But what rights has the complainant In this /
hhgatonI lie seeks n construction Of the will |
and the direction Of the court as 10 his duties.
This much, perhaps. he had q right to ask Of the
court under proper frame Of the ball. No |
specific construction OF direction is. however,
asked for. but such, II does not seem 70 as. was
the real object IN the filing Of this bill. BY its
frame il is apparent the real object OF the cN-
ecutor 10 ahridge the rights Of the widow of /
the tostator, and In a proportionate degree to /
enlarge the interests of the rcmaindcrmcn. and /
in the meantime 20 have the funds transferred /
20 his own hands. Tho remaindermen do not /
complain, but this complainant, 10 crafty an /
oyerpOwering anxiety % htigate. files this bill /
age, and against the gemaindermen, 20 protect /
the interests of the remaiudermen, and thus /
seeks 90 charge funds in which he has no inter /
est, with the expenses Of this litigation. and en-
large the basis for allowances 10 himself as eX- i
ecutor.
Tho executor has no interest whatever in the i
question which forms tho principal, If not the 4
only ground of contest IN this court. for IL is Il
wholly immaterial 20 him whether. under the Il
viii, Mrs, johnson has the right % consume the Il
corpus OF the estate, or only 20 the enjoyment Of
the use of the property In mother Il
case can she Ice made liable 10 the remainder |
men even though Mrs. johnson should consume |
or waste the whole estate. But be this nj il |
may, no decree can now be pronounced which |
will protect him; for although ho has formally |
made the remaindcrmen parties defendants to |
This bill, they have not answered nor has any |
FRO caflYssss been taken against them, |
nor does Il appear that they have been served
with process. or any notice whatever Of this /
salt All this seems 90 have been lost sight Of
hy the complainant In his anxiety 90 deprivethe |
widow Of the testator of the enjoyment Of her |
husbands bounty. except as he may dole out |
The same 10 her under the discretion of the
chancellor, 90 be ascertained by the opinions
Of witnesses as Co the amount necessary to |
her annual support. Such n course in view
1i the facts of this case, we think would be |
mantestly unjust and totally defrat the in
leutiun Of the tcstHtor. We do not think the |
complainant Is entitled 90 any relief whatever.
The fund will be restored TO the defendant. /
sally johnson. and for the reasons before stated
ne ball will be dismissed aud the complainant |
charged personally with the costs of this uuneces-
.ary litigation. HAWKINS, Judge.