Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-07-31

~ w A2L VIZ = VI lin S1NN Il
above recited, the legal estate in
fee was vested in William q. john
son, the trustee, unless the effect and
and limited by the express terms of
the subsequent portion of the deed;
or unless the estate which the trustee
would take by the force of the express
terms of the deed, being greater than
is required for the administration of
the trust, is to be cut down by the OPP
Grafton of tine rules of law, to such
estate as may be simply sufi-
cient to enable him TO administer the
trust. The deed first conveys the legal
to the trustee and his heirs, and
the estate being limited to his and
their use, the use is executed by the
statute of uses in the trustee and not
in the cestIGs que use, thereby creating
an estate in fee in the trustee. The
deed then declares this conveyance to
be in trust for the use and benefit OF
Mrs. Watkins for life, and at her death
to become the property in fee simple
of the heirs of her body. If this last
clause be construed to vest a legal es-
tate in remainder in the heirs of the
body of Mrs. Watkins, then 1t con-
tradicts the terms of the preceding
unrestricted grant of the entire legal
estate to the trustee. If it be held TO
convey an equitable estate in remain
der to these heirs, then it is consistent
with the preceding grant OF the legal
estate in fee to the trustee. Perhaps
the latter clause, standing by itself,
might bear either construction; but
our duty is 10 SO cOnstrue the deed as
to avoid all unnecessary contradiction
in its terms, and TO give effect to every
part of it, if possible. We therefore
hold that the deed in question, by a
proper construction of It's terms, Ope-
rated to convey the legal estate in the
land to the trustee in fee, subject TO an
equitable estate for life in Mildred b.
Watkins, and an equitable estate in
remainder in her heirs. And l do not
think that this legal estate in the
trustee will be cut down by imphca-
ton to an estate for the life of Mildred
b. Watkins only, so rs to vest a legal
estate IN fee simple or fee tail IN her
heirs Mt her decease. The rule of eon-
struction applied TO deeds in this re-
spect is more strict than that applica-
bic to wills. And / nm satisfied that
upon authority both in this State and
elsewhere, the legal estate Of the trus-
tee in this case will not be cut down
below a fee by implication. Hill on
Trustees, 24S. Most of the cases in
cur own reports have arisen upon the
construction of wills. In Smith d
Thompson, 2Swan, 3S6, Judge Totten
saws "na express limitation of an es-
tate in fee contained in d deed, will
not be cut down into a less estate
merely because a fee in the trustee L.
not necessary for the purpose of the
deeG.v And in that case the Court
held that the estate of the trustee was
limited to a life estate upon the eX-
press ground that the property con-
veyed being aslave, was a chattel and
not real estate, In Aiken vs.. Smith,
/ Sneed, the property conveyed in
trust was also a chattel-a sl6y3. Me
Kinney, Judge, referring to Smith VS..
THOMPSON, says: " In that case, as in
the one under consideration, the in
terest-of the trustee is expressly re-
stricted by the terms Of the instru-
ment to the life of the persOntO whom
the life interest is given." II Stevens
VS.. BOmar, 8 Hum, 5lG, the property
conveyed also consisted of slaves, and
the decision throws no light upon the
present case. In Park vs.. Cheek, !
CaldW., 20, the deed under discussion
conveyed real estate to Il trustee "tO
hold the said lot during the natural
life of Emily W" with remainder
over to her children, 1t does not APP
pear by the report of the case, whether
the grant to the trustee contained
words adapted to limit a fee. But the
opinion of the Court states that it is a
general rule of law that the trustee in
whom is vested therein As the purpose
Of the trust rGquiresi and holds that
i'm that case the trustee took only an
estate for the life Of the wife. The
distinction between the case of q deed
and that Of 4 will, is not alluded to In
the opinion. The ease is 50 reported
a. not TO afford Us much aid in the
present case. In Williamson VI. Wick
ersham, 3 COldw., y, the conveyance
was of land to a trustee and his heirs,
i'll trust, to sell for the payment of
debts: and the Court held that upon
the decease of the trustee E6fpre the
u6pt9 MCIt FOiu VI A0llu SyAQj lit AVSNi
estate vested in the heirs Of the trus-
Tee. Ailligan, Judge, who delivered
the opinion Of the Court, states that
elf the duties imposed upon the trls-
tee for the purposes OF fhe trust, re-
quire only an estate per dtdFe ne to be
vested ill him, his legal interest viii
be cut down to that oKtent, nOtYitb-
standing the express limitation to
him in fee" He does not allude to
any distinction in this respect between
deeds and wills. And the statement
of this doctrine was clearly a dietum
only in that case.
The above are all the eases reported
in this state arising upon the cOnstruc-
ton of trust deeds, which can be con-
sidered as hearing upon the present
inquiry. There are a number of de
arising upon the construction
of wills, hut for the reason above
they are not relevant to this
discussion. And l am satisfied of the
sopndness Of the ppsitiOn that an es-
tate i'll fee in real estate conferred upon
a trustee by the terms of a deed, Will
not be cut down by implic4tion merely
to aG estate for life, upon the ground
that the purposes Of the trust do moi
require an estate in fee.
! think the appointment by the Cir
cult Court of David T, Johnson as
in place of William q. John
son, the deceased trustee, was invalid,
and conferred upon the trustee 50 APP
no estate, legal or equitable.
Fhe Circuit Court had no inherent jul
risdictiOn to make such appointment.
the Act of 1885, oh. 20, sec. ], the
.'hancery Courts had exclusive Origi-
lal jurisdiction Of all Eases in equity
except bills or petitions tlr tbs parti-
ion or sale of real estate, for dover,
md for divorce. The act of 1881, ch.
provided that the Circuit Court
accept the resignation of trus-
-ees and appoint others in their stead
where the destH Qlie kT1lSt has been no
flied, and might, I'M the same man
ler, appoint q new trustee where 4
fails or refuses TO serve.
the act of 1881 gives to the
yircuit Court power to appoint q new
the room of one deceased;
nd whether that act IS, as to the pow
rs of the Circqit3 ourt, repealed by
he act of 1885 above mentioned, 1t i
Tot necessary to decide. The proceed
ng for the appointment of the new
was upon the ec p0fte petition