Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-29
SUPREME COURT OPINION
September Term - Knoxville,
1870.
Joseph =. HeiskelI, Attorney Gem
eraI and Reporter.

Geo. w. .Vitteto, Administrator, ETC., VS..
Lewis Atkins and others.
teStator died possessed of five tracts of
land, one of which he devised to his wife, dur
ing life or widOwhOOd, diSpOsing of the fee j y
the land after her death or marriage. He had
given away, by deed. one tract Of land, before
he made his will, to two daughters and a
grand daughter He devised the proceeds
Of the rest of his land not
decided away. He then gave to a
grandson one OF his tracts, by sufficient
description. The grandson died in his life
time without issue. lie, also, after some small
requests OF personally, gave the rest of his
personal property, in the house and out of
doors TO his wife, for life or widOwhood and
provided that if any property should be ieft
at the death of his wife, it should be equally
will that he had portiOned certain daughters,
snd had given to certain sons, all he intended
for them.
Held that the gift to the daughters and
grand daughters as the rest of his land not
decided away was not intended as residuary
but as designating, the specific lands devised.
That the lapsed land did not 90 to them as re-
siduary devisees. That the gift of property to
the four sons, if any was left at the death of
the widow, was confined to personalty-and
that the lapsed land was undisposed of by the
will.
From the Chancery Court of Rutledge,
S. J. W. Lucky, Ch., presiding.
J. R. Cooke, for complainant.
J. 7. Shields, for James Hubbs, ct TX.
Archibald Mullins, ct uX. and Rachel
Hubbs, insisted that the land went to the
daughters and grand daughter, citing
Code 2l95; 10 Yerg. %; Sneed 387;
Henry VS.. Hogan, 4 Hum. 30; Hum.
63l; Kent 537, $40; Broom's Legal
Maxims p. 1873. If the land did not 90
to these as residuary devisees, then, as
heirs, they took a share. Citing 4 Kent
54l; Code 2432. That the fifth clause
only gave the four sons personally, not
realty.
r. NJ. Barton for Robt. Atkins, Lewis
Atkins, Ira Atkins and Moses 3. Atkins;
insisted that the land did not go to the
daughters and grand daughters as residu-
airy devices, but either passed, under the
9th clause, to the four bro,heIs, or, as to
it, the testator died intestate. He cited
Code 81, 1876; 10 Yerg. 90; Hum. 21O;
Hum. 63l; . Hum. 90; Kent 535, 541.
OPINION.
The bill in this case was filed in the
Chancery Court, at Rullsdgc, for the
construction of the viii of Lewis Atkins,
deceased.
The following are the clauses which we
are called upon to cons'rle:
Item 8. 81 give and bequeath unto my
beloved wife, Elizabeth Atkins, the fol-
lowing described land, (setting out the
boundaries, } during her lifetime or widow
hood; but at her death or iutermarriage,
then l give and bcqueath the above de-
scribed land to my SOD, Lewis Atkins, that
is to say, if he should take care of and
maintain me and his mother in our old
age; and the rest of my land, not decide d
away, to be sold on a credit of twelve
months, and the money equally divided
between Nancy Atkins, now Nancy Null
Ter, and Elizabeth Hubbs, formerly At
kins, and Rachel Hubbs, formerly Hubbs,
now deceased, daughter Rachel Hubbs."
+. 81 give and bequeath unto my
grandson, Talbot Atkins, son of Nathan
Atkins, certain tract of land, lying be-
tween Ira Atkins, Israel Walter, the top
Of Coon Ridge and G.. w. Vitteto's line,
the whole of it for his part of the land,
and he is to have one horse, etc.
oh. 81 give and bequeath TO my grand
daughter, L1cretia Monroe, formerly At
kins, daughter of Nathan Atkins, one
feather bed, that she claimed when she
lived with me, and twenty. five dollars out
of my personal property, etc. Touching
the rest of my personsl property in the
house and out of dOors, ! give and be-
queath it to my beloved wife, Elizabeth
Atkins, for her own benefit during her
natural life, or her widoHhood. Should
there be any properly left at death of my
wife, Elizabeth, then want it equally
divided between Moses B. Atkins, Elijah
Atkins, Robert Atkins, and Lewis At
kins, my four sons; as 1 have portioned
OFF my five daughters in my life time,
namely Margaret Burnett, formerly Mar
garet Atkins, Nancy Muller, formerly
Nancy Atkins, Elizabeth Hubbs, formerly
Elizabeth Atkins, Polly Barrett, formerly
Polly Atkins; and that | have lotted to
Rachel Hubbs, formerly Rachel Atkins,
daughter, for her part in the land, have
loited for sale. l have gave to Presley
Barrett, Archibald Mullers, James Hubbs,
and John Burnett all that | intend for
them
Al the date of the will, and a. the death
of testator, he was the owner of the tract