Knoxville weekly chronicle. [volume] (Knoxville, Tenn.) 1870-1875, 1873-12-17
Cor the Chronicle.
Tie Cousins Case Again.


city, in tho Press and Hordld, signing
himself Lawyer" in commenting on the
recent "Cousns case" says; "The absurd
ity of charging that it was decided only on
the opinion of Judge Freeman becomes
apparent when it is known that the case
presented a naked question of law arising
on the construction of a clause of the will
and that the same was determined upon
the authority Of q precious case ddJUdtcd-
.tRq DrCciscly the same question"
propose to state briefly the clause in the
two wills, and the view of Judge Green i'm
the Booker case, and that of Judge Free
man in the Cousins case-and then ask
lawyer one or two questions.
The Booker case will be found reported
in 9TH Humph. SOP, the opinion at 507.
The devise was to his wife and each of
his children. Should any of my children
die without coming to maturity or die
without issue, either before or after coming
of age, or should leave issue, which issue
should die before coming ofoge, then over
TO testator's surviving children.
On this clause Judge Green had no diff
Guilty in fixing the estate of the first takers
Henry L. and Albert Booker, the sons.
At page SIP in discussing another branch
of the question, he says, "the devise is not
as in those cases. to the dcUtsee, htS hctrS
end assigns, but the property is devised to
his son Albert land the devise to Henry
was precisely in this respect the same and
that by our act of 1854 is to be deemed and
construed to be fee simple unless by some
part of the will it appears the testator
intended to convey an estate or less dlgnl-
nity.n Having determined that the chill
Al, boob faa OH nj q nj
under the 9Th section of the acS of l7S4
,>tJolishinq entails, 2O07 of the Code, and con-
vertinC the estate of the tenant in tail into
81 fee, full and absolute, &c. but under sec
zion 18th of the same act, 2O06 of the Code,
whereby a fee simple is construed III the
absence of an intent to convey lesser es-
tate, Judge Green found himself IN
presence of an estate in fee with a limita-
lion over on the death of the first taker
without issue. And the question, and the
only question that arose was, is the failure
of issue definite or indefinite Judge
Green held properly that definite failure
Of issue was intended because the death
without issue was to take place within &
life in being and twenty-one years. l1H
I{unDh., $40
Holding this he brought the case with
in the leading case of Pels vs. Brown, II
which the rule was established, that,
there he n fee simple as a devise to A ant
mis- heirs, and if he die without issue liv-
ing at his death (which is a definite fail
ure). the fee simple in the first taker vii
he not absolute but defedsi6tc, and the linn
ltation over Will be good e.cGcuOTy de0tse
18th Humph., 509.) Lawyer" VIII Sc
here that no such an estate was IN JUG
Green's mind as an estate tail, and, there
fore, none such as an estate tail conVerte
into fee simple by the act OF 1854, aool
lshing entails. .-|.
Turn we now to Judge Freeman'sview c
the Cousins case The devise there was = S
that nay said child can then have her equa
share to belong to her and be her propert
lfG at Ter death to and Of her tdWtW Is
cuC.n ........ ...
Judge Freeman evidently considere
this cause to convey either q life estate t
the daughter and n remainder over, or
fee tail, converted by the act of l7S4, abo
ishinr entails into fee simple and IN
limitation over by way OF executor
.levise, for he said: Practically
makes no difference to Mr.. Cousin
whether his wife took an estate fC
life or an estate tail converted by our sta
ute into a fee simple and an executory d.
wise over. Now | respectfully ask Law
YER"
lst Is not the fee simple of Judge Gree
derived from the want of words OF inner
lance under section 18th of the act of l7S-
"a. Is not Judge Freeman's fee simp
derived from section 9TH of the act of LIS
converting estates tail into lee simple
Sd. Are the two estates Of fee simple
respectively derived precisely the same
AZ vi is not that under section 18th, a me
Zee capable of being qualified into a fee q
feasible, and that under section 9th, e
grossly enacted to be fee simple, fW al
absolute, without condition or tnittdh0
with full power In the tenant in tail to d
pose ofas he sees proper? ....., 49,.
4th. Can any two things be precise
thesame," unless.they are Identical"
..,.... D.. COMMENT. ....-. .-.....
If Lawyer had read the Booker ca
and the Cousins will, so as to reach l
conclusion that precisely the same que
toni was adiudicated in bothIhe pl
Judge Green in the attitude holding IL
"a fee simple absolute without condition
limitation is only defeasible fee-that
such absolute fee a Limitation may
mounted as an eXecutOry devise ana u
the Legislature only in such cases convert
contingent remainders into eNecutory
Vises and instead of continuing to the Il
ant in tail the power to dock entails, at
shed his power; and by declaring his
mower to dispose of by deed or Will, Il
meant that he shouldn't have this powe
,. If Judge Green is made so to decl
he overrules his own decision in Polk
Farris, in which he concurred IN the op
ion that the act abolishing entails was
tended to unlock estates, as ms lanBu