Year: 1861

Decisions OF the Supreme Court OF tn,


state of Tennessee at Nashville. De


ccmber Term, 1860.


Gannawsy snd wife and ethes A. TarpIsy other


This is a contest between the complanants ant
their father, James A. Tarpley. who died after tht


filing of the bill, to the title of negro slave
Amy and her ten children. The father claims tht
slaves his absolute and several property and his
children nsistthat they entitled joint owner.
under the will of their grandfather, Cader Dement,
The case must be determined by the construction Of
the will.


Cader Dement, made his will in I84S, and died the
next year. He directs that all his property, bott
real and personal be sold and divided into fourteen
shares, and designstes the persons by name, who
are TO take each. His daughter Charlotte, who hsC
married James a Tarpley, was then dead, leaving
the complainants as her children. About that time
Tarpley m arried second wife, by whom he after,
wards had children, but had none by her at the
date of the will.


The clauses of the will upon which construction
is now to be placed are the following


l. One share to James A. Tarpley and has child
rem.


2 "Be it understood, that each legatee has re-
ceved heretofore, it is to be reduced out of their
part" He then proceeds to specify what each had
received in dollars and cents, whether IN property
money, and in relation to this case, says:


3. James A. Tarpley and his wife Charlotte have
received six hundred and fifty dollars including one
negro I0Oman and her children, 6y the name of Amy
that they received at ten years DID, of their part"


Now the question Is, whether under these pro-
visions the title to Amy and her children vested
soely in the father, Jas. A. Tarpley, advance
ment to his wife, or TO him Jointly with his child
ren.


The rule that the intention of the testator must
be collected from the will ITSELF and not elsewhere
or by parol evidence except in case of latent am


biguty. does not forbid reference to the statute
of facts under which the will was made but an in.
vestigation of the surrounding circumstances often
tends to illustrate the true intention and meaning
of the testatOr. TO this end it is obviously essen
tal that the judicial expositor should place himself
fully possible in the situation of the person
whose language he has to interpret; and guided by
the light thus thrOwn on the testamentary scheme,
he may find himself justified in departing from the
strict construction of the ;estatOrs language" Jar.
on W. 1868 and notes. Thus, facts may be proved to
show the state Of the testatOr's property or such
facts as were known to him, that may have infiu-
enced the detention of his property in particular
way. Pick 243 AGO. According to these rules
and authorities. we may in this case look to the
fact that the daughter of the testaOr dead that
complainants the grandchildren, and that the
woman Amy and her children had been claimed by
him up to the time of making his will; that this
claim had always been admitted by lis son-in-law
Tarpley, in executing his notes for nominal hire
and permitting him TO pay taxes, doctors bills &c,
for them. We may also take into consideration the





four times the value of the One-fourteenth part of
the estate gwen to Tarpley and his children.


In view of these facts, it could hardly be sup
posed that it was the intention of the testator to
give all these slaves to the son-in-law, and still
make him equal with his children in the one-four-
teenth. Yet if this has been explicitly DONE or if
the language used will admit of no other fair con
struction, 1t must be so, as cannot make q will
for the testator by ectural Interpretation upon
our notions of what he might, or should have DONE
Our duty is TO expound and not to create or alter
This cannot be done by parOl evidence Of intention
or declaration.


So the question is what is the fair Interpretation
of what we find written considered in the light OF
all the surrounding circumstances.


Tarpley cannot cOntrovert the perfect right of the
testator to theye slaves at the time of making his
will. He is estopFed in every form from doing So
He gave his note for the hire the very year the will
was made as he had done for many years before.
1t is not material whether the hire nominal or
not. 1t was a written recognition of the right. He
cannot then claim them advancement to his
wife to which his marital right attached. If that
ever could have been done, II was waived or sur
rendered. The right of property then was in the
testa0r, and the question is was 1t disposed of by
the will; and if so, to whom. The language is an:
biguOus and neXplict. 1t is manifest he did not in
tend to die intestate as to them anything else he
owned. This the law never presumes. And II
reference made TO them in the third clause shows
that they were not intended to be Permitted. But
to whom did the title pass by the will To no one
by express words, but only by implication. He saw
fit to make his sOn>in-law equal with his grand
children in the general legacy of One-tourteenth
his whole estate. But between them and his
other children there was to be deducted from that
$780, which their mother and father had previously
received from him. In this sum was expressly in
Gluded the slaves in question, at a valuation
he arbitrarily fixed upon them. They were re-
auired to be accounted for as a part of the S650,
of hair oil OF hat
He had an unquestionahe right to set any
price upon them he saw proper, as the sum to be
accounted for by these legatees. He could as well
refer to the value of the girl Amy at two years DID,
to the present value of her and her increase. He
could do what he pleased with his own, and no one
had the power TO question it. 1t would seem most
and unnatural to suppose that he in
tended TO give to this branch of the family five or
six thousand dollars worth of slaves at $3.50; and
that without including his grandchildren IN its bene
fts. He surely could not have intended to give all
this to the father who was stranger TO his blood
and then let him in to an equal participation with
his grandchildren in the legacy of OnefOurteentb,
and that even to be reduced to the extent Of the
value he fixed upon the slaves. 1t would be most
extraordinary case if such the purpose. To
adopt that as the scheme of the will and the inten
ton of the tesator. would require language clear
and explicit as to admit of no other construction.


1t is contended that the third clause cited shows
clearly that the slave Amy was advancement,
because he says they received her at two years of
sge and the law in relation to advanced property is
carried out by fixing her value at that time as the
sum to be accounted for. The word used is not
or given, but received" This would
apply as well to a loan gift. 1t affords no aid
N arriving at the character Of the transaction. But
he $3.50 IL intended expressly to include Amy and
her children But the antiquity this point is
entirely removed by the fact that the right and
title of the letter was claimed and admitted up to
euth In adV fho
light This, then, not an advancement
Is the title was retained But it is recited
n the will that the $3.50 for which they
ire to account Amy and 'her children" not the
woman alone. As, then, the amount for which he
aw proper to make this share account was to Oper
tie as reduction of the joint bequest to the father
md children, the slaves which it expressly includ
d" must have been intended to pass to the same
persons. We think the will is susceptible of no
lther sensible construction. This comports with
he natural feelings Of the testator and the oppO-
lite construction would be in palpsble conflict with
hem. The conclusion 60 which we are brought, |
therefore, is that the title to these slaves vested
W implication in the father and his children. did
he one fourteenth minus the $500. This being so,
he father could not resist their right. even if the
laves had belonged to him as he has received under
he will his part of the fourteenth. And this upon
he rule that one cannot take benefit under will
nd set I'D any claim against it. Having elected to
lain under II, he cannot claim against it, But the
pplicati0n of this principle would of course de-
,end upon the conclusion that the slaves were dis
,osed of in the will And that, we have seen, is |
he proper exposition. Yet there is nc necessity to
esort to that rule, as Tarpley had no title at the
cath of the testatOr, and consequently nothing of
lis is beQueathed to raise the question: of election
o claim under or against the will.


As to the plea Of the statute of limitations il is
My necessary to say, that Tarpley was tenant
n common or joint owner with hsh cidren and for |
nest of whom he was guardian. his hold must be |
egarded to have been under the joint title The !
acts proved do not make out a case of adverse |
olding under such circumstances to avoid this |
and give him the benefit of the statute
f limitations. To make this defence available, he |
must show clearly that he held solely for himself
dversely to the rights of complainants, and that
hey had knowledge of such claim and holding.
his is not made out by him. indeed the pros
GEMS not to have been directed to that defence,
ut the contest was waged upon the construction o
be will, and the supposed advancement