Martin v. Osborne

• Decision Date: 10 February 1887
• Citation: 3 S.W. 647
• Parties: MARTIN, Ex'r, <I>v.</I> OSBORNE and others.
• Court: Tennessee Supreme Court

3 S.W. 647

MARTIN, Ex'r,v.

OSBORNE and others.

Supreme Court of Tennessee.

February 10, 1887.

Appeal from chancery court, Wilson county.

A. B. Martin, for Martin. W. H. Williamson & Beard, J. Stokes & Son, and R. P. McLain, for Osborne.

FALKES, J.

This is a bill filed by Andrew B. Martin seeking a construction of the will of the Hon. Robert L. Caruthers, deceased. So much of this will as is necessary to the consideration of the questions presented in this record is as follows: "In compliance with the dying request of my wife, who was greatly instrumental in any success I may have met with in the world, to make ample provision for our niece, who had from infancy filled the vacant place of a daughter to us, and who has since my sad bereavement, more than eleven years ago, managed my household affairs without trouble to me, and whose tenderness and affection for me in sickness and in health has ever been that of a daughter, I give to Mary Cahal the house and lot on which I now live, and which has been my homestead since 1828, [here describing the same by proper boundary,] together with all the personal property and effects in the house, and on the lot as it may exist at my death. I also give her $10,000 in such cash, stocks, notes, or bonds as I may leave. This, however, is to extinguish a claim she has upon me for the price of her land, received by me from Harry Smith, which, with interest, now amounts to between four and five thousand dollars, and any other claims she may have against me, if any. (2) I give to W. H. Caruthers my law library." (3) He then directs his executor to sell his other real estate at such time, and "on such terms, as he may think best to insure a fair price. To these proceeds is to be added any and all other debts, claims, or effects I may leave not heretofore disposed of; the aggregate fund to be raised under this section to be disposed of as follows:" First, to pay all debts and expenses of administration; second, to the erection of a monument over the grave of a deceased brother; third, the balance remaining is then to be equally divided between his nephew W. H. Caruthers and his niece Sally Robinson. The will is dated December 21, 1881.

Judge Caruthers died on October 2, 1882. The inventory filed by the executor, and the other proof in the cause, shows that at the time of his death, in addition to the usual household effects reasonably expected to be found in the home of a man of testator's culture, high social position, and pecuniary condition, there were upon the lot given to his niece, Mary Cahal, some few farming utensils, a carriage, a wagon, a quantity of hay, and other feed in the out-buildings, a lot of fattening and stock hogs, two mules, one mule colt, two horses, and six head of cattle, four of the latter being registered Jerseys. The defendant W. H. Caruthers in his answer insists that the live-stock above enumerated does not pass to Mary Cahal under the will, but that the same goes to him...