Belote v. White

• Decision Date: 30 April 1859
• Citation: 39 Tenn. 703
• Parties: C. R. BELOTE et al. v. JAMES WHITE.
• Court: Tennessee Supreme Court

39 Tenn. 703

C. R. BELOTE et al.

v.JAMES WHITE.

Supreme Court of Tennessee.

April Term, 1859.

FROM HENDERSON.

Verdict and judgment for the defendants, at the March term, 1858, Read, J., presiding. The plaintiffs appealed.

J. R. & S. R. Hawkins, for the plaintiffs; L. M. Jones, and M. & H. Brown, for the defendant.

Wright, J., delivered the opinion of the court.

This is an action of ejectment by the plaintiffs, to recover 500 acres of land in the county of Henderson; and judgment being against them, they have appealed in error to this court.

The decision of the cause depends upon a construction of those parts of the will of Samuel Dickens, which relate to the devises and bequests in favor of his daughter, Elizabeth B. Belote, and her children.

They are as follows: “I give and bequeath to John D. Martin, Andrew L. Martin, and Edmund H. V. Dickens, the survivor, or survivors of them, in trust, for the use and annual support of my daughter, Elizabeth B. Belote, and her children, my stock in the Planters' Bank of Tennessee, consisting of forty shares; I also give to the said trustees twenty shares of the residue of my stock in the Farmers and Merchants' Bank of Memphis; the dividends of said sixty shares of bank stock, if needed, to be applied to the support and maintenance of my said daughter Elizabeth, and her present and future children, and to their education. I also vest the said trustees with the power to sell the whole, or any part of said bank stock, if they deem it expedient, and to invest the proceeds in that way they may deem advisable, and to the interest of my said daughter Elizabeth and children; and if not sold before the expiration of the charter of said banks, to revest the said amounts, or proceeds, as they may judge best. I give and bequeath to the said trustees, for the said uses and purposes, all the property, both real and personal, I may own at the time of my death in the State of Indiana.”

After various devises and bequests to his other children, the testator then proceeds as follows: “All the rest of my lands and real estate I give and bequeath to my said sons, Thomas Dickens, Robert F. Dickens, Samuel B. Dickens, Edmund H. V. Dickens, and to my daughters, Martha L. Bugg, Ann V. Martin, Sally Martin, Mary Jane Dickens, and to the said trustees, John D. Martin, Andrew L. Martin and Edmund H. V. Dickens, in trust, for the uses and purposes heretofore mentioned, which I give and bequeath to them, my said children and said trustees, and their heirs, respectively, to be divided between them respectively.”

He then provides for the equalization of his estate among his children, because of certain advancements theretofore made them.

The testator then, in like manner, gives the residue of his personal estate to his children, and to the said trustees of his daughter, Elizabeth B. Belote, and her children, save the estate he had, in the will, given his wife; and provides that all of his his children shall be made equal in his estate, the said trustees to represent and be substituted for his said daughter, Elizabeth B. Belote.

Finally, he directs that “all the property, both real and personal, herein devised to John D. Martin, Andrew L. Martin, and Edmund H. V. Dickens; they are to hold in trust for the use and benefit of my daughter, Elizabeth B. Belote, and her children, present and future, and they, the said trustees, or any two of them, or the survivor, are hereby vested with full power and authority to sell and convey the whole, or any part thereof, for the use and benefit of the said Elizabeth and children, to vest and revest the proceeds, and to manage the whole in any way they may think will promote the interest and comfort of my said daughter Elizabeth. I further give the said trustees power and authority, if they think proper, and it be the wish of my said daughter Elizabeth, to allot to any one or more of her children, as they may settle off, a part of the said property, not to exceed a child's part, before the death of the said Elizabeth; and after her death, the whole of the said property to be equally divided between all her living children, and the heirs of those which may be dead; the said heirs taking their ancestor's share, or the share the ancestor would have been entitled to if alive; and where advancements have been made, the same to be accounted for by the parties to whom made.”

This will was executed the 14th day of January, 1839, and proven at the August term, 1840, of the County Court of Madison county, and John D. Martin, the executor named therein, qualified.

The testator died seized of the tract of land in dispute; and in the division of his estate among his devisees, the same was allotted to the said trustees for Mrs. Belote and her children.

The plaintiffs, Samuel D. Belote, William D. Belote, Charles R. Belote, and Reginald H. Belote, are the only children of the said Elizabeth B. Belote living at her death. She died a feme covert, in Weakley county, on the 18th of August, 1849, having been so from the year 1826.

The said Samuel D. Belote was born March 9, 1857; William D. Belote, February 23, 1829; Charles R. Belote, August 27, 1833; and Reginald H. Belote, May 2, 1838.

Elizabeth B. Belote had two children, to-wit: Beatrice R., born the 11th of June, 1842, and Edmund V., born the 2d of November, 1844, both of them died in infancy, before the death of their mother.

The first question is, what estate did John D. Martin, Andrew L. Martin, and Edmund H. V. Dickens, as the trustees of Mrs. Belote and children, take? What estate did she take? And what estate did her children take?

Answer: We think it clear, the trustees took the legal estate to the entire property only during the life of Mrs. Belote, and that at her death, the legal title and the trusts, of every kind, imposed upon them, by the will, ceased and were at an end; and the entire estate, legal and equitable, freed of the trusts, become invested in the plaintiffs. This is so, by the express language and limitations in the will. The words, “and after her death the whole of the said property to be equally divided between all her living children,” can have no other meaning. And upon the authority of the cases of Smith et al. v. Thompson, 2 Swan, 386;Aiken et al. v. Smith, 1 Sneed, 304; and Ellis v. Fisher, 3 Sneed, 231; there can, we think, be no question, that this is the proper construction of this will.

We think it equally plain, that at the testator's death, Elizabeth B. Belote and the plaintiffs, who were then her only children, took an equitable estate, as tenants in common, in this property, in equal shares of one-fifth each; her interest being for life only, with remainder, as to that, to them, and their estates in fee; that the estate was subject to open for after born children, and did open upon the births of Beatrice R. and Edmund V., in 1842 and 1844; and that upon their deaths, their shares, by the terms of the will, devolved upon the plaintiffs, so that they owned an equitable estate of six-sevenths, and she, for life, in one-seventh; and the entire estate, legal and equitable, as before stated, being invested in the plaintiffs at their mother's death. Hill on Tr., ch. 2, sec. 2, pp. 65, 66; Haywood's Heirs v. Moore, 2 Humph. 584.

This much, we think, is clear. We are...