Bowers v. McGavock

• Decision Date: 11 March 1905
• Parties: BOWERS et al. v. McGAVOCK et al.
• Court: Tennessee Supreme Court

85 S.W. 893

114 Tenn. 438

BOWERS et al. v. McGAVOCK et al.

Supreme Court of Tennessee.

March 11, 1905

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Bill by George F. Bowers and others against Myra McGavock administratrix, and others. From a decree for defendants complainants appeal. Affirmed.

Chas C. Trabue and Grafton Green, for appellant Bowers. Jno. J. Vertrees and Turley & Turley, for appellee McGavock.

WILKES J.

This bill is brought by a portion of the heirs and distributees of Mrs. Harriet R. Goodwyn, seeking to invalidate certain provisions of the will of her husband, William A. Goodwyn, upon the ground that the charitable trusts thereby sought to be created are invalid and void.

There was an answer filed by the administratrix of Mrs. Goodwyn, the executor of William A. Goodwyn, and the trustees and commissioners appointed to execute the trust. The cause was, on motion of complainants, set down for hearing upon bill and answer, both of which are full and explicit.

The result is that the statements of the answer as to all matters of fact must be taken as true. Rodgers v. Rodgers, 6 Heisk. 495.

The facts, so far as necessary to be stated, are that William A. Goodwyn died on the 13th of October, 1898, in Nashville, Tenn., after making a last will and testament, in which he disposed of a considerable estate, about $400,000 of which is involved in this litigation.

This will, executed May 18, 1893, provided most liberally for the testator's wife, and gave bequests to his half brothers and sisters, his nephews, a niece, and his wife's sister. Ten thousand dollars was also given to the University of the South, at Sewanee, the income of which was to be used alone for the education of young men too poor to pay for themselves; and none of these provisions of the will are questioned.

The contest arises over the provisions of sections 14 and 8 of the will, and they are as follows:

"Section 14. All the balance of my estate, real, personal, or mixed, including at the death of Myra McGavock that given to her in section 11th, during her life (excepting that part of the personalty or mixed which I allow her to will or give away), I give, after death of my wife, to the State of Tennessee as trustee for the following uses and purposes, and none other. I will and desire that the State, upon the nomination of the Governor, to be confirmed by the Senate, appoint three commissioners, to be known as 'Commissioners of Goodwyn Institute,' and said commissioners will hold their office for four years, and until their successors are appointed and qualified; the said commissioners are to purchase a suitable lot in the City of Memphis (now taxing district), in Shelby County, Tennessee, and erect suitable buildings thereon, expending therefor such parts of this gift as to them may seem proper, and retaining the balance for library and apparatus expenses and endowment fund. They are to receive no compensation for their services, and are required to render biennial reports and accounts to the Governor of all moneys received or spent, and their management of said trust, or its funds, is to be at all times open to inquiry by the Legislature of the State, under the fostering care of which this institution is placed. The title to the lot purchased, and all other property, shall be in the name of the State, for the purposes of this trust solely. The building or buildings to be erected shall be satisfactory to said commissioners, but such portion thereof as can be shall be rented for the purpose of obtaining a revenue for the maintenance of a public library and public lectures. One part of said building shall be devoted to lectures, and another part to a library, and the use of the library shall be free to all, under the rules and regulations to be made by said commissioners; and the lectures shall be free, and the whole will be for instruction, and not for entertainment merely. All of the rents, profits, and income derived shall be faithfully used and applied, together with any part of this legacy not used in purchasing and building (after payment of repairs, expenses, insurance, etc.), to pay lecturers, and the purchase of books, charts, maps, and apparatus. No part of the building is to be used for political gatherings, but when the lecture hall is not used otherwise, it may be rented for musical concerts, art exhibitions, or other purposes likely to elevate public morals, and taste. I request the Governor to nominate, and the Senate to confirm, as the first commissioners, my friends, Samuel P. Read, Bedford M. Estes, and Rufus Lawrence Coffin, all of Memphis, Tennessee, if living and will accept. If these do not for any reason accept, then he nominate three gentlemen of Memphis of the highest integrity, purity, and responsibility. I estimate that the amount which will go to the State as Trustee, under this gift, and supplemented by the additional amount which will revert to my general estate, and thus to the State, after the death of Myra McGavock, as left to her in section 11, will amount to a large sum, and ample for the purpose intended. And every year that I live there will probably be more added, for I intend that all I may die possessed of, not otherwise disposed of by my will, shall go for this worthy purpose.

"My whole wish and desire as respects this 'Goodwyn Institute' is to afford to the future youths who may desire, information upon such practical and useful subjects as will be beneficial in life. My reason for locating it in Memphis is, it was there I spent much of my life in the happy circle of wife and children. The latter sleep near her borders, as I and my wife expect to do when we die. Here I made the friends of my early life; many of them are dead, but their descendants, many of them, remain in Memphis, and were playmates of my children, and to them or their descendants I hope this gift may be of great benefit. This legacy for the benefit of my old home has long been thought of by myself and wife, and took shape in a will written by me in November, 1887, and now repeated. It became necessary to write this will on account of necessary changes, and to destroy that of 1887. And I mention this fact in order that my old friends of Memphis may know that I have long cherished this idea.

"If the State of Tennessee should refuse to take charge of this trust, then I direct my executors to carry out my wishes as expressed, as to them may seem best, after consultation with my friends, Judge E. H. East, John M. Lea, and J. M. Dickinson, all of Nashville, Tennessee. I will that the portraits of my wife and myself, and the pictures of my children, now in my dwelling in Nashville, be hung in this 'Goodwyn Institute,' to which I will them."

"Section 8. I will to the commissioners of 'Goodwyn Institute,' and to their successors, mentioned hereafter, one thousand dollars, which shall be invested only in first-class bonds, or mortgage on real estate, the interest of which only shall be always used to take care of and embellish my two lots, Nos. 132 and 133, situated on Fowler's Hill, in Elmwood Cemetery, Memphis, Tennessee, where now lie the bodies of my nine children, and where my wife and I hope to be buried when we die."

Mrs. Goodwyn participated in and approved of this long-cherished plan of Mr. Goodwyn's to establish this institute at Memphis, for his will states that:

"This legacy for the benefit of my old home has long been thought of by myself and wife, and took shape in a will written by me in November, 1887, and now repeated."

He adds in another part of his will as follows:

"This legacy for the benefit of my old home has long been thought of by myself and wife and took shape in a will written by me in November, 1887, and now repeated."

Mrs. Goodwyn, the widow, the defendant Miss Myra McGavock, her sister, and the defendant Mr. Joseph H. Thompson were named as executors, and qualified as such on the 24th day of October, 1898, when the will was probated. Mrs. Goodwyn acted as executrix for more than four years, and until her death, in March, 1903.

Upon her death, defendant Myra McGavock, her sister, qualified as administratrix of her estate.

The complainants, who are a part of Mrs. Harriet R. Goodwyn's heirs, requested Miss McGavock, the administratrix, to bring this suit, but she refused. They then requested her to resign, so that some one could be appointed who would sue, but she refused to resign. Miss McGavock's reasons for declining to sue or to resign are set forth in the answer of all the defendants, in these words:

"Mrs. Goodwyn was her sister, and for many years she had lived with Mr. and Mrs. Goodwyn as a member of the family, in their home, and she continued, to live with her sister after Mr. Goodwyn's death, until Mrs. Goodwyn herself died, in 1903. Mr. Goodwyn had provided generously for her in his will, and her sister, Mrs. Goodwyn, gave her property of great value during her life. This respondent knew the wishes and desires of Mrs. Goodwyn touching Goodwyn Institute; knew that she had elected to abide the will because she approved of its provisions, and desired the institute to be established, as Mr. Goodwyn contemplated; because she knew that Mrs. Goodwyn did not and would not take any steps to defeat the will of Mr. Goodwyn, or to deprive the institute which it contemplated of the benefit of the provisions which it made."

Also that:

"Mrs Goodwyn qualified as executrix of this will in October, 1898, and continued to act as such until her death, in March, 1903. She not only executed and carried out this will as executrix, but she assented to and accepted its provisions as widow. She commended and approved it, and elected to accept and abide it. With...