Bridgewater v. Turner

• Decision Date: 28 June 1930
• Parties: BRIDGEWATER et al. v. TURNER et al.
• Court: Tennessee Supreme Court

29 S.W.2d 659

161 Tenn. 111

BRIDGEWATER et al. v. TURNER et al.

Supreme Court of Tennessee.

June 28, 1930

Appeal from Chancery Court, Smith County; W. R. Officer, Judge.

Suit by W. S. Bridgewater and others against Bettie J. Turner and others, in which the heirs and devisees of Thomas J. Seay sought a construction of his will and to have the title to a certain tract of land settled. From the decree an appeal was taken.

Decree affirmed.

T. G Hinson, of Lebanon, for appellants.

H. B McGinness and Fisher & Key, all of Carthage, Chas. S. Seay of Memphis, Clint Beasley, of Carthage, and Stickley & Fitzhugh, of Memphis, for appellees.

GREEN C.J.

This is a controversy among the heirs and devisees of Thomas J. Seay in which they seek a construction of his will and to have the title to a certain tract of land settled. The will contains the following clause:

"I bequeath to Eliza V. Seay during her life that portion of the old home tract and household furniture etc., which lies between the Trousdale Ferry turnpike road and the creek of Round Lick and Jennings Fork, and, at her death I desire it to go to one of my nephews and I leave it with her to decide which one it shall be. *** It is my desire that the above described tract shall remain in the hands of the family as long as possible, for here sleeps my wife, my father and mother."

At the execution of this will and upon the death of the testator, it appears from a stipulation herein that he had four nephews, W. S. Bridgewater, John C. Bridgewater, W. R. Seay, and Richard Seay. Richard Seay died before the death of the life tenant, Eliza V. Seay, leaving two children, Elizabeth Seay Strain and Carr Crenshaw Seay. This litigation arose upon the life tenant's death.

The chancellor held that the three nephews and the children of the deceased nephew had title to the land. By separate appeals and proper assignments of error, the chancellor's decree is questioned: (1) Because he did not decree title to be in all the heirs at law of Thomas J. Seay as intestate property; (2) because he did not decree title to be in the residuary devisees under said will; and (3) because he did not decree title to be in the three surviving nephews, excluding the children of the deceased nephew.

Except that the power of appointment given to the life tenant is restricted to one, instead of to one or more, of a class, the case seems to be controlled by a rule of construction that has been uniformly followed in this state. Perhaps the best formulation of this rule is contained in Burrough v. Philcox, 8 Myl. & C. 72, in these words:

"When there appears a general intention in favor of a class and a particular intention in favor of individuals of a class to be selected by another person, and the particular intention fails, from that selection not being made, the court will carry into effect the general intention in favor of the class."

In Cathey v. Cathey, 28 Tenn. (9 Humph,). 470, 49 Am. Dec. 714, the will read:

"I give and bequeath to my beloved wife, Honor B. Cathey, all my property, both real and personal, for her to divide among my children, as she may think best, but if she should marry after my death, then, in that case, it is my will and desire that my estate be equally divided between her and my children, share and share alike."

Mrs. Cathey did not marry, nor did she make any disposition of the property during her life. The court found that no appointment was made by Mrs. Cathey; that testator's children took a vested interest in his estate immediately upon his death as a class; that by the exercise of the power of appointment such estate might have been divided unequally among them; but no appointment having been made, the estate remained vested in the children in equal portions.

In Cruse v. McKee, 39 Tenn. (2 Head) 1, 73 Am. Dec. 186, the testator gave the negroes, Fanny, Rina, and James, to his wife during her lifetime, and added: "It is further my will and desire, that my negroes, Fanny, Rina, and James, be disposed of by my wife Rebecca, with their increase, to the whole, or any one, or more of my children she may think proper, at her decease." Construing this language, the court said:

"In this case the widow's estate is for life only, by implication with power to control the remainder to a limited extent, and in a certain mode. The limitation was to his children. They, as a class, had a vested joint remainder under the will; but power was given to her to defeat this interest of any one or more, by the exercise of the power given, but in case she failed to appoint, or made an invalid appointment, then the property would go to all, equally, under his will, at her death."

In this case the testator's wife undertook to exercise the power of appointment by will unequally among such of her children as were then living and to some of her grandchildren. The court held the appointment to the children good but the appointment to the grandchildren bad, because the power to appoint to children does not include the power to appoint to grandchildren. Jarnagin v. Conway, 21 Tenn. (2 Humph.) 50. That portion of the property which she undertook to appoint to the grandchildren was treated as though no appointment had been made respecting them, and it was divided in equal proportions among the children and the representatives of deceased children.

In Rogers v. Rogers, 39 Tenn. (2 Head) 660, the testator bequeathed to his wife during her lifetime or widowhood seven slaves, by name. If she died his widow she was given the privilege of giving said negroes to whom she pleased among his children or grandchildren. The widow died without having married and without disposing of the slaves. The court said:

"Now, can there be a doubt, if we look to the entire will, that the testator intended, in the events that have happened, to dispose of them [the slaves]; and that, upon the death of his wife, his children and grandchildren. should take them? We think not. And that it must be held a gift to them by implication, subject to the power which the testator, for wise and obvious reasons, intended she, at her death, might exercise among his children or grandchildren."

The rule quoted from Burrough v. Philcox and applied in the foregoing cases was approved in Jarnagin v. Conway, 21 Tenn. (2 Humph.) 50; Haywood's Heirs v. Moore, 21 Tenn. (2 Humph.) 584; Herrick v. Fowler, 108 Tenn. 410, 67 S.W. 861, and has been noticed with approval by this court in other cases.

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