Cathey v. Cathey

• Decision Date: 31 December 1848
• Citation: 28 Tenn. 470
• Parties: CATHEY v. CATHEY et al.
• Court: Tennessee Supreme Court

28 Tenn. 470

CATHEY

v.CATHEY et al.

Supreme Court of Tennessee.

December Term, 1848.

This bill was filed in the chancery court at Columbia, asking for the construction of certain wills, and the presiding chancellor gave a decree, from which there was an appeal.

R. Houston and Nicholson, for complainant.

N. Baxter and S. D. Frierson, for defendants.

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

The complainant is the administrator of James Cathey with the will annexed, and the executor of H. B. Cathey's will. This bill is brought to obtain a construction of these wills, and to get directions from the chancery court as to the disposition of the property. In James Cathey's will is the following clause: “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 among her and my children, share and share alike,” etc.

The testator had five children at his death. Two of his daughters married, and died before their mother, one of them (Mrs. Hart) leaving one child, and the other died without issue.

Mrs. Cathey did not marry, nor did she make any disposition of the property during her life. Her will is in the following words: “I, Honor B. Cathey, being of sound mind and perfect memory, do make and publish this my last will and testament, in manner and form following: First, it is my will that all my property, both real and personal, remain together on my farm as heretofore. And, further, it is my wish that brother Thos. D. Cathey, and my son James D. Cathey, have the management of it entirely until the heirs may wish a division or distribution of the property made among themselves. It is also my wish that Dr. Thomas C. Moore have five hundred dollars, or a negro boy worth that amount, as brother Thomas D. Cathey and my son James D. Cathey may think best.”

1. We think that by the will of James Cathey his children took a vested interest in his estate immediately upon his death.

He gives his property to his wife, for her to divide among his children as she may think best. This is, in fact, a gift to his children in such proportions, and so distributed, as their mother might think best, but still it must go to his children. No one else can take, and no one of them can be excluded.

The time for a distribution is left to the discretion of Mrs. Cathey. She might have made it forwith if she had chosen, but she had the right to enjoy the property during her life, and give or “divide” it by her will.

Although the “children” of James Cathey, as a class, took a vested interest in the property, and, of course, each of them...