Gass v. Ross

• Decision Date: 30 September 1855
• Citation: Gass v. Ross, 35 Tenn. 211 (Tenn. 1855)
• Parties: BETSY GASS, Executrix, v. WILLIAM ROSS et al.
• Court: Tennessee Supreme Court

35 Tenn. 211

BETSY GASS, Executrix,

v.WILLIAM ROSS et al.

Supreme Court of Tennessee.

September Term, 1855.

FROM GREENE.

This bill was filed at Greenville, to obtain a construction of the will of John Gass, deceased, and to have the rights and interests of the legatees and devisees under the same stated and declared. The appeal in this case is from that part of the chancellor's decree construing a clause in the will, which sets apart a permanent fund in trust for the education of the children of “Gass' school district.” The clause is fully quoted in the opinion of this court. It appeared in proof that several school districts of the county laid claim to the charity, each claim being fortified by fair and plausible evidence. Chancellor Williams decreed in favor of the 12th school district of Greene county is the locus intended by the testator. It will be seen from the opinion of this court that the bequest was adjudged to be void for uncertainty.

Nelson, Barton, and Milligan, for complainant; Peck and Arnold, for the respondents.

Lyon, Special J., delivered the opinion of the court.

John Gass, Sr., made and published his last will and testament on the 1st of March, 1837, and died some time in June, 1840. After a protracted contest, this will was established in the circuit court of Greene county, and admitted to probate in solemn form. The executors have now brought this bill for a judicial construction of the will, and to have directions from the chancery court for the proper application of the funds coming to their hands, and to guide them in the discharge of the trust. The bill is very properly filed, for it seeks an interpretation of a very curious production, exhibiting the testator as a man of odd and eccentric habits, illiterate, but opinionated--one who, having acquired, probably through his own industry, a comfortable estate, was fully disposed to exercise dominion over it to the last, according to his own pleasure or caprice, with but little regard to the claims of natural affection.

We do not think it necessary, however, to bring under review in this opinion but one of the provisions of this will. The decree of the chancellor in all other respects is so obviously correct, and is founded upon such plain and familiar canons in the construction of wills, that its correctness need not be gravely argued here.

The portion of the will to which we have reference is in the following language:

“I furthermore request that my executors, after all the foregoing items are satisfied, that they put all that my wife and myself has in lots, bonds, and obligations of any kind, or of stock in the railroad company, or from the sale of property or lands, and the moneys arising from all to lay it out in purchasing some safe bank stock, and the interest year and yearly to be applied for the schooling of the children in the bounds of Gass' school district, forever; and if my executors should get old, and not able nor willing to attend to my business, I wan them to appoint the county court of Greene county to attend to the business, when there will be no expense forever, except for the clerk in keeping an account on his docket.”

And again, in the latter part of his will, the testator says:

“I enjoin it on the commissioners of Gass' school district to see that they get their rightful share of my estate as mentioned in this my will, for the instruction of their children forever.”

It is now insisted by the defendants' counsel that this bequest is void, because, they say, the donees in this case are the commissioners of the Gass' school district, and that this body, not being corporate under he laws then in force, were incapable of taking or administering this charity. We do not yield assent to this argument. On the contrary, we think it too plain to admit of a reasonable doubt that the executors are made trustees under this will to administer this fund. The testator expressly directs his executors to sell the property set apart for this charity, and invest the proceeds in some safe bank stock, and year and yearly to pay out the interest for the schooling of the children in the bounds of the Gass school district. The subsequent clause of the will, where he enjoins it on the commissioners of the district to see that they “get their right share of his estate,” is a mere request, and conferred no legal authority on this body whatever to interfere in the administration of this fund. Under this construction the case falls clearly within the principle decided by this court in Dickson v. Montgomery, 1 Swan, 348, and is a valid gift to charitable uses.

Again, it is argued for the defendants that as the proof shows there is no school district in Greene county, having, by law, the appellation of “Gass' school district,” it is inadmissible by parole evidence to explain the intention of the testator, by his own declarations. In this reasoning we do not agree with the defendants' counsel. There is no ambiguity in the will itself on this point. The bequest is for the benefit of the children in the bounds of Gass' school district. The doubt arises solely from the defence set up in answer and the parol proof in the record. The object in these cases is to arrive at the intention of the testator. It is evident that he had in his mind, at the time this will was made, a school district that was called, or that he chose to denominate, the “Gass school district.” The case falls clearly within the rule very lucidly expressed by Lord Abinger in 5 Mee. & W. 363, and sustained by all the authorities on this point. He thus states the rule: “Now, there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the testator's words is neither ambiguous nor obscure, and when the devise is on the face of it perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons (each answering the words in the will), the testator intended to express. See, also, 1 Greenl. on Ev., sec. 289 et seq.

And this brings us to the real and only point of difficulty ?? the case. viz.:...