Hornberger v. Hornberger

• Decision Date: 31 December 1874
• Citation: Hornberger v. Hornberger, 59 Tenn. 635 (Tenn. 1874)
• Parties: John Hornberger et al. v. M. J. Hornberger, Executrix, et als.
• Court: Tennessee Supreme Court

59 Tenn. 635

John Hornberger et al.

v.M. J. Hornberger, Executrix, et als.

Supreme Court of Tennessee.

December Term, 1874.

FROM MONTGOMERY.

From the Chancery Court of Montgomery County, November Term, 1873. C. W. TYLER, Sp. Ch.

JAS. E. BAILEY, JAS. M. QUARLES, and R. W. HUMPHREYS, for Complainants.

HOUSE & CAMPBELL, for the Executrix.

B. D. JOHNSON, for the City of Clarksville.

TURNEY, J., delivered the opinion of the Court.

The portions of the will of J. G. Hornberger raising the questions for discussion here, are the following:

“At the death of my wife, all of my property of every kind, except the life estate of my brother, if h??c is living, shall vest in, and belong to, the City of Clarksville, in the county of Montgomery, State of Tennessee, for the use and benefit of the poor of said city, and the said property shall be under the control of the Mayor and Aldermen of said City of Clarksville in trust for the use and benefit of the poor of said city, to be used, appropriated, and expended in such manner as will supply the wants and necessities of the poor of said city.

This devise to the City of Clarksville embraces all of my property at the death of my wife and brother.But the devises herein mentioned will be subject to the following exception, to-wit: the flower garden and grave yard where my child Jettie is buried, and where I expect myself and wife to be buried, at my present residence, which flower garden and grave yard contain about one quarter of an acre of ground, is not to be sold under any circumstances, but the same is vested in trust in my wife for and during her natural life, and at her death the said City of Clarksville and the Mayor and Aldermen of said city, are to act as trustees, and are to hold said grave yard and flower garden in trust, and out of my estate to keep the same up.”* * * * * * * * * * *

“I have had good reason to change my affection from those who would get my property in the event I should give the same absolutely to my wife.I prefer that the poor should have it, in the community where I have lived and expect to die.Then, again, I have had much trouble on this point, to-wit: I wish the grave of myself, wife, and child, to be perpetually cared for, and in the event I give my estate to my wife, then at her death our graves would go into strange hands, and be uncared for; as it is, by giving my property to the City of Clarksville, and constituting said board of Mayor and Aldermen the trustees and guardians of said graves and of said fund, I feel that, I have some persons who will perpetually look after our graves, and will give the same all needful care and attention.Now out of the fund which is vested in the said City of Clarksville for the benefit of the poor, the Mayor and Aldermen of said city are to keep said grave yard and flower garden at all times substantially enclosed, etc., etc., etc., and after defraying the expenses of keeping up the grave yard and flower garden they shall pay the remainder of the annual interest and income to the poor, etc., my object being to make my estate a perpetual fund for the poor of Clarksville, and for the purpose of keeping the grave yard,” etc...