Johnson v. Johnson

• Decision Date: 16 May 1893
• Citation: Johnson v. Johnson, 23 S.W. 114, 92 Tenn. 559 (Tenn. 1893)
• Parties: JOHNSON et al. v. JOHNSON et al.
• Court: Tennessee Supreme Court

23 S.W. 114

92 Tenn. 559

JOHNSON et al. v. JOHNSON et al.

Supreme Court of Tennessee.

May 16, 1893

Error to chancery court, Shelby county; W. D. Beard, Chancellor.

Bill by M. M. Johnson, executrix, and others, against Edwin L Johnson and others, for construction of the will of John Cummings Johnson, deceased. Decree, from which complainants bring error. Affirmed.

Following are the eighth and twenty-fourth clauses of the will:

Clause 8. I give and bequeath to my son, William C. Johnson, my y largest iron safe, my set of books, and the proceeds of all collections he can make from accounts which were the results of my past oil and cotton business, with full power to continue suits, to sue or compromise any accounts therein with freedom from making any report of his action to any person or any authority, state, county, municipal, or otherwise. The accounts against or in favor of Mrs. J. C Johnson, Mrs. M. M. Johnson, J. C. Johnson, or any of my descendants, as well as accounts of properties. Rents stocks, bonds, and investments to be treated as memorandums only, and not to be included in the above bequeath."

Clause 24. The income from the rentals and rental notes now in bank, and proceeds of Chapman notes, will be used by my wife, Mary Mildred Johnson, for family expenses, as now and heretofore."

Following is the construction placed upon such clauses by the lower court: "And, the court proceeding to construe same, it is therefore ordered, adjudged, and decreed as follows, to wit: First. That by the eighth item or clause of said will the testator intended to give and bequeath, and did give and bequeath, to William C. Johnson, all accounts, of every kind, nature, and description, that appeared on his set of books, whether said accounts were the result of his past oil and cotton businesses or not, save and except only the accounts appearing on said set of books against or in favor of Mrs. J. C. Johnson, Mrs. Mary Mildred Johnson, J. C. Johnson, or any of testator's descendants, as well as accounts therein of properties, rents, stock, bonds, and investments, all of which excepted accounts are to be treated simply as memo randa, and are not included in the said bequest to the said William C. Johnson. *** That by the twenty-fourth item or clause of said will the said testator intended to give and bequeath, and does give and bequeath, to his wife, Mary Mildred Johnson, to be used by her in the payment of family expenses in the same manner as before testator's death, such moneys in bank at the time of his death as had been derived from rentals, and such rental notes as were in bank at the time of his death, still uncollected, together with the proceeds of the Chapman notes, as aforesaid, and that outside of the rents given to Mrs. Johnson under the fourteenth and fifteenth items or clauses of said will, which last rentals are given to her absolutely, to be disposed of at her pleasure, she can appropriate no other rentals or properties of the testator's estate to the payment of the family expenses."

H. C. Warrinner, for plaintiffs in error.

Smith & Trezevant, for defendants in error.

WILKES J.

This is a bill to construe the several items of the will of John Cummings Johnson, deceased. The testator died July 25, 1892, leaving a widow, complainant Mary Mildred Johnson, and seven children by a former marriage, and possessed of quite a large estate, of both realty and personalty. The will was written by the testator, and is somewhat inartificially drawn. It consists of 26 items, and purports to convey and dispose of all the property of the testator. The several items submitted to the chancellor were construed by him, and specific directions were entered in the decree, and a written opinion was filed by him in the court below. The cause has been brought to this court upon writ of error, and it is assigned as error that the chancellor erred in his construction of the eighth, seventeenth, and twenty-fourth items of the will. We have carefully considered these items, and the assignment, and are of opinion that there is no error in the construction placed by the chancellor upon the eighth and twenty-fourth items of the will, and his opinion and decree as to these items are adopted by this court, and need not be more specifically set out.

The main controversy is in regard to the proper construction of the seventeenth item, which is as follows: "17th. I give and bequeath to my wife, Mary Mildred Johnson, and to my daughter, Lillie W. Johnson, jointly, my home lot, of three acres, No. 11, fronting on Poplar street, east of Dunlap, to hold in trust as below cited, with power to lease and sell the same under the terms of this will, and to nominate and elect their successors and other associates in this trust from my descendants, or from their Protestant husbands or wives, not exceeding five, who may in time elect their associates and successors from my descendants. If at any time in the future there should not be as many as two of my descendants able and willing to take charge of this trust, then it shall revert to a board consisting of the elders of the several Presbyterian churches of the city of Memphis, who shall, with the assistance of the Presbyterian pastors, nominate from the bankers or business men of their body an executive committee of five, who, with my descendants, shall have full power and control to manage the trust so it will be productive of most good to the greatest number. It has been my desire to see a grand female college on this lot, and I hope it may yet be accomplished, If the way be clear to that end, the income may be appropriated in that direction; but, if not, then it is my desire and wish that the main income from this property, less the amount needed for repairs, taxes, and insurance, shall be used for some charitable purpose, preference always to be given to something of an educational nature, although permissible to appropriate the income in any way it may seem to the trustees to be necessary and most desirable, as they may elect. The property is never to be mortgaged, nor is the income to be pledged for more than three months in advance, and no sale of it shall be made until five years after the termination of the present lease, when it may be sold for reinvestment for some scholastic or charitable purpose."

The question presented is whether this is a valid devise to a charitable purpose, such as can be upheld under our authorities. The complainants, who are the executors of the testator's will, are also made by this item the original trustees of this charity; and in their bill they allege that the item made a valid devise to them, as trustees, of the property, in fee; the net rents and income to be applied to charitable purposes, which are rendered sufficiently definite to be valid. The adult defendants answer that they have no desire to obstruct the benevolent and charitable intentions of their father, if they can be legally carried out, and they join in the request to the court to construe the item, and determine, as against the minor defendants and devisees, if effect can be given to the devise as a valid charity.

We are of opinion that, if the devise is valid, then the item passes the fee in the property for the purposes indicated, the net income from which is to be expended and appropriated by the trustees. While there is no specific devise of the property, yet a devise of the rents and profits and income is, in effect, a devise of the property itself. Polk v. Faris, 9 Yerg. 241; Morgan v. Pope, 7 Cold. 547; Davis v. Williams, 85 Tenn. 648, 4 S.W. 8; Pilcher v. McHenry, 14 Lea, 88; 1 Jarm. Wills, 152, note; 3 Washb. Real Prop. 529, 530; Spofford v. College, (Jan., 1889.) ^[1] In the case last mentioned, Thomas Martin, of Giles county, had set apart $30,000 in bonds of the state of Tennessee, the interest to be applied to the founding and operating a female school at Pulaski, Tenn. After the school had been founded, and successfully operated for a number of years, Mrs. O. M. Spofford, his only daughter and residuary legatee, filed a bill claiming that only the interest upon the bonds was devoted by the will of her father to the school, and that when the bonds matured, and the interest coupons had all been clipped and exhausted, then the bonds or corpus of the fund would revert to her, as residuary legatee under the will. The court below, as well as this court, held that the gift of the interest of the bonds carried the bonds themselves, and the fund could not be diverted from the charity.

But the question in this case recurs: Is the devise, as made in the seventeenth item of the will, a valid devise for charitable uses? Charitable uses are favored in courts of equity, and will be supported when the trust would fail for uncertainty were it not for a charity. Dickson v. Montgomery, 1 Swan, 348; Heiskell v. Chickasaw Lodge, 87 Tenn. 668, 11 S.W. 825. This court has no disposition to abridge this rule, or recede from it, in any way. A charity will always be upheld, where it is created in favor of a person having sufficient capacity to take as donee, or, if it be not direct to such person, where it is definite in its object, lawful in its creation, and to be executed by trustees. Franklin v. Armfield, 2 Sneed, 305; Gass v....