McCarley v. McCarley
| Decision Date | 07 September 1962 |
| Citation | 14 McCanless 484,360 S.W.2d 27,210 Tenn. 484 |
| Parties | , 210 Tenn. 484 Herbert R. McCARLEY, Executor, and W. Curtis Pope, Administrator, C.T.A., Appellees, v. Thomas H. McCARLEY, Sr., Thomas H. McCarley, Jr., Karen Sue McCarley, Thomas H. McCarley, III, George Reese McCarley, Jean Ellen McCarley, Elizabeth McCarley, Margaret Frances McCarley, Herbert R. McCarley and Unborn Children of Herbert R. McCarley and Thomas H. McCarley, Jr., Appellants. . Nashville, December 1961 Term |
| Court | Tennessee Supreme Court |
Matthews, Thompson, Matthews & Jones, Memphis, for T. H. mCcarley, jr.
Wade H. Sides, Jr., Memphis, guardian ad litem for unborn children of T. H. McCarley, Jr. and H. R. McCarley.
W. Curtis Pope, Clyde Mason, Memphis, for appellees.
This appeal is from the construction placed by the Chancellor upon the will of Mrs. Reese A. McCarley. The conflicting contentions are that the will is (1) entirely invalid, (2) entirely valid and (3) invalid in part and valid in part. This last contention is the conclusion reached by the Chancellor.
It is necessary at the beginning to determine the intentions of the testatrix. Those intentions control the result, in so far as they are not in conflict with positive rules of law. As observed in Burton et al. v. Kinney et al., 191 Tenn. 1, 5, 231 S.W.2d 356, 358, in approaching the task of ascertaining those intentions the Court is acutely aware that "wills and the construction of them do more perplex a man than any other learning", and, as illustrated by the many citations in the case at hand, "the cases almost overwhelm us at every step of our progress; and any attempts * * * to classify them, much less to harmonize them, is full of the most perilous labor." Some times, no doubt, they lead the Court into unconsciously making for the testator a will of which he never dreamed.
The will is brief. After giving the husband a small sum (he dissented), it, in so far as pertinent here, provides as follows:
'II.
'III.
'When the last grandchild has completed college, the estate shall be divided between my two sons; one-third (1/3) going to Thomas H. McCarley, Jr., and two-thirds to Herbert R. McCarley.'
The facts are stipulated. They disclose that the testatrix left surviving her, in addition to her husband, two children, towit, Thomas H. McCarley, Jr. and Herbert R. McCarley, ages thirty-six (36) and thirty-three (33) years, respectively, and being the persons mentioned in Item III of the will. At the time of testatrix's death she had five (5) grandchildren, three (3) being the children of Thomas H. McCarley, and ranging in age from thirteen (13) to six (6) years. The remaining two are the children of Herbert R. McCarley, ages four (4) and one (1) years, respectively. The value of the estate which passes into the trust for the purpose mentioned in Item II is approximately $45,000.00.
Those who insist that the will is entirely void base their contention upon the theory that the word 'grandchildren' includes all grandchildren of the testatrix born either before or after her death; hence, that the beneficiaries named in the trust fall within a class subject to fluctuation by increase or decrease so long as their respective fathers live; hence, that the will comes within that class doctrine which (1) makes it void for remoteness and (2) violates the rule against perpetuities.
The conclusion reached by this Court as to the meaning of the word 'grandchildren' in the sense intended by the testatrix is a conclusion which obviates the necessity of considering the rule against perpetuities or that class doctrine which activates such rule. These rules are inapplicable to this will, as the word 'grandchildren' is intended by the testatrix to be construed.
Item III of the will directs the corpus of this trust estate to be divided between the testatrix's two sons...
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In re Estate of McFarland
...(1963). Furthermore, a person is presumed to be acquainted with applicable rules of law when executing a will. McCarley v. McCarley, 210 Tenn. 484, 360 S.W.2d 27, 29 (1962). We must presume, therefore, that Ms. McFarland, prior to her death, knew that several of the beneficiaries had predec......