Rogers v. Rogers

• Decision Date: 30 April 1859
• Citation: 39 Tenn. 660
• Parties: BENJAMIN A. ROGERS et al. v. JEPTHA T. ROGERS et al.
• Court: Tennessee Supreme Court

39 Tenn. 660

BENJAMIN A. ROGERS et al.

v.JEPTHA T. ROGERS et al.

Supreme Court of Tennessee.

April Term, 1859.

FROM WEAKLEY.

Decree for the defendants, by Chancellor Williams, at the January term, 1859. The complainants appealed.

Somers, for the complainants; J. A. Rogers, for the defendants.

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

This is a bill for a construction of the will of Jubilee Rogers.

In the second clause, he bequeathed to his wife, Harriet, during her life, or widowhood, seven slaves, by name, and at her death, or marriage, to be disposed of as he should afterwards direct in said will, unless she died his widow; in which event he gave her the privilege of giving said negroes to whom she pleased, among his children or grandchildren.

The fourth clause of the will is a general residuary one, to his four sons, John A., Peleg M., Benjamin M., and Jubilee W., or their legal representatives.

In the fifth clause he directs, that in case of the marriage of his wife, Harriet, the said slaves shall be equally divided among his children, if living, and if any of them be dead, leaving issue, that issue to receive the share of its parent.

The testator died in June, 1855, and the said Harriet died the 15th of February, 1858, without disposing of said slaves, under the power given her in the second clause of the will, and without having again married.

The question to be decided is, what becomes of these slaves? Do they go to the testator's children and grandchildren under the second clause, or to his four sons under the residuary clause, or to his children under the fifth clause, which only directs to whom they shall go in case of the second marriage of said Harriet, or did the testator die intestate as to them?

The Chancellor held, that, as to these slaves, the testator died intestate.

In this we think he erred. From an examination of this will, we cannot believe the testator intended to die intestate as to any of his property, and the legal presumption is, that he did not so intend. Such is the rule in all cases where a man engages in an act so important as the execution of his will. Williams v. Williams, 10 Yerg. 25. Nor do we think they pass under the residuary clause to the testator's four sons, it being apparent, from the context, that they were not intended so to pass. And it is clear they do not go to his children under the fifth clause, for that could only be in the event his widow married again, and she never did marry.

We have had much difficulty in arriving at what we supposed to have been the meaning of the testator in this will. At one time we were inclined to concur with the Chancellor's decree. But a more careful examination of the will and the authorities, lead us to the conclusion, that under the second clause of the will, these slaves, upon the death of the testator's widow, went per capita to his children and grandchildren then living.

It is a well established principle, that where a trust is created for a certain class of objects, and the discretionary power applies only to the selection from, or distribution amongst those objects, the court, while it disclaims the exercise of the discretion reposed in the trustees, will, if necessary, enforce the performance of the trust by decreeing a distribution of the property amongst all the objects equally. Hill on Trust. 486; Brown v. Higgs, 4 Ves. 708; 5 Id. 495; 8 Id. 561; 18 Id. 192.

The difficulty here is, to determine whether Harriet, the widow of the testator, had a power, simply as such, or a power in the nature of a trust; or if it be not a power in the nature of a trust, whether it is not to be considered as a power with a bequest over to the objects of it in default of any appointment by her. In many instances it is difficult to distinguish the cases upon these questions. Sugden on Powers, 394-397.

If the testator intended it to be a condition precedent to the gift of these slaves to his children and grandchildren, that his widow should exercise her power in their favor, then no interest could vest in them until the power was duly exercised; and she having died without executing it, the gift cannot be enforced. Hill on Trustees, 490. And so if it were simply a power. Hill on Trustees, 67; Brown v. Higgs, 8 Ves. 570. But if it be a power in the nature of a trust, which it was her duty to execute, or a power with a bequest over to the objects of it in default of any appointment by her, and of her failure to marry again, then, though she might, by the exercise of the power, at her death, have given these slaves to whom she pleased, among the testator's children or grandchildren--being confined to that class--yet having omitted to exercise it, the entire class will take. Hill on Trustees, 67-70; 5 Ves. 595; 8 Id. 561; Jarnagin v. Conway, 2 Humph. 50.

In some of the cases decided on this subject, there appears to be a material distinction between those cases where the absolute interest is given to the donee of the power, and where, consequently, the exercise of the power can take effect only out of that interest, and where the person by whom the power is to be exercised, takes only a previous estate for life, to which the power is only collateral.

In the former case, the donee of the power himself would be entitled beneficially, upon his refusal or omission to exercise it; and the intention or wish of the testator to qualify the gift to him would thus be disappointed. Consequently, in such cases, the court has always endeavored to give effect to the apparent intentions of the testator, by treating the donee as a trustee for the objects of the power.

But where the execution of the power is not to take effect out of the interest of the person by whom it is to be exercised, as where it is given to a tenant for life, to be exercised after the determination of his life-estate, or a fortiori, where the party to whom it is given takes no beneficial interest, the same argument on behalf of the objects of the power does not hold good, and the decisions in favor of their taking, in default of the exercise of the power, are said to not be so uniform. And it is said that, indeed, where they have been held entitled, in default of appointment, the decision has proceeded, not on the ground that the power was in the nature of a trust in their favor, but that the bequest...