Watkins v. Dean

• Citation: 18 Tenn. 321
• Parties: WATKINS and others v. DEAN and others.
• Decision Date: 31 December 1837
• Court: Tennessee Supreme Court

18 Tenn. 321

WATKINS and others

v.DEAN and others.

Supreme Court of Tennessee.

December Term, 1837.

Michael Dean, of Warren county, having no legitimate children, but having a natural daughter, the complainant Hannah, for the purpose of making a provision for her during her life and her children after her death, on the 6th day of November, 1833, executed and duly acknowledged, before the clerk of the county court of Warren, an instrument, whereby, in consideration of natural love and affection for his said daughter, and for the purpose of making the provision before mentioned, he “gave, granted, conveyed, enfeoffed, set over, and confirmed to Eleanor and Mary Jane Watkins, two of the children of the said Hannah, one-half of all the property, real and personal, and moneys of which he might die seized or possessed, to have and to hold to the said parties, Eleanor and Mary Jane, and their heirs and assigns for ever.” In trust, nevertheless, for the exclusive support and maintenance of said Hannah during her natural life, and also upon the further trust that all and every other child born of the body of said Hannah, between the date of said indenture and her death, should have an equal portion of said property with said Eleanor and Mary Jane; and also upon this further trust, that, at the death of said Hannah, all the property should be equally divided between said Eleanor and Mary Jane, and all other children of said Hannah, born or to be born. And then the instrument concludes with a covenant that the donees shall take the property free from all and every gift, etc., made or to be made, etc., and that they, their heirs and assigns, shall have, hold, and enjoy the same, in the manner above stated, free from the claims of him, he said Michael, and his heirs, etc.

This instrument was duly registered on the 20th of July, 1834. In 1835 said Michael Dean died intestate, and at the January sessions of the county court of Warren, in the same year, administration of his estate was granted to his widow, the defendant Lucy.

On the 1st of May, 1836, said Hannah and her two daughters, Eleanor and Mary Jane, and two other children, born after the date of the instrument, by their next friend, Henry Watkins, husband of said Hannah and father of the other complainants, filed this bill, setting forth the said instrument and praying for partition of the real and personal estate between them and the widow and heirs of said Michael Dean, all of whom were made parties.

Lucy Dean, the widow, treating the instrument as a testamentary paper, prays leave to dissent from it, and claims one-half of the estate, under the act of 1827, ch. 14. The bill was taken for confessed against some of the heirs. Those who answer insist that the said instrument is void; that the widow must take under the act of 1784, ch. 22, and that they are entitled to all the residue of the property.

The chancellor, believing the instrument ought to be regarded as a testamentary paper, and, if so, that it had not been executed so as to pass land, decreed that the widow might dissent; that she was entitled, under the act of 1784, to dower and one-third of the personalty, and that the complainants were entitled to one-half of the personalty; but that the other defendants, the heirs at law, were entitled to the other two-thirds of the real estate.

The widow appealed, because she thought she ought to have been allowed to take one-half under the act of 1827, ch. 14.

R. J. Meigs, for complainants. Mrs. Watkins and her children insist that the instrument is sufficient to pass the interest intended by Michael Dean, and that the chancellor ought to have decreed them one-half of all his estate, real and personal. The instrument is not testamentary, although the court would so consider it, ut res magis valeat, quam pereat. But there is no necessity for so considering it.

Here are sufficient words to raise a trust, a definite subject, and a certain and ascertained object, the three things said to be indispensable to constitute a valid trust. 2 Story Eq., § 964.

The language need not point out the very nature, character, and limitations of the trust in direct terms. It is sufficient if the intention to create it can be fairly collected upon the face of the instrument from the terms used. 2 Story Eq., § 980.

The want of a trustee will not cause the trust to fail; equity will follow the legal estate in the hands of the heir, and make him execute it. 2 Story Eq. 976.

This instrument may be regarded as equivalent to a conveyance to trustees to the use of Michael Dean for life, remainder to Hannah Watkins for life, remainder to her children in fee. It creates an express trust, after his death, for Hannah Watkins and her children, and a resulting trust to himself for life.

S. Laughlin, for the heirs at law of Michael Dean. In this case it is respectfully insisted, for the heirs at law of Michael Dean, that, to make the paper writing of the 6th of November, 1833, operate as a gift, the court will, as in the case of Caines v. Jones, 5 Yerg. 252, and Caines and Wife v. Marley, 2 Id. 582, have to reject the proviso that the gift should not take effect until after the death of Michael Dean, the donor. To constitute a gift, the title must pass in presenti; and nothing is a gift that does not. 2 Kent, 438. If this instrument operates as a gift, it passed the title to one moiety of the donor's estate to the trustees named immediately upon its execution, on the day of its date. Michael Dean died in 1835, and consequently was not possessed of the property mentioned in the deed, as of his own right, at the time of his death, and consequently, as to that property, the widow is not entitled to dower or portion; and then the division of the property, under the act of 1827 (Stat. Laws of Tenn. 253), must be made thus: the half of the personal property given to the complainants will be taken from the whole amount, and one-half of the remaining moiety be given to the widow, and the remainder to the heirs at law.

It is, secondly, insisted that the writing of the 6th November, 1833, does not constitute a gift; that it is merely a testamentary paper. A will is “a disposition of property to take effect after the death of the testator.” 4 Kent, 501. The deed here was not to take effect until after the death of Michael Dean. In this respect it is a will, and not a gift. The calling it an indenture, a deed, etc., does not change its effect and constitute it a gift; for a will is as good by those names as by any other. Swinb. 522. It is a universally-admitted principle that an instrument, whatever its form may be-- whether that of an indenture, or of a bargain and sale, or release--is testamentary if it is not to operate until after the death of the party who makes it. 1 Roberts, Wills, 145; Rigdon v. Vallier, 2 Ves. Sr. 258; 2 Id. 216.

In making wills, the testator has the right of disposing of the property or revoking at pleasure till his death; so in the present case no definite property or certain quantity of property being given, but, indefinitely, “one-half of...