Troup v. Hart

66 Tenn. 188

• Court: Tennessee Supreme Court
• Decided: April 15, 1874
• Status: Published

Opinions

Nicholson, C. J.,

delivered the opinion of the court.

The question involved in this ease depends upon the construction of the following clause in the will of James Galbreath :

12th. “As to all the rest of my estate, residue and remainders, whatever it may be, the tract of land I now live on, my negro girl Ann, my mules, etc., all and everything belonging to the place, of every kind and description, whatever it may be, I will and bequeath to my loving wife Margaret Galbreath, to have and to hold- during life, and to make what disposition she may see proper at her death.”

Chancellor Livingston was of opinion that the widow, Margaret Galbrear.h, took an absolute title to the property, and decreed accordingly.

The exact question now presented arose in the case of David v. Bridgman, 2 Yer., 557, upon the following clauses in the will of Sampson David: 1st. “It is my will that my beloved wife, Martha David, have all my estate, both real and personal, during her life.” 2d. “ It is my will that my wife Martha, at her death, may have full power and authority to dispose of all my personal property in any manner she may think proper.”

In this case Judges Catron and Peck held, that the widow took the absolute title to the personal property, because the will vested her with the unlimited power of disposal at her death. Judge Catron, in his opinion, says: “That Martha David had the right to use the property, without any right on the part of the distributees of Sampson David to impound it during her lifetime, is, we think, incontrovertible; that she could sell, give away or destroy it, without legal restraint or molestation by complainants, follows; and that a sale or gift of the property at any period during her life, would have been in effect a disposition at her death, (because then, as well as previously, a subsisting alienation,) we have no doubt.” And he adds: “ If Martha David, as devisee of her husband, could lawfully part with the property bequeathed at any period after S. David’s death, and communicate a good title to the purchaser, it follows that she had the power as effectually to defeat the estate in remainder, as if the words, ‘at her death/ had not been inserted in the will.”

It is true that Judge Whyte dissented from the opinion of Judge Catron and Peck, and that the reasoning of his dissenting opinion is supported by numerous authorities. But the decision of Judges Cat-ron and Peck has been so long and so often followed in subsequent cases, that we do not feel disposed to regard it as a debatable question. The case of David v. Bridgman was recognized and approved in Davis v. Richardson, 10 Yer., 290; Thompson v. McKissack, 3 Hum., 636; Bean v. Meyers, 1 Col., 228. And in the case of Henderson v. Vaulx, 10 Yer., 33, Judge Reese, after expressly approving the case of David v. Brigdman, distinguishes the former case from the latter, from the fact that it was the apparent intention of the testator, from the language of the will, and from the surrounding circumstances, “to limit and restrict the wife’s power of disposing of the property to the time of iter death.”

We are therefore of opinion that the construction placed upon the clause of the will under consideration by the Chancellor is fully supported by the authorities in our statute, and we therefore affirm his decree with costs.