Citation Numbers: 39 Tenn. 684
Judges: Cochran
Filed Date: 4/15/1859
Status: Precedential
Modified Date: 7/30/2022
delivered the opinion of the Court.
It appears from the record in this case, that James D. McLellan and Isabella McLean intermarried in 1831. That they lived together very affectionately, and by their industry and energy, accumulated an estate, worth
In Eebruary, 1852, he died of consumption, with which he had been afflicted for a considerable time. She survived him until October, 1857, when she died.
He left a will, dated the 23d of August, 1841, to which he made a codicil, dated the 26th day of January, 1852.
The operative words of the will are as follows: “I will and bequeath :to my dearly beloved wife, Isabella Caroline McLellan, all the property both real and personal, legal ,and equitable, that I may die seized or possessed of, or in any manner whatever entitled to; all the money, notes, accounts, ehoses in action, and every other species of property, that I may be entitled to, to her and her heirs forever, to dispose of as she may think proper.”
By the codicil, he makes two bequests to other persons — one for $1000, and one for $200.
This bill is filed by the brothers and sisters, and the heirs of deceased brothers and sisters, of James D. McLellan, who charge that before' and at the date of said will there was a mutual agreement and understanding between the testator and his wife, that at the death of the survivor, their property should be equally divided among their respective relations, giving one-half to his, and the other half to her relations. That in consequence of her promise to divide the estate at her death, he made his will, giving the whole of his estate to her in fee simple.
The conversations between the parties, their declarations and acts, proven, establish, very satisfactorily, the
At her death she left a will, in which (with some inconsiderable exceptions) she gave the property to her relations and those of her deceased husband, but not equally. She gave more to the McLeans than to the McLellans.
The complainants seek an equal division of the estate between the two families, insisting that Mrs. McLellan took the estate clothed with a trust, in favor of his and her relations, equally, raised by the agreement or understanding between her and her husband.
It is insisted on the part of the defendants, that as the gift is absolute in the will, a trust cannot be raised by parol.
We are of the opinion, from authority, that such a trust can be created by parol agreement; and the agreement being in parol, must of necessity be proven by parol evidence. And that, in this case, Isabella 0. McLellan took the estate in trust, to be divided, at her death, equally between her relations and those of her deceased husband.
The subject and object of the testator’s bounty being subject to no uncertainty, and the proof of the agreement being satisfactory.
Here was an absolute gift of the property, on the face of the will, and the trust wras created by a parol agreement. The clause that he had perfect confidence that she would act up to his views, &c., in the ultimate disposal of his property after her decease, could not aid in discovering what those views were. The objects of his bounty, and the manner of the disposal, were left to be discovered by parol evidence; and this provision tends to give a discretion to the devisee, to act up to his views or not. The terms are not imperative;
To the same effect, in principle, are the eases of Thynn v. Thynn, 1 Vern., 296; Drakeford v. Wilks, 3 Atkins’ Rep., 539; Wicket v. Raby, 3 Brown’s Parliamentary Cases, 16; and Richardson v. Adams & Wife, 10 Yer., 273.
The decree of the Chancellor sets np the trust, so-far the decree is right; but that part which excludes from the account the profits accruing after the death of James D. McLellan, and includes any of the estate converted or used by Isabella 0. McLellan in her lifetime, is erroneous.
An account of the estate- should be taken,, as it existed at the death of Isabella C. McLellan, giving one-half in value to the complainants, to- be divided among them according to the statute of descents and distributions; and commissioners will be appointed to- value the property and make the division.