State v. Smith
State v. Smith
Opinion of the Court
delivered the opinion of the court.
Bill in the name of the State, by the district attorney-general, on the relation of the three public school directors of the first civil district of Shelby county, and of Lavinia A. Cannon, the widow of Wade H. Bolton, deceased, against Charles E. Smith, as chairman of the county court of Shelby county, for a construction of certain clauses of the will of Wade H. Bolton containing, charitable devises and bequests, and for the settlement of a plan for carrying out the testator’s wishes. Both parties have appealed from .the chancellor’s decree.
By the second item of his will, the testator gave to Lavinia Ann Bolton, now Cannon, his wife, “a lifetime dower in three hundred acres of land on his homestead, Hoboken plantation, in Shelby county, Tennessee.” The widow dissented ' from the will, and received dower in his realty, including about seven hundred acres of the Hoboken plantation, and a distributive share of the personalty. She also bought a part of the remainder of that plantation under a sale made by the executor of Bolton’s will, by virtue of its thirteenth item. That item and the two following constitute the part of the will sought to be construed. They are as follows:
Thirteenth. I hereby instruct my executor, if he thinks best, to sell all my real estate in Tennessee or any other State, everywhere, together with my Ho-boken farm, where I reside, reserving the dower of three hundred acres given my wife her lifetime.
Fifteenth. I give and bequeath the residue and remainder of my estate that is not otherwise donated, if any there be, to be paid over to the chairman or judge of the county court of Shelby county, Tennessee, and their successors in office, to be loaned out on interest perpetually, and to applicants on bond and security to be given, and the interest accruing annually to be applied for the education of the poor and orphan white children in the first district of Shelby county, Tennessee, in the college of learning ordered to be erected in the fourteenth clause. This donation shall be perpetual in the hands of the county court, as above specified.
The devise of the three hundred acres of land is to the trustees of the free schools of Shelby county, and their successors in office. There are no such trustees, nor any schools designated by law as free schools. But for many years we have had in this State a system of public schools, where the tuition is free, the teachers being paid out of a fund created for the purpose, and paid by the State or county, or by both. These schools are located in school districts,
In the case of Cannon v. Apperson, 14 Lea, 553, after the remand to the chancery court, a decree was rendered, upou a compromise with Apperson, by which a large amount of real estate, money, notes and personalty was vested in the defendant, C. E. Smith, as chairman of the county court of Shelby county, and his successors in office, including all of the testator’s Hoboken or home place, except about two hundred acres sold by the executor to Lavinia A. Cannon, the testator’s widow, seven hundred acres of the place being subject to the widow’s dower. The dissent of the widow from the testator’s will operated to accelerate the devise of the three hundred acres to the school directors, and gave them the right to the immediate possession of the three hundred acres, so far as it might not be included in the widow’s dower: Robinson v. Robinson, 2 Tenn. Ch., 11; Armstrong v. Park, 9 Hum., 195. The executor was authorized to sell the home place, except the three hundred acres devised to the wife and the school directors, but he seems to have sold only two hundred acres to the widow. The residue, of the farm, subject to the widow’s dower, has
The residuary devise and bequest are “to the chairman or judge of the county court of Shelby county, and their successors in office/’ to be loaned out on interest, the interest accruing annually to be applied for the education of the poor and orphan white children in the first district of Shelby county. “This donation,” it is added, “shall be perpetual in the .hands of the county court, as above specified.” The grant is plainly to the chairman or judge of the county court, and his successors in office, and the words at the end of the item do not in terms change the gift. The “county court as above specified” is the county court previously mentioned. For many years, there has been
It is the duty of the chairman, as trustee, to turn the property received from Apperson into money as soon as it can be done with safety, and to loan the money as directed. The chancellor was scarcely justified in saying that the county might, as a matter of course, take the entire fund, and pay interest on it. But we can see no objection to a loan of the fund, or any part of it, to the county, upon proper security, if the county is authorized by the Legislature to borrow money, and issue proper obligations for the payment of the principal and interest annually. The interest annually accruing should be paid to the directors of the public schools of the first district, if they are acting as trustees for the disbursement of the fund, or to such persons as may be clothed with this power. There can be no doubt that this charitable fund was i a condition demanding the interposition of the chancery court, under the provisions of the Code, to take charge of, and administer it. The court may appoint other trustees upon good cause: Vidal v. Girard, 2 How., 126, 188. The chancellor should, undoubtedly, require the chairman of the county court and the school directors, or other persons appointed to administer the
The chancellor has left to the school directors the location of the proposed college, the selection of the plans of the building or buildings, and the letting of the work. We think it more judicious to refer these matters to the master to take proof and report upon the location, and to obtain plans for the improvements, with estimates of the probable cost; and also to report a scheme for the conduct of the college. The court can then act intelligently, and give directions for the guidance of the directors, or other persons employed to superintend the work.
With the modifications suggested by this opinion, the chancellor’s decree will be affirmed. The costs of this court will be paid by the appellants equally, who will be reimbursed out of the trust funds. And the cause will be remanded to the chancery court for further proceedings.
Reference
- Full Case Name
- State ex rel., etc. v. Charles E. Smith
- Status
- Published