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Carson v. Carson.

swer. The demurrer sets up the following propositions:

(1) That the devise to defendants the board of trustees of the Cumberland Presbyterian Church in the second item of the will of Mrs. Carson is a valid devise to complainant for life, with remainder to said board after his death, subject to payment of his funeral expenses and just debts, and that complainant's contention that his estate in the lands therein devised is not merely a life estate, but an estate in fee-simple absolute, is not well taken.

(2) That the bequest to defendants the board of trustees in the third item of the will of Mrs. Carson is a valid executory bequest, subject to a life interest in complainant, and that complainant's contention that he is the absolute owner of the land is not well taken. The appellants then answer as follows:

First. That they constitute a corporation duly chartered by the State of Kentucky. The charter, or rather a copy thereof, is made an exhibit to the answer, and by agreement of counsel and decree of the court is treated, without question, as the charter of the said board. It is alleged that the appellants are the lawful successors in office, as trustees under the provisions of said charter, to the trustees of said corporation designated in said will; that the trustees designated in said will were at the time of the execution of said will and at the time of the death of the testatrix regularly elected and qualified as trustees of said corporation.

Carson v. Carson.

Second. That the appellants, constituting said board of trustees, have full power and authority, under said charter of incorporation, to receive in trust any donation, bequest, or other charities which may be or have been given to them for the use and benefit of the religious denomination known as the Cumberland Presbyterian Church, or its general assembly, for educational, religious, or charitable purposes, under the direction of said general assembly; that the said Cumberland Presbyterian Church is a religious body existing and maintained for the advancement of christianity; that all moneys and other estates of every description which are vested in said board of trustees by virtue of their office are to be forever held in trust for the use of the Cumberland Presbyterian Church, the interest thereof to be devoted to religious, charitable, or educational purposes under the direction of the said general assembly; that the purposes for which the devise and bequest of Mrs. Carson were made to the said trustees was one of the vital purposes, if not the chief purpose, for which the said board of trustees exists.

Third. That the defendants, as a board of trustees, are properly constituted, and capable of taking and using the property involved in the devise and bequest in such manner as to best promote the interests of christianity in fields occupied by said Cumberland Presbyterian Church.

Fourth. That the devise and bequest constitute a valid devise and a valid bequest for charitable uses,

Carson v. Carson.

capable of being enforced by the appellant trustees in strict accordance with the intent of the testatrix, as set forth in her will, and that the appellee's contention that he is the absolute owner in fee of the property involved in the bequest is not well taken.

Fifth. That the appellants admit all the allegations of the original bill not inconsistent with the allegations of their answer.

The chancellor decided all the issues in favor of the complainant, and from his decree the defendants have appealed, and assign the following errors:

(1) The chancellor erred in overruling the appellants' demurrer to the effect that the devise to appellee for life, with remainder to said board of trustees after his death, subject to the payment of his funeral expenses and just debts, is a valid devise; that the bequest to the board of trustees is a valid executory bequest, subject to the life estate in appellee; and that the appellee's contention that he is the absolute owner of said land and said fund is not well taken.

(2) The chancellor erred in holding that, under the will of the textatrix, the appellee takes and is vested with an absolute estate in fee in the land mentioned and described therein.

(3) The chancellor erred in holding that, under the third clause of said will, the appellee is vested with a life, if not an absolute, estate in the surplus funds arising from the sale of the land therein mentioned.

(4) The chancellor erred in holding that that part of

Carson v. Carson.

said clause referring to the board of trustees of the Cumberland Presbyterian Church is inoperative, ́ of no effect, and void, and that the appellee, under said will, and as surviving husband of said testatrix, is entitled to and is vested with an absolute estate in said surplus money after paying the special bequests set out in said will.

These assignments may be resolved into three propositions, which we will discuss:

As to the first clause of the will in controversy, relaťing to the tract of 165 acres of land, it appears that the testator made an absolute devise of the same to her husband, W. M. Carson, in the first part of the clause; and the question presented is whether the words superadded later in the clause cut down this fee-simple or absolute estate.

These words are: "And at his death I direct that after his funeral expenses and just debts are all paid the remainder of said tract to go," etc.

The general doctrine laid down in our cases and in the text-books is that a fee-simple estate given in the first portion of a devise, with absolute power of disposition, will not be limited or cut down by subsequent clauses and provisions of the will. Ballentine v. Spear, 2 Baxt., 269; Sevier v. Brown, 2 Swan, 114; Bradley v. Carnes, 94 Tenn., 27, 30, 27 S. W., 1007, 45 Am. St. Rep., 696; Meacham v. Graham, 98 Tenn., 201, 39 S. W., 12; Clark v. Hill, 98 Tenn., 300, 39 S. W., 339; Underhill on Wills, sections 358, 491.

Carson v. Carson.

In the present case a fee-simple estate is given in the usual terms, and the only question is whether the subsequent language defeats such estate.

We are of opinion it does.

Taking the entire clause as a whole, we are of opinion that the estate given is not a fee, with an absolute power of disposition in W. M. Carson, but his power of dispos ition, if it may be so called, is merely a power to con- . sume it by debts, but not otherwise, or in any other way to dispose of it. It is not, therefore, an unlimited power of disposition, but one limited to a power to charge it with debts.

The power of unlimited disposition in the first taker which will defeat an executory devise must be a power given by the will itself, and not one attaching as a legal incident to the estate given by the will. Booker v. Booker, 5 Humph., 505, 511; Brown v. Hunt, 12 Heisk., 404.

So, in Read v. Watkins, 11 Lea, 158, it was held that ordinary words conveying the absolute title alone, without superadded words giving unlimited power of disposition, would not defeat an executory devise.

In that case the will contained this provision:

"After the death of my beloved wife, and after all her debts are paid, I devise, will and direct that the property, real and personal, of which she may die seized and possessed, including all moneys she may have, shall be equally divided among all my children and representatives,” etc.

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