
    Watkins, et. al. vs. Dean, et. al.
    
    Nashville,
    December, 1837.
    An instrument, which does not purport to convey any property of which the maker was owner, at its date, but gives “the one half of all the pro-porty of which he may die seized and possessed, is, although in the form of a deed, testamentary in its character, and only operates and takes effect as a will.
    The act of 1S27, c 14, which gives to widows the one half of the personal estate of their husbands, where the husband dies without child or children, only applies to cases of actual intestacy. If he dies and leaves a will, she cannot, by dissenting, become entitled to one half, but only to one third, as provided by the aet of 1784, c 22.
    Michael Dean, of Warren county, having no legitimate children, but having a natural daughter, the complainant Hannah, for the purpose of malting 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 siezed 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 th,e pioperty free from all and every gift, &c. made or to be made, &c., 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, the said Michael, and his heirs,” &c.
    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.
    Lvcy 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, c 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, c22; 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, c 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, ¡cal anc. personal. The instrument is not testamen'ary — although the court would so consider it, ut res magis valeat quam pe-3 ° . . . * real. But there is no necessity for so considering it.
    Here are sufficient words to raise a trust, a deunite subject, and a certain and ascertained object, the three things said to be indispensable to constitute a valid trust, 2 Story’s Equity, § 964.
    The language need not point o.ut 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’s 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’s Eq. 976.
    This instrument may be regarded as equivalent to a con* veyance 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, lor Hannah Watkins and her children, and a resulting trust to himself for life.
    & 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 of November, 1833, operate as a gift, the court will, as in the case of Caines vs. Janes, 5 Yer. 252, and Caines and Wife vs. Marly, 2 Yer. 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 presentí; and nothing is a gift that does not. 2 Kent, 433. If this instrument operates as a gift, it passed the title to one moiety of the donor’s estate to the trustees mamed 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 complainant will be taken . 1 , , \ r J ° , , „r , from the whole amount, and one half of the remaining moiety given to the widow, and the remainder to the heirs at Jaw.
    It is secondly insisted, that the writing of the 6th of 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, &c. 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 on Wills,. 145: Rigdenvs. Vallier, 2 Yes. Sen. 258: 2Ves'. Sen. 2161-
    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 what the party might have at the time of his death,” clearly leaves it in the power of Michael Dean to use, spend, wear out and exhaust the whole of it during his life. He gave nothing present, but only “a half of what he might have at the time of his death;” not giving any part of what be then had, or any control over any property he then had, or any present interest in the same, or any immediate right to it. This is the true ground of the difference between a will and a gift as settled by the cases above cited in 4 Kent, 438, and 2 Yes. Sen. In these important and essential respects this case differs materially from that of Caines vs. Jones, in 5 Yerger, 252: and Caines and Wife vs. Marley, 2 Yerger Rep. 582^ In the former case, Wright, the donor, gave an immediate interest in a particular tract of land, leaving nothing uncertain and contingent, reserving to himself a life estate, but conveying a tangible present interest. In the latter case specific negroes were given. If these positions aro correct, the present instrument is either a will, or it is of no Validity at all. As a will, it is not sufficient to pass the real estate, not being subscribed and attested by two witnesses. Two witnesses are required to a will to pass land. Stat. Laws Tenn. 706.
    'If the instrument is testamentary, as is contended, Michael Dean did not die intestate; so that the widow’s claim does not come within the provisions of the act of 1827, which only applies to cases of intestacy, where there are no legitimate children or heirs. She must therefore take under the act of 1784, c 22: Stat. Laws, 253, and is entitled to one third of the remaining half of the personalty, and one third of the land, and the other two thirds to the brothers and sisters of Michal Dean, .or their heirs. The instrument being a will, is good to pass personalty, and consequently passes a moiety of the personal estate to. the complainants.
    
      J. Campbell, for the widow of Michael Dean,
    insisted, the paper or instrument was merely testamentary, as the authorities cited by Mr. Laughlin proved. If so, the widow by dissenting, as previded for and authorised by the act of 1784, c 22, will be entitled to such share of the estate as the law would vest in her, if her husband died intestate, which, if the husband dies without leaving legitimate children, is, by the provisions of the act of 1827, c 14, one half of the personalty, and by the act of 1784, c 22, one third of the realty for life. It is true, the act of 1827’ says, she shall be entitled to one half, where the husband dies intestate, without children, &c. But by the act of Í784, c 22, when the widow dissents, the husband as to her does die intestate.
   Gseen, J.

delivered the opinion of the court.

Gn the 6th of November, 1833, Michael Dean, of Warreri county, executed a paper writing, which he calls an indenture, to Eleanor and Mary Jane Watkins, -in which he recites that they are the children of Hannah Watkins, wife of Henry Watkins, who is his natural daughter, .that he is far advanced in life, and has no legitimate children, and has considerable property, real and personal; and for the purpose of making provision for his said daughter during her life, and for her children after her ^eat^> ^le “doth give, grant, convey, and enfeoff", set over, and confirm, and by these presents, he the said party Qj- L[10 grst parti does for die purposes and considerations aforesaid, give, grant, set over, alien, enfeoff", confirm and convey to the said parties of the second part, to have and to hold to them their heirs and assigns, one equal moiety or equal half of all the property that he the said party of the first party may die seized or possessed of, whether in law or equity, or in possession, or in action, including all lands, tenements and hereditaments of what description soever, and also all negro slaves of what description soever, whether in possession or action. And also all moneys that he may be possessed of, or may be due him from any source whatsoever, and also one equal half of all the live stock of what description soever, that he may die seized or possessed of; and also, one half of every thing of what nature soever that he may die possessed of, or that may be due him in any way whatever, at the time of his death, to have and to hold to them, the parties of the second part, their heirs and assigns for ever.” He then stipulates that the property is to be held in trust for the exclusive support and maintenance of the said Hannah, during her natural life; and upon the further trust, that every other child born of the body of said Hannah, should have an equal portion of said property, with said Eleanor and Mary Jane, at the death of said Hannah, when it was to be equally divided among all her children.

The instrument was acknowledged before the clerk of the chancery court at McMinnville, the same day it was executed, and on22d of July, 1834, it was registered in Warren county.

In 1835, Michael Dean died, intestate, and administration of his estate was granted to the defendant, Lucy, his widow. Mrs. Watkins and her children, by their next friend, Henry Watkins, bring this bill to have partition of the real, and distribution of the personal estate.

1. The first question arises upon the construction of this paper. Can it take effect as a deed, or must it be regarded as testamentary in its character? A deed must take effect in presenti. 2 Kent’s Com. 438. But this instrument, by its terms, was to take effect at the death of Michael Dean. It does not purport to convey any property of which he was the owner at its date, but gives the one half of all the property of which he may die seized and possessed. It is most clear therefore, that it could not pass to the donees, any property owned by the old man at its date. As therefore it was to take effect only at the death of Michael Dean, it is a will, and not a deed. Roberts on Wilis, 145. Viewing it as a will, it is not executed so as to pass land, not being subscribed and attested by two witnesses. The complainants are therefore entitled to one half of the personal property only.

2. The defendant Lucy, the widow of Michael Dean, treating the aforesaid instrument as a testamentary paper, prays leave to dissent from it, and claims one half the estate under the act of 1827, c 14.

The widow has a right to dissent, and claim the provision the law makes in such cases. But we do not think she can take the one half under the act of 1827. That act provides, that where a man may die intestate, and without child or children, his widow shall be entitled to one half his estate. It means, what its words obviously import, not that the widow by dissenting from his will, under the act of 1784, c 22, thereby creates, as to her, an intestacy under the act of 1827. The latter act intended to give her the one half in one case only, where the husband, having no child, had not made any disposition by will of his estate, but it did not intend to prevent him from giving it, as before, to whomsoever he might choose, or to enlarge the rights of the widow, in case he made a will, beyond the provisions of the act of 1784. If the construction contended for were correct, the same result would follow a dying with, or without a will, and the use of the word intestate, would be wholly unnecessary and senseless. But it is manifest the legislature intended the word intestate to be operative and to have effect, which it would not do, if the construction contended for were sanctioned by the court. The widow in this case is only entitled to dower in the land, and to one third part of the personal estate.

The other defendants, heirs at law of Michael Dean, are entitled to the balance of the estate, consisting of two thirds of the land and one sixth of the personal estate. Affirm the decree.

Decree affirmed.  