
    C. L. Dooley, Executor, v. A. W. Penland et al.*
    
    
      (Knoxville.
    
    September Term, 1927.)
    Opinion filed, December 19, 1927.
    1. WILLS. CONSTRUCTION. LIFE ESTATE.
    Where a will bequeaths to the wife all of the testator’s estate, both real and personal, during her lifetime, to be managed and controlled by the executor, who was appointed as a trustee, with power to manage and .control the same, and to use the interest, other accumulations or funds, and as much of the principal as may be necessary for the support of the wife, a life estate is created in the wife. (Post, p. 288.)
    Citing: Emert v. Blair, 121 Tenn. (13 Cates), 240; Yancil v. Evans, 44 Tenri. (4 Cold.), 340.
    2. WILLS. CONSTRUCTION. LIFE ESTATE.
    Where the words “however this bequest is made for her benefit and support,” the life estate is not limited, though accompanied by ■ a provision which authorizes the executor to use “as much of . . . as may be necessary,” to support the wife. (Post, p. 289.)
    3. WILLS. CONSTRUCTION. SUPPORT OF WIDOW. DISCRETION OF TRUSTEE.
    Under such a will the executor and trustee may use a portion of the principal or corpus of the estate in support of the widow if he deems it necessary. (Post, p. 291.)
    4. WILLS. CONSTRUCTION. LIFE ESTATE. AUTHORITY OF TRUSTEE.
    Under such a will the executor and trustee has authority to pay over to the widow all the income or other accumulations accruing during her lifetime. (Post, p. 291.)
    5. WILLS. CONSTRUCTION. LIFE ESTATE. INCOME.
    Where it appears that some of the funds accruing prior to the death of the widow remained in the hands of the executor and trustee upon her death and was paid out by him under the direction of her will, the executor and trustee is accountable to the heirs of the testator for such sums as are paid out subsequent to the death of the widow. (Post, p. 292.)
    *Headnotes 1. Wills, 40 Cyc., p. 1615; 2. The, 38 Cyc., p. 250; Wills, 40 Cyc., p. 1803; 3. Trusts, 39 Cyc., p. 440; 4. Trusts, 39 Cyc., p. 443.
    FROM COCKE.
    Appeal from the Chancery Court of Cocke County.— HgN. Ben Robertson, Judge.
    CreeN, Webb & Bass, for complainant.
    SusoNG, SusoNG & Parvin, for defendant.
   Mr. Justice Swiggart

delivered the opinion of the Court.

W. H. Penland died testate on July 30, 1920, naming C. L. Dooley as executor and testamentary trustee in his will. He had no children, or descendants of children, and was survived by his wife and a number of collateral kindred. His estate consisted of personal property, amounting to approximately $38,000, according to the final settlement of the executor.

In addition to specific bequests of money to his collateral kindred, the will contains the following clause:

“3rd. I will and bequeath to my wife, Mary E. Pen-land, in the event she survives me all my entire estate both real and personal, during her life time. However this bequest is made for her benefit and support and to be controlled and managed by my Executor whom I will hereafter appoint, and it is my will and desire that he act in the double capacity of executor and trustee, and request that lie take charge of said estate and to keep the funds and assets employed to the best advantage, and that he use the interest and other accumulations of said fund and as much of the principal as may be necessary to give my wife, Mary E. Penland, a decent and respectable support both in health and sickness. And in the event I should die without a home, I hereby empower my executor and trustee, if he deems it best to purchase a home or rent one for her as he deems best.
“ And in the event he buys property I empower him to take title to same, and at the death of my wife sell said property and make title to same without resorting to the courts and proceeds administered along with the other funds for division.”

Mary E. Penland, widow of ~W. H. Penland, died in January 1927, and thereafter this bill was filed by the executor against the heirs at law of W. H. Penland, for a construction of the will, and instructions as to the disposition of the remainder of the estate after the payment of the specific bequests, the will containing no residuary clause.

An answer and cross-bill was filed by certain of the heirs at law, averring that the income from the estate during the life of the widow was largely in excess of the amount necessary for the “decent and respectable support” of the widow, and seeking to charge the executor with such excess for the benefit of the heirs at law or next of Idn of W. H. Penland.

No process was issued on the cross-bill, but an answer was filed thereto by the executor.

The cause was heard by the Chancellor upon the pleadings and an agreed statement of facts.

The agreed statement of facts contains the following:

“5th. That it was not necessary for Mary E. Pen-land to nse all the interest and income earned by the estate of W. H. Penland after his death for her decent and respectable support both in health and sickness' and that all of said interest and income while paid by the Executor to or for her use and benefit, or by her direction, by will or otherwise, was not in fact used by her for her support and maintenance.”

The Chancellor decreed that the widow was given no right or interest in any part of the interest and accumulations arising from the estate during her life in excess of the amount necessary to provide her support; that the surplus or amount of the income not so used belongs to the estate, and should be accounted for as such by the executor and trustee to the heirs at law or next of kin of W. H. Penland; and that the executor and trustee should accordingly be held to account for all the residue of the interest and accumulations on the estate over and above the amount necessary to provide the “decent and respectable support” for the widow, Mary E. Penland, during her life.

The Chancellor then ordered a reference to the clerk and master to determine the total amount of interest and accumulations on the estate received by the executor and trustee.; the amount disbursed by him for the support of the widow; and the net amount of such interest and accumulations, after crediting the proper disbursements, for which the trustee should be held to account to the heirs at law or next of kin.

No rules were ordered by the Chancellor for the guidance of the master in his determination of what kind and amount of disbursements should be considered as proper for the “decent and respectable support” of the widow.

From this decree the executor and trustee has prosecuted his appeal to this court, and, by his assignments of error, contends that by clause three of the will, here-inabove quoted, the widow was vested with a life estate in all of the property of W. IT. Penland, and was entitled to the entire income from the estate accruing- during her life, so that no part of such income became a part of the corpus of the estate to be distributed to the heirs at law. of W. H. Penland upon the death of the widow.

The appellees, heirs at law, contending for the construction of the will made by the Chancellor, rely chiefly on Emert v. Blair, 121 Tenn., 240. In that case the devise to the widow of the testator was in the following words;

“In order to afford, my wife, Mrs. Martha J. Emert, a comfortable and secure support during her life out of my estate, I hereby devise and bequeath to her, for the term of her natural life, all my property, real, personal and mixed, to have, manage and use for her support during said time.”

The court found that the purpose of the testator to give his property to his wife for her support only, was “disclosed everywhere in the will,” and that the devise to the wife was. coupled with the limitation that she was to “manage it and use it for her support. ’ ’ The court therefore concluded that the widow held the property during her lifetime, in trust, “to have, manage and use for her support during her life;” that by accepting the benefits of the estate, the widow was constituted a trustee, to secure for herself a comfortable support out of the estate, “and to preserve that portion of the estate which she did not require for herself for the heirs of John B. Emert.” The court concluded its discussion in Emert v. Blair, as follows:

“It is true that under this will the amount required for the support of the widow is left entirely to her judgment and discretion, but after she has been provided a comfortable support, all that remains on hand at her death under the express terms of the will, passes to the remaindermen. ’ ’

It appears from the opinion in the case cited that the widow had a separate estate of her own. No effort seems to have been made to hold her estate liable for any part of the income from the estate of her husband, which she might have expended for purposes other than her necessary support.

The present cause is unlike that of Emert v. Blair, particularly in that the estate was not placed by the will under the control and management of the widow, but was placed under the control of the executor, as trustee, both for the widow as life tenant and the heirs at law as re-maindermen. The analogy between the two cases would be more apparent, if the heirs at law in Emert v. Blair had undertaken to charge the estate of the life tenant with an excess of income expended by the life tenant for purposes other than her necessary support.

The first sentence of the third clause of the will under consideration, hereinabove quoted, is clearly sufficient, if standing alone, to vest the widow with a life estate in all the property of her deceased husband, and to the absolute title to the income accruing during her life. Vancil v. Evans, 44 Tenn., 340, 345-346.

The inquiry here is, therefore, whether the subsequent portions of clause three of the will cut down or limit the life estate of the widow, as contended by the appellees.

The intention of the testator is expressed in the first part of the second sentence of clause three, by the words: “However this bequest is made for ber benefit and support. ’ ’ After vesting tbe control and management of bis estate in tbe executor as trustee, tbe will directs tbe executor and trustee to “use tbe interest and other accumulations of said fund and as much of tbe principal as may be necessary to give my wife, Mary E. Penland, a decent and respectable support both in bealtb and sickness.”

Tbe property wbicb tbe executor and trustee is directed to use for tbe specific purpose is “tbe interest and other accumulations of said fund and as much of tbe principal as may be necessary. ’ ’ It will be noted that the limiting words “as much of ... as may be necessary” do not precede tbe reference to tbe interest and other accumulations of tbe estate, but are so placed in tbe sentence as to limit and apply to tbe word “principal” only.

In this sentence tbe testator was authorizing tbe use by tbe executor and trustee of two funds, tbe principal of tbe estate on tbe one band, and tbe interest and accumulations on the other band. He directed that there should be used for tbe support of bis wife “tbe” interest and other accumulations, and “so much of tbe principal as may be necessary.” He did not direct tbe executor and trustee to use for tbe support of tbe widow only so much of tbe interest and accumulations as may be necessary.

Tbe context requires that tbe definite article “tbe” be construed to mean “all of tbe.” Words & Phrases (Second Series), 893. That this expresses tbe intention of tbe testator is not only evidenced by the general language of tbe first sentence of tbe clause of tbe will under consideration, but by tbe fact that tbe words of limitation “as much as may be necessary” are so placed as to qualify only tbe use by tbe executor and trustee of tbe principal or corpus of tbe estate. This construction of tbe word “the,” as here used, is, we think,'the natural meaning conveyed upon a reading of the sentence in which it is contained.

Appellees place some stress upon the second paragraph of the third clause of the will, wherein the testator directed that any property purchased by the executor and trustee should he sold upon the death of the widow, and the proceeds distributed with the other funds of the estate. This direction follows the direction that the executor and trustee might purchase a home for the widow in his discretion, and refers to such a purchase so authorized.

We think the testator had in mind that the executor and trustee would use a portion of the principal or corpus of the estate in making such a purchase, and this provision of the will has no reference to the income or accumulations from the estate during the widow’s lifetime. The testator manifested a belief that the income might Hot even be sufficient for the support of the widow, by the direction that the principal might be used for that purpose, if necessary.

As we construe the will, therefore, the estate of the testator was vested in the executor and trustee, for the benefit and support of the widow during her lifetime, and the executor and trustee was directed to use all of the income and other accumulations, and as much of the principal as might be necessary, for her “decent and respectable support.”

It is our opinion that such a testamentary trust is properly administered, in an estate of the size of the one involved herein, when the trustee pays over to the widow, as life tenant, being a person sui juris, all of the income or other accumulations accruing during her lifetime.

A contrary bolding would impute to tbe testator an intention that tbe executor and trustee should supervise, and subject to bis approval or disapproval, practically every expenditure which tbe widow might make or contemplate. We find no evidence in tbe will that tbe testator entertained such an intention. Tbe agreed statement of facts describes him as a man of intelligence, successful in business, and a county official for a number of years. Tbe will discloses no lack of confidence or affection on tbe part of tbe testator, and tbe trust was created primarily for tbe benefit of tbe widow. Tbe trust was satisfied when tbe income and other accumulations from tbe estate were paid over by the trustee to tbe widow, and no duty devolved upon him to supervise her expenditures, unless, perhaps, it appeared to him that she was not receiving a “decent and respectable support.”

Tbe agreed statement of facts indicates, however, that some of tbe interest and income from tbe estate accruing prior to tbe death of tbe widow remained in tbe bands of tbe executor and trustee upon her death, and, was paid out by him under tbe direction of her will.

Obviously, no part of tbe income remaining in tbe bands of tbe trustee upon tbe widow’s death could have been used by him for her support, except to pay debts incurred by her, including tbe expenses of her last illness and funeral expenses. We think, therefore, tbe Chancellor rightfully held tbe executor and trustee accountable for so much of the income as may have been paid out by him after tbe death of tbe widow, except for tbe purposes indicated in tbe preceding sentence.

Tbe Chancellor was in error in bolding the trustee accountable for any part of tbe income or accumulations from tbe estate which be paid to or for tbe use and benefit of the widow or by her direction, during her lifetime; or for snob portion of the income or accumulations accruing during the lifetime of the widow which the trustee may have paid to satisfy her debts or funeral expenses.

The decree of the Chancellor will be modified as herein-above indicated, and the cause will be remanded to the Chancery Court of Cocke County for further proceedings not inconsistent herewith.  