to be paid for the land can be ascertained by proof: Russel vs. MeCormick, 45 Ala., 587.

See EVIDENCE, 4.

WAIVER.-See ACTION, 5; BILLS AND NOTES, 9; INSURANCE, 2; LIEN, 4; TENDER, 1.

WILL.

Where a widow elected to take under a will, giving her one-third of the real estate of her husband in lieu of dower, in consideration that all of the heirs should agree to give her one-third of the personalty in addition, and only a part of the heirs consented to the agreement, it was held, that the widow was not estopped from afterward relinquishing all rights conferred by the will and claiming her right of dower: Richart vs. Richart, 30 Iowa, 464.

WITNESS.-See EVIDENCE, 4.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF TENNESSEE.

[DECEMBER TERM, 1872.]

J. W. S. FRIERSON and J. B. FRIERSON, Executors of W. E. KENNEDY vs. PRESBYTERIAN CHURCH in the UNITED STATES, et al.

By FREEMAN, J.-This bill is filed by the executors of Wm. E. Kennedy, for a construction of certain clauses of his will, and direction of the Court of Chancery in performance of their duties, and execution of the trusts of the will.

It appears from the record that the testator died 17th of March, 1863, in the county of Maury, at an advanced age, having before this, emancipated the larger portion of his slaves, sending them to Liberia, through the agency of the American Colonization Society. He left no children, and disposed of a considerable share of his estate to his collateral relations by various clauses of his will. First directing by item. 2nd, "that all his estate, both real and personal, not otherwise disposed of, wherever situated, be sold by his executors, and converted into money. He proceeds in ninth and tenth clauses as follows: "All the residue of my estate, of whatever kind, whether real or personal, or mixed, left after carrying out the foregoing provisions of this will, (and if any legacy, I have given, or fund, appropriated in this will, can not, for any cause whatever, take effect or be appropriated as herein directed, the same shall constitute a part of said residuum, and be subject to the disposition of this clause,) I give to my executors, to be appropriated by them as follows: One thousand dollars to the proper authorities of the Union Theological Seminary, at Prince Edward Court House, Virginia; one thousand dollars to the Rev. W. McLane and Rev. R. R. Gurley, Secretaries of the American Colonization Society in Washington City, D. C., and their successors, to be by them held and used in promoting the objects, purposes and enterprises of said society in

colonizing negroes in Liberia, Africa; five hundred dollars to the General Assembly of the Presbyterian Church of the Confederate States of America, or of the General Assembly of the Presbyterian Church South, whatever may be its precise title, for the benefit of such Bible society as has been, or may be established by said General Assembly; and five hundred dollars to said General Assembly for the benefit of such tract society as has been or may be established by said Assembly; and if no such society should be established by said church, or be in existence under its control, then said sums severally to be used by said General Assembly of the Presbyterian Church in the Confederate States of America, for the promotion and advancement of the Bible and tract cause, respectively, in such manner as to said Assembly may seem best for the advancement of said objects. I then desire two-thirds of the remainder of the residuum to go to said General Assembly of the Presbyterian Church in the Confederate States of America, for the benefit of Domestic Missions, and to be used by said Assembly through its proper board or committee already, or to be appointed, or such agency as it may deem best for the promotion and advancement of the cause of Domestic Missions. One-half of the remaining third of said balance to go to said General Assembly of the Presbyterian Church in the Confederate States of America, to be by said Assembly appropriated through its boards, committee or other agency. under its control, to the uses, purposes and benefits of Foreign Missions; the remaining half of said third to go in like manner to the said General Assembly of the Presbyterian Church in the Confederate States of America, for the benefit of the Board of Education and Publication, in equal proportions; and if said church should have no such boards or committees for these objects, then through such agencies as such church may establish and control to carry out and promote such objects. When I use the term General Assembly of the Presbyterian Church in the Confederate States of America, or General Assembly of the Presbyterian Church South, I mean to be understood as referring to the "Old School Presbyterian Church in the South;" and should any part thereof re-unite with the Northern Church-I mean the part which shall remain as a separate body in the South. I desire said General Assembly, through its proper boards, committee or agencies, in its dispositions of the funds herein set apart to Domestic Missions to select in one of the four tribes of

Indians, viz: The Choctaws, Chickasaws, Cherokees, or Creeks, four male and four female youths, and to appropriate of the said funds the sum of one thousand dollars for the education of said Indian youth. Item the 10th. In the event that any of the legacies or sums directed to be given to any of the benevolent objects specified in the 9th item of this will, should fail on account of a want of proper discription, or for any other reason, then I give the same to my executors, with the hope and belief that, as they know the objects and purposes I have in view in making these bequests, they will carry them out in such manner as will approximate as nearly as possible, to my wishes herein expressed. I have declared it to be my wish and desire that I should not be considered as dying intestate as to any part of my estate. What I have already done for, and given to my relations, together with the bequests in this will, is as much of my estate as I wish them ever to have; and should it so happen that any portion of what I have given to charitable and benevolent objects and societies in this will should fail. or not vest as I have herein desired and directed, I do not intend the same, or any part thereof, to go to my kindred, or any of them, but to my executors, to be paid over to such charities as may be declared valid and legal, in the proportion herein set forth; and if all of said charitable bequests should be declared illegal and void, so as not to vest, then the whole to my executors, in their own right, trusting, nevertheless, and believing that under a proper sense of their obligation to their own consciences and accountability to God, they will, as nearly as they possibly can, in conformity with what I have herein indicated, pay over and contribute the same to charitable objects and purposes. In other words, I trust that, should these charities fail as herein set forth, they will do for me, when I am dead, what I have attempted to do in this, my will." He then concludes by appointing his friends, the present complainants, and George Lipscomb, the executors of his will, the latter of whom renounced, the other two qualifying and taking upon themselves the duties of its execution.

The defendant heirs and distributees a portion of them, answer and claim that these clauses of the will, nine and ten, are of no validity, because at the date of the will no such corporation was in existence as therein named, capable in law or equity, of taking the bequests, and because such bequests are in themselves contrary to the policy of the State, and not to be encouraged. The others answer and insist that the bequests are illegal and void, because of want of capacity in

donees to take, being as claimed, merely voluntary associations, not incorporated, and because the charities are not definite in their objects, or lawful in their creation, and no trustees appointed to execute the trusts; and therefore that the testator died intestate as to this part of his estate, and the same should be distributed by executors, under statute of distributions. The Presbyterian church in the United States, answer, and claim the bequests, asserting that it was an incorporated body, at the time the will was made and took effect, presenting an act of incorporation passed by the Legislature of the State of Tennessee, passed March 19th, 1862, and accepted by the General Assembly of the Church, August, 1863, incorporating the General Assembly of the Presbyterian Church in the Confederate States of America, which, if valid as a law of the land, and not unconstitutional, confers on the body incorporated the right to take and hold property devised to them. The answer then gives the history of the change of name of the General Assembly of the Presbyterian Church in Confederate States, to General Assembly of Presbyterian Church in United States, showing that the latter is the same body under a different name, and that this body is the same as designated in the will as "Presbyterian Church South," and then show that the executive committees, upon the subject of "Domestic Missions, Foreign Missions, publication and education, were a part of the organization of the General Assembly before its incorporation, and that such agencies continue substantially to exist to the present time. The answer therefore insists on the validity of the bequests in favor of this church, and that they be enforced in favor of the Presbyterian church in the United States, as now existent.

We need not give the details as to date and history of the changes of name of this body, as we think the main question is, as to whether the bequests vested in a party capable of taking at the death of the testator, and subsequent changes of name in the corporate body, could not defeat the right vested, the body itself remaining substantially the same legal person: See 1st Swan, 368.

Assuming for the present that the act of incorporation passed by the Legislature of the State of Tennessee was and is a valid act of incorporation, the question presented is, are the bequests in the 9th item of the will valid charities under the now well defined rules of law on this subject in this State?

We are relieved from the investigation of the grounds on which this jurisdiction to enforce a charity rests in our State, by the learned

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