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Title Guar. & Trust Co. v. Bushnell.

If we adopt the rule announced in the first line of cases cited, it is clear that the chancellor's decree sustaining the third ground of the defendants' demurrer must be affirmed; for, although it is clear from the allegations of the bill and its Exhibit B that Bushnell, as trustee, assumed and agreed to pay the first mortgage debt against the property, according to the rule announced in those cases there would be no privity of contract between the complainant (holder of the first mortgage debt) and the defendant Bushnell, We believe, however, that the line of cases last cited announce the better and more reasonable rule. The cases relied on by defendants seem to ignore the well-established rule of law that when one makes a promise to another for the benefit of a third person, such third person can maintain an action on the promise even though the consideration does not run directly from him. We think the transfer of the land to Bushnell, and the fact that the mortgage debt was deducted from his bid, afforded sufficient consideration for the promise. According to the bill, Bushnell retained $2,274.81 of the amount bid for the property, for the purpose of paying the first mortgage debt pursuant to his promise.

It results that the decree of the chancellor will be reversed, and the cause will be remanded to the court below for further proceedings not inconsistent with this opinion.

The defendants are taxed with the costs of the appeal.

Eager v. McCoy.

JENNIE MCCOY EAGER et al. v. JOHN McCoy et al.

1. WILLS.

(Knoxville. September Term, 1920.),

Testatrix held to intend devise of rents and profits for

life of survivor of three sons.

Under a will directing that at the end of twenty-five years, or at the death of the last of testatrix's three sons, all of the property devised in trust should be sold to the best advantage and the proceeds equally divided among grandchildren, held that testatrix intended to devise to her sons the rents and profits of the property therein mentioned during the terms of their natural lives and of the natural life of the survivor of such three sons. (Post, pp. 700, 701.)

2. WILLS. Presumption in favor of legatee or devisee.

In construing a will, the presumption is always in favor of the legatee or devisee. (Post, pp. 701, 702.)

3. WILLS. Life estates not limited by subsequent ambiguous language. Where life estates are conferred by clear and unambiguous language, doubtful language in another portion of the will will not be allowed to cut down such estates to estates for years. (Post, pp. 701, 702.)

Case cited and distinguished: Meachem v. Graham, 98 Tenn., 190. 4. WILLS. Grandchildren living at testator's death held entitled to rents and profits for minimum of twenty-five years.

A will directing executor to divide certain rents equally among grandchildren living at the time of testatrix's death, the renting and division of rents to continue for a period of twenty-five years after her death or until the last of her three sons died, held to devise such rents and profits to the grandchildren living at testatrix's death for twenty-five years, or until the death of the last son if he should survive the twenty-five year period. (Post, p. 702, 703.)

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Eager v. McCoy.

5. PERPETUITIES. Interest beginning within limits of rule against perpetuities.

Where interests of grandchildren devised are subject to contingencies, but all these events must happen and the various classes be determined within lives in being at the death of testatrix, such interests begin within the limits of the rule against perpetuities. (Post, p. 703.)

6. PERPETUITIES. Executory limitations must vest interest within what time.

Executory limitations in wills, whether of real or personal estate, in order to be valid, must vest in interest if at all within a life or lives in being and twenty-one years and a fraction thereafter for the term of gestation in cases of posthumous birth. (Post, p. 703.) Cases cited and approved: Franklin v. Armfield, 34 Tenn., 306; Bramlet v. Bates, 33 Tenn., 554; Booker v. Booker, 24 Tenn., 505; Davis v. Williams, 85 Tenn., 646; Brown v. Brown, 86 Tenn., 277. 7. PERPETUITIES. Must look to common law for proper meaning

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of term in Constitution.

Although Constitution, article 1, section 22, declares that perpetuities are contrary to the genius of a free State and shall not be allowed, it does not define perpetuities, and the courts must look to the common law for the proper meaning of the term. (Post, p. 704.)

Constitution cited and construed. Art. 1, sec. 22.

8. PERPETUITIES. Estate need not only begin within limits regardless of end.

It is well settled at common law that the rule against perpetuities is not offended if an estate begins within the limits of the rule, regardless of the time at which such estate may end, and an interest is not obnoxious to the rule if it begins within lives in being and twenty-one years, although it may end beyond them. (Post, p. 704.)

9. PERPETUITIES. Rule against applies to trust estates.

Eager v. McCoy.

The rule against perpetuities applies with equal force to trust estates, but a trust estate, beginning within the limits of the rule, is good, notwithstanding its prolongation. (Post, pp. 704, 705.) 10. PERPETUITIES. Invalidity of provision for remoteness held not to affect rights of remaindermen.

Under a clause of a will, "I direct that at the end of said period of twenty-five years or at the death of the last of my said three sons as the case may be all of my said property shall be sold to the best advantage, publicly or privately in the discretion of my executor

and the proceeds shall be equally divided among my grandchildren as a class who are living at the time of the death of the last survivor of said three sons," the power of sale or trust for sale conferred upon the executor, to be exercised not less than twenty-five years after the testator's death, is void for remoteness, but the class of grandchildren, being clearly designated to have the entire property, cannot be deprived of the estate merely because the machinery which the testatrix provided for a division of the property among them turns out to be ineffective, and the grandchildren may claim the estate and waive the sale altogether after death of the last son. (Post, pp. 705, 706.)

11. PERPETUITIES.

Testator cannot confer power to vest title be

yond limits of rule against perpetuities.

A testator cannot vest title to property at a period beyond the limits of the rule against perpetuities, nor can he confer upon another power to vest title at such a time. (Post, p. 706.)

Cases cited and approved: Chambers v. Preston, 137 Tenn., 324; Wayne v. Fouts, 108 Tenn., 145; Goodier v. Edmunds, 3 Ch., 455. Cases cited and distinguished: Goodier v. Johnson, 18 Ch. D., 441; In Re Daveron, 3 Ch., 421; In Re Appleby, 1 Ch., 565;

12. WILLS. Clause as to rights of grandchildren on death construed to apply only to.grandchildren living at death of testatrix.

A clause in a will, "I further direct that while said rent period is running that if any one or more of my grandchildren shall die, the remaining grandchildren shall receive all of said rents and

Eager v. McCoy.

profits," held to apply only to grandchildren living at testatrix's death, and not those who came into being after her death. (Post, pp. 710, 711.)

ON PETITION TO REHEAR.

13. WILLS. Law favors vesting of estates.

The law favors the vesting of estates created by will. (Post, pp. 711, 712.)

FROM KNOX.

Appeal from the Chancery Court of Knox County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.-HON. HUGH M. TATE, Chancellor.

PARIS A. HAYNES and CANTRELL, MEACHAM & MOORE, for appellants.

FRANTZ, MCCONNELL & SEYMOUR, AYRES & BROUGHTON and GREEN & WEBB, for appellees.

MR. JUSTICE GREEN delivered the opinion of the Court.

This bill was filed by one of the heirs of Mrs. Elizabeth Haynes to construe her will and have it set aside as providing a disposition of her real estate contrary to the rule against perpetuities. The chancellor upheld the will and the complainant appealed to the court of civil appeals where the chancellor's decree was affirmed. The case was brought to this court by petition for certiorari, and it has been elaborately argued here.

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