Tigrett v. Tigrett

CARNEY, J. This suit involves the construction of the will of the late H. Parks Tigrett, Sr. of New-bern, Dyer County, Tennessee. The will was dated October 28, 1952. Mr. Tigrett, Sr. died November 14, 1958, at the age of 84. His primary testamentary beneficiaries were his widow, Mrs. Sara N. Tigrett, who is now 85 years of age and living in the residence on the family farm; a son, the complainant, Mr. Isaac B. Ti-grett, who now lives in Memphis, Tennessee; another son, the defendant, H. Parks Tigrett, Jr., who lives at New-bern, Tennessee; a daughter, Mrs. Mary T. Cease, who now lives in Jackson, Tennessee; and a daughter, Mrs. Martha T. Wells, who lives in Newbern, Tennessee. Mrs. Wells has three children; Mrs. Cease has one child; H. P. Tigrett, Jr. has three children; and I. B. Tigrett has one child. They are remaindermen under the will of H. P. Tigrett, Sr., their grandfather. Mr. Tigrett, Sr. named as executors and testamentary trustees his son H. Parks Tigrett., Jr. and his nephew William B. Shibley of Newbern, Tennessee. Mr. Shibley lived in the home of Mr. Tigrett, Sr. for many years. He is not a beneficiary under the will. — 176 — There are devises of real estate in favor of the four children of H. Parks Tigrett, Sr. in trust for the life of the several children with remainder in fee to their respective children and descendants. The grandchildren of the testator both born and unborn were made parties defendant. The minors and unborn grandchildren are represented by the guardian ad litem. The principal controversy between the complainant, Isaac B. Tigrett, and his brother, the defendant, H. Parks Tigrett, Jr., is over the real estate devised to them under the will. The Chancellor ordered H. P. Tigrett, Jr. to convey in trust for the benefit of Isaac B. Tigrett for life with remainder to his descendants a tract of 133 acres of farm land as provided in the will or in the alternative a portion of the 250-acre H. P. Tigrett, Sr. homepl-ace equal in value to the 133-acre tract owned by H. Parks Tigrett, Jr. William B. Shibley and H. P. Tigrett, Jr. as executors-testamentary trustees and H. P. Tigrett, Jr. individually have appealed from the decree of the Chancellor and have assigned errors. When this cause was first heard before this- Court, it appeared from the testimony of some of the witnesses that there had been a construction of one or more provisions of the will in the Common Law and Equity Court of Dyer County, Tennessee, which proceedings were not included in the transcript. On October 21, 1966, an order was entered by this Court remanding the cause for completion of the transcript to include the proceedings in the Common Law and Equity Court of Dyer County and the taking of the deposition of the executor, William B. Shibley. The record has been returned to this Court for final determination. It now appears that no proceedings were ever filed in the Common Law and Equity Court — 177 — of Dyer County but that some of the parties only consulted their attorney. A bill was drafted for partial construction of the will but never filed. The great proportion of Mr. Tigrett, Sr. ’s estate was comprised of 400 acres of farm land on which he maintained his home located two miles east of Newbem, Tennessee, on the Newbern-Yorkville highway, State Highway No. 77. One hundred and fifty acres of the farm were devised for the benefit of the daughter, Mrs. Martha T. Wells, and are located on the south side of the highway. Two hundred and fifty acres on which is situated the Tigrett home are located on the north side of the highway across from the 150 acres devised to Mrs. Wells. The 250 acres were devised in trust to the defendant, H. Parks Tigrett, Jr., for his life. However, two acres were designated by the testator for the benefit of Mrs. Martha T. Wells and her descendants as a home site leaving a net devise of 248 acres to H. P. Tigrett, Jr. Mr. Tigrett, Sr. operated the 400 acres as one farm. Mr. Tigrett, Sr., at the time of the making of the will in 1952, had $22,000 cash value of U.S. Government bonds which he had earmarked for the purchase of real estate for the benefit of his daughter, Mrs. Mary T. Cease. At the time of his death the value of the bonds were only $14,000. Mr. Tigrett, Sr. had advanced Mrs. Cease approximately $5,000 of the bonds prior to his death and Mr. Tigrett, Sr. had cashed some of the bonds for other purposes. Other personal property owned by the testator at the time of his death was of small value and the amount is not important to this appeal. — 178 — The defendant, H. Parks Tigrett, Jr., owns a farm of 133 acres lying immediately east of and adjoining the 250-aere homeplace. Mr. Tigrett, Sr., in his will, required the defendant, H. Parks Tigrett, Jr., to convey the 133-acre tract of land to the trustees for the benefit of I. B. Tigrett for life with remainder to his children. H. P. Tigrett, Jr. was given the alternative of investing $17,500 in real estate taking* title in the trustees in lieu of deeding his 133-acre tract. The title to the land so purchased was to be in the trustees for the life of I. B. Tigrett with remainder to I. B. Tigrett’s children and their descendants with a. gift over to other children of H. P. Tigrett, Sr. if I. B. Tigrett died without lineal descendants. After the death of H. P. Tigrett, Sr., H. P. Tigrett, Jr. notified his brother, I. B. Tigrett, and W. B. Shibley, co-trustee, that he would not deed his 133-acre tract of land for the benefit of I. B. Tigrett but that “* * * I will at and within the time provided by and in accordance with the terms of said will of H. P. Tigrett, Sr. purchase and pay for land of the value of $17,500.0(> instead of conveying to the said I. B. Tigrett the 133 acre tract of land * * *” H. P. Tigrett, Jr., upon advice of counsel, contended that he was obligated to make purchase of the real estate only after the death of the widow, Mrs. Sara Tigrett. Complainant Isaac B. Tigrett, apparently without advice of counsel, acquiesced in this construction of the will. H. P. Tigrett, Sr., in his lifetime, had purchased for Isaac B. Tigrett a home in Newbem, Tennessee, which Mi*. Tigrett, Sr. valued at $5,000 and which was held by II. P. Tigrett, Jr. and William B. Shibley as trustees for Isaac B. Tigrett for life with remainder in his children and their descendants in substantially the same language — 179 — as used by the testator in the devises to his four children. The trustees had full power of sale and reinvestment. Isaac B. Tigrett requested the trustees to sell his home and use the proceeds as a down payment on a farm known as the Freeman farm in Obion County, Tennessee. After the death of the widow, Mrs. Sara Tigrett, H. P. Tigrett, Jr. would retire all liens on the farm up to $17,500. The executors, H. P. Tigrett, Jr. and William B. Shibley, looked at the Freeman place, decided it was not a good buy and rejected it. Other farms were looked at or discussed but for various reasons no purchase was made. H. P. Tigrett, Jr. wanted the complainant to put some of liis personal funds into the purchase of a farm and Isaac B. Tigrett refused because he could take only a life estate. Negotiations between Isaac B. Tigrett and the executors-trustees for the purchase of a tract of land for the benefit of Isaac B. Tigrett failed and the parties readied an impasse. On May 7, 1960, I. B. Tigrett filed his original bill in this cause in the Chancery Court of Dyer County asking for a construction of his father’s will averring that H. P. Tigrett, Jr. was under an obligation under the terms of the will to make investment of the $17,500 for the benefit of I. B. Tigrett within a reasonable time after the death of the testator and that H. P. Tigrett, Jr. had wilfully refused to make such purchase until after the death of their mother, Mrs. Sara Tigrett. The bill also averred that the said I. B. Tigrett and his descendants had already suffered and would further suffer great financial loss because of the substantial increase in the value of the land since the date of the making of the will and since the date of death of the father, H. P. Tigrett, Sr. — 180 — Complainant asked that H. P. Tigrett, Jr. be required to convey to complainant’s trustee his 133-acre tract of land as provided in the will or that the trustees take title to one-half of the homeplace of 250 acres for the benefit of Isaac B. Tigrett so as to make him “an equal beneficiary” under the will of his father, H. P. Tigrett, Sr. The executors-trustees and H. P. Tigrett, Jr., individually, filed answer insisting' that H. P. Tigrett, Jr. did not have to invest the $17,500 in land for I. B. Tigrett and his children until after the death of Mrs. Sara Tigrett, widow of H. P. Tigrett, Sr. A resume of the provisions of the will and the Chancellor’s constructions thereof are as follows: Item I conveyed all of the real and personal property of the testator, with the exception of $22,000 in government bonds, to the trustees for the benefit of the widow, Mrs. Sara Tigrett, for her lifetime. The trustees were instructed to provide Mrs. Sara Tigrett not only with the necessities and comforts of life but with such additional funds necessary to “support her reasonable wants to the end that she may live and be provided for after my death as she is now living and being provided for.” The trustees were given not only the authority to sell and reinvest the property but also to encroach upon the corpus if necessary. The trustees have been paying the widow, Mrs. Sara Tigrett, the sum of $300 per month for her support which seems to be satisfactory to everyone. There is no controversy about this item of the will and we will not notice it further. Item II provides as follows: “Said trustees shall keep a true and correct account of all their transactions and activities as such trustees — 181 — which record shall be available to any and all interested beneficiaries hereunder and they shall make payments out of this trust fund as and in accordance with the reasonable wishes and desires of my said wife. “Whatever balance shall be in said trust fund upon the death of my wife shall be divided equally among my four children to wit: H. P. Tigrett, Jr., I. B. Tigrett, Martha T. Wells and Mary T. Cease, and in the event any one of them shall not be living at the death of my said wife such share shall go to the child, children or descendants of same of such deceased child and if none then such share shall be divided equally among the aforesaid children living.” The trustees have never filed any report or accounting with the Probate Court of Dyer County and have never submitted any formal report or accounting to the other three children of H. P. Tigrett, Sr. They have filed no report in this cause. Item III provides as follows: “At this time, the date of the making of this will, certain of my children are indebted to me by note or otherwise and I am taking into consideration this fact in making the distribution of my property as herein provided among them and in order to carry out the intention and purposes as herein provided all indebtedness of my children to me on this the date of this will, except a note in the principal sum of $500.00 dated February 28, 1952 and signed by Mary T. Cease, shall be cancelled and any evidence in writing thereof surrendered but specifically providing that my son H. P. Tigrett, Jr. shall pay into the hands of my executors herein the sum of $2500.00 and his share of my estate — 182 — is charged therewith. Any indebtedness to be created after the writing of this will is excluded from its provisions.” H. Parks Tigrett, Jr. has paid into the estate the $2,500 provided by this item of the will. Item IY of the will provides as follows: “I have on hands at the present time bonds for the purpose of purchasing real estate for the use and benefit of my daughter, Mary T. Cease. However, I may not make this purchase before my death and in such event I hereby will and direct that said trustees reduce to cash $22,000'.00 of said bonds and purchase therewith farm lands at such location and in accordance with the wishes of my said daughter, Mary T. Cease, and the title of said land shall be in the said trustees, H. P. Tigrett, Jr., and W. B. Shibley, for the use and benefit of my said daughter for and during her natural life only, at which time said trust shall end and said land become the absolute property of any child, children or descendants of children of my said daughter equally, the child or children of any deceased child taking the parent’s share and in the event my said daughter, Mary T. Cease, shall die leaving no child, children or descendants of same then the title to said property shall vest equally in my aforesaid named children living at that time and the child, children or descendants of any deceased child, if any, per stirpes.” The trustees have never purchased the real estate for the benefit of Mrs. Cease as provided in Item IV. The four children and their mother have entered into the fol-lówing written agreement relating to the devise for the benefit of Mrs. Cease, to wit: — 183 — “This agreement entered into by and among* the beneficiaries under the last will and testament of H. P. Tigrett, deceased, duly probated and of record in the County Court Clerk’s office of Dyer County, Tennessee, witnesseth: “THAT WHEREAS, under the said will $22,000.00 in bonds was to be turned over to the trustees under said will to invest for the use and benefit of testator’s daughter, Mary T. Cease, during her life, and “WHEREAS, at the death of testator there was only approximately $14,000.00 in bonds on hand, and “WHEREAS, IT IS DESIRED AMONG- SAID BENEFICIARIES to make certain adjustments not in conflict with but in order to carry out the intention of testator’s will the following agreement is entered into, to wit: “The exact cash value of the bonds on hand at testator ’s death is not known but it is thought it is approximately $14,000.00. This amount will be invested by the trustees in accordance with the terms of said will and the interest thereon or income therefrom will be paid to said Mary T. Cease yearly until the death of the widow of H. P. Tigrett, Sr., at which time out of the residue of the personal estate she, said Mary T. Cease, will be paid the difference between the cash value of the bonds on hand at testator’s death plus the interest thereon or income therefrom and $16,500.00 in addition to her one-fourth of the residue of said personal estate. /s/ II. P. Tigrett, Jr. /s/ Sara N. Tigrett ,/s/ Mary T. Cease /s/ I. B. Tigrett ” /s/ Martha T. Wells — 184 — Mrs. Cease requested in writing that the trustees delay indefinitely the purchase of the real estate for her under the will because she was not sure what property she wanted and was not sure where she and her husband who is in the government service would settle permanently. At the time of the trial below there was no issue made as to the legality of the contract relating to Mrs. Cease’s devise under the will. The Chancellor held that the trustees had a right to carry out the contract and that all parties denying the same would be estopped to deny the contract. By assignment of error No. VI the appellants insist that the Chancellor should have construed Item IV of the will relating to the devise to Mrs. Cease and her children. This assignment is well taken and Item IV should be construed by this court. It clearly appears that the testator intended for the trustees to be guided by the wishes of his daughter, Mrs. Mary T. Cease, in the purchase of real estate for her and that the trustees have properly acceded to her request to delay the purchase of the real estate. The evidence is not clear as to how the proceeds of the $8,000 in bonds cashed by Mr. Tigrett after writing the will were expended. The bonds remaining had approximately $14,000 cash value at the time of his death. However, counsel stated in argument that Mrs. Cease owed a total of $5,500 to her father’s estate at the time of his death. We infer that Mr. Parks Tigrett, Sr. paid $5,000 from the proceeds of the sale of bonds to Mrs. Cease as a loan. The will expressly recited that the indebtednesses of his several children to the testator had been considered by him in making distribution of his property and all was — 185 — cancelled except an indebtedness of $500 owed by Mrs. Cease and $2,500 which Mr. Tigrett, Sr. required H. P. Tigrett, Jr. to pay into the estate. Unquestionably the testator intended for debts of his children made after the will to be charged against their portion of the estate. The contract executed by the widow and four children indicates that it was the intention of the testator that Mrs. Cease’s portion of the estate be $16,500. The bonds have been cashed by the trustees and the net proceeds of approximately $14,000 have been loaned out by the trustees at interest with the knowledge and permission of Mrs. Cease. Mrs. Cease has been receiving the net annual income from this loan. Since the testator expressly excluded the $22,000 cash value of government bonds from the trust for the benefit of the widow, Mrs. Sara Tigrett, in the first sentence of the first paragraph of Item I of his will, we hold that the trustees have properly paid to Mrs. Cease the annual income from the proceeds of the sale of said government bonds and that the income is not subject to the trust for the widow. However, we hold that Mrs. Cease is entitled only to a life estate in said bonds or the proQeeds thereof or in the real estate in which said bonds may be invested by the trustees under the terms of the will. Upon her death the fee simple title to the proceeds of said bonds or the real estate in which the proceeds have been invested shall be owned by the descendants of Mrs. Cease as remaindermen under Item IV of said will. While we agree with the Chancellor that the parties to the contract are estopped to deny the same, we also agree with the insistence of appellants that the parties could not enter into a contract which would deprive the remaindermen under the will of their rights. — 186 — Therefore, we hold that upon the death of Mrs. Sara Ti-grett, the contract in favor of Mrs. Mary Cease shall be enforceable and Mrs. Cease shall be entitled to the $2,500 payment out of the trust funds remaining in the hands of the trustees. Provided, however, such $2,500 must be paid out of the interests in the trust fund owned by parties to the contract then living and no portion of the same shall be paid out of interests in said trust funds belonging to children or grandchildren of deceased children of H. Parks Tigrett. Therefore, assignments of error VI and supplemental assignments of error VI and VII all relating to the devise of Mrs. Cease and her husband are sustained. Supplemental assignment of error No. II pertaining to the action of the Chancellor in refusing to grant a petition for rehearing is overruled. Item V of the will devised the 150 acres of farm land lying south of the Newbern-Yorkville road in trust for the benefit of Mrs. Martha T. Wells for life with remainder to her descendants or with gift over in the same language of the devise to Mrs. Cease copied above. We agree with the Chancellor that this devise is clear and unambiguous and that it need not be noticed further. Item VI provides for the devise to W. B. Shibley as trustee for H. P. Tigrett, Jr. 248 acres of the 250 acres owned by testator lying north of the Newbern-Yorkville highway being- State Highway No. 77 on which is located the Tigrett, Sr. residence now occupied by Mrs. Sara Tigrett. The trust is for the lifetime of H. P. Tigrett, Jr. with remainder to his children and their descendants with gift over as described in the devise to Mrs. Cease and — 187 — Mrs. Wells in Items IY and Y of the will. The devise to Mrs. Cease is copied above. Two acres of the 250 acres are devised in trust- for the benefit of Mrs. Martha T. Wells and her descendants along with a sufficient amount of timber to be cut from the 250-acre tract by the trustees to build a reasonable sized home for the use and benefit of Mrs. Wells. Title to the two acres is to be held by the trastees in the same manner as the 150 acres south of the road devised to- Mrs. Wells and her descendants under Item V of the will. The testator left the selection of the two acres to the joint discretion of H. P. Tigrett, Jr. and Mrs. Wells but provided that it should be near the homestead. We infer from this provision that the testator was hopeful that their daughter, Mrs. Wells, would make her home near the mother and widow, Mrs. Sara Tigrett. The testator sold most of the merchantable timber from the 250-aore home-place during his lifetime. Mrs. Wells now lives with her husband in a home on the south side of the highway and has never made request for the use of the two- acres nor any of the timber. It is improbable that there is sufficient timber left with which to build a home on the two acres adequate for Mrs. Wells and her family and apparently she does not intend to build a home on the two-acre tract. We rule on this devise later in this opinion. Item VI further provides that the trustees at the request of the beneficiary, H. P. Tigrett, Jr., may sell the land devised to H. P. Tigrett, Jr. but the proceeds must be reinvested in land and title taken in trust for H. P. Tigrett, Jr. for life with remainder as above provided. Item VI concludes with the following paragraph: — 188 — “The above devise for the use and benefit of said H. P. Tigrett, Jr., is made to become effective only and when the said H. P. Tigrett, Jr. shall convey by proper instrument so as to pass title thereto as hereinafter set out his, said H. P. Tigrett, Jr.’s 133 acre tract, more or less, in the Ninth Civil District of Dyer County, Tennessee, bounded on the South by Highway No. 77, on the Bast by above described 250 acre tract, on the North by lands of Williams estate and lands of Irby, on the West by Seobey, Irby and Owens lands, or in lieu thereof as hereinafter provided.” Item VII provides as follows: “I hereby will and devise to my son, H. P. Tigrett, Jr., and W. B. Shibley, trustees, for the use and benefit of my son I. B. Tigrett, for and during his natural life with remainder at his death to his child, children or descendants of same, the child or children of any de-deceased child taking- the parent’s share and in the event the said I. B. Tigrett dies without child, children or descendants of same then title thereto shall vest equally in my aforesaid named children living at that time and the child, children or descendants of any deceased child, if any, per stirpes, the 133 acre tract to be deeded to the trustees for the use and benefit of him, said I. B. Tigrett, by said PI. P. Tigrett, Jr., (or and in lieu thereof said H. P. Tigrett, Jr., may purchase land of the value of $17,500.00 taking title thereto in the name of said trustees for the use and benefit of said I. B. Tigrett, with remainder as above set out) which together with property already given and conveyed to him, my son I. B. Tigrett, in my judgment, makes him an equal beneficiary under this will. * * * ” Further in Item VII the trustees are given the right to sell the land if the beneficiary, I. B. Tigrett, desires — 189 — but tbe proceeds shall be reinvested in land and tbe title taken in trust for I. B. Tigrett for life with remainder as above set out in the other devises. After the institution of the present lawsuit, I. B. Ti-grett moved from his home in Newborn to Memphis. With his permission the trustees have sold the property for $4,000 but have not as yet reinvested it in other real estate. H. P. Tigrett, Jr. testified that his father had made a prior wall containing similar provisions relating to the deeding of the 133-acre tract of land and he, H. P. Ti-grett, told his father that he was unwdlling to deed away his 133-acre tract because he was only receiving a life estate in the 250-acre home place (less two acres) and that his father then, when he rewrote the will now under construction, added the alternative of allowing H. P. Tigrett, Jr. to purchase real estate of a value of $17,500 in lieu of deeding his 133-acre tract of land in trust for the benefit of Isaac B. Tigrett for life and his remainder-men. Mr. Tigrett, Jr. stated that his father told him he was completely satisfied with the will as finally drawn and that his father wanted the 250 acres north of the road kept intact. The Chancellor found that it was the intention of the testator that H. P. Tigrett, Jr. either convey his 133-acre tract of land in trust for the benefit of Isaac B. Tigrett as set out in the will or in lieu thereof purchase farm land of a value of $17,500 for the benefit of Isaac B. Tigrett and his remaindermen within a reasonable time after the death of the testator and not await the death of the widow, Mrs. Sara Tigrett. Further, the Chancellor found that H. P. Tigrett, Jr. should have — 190 — followed the provisions of the will by making the purchase of the land not more than eighteen months after the death of the testator and that he had failed so to do and that therefore he had not acted within a reasonable time, and that the deeding of the 133 acres or in the alternative the purchasing of land of a value of $17,500 were charges against the interest devised to H. P. Ti-grett, Jr. by the testator. Further, the Chancellor found that the value of land in the area since the death of the testator had increased so much and correspondingly the purchasing power of $17,500 in terms of land had decreased SO' much that at the time of the rendering of the decree on April 3, 1965, the purpose and intent of the testator to give Isaac B. Tigrett and his remaindermen a devise in real estate substantially equal to that given to H. P. Tigrett, Jr. and Mrs. Wells could not be accomplished by buying land of a present value of $17,500. Thereupon, the Chancellor held that since H. P. Ti-grett, Jr. refused to deed his 133-acre tract of land, I. B. Tigrett and his remaindermen were entitled to a life estate in a portion of the 250-acre homeplace equal in value to the 133-acre tract of land which the testator had required H. P. Tigrett, Jr. to convey in trust for him and his remaindermen and that only in this way could I. B. Tigrett and his remaindermen be given a gift of realty substantially equal to that given to H. P. Tigrett, Jr. and Mrs. Wells and their remaindermen. Defendant H. P. Tigrett, Jr. was given ninety days within which to elect whether to make conveyance of the 133 acres or allow his devise to be reduced by the value of the 133-acre tract. The Chancellor ordered a reference, if necessary, to determine the value of the 133-acre tract — 191 — of land and determine how much of the 250 acre home-place would be equal in value to the 133-aere tract. It is from this portion of the Chancellor’s decree that the defendant, H. P. Tigrett, Jr., individually, and H. P. Tigrett, Jr. and William B. Shibley, executors-trustees, have prosecuted their appeal. They contend, first, that I. B. Tigrett is estopped to bring the present lawsuit at this time because he allegedly told H. P. Tigrett, Jr. that he would not accept any land purchased for him by the trustees. We think the preponderance of the proof is that the complainant, Isaac B. Tigrett, after he and the trustees had discussed several tracts or parcels of land had been unable to agree on the purchase of a tract of land, told the trustees, one or both of them, that he would not accept any tract which they purchased for him if he had to put any of his personal funds into the purchase. Even though the complainant, Isaac B. Tigrett, did at first acquiesce in the interpretation and construction of Item VII of the will as contended by H. P. Tigrett, Jr. that H. P. Tigrett, Jr. would not have to pay the $17,500 until after the death of their mother no prejudice resulted to the trustees or to H. P. Tigrett, Jr. by virtue of such acquiescence. The bequest of Isaac B. Tigrett for the purchase of a tract of farm land was not consummated. I. B. Tigrett very clearly saw that the price of farm land was steadily increasing and that he and his remain-dermen stood to lose a great deal as devisees under the will of H. P. Tigrett, Sr. unless the purchase of real estate in his name was made very shortly. We think he very properly brought a suit in the Chancery Court for a construction of the will of H. P. Tigrett, Sr. Therefore, we find no merit in the insistence of the appellants that — 192 — Isaac B. Tigrett was estopped to bring this present lawsuit. Further, the appellants insist that His Honor the Chancellor was in error in holding that the $17,500 should have been invested by H. P. Tigrett, Jr. for the benefit of Isaac B. Tigrett and his remaindermen, within eighteen months after the death of the testator and in not construing the will to provide that H. P. Tigrett, Jr. could wait until after the death of the life tenant, Mrs. Sara Tigrett, before he was required to purchase real estate in the amount of $17,500 or deed the 133-acre tract in trust for I. B. Tigrett. They predicate this contention upon the authority of Brannon v. Mercer, 138 Tenn. 415, 198 S.W. 253. The Chancellor was of opinion that Bran-non v. Mercer is distinguishable of the case at bar and therefore not controlled by it. A succinct statement of the Brannon case is as follows : In 1886 the testatrix, Mrs. Martha Sunderland, devised her farm to her husband, J. E. Sunderland, for life, then to her sister, Alice Robinson, also for life. Remainder in fee was devised to a niece, Blanche Raymond Robinson, on condition that she pay each of two legatees $1,000. The testatrix died November 18,1901; her husband and life tenant survived until July 21, 1912; Mrs. Alice Robinson, the second life tenant, had died on July 3, 1910. Blanche R. Robinson, the remainderman, the daughter of Alice Robinson, had died on May 5,1903, without paying the two $1,000 legacies. Shortly after the husband and first life tenant died on July 21,1912, the bill was filed on September 4, 1913, by Mary Louisa Talbott Brannon and others as devisees under the third codicil contending that a default was — 193 — made in the payment of their legacies by Blanche Robinson as devisee and that therefore nnder the terms of the fourth clause of the will they were entitled to have the land sold and to recover two-thirds of the proceeds of sale. The defendant claimed under Mrs. Blanche R. Robinson, devisee, who died without issue. The Chancellor held that the condition imposed on Blanche R. Robinson was one subsequent and that there had been no refusal on the part of the devisee in remainder to pay the legacies. The Court of Civil Appeals in a two to one decision reversed holding that the condition for the remainder to vest was on a condition precedent and that there had been a refusal to pay the legacies. The Supreme Court reversed. From the opinion of Mr. Justice Williams we copy as follows: “* * * It is manifest from the proof in the record that the devisee was poor and without resources with which to meet the requirement that she pay the legacies ; and the reasonable implication is that the testator, who had favored the devisee’s mother, Alice Robinson, with the grant of the immediately preceding life estate in remainder, did not intend to mock her niece by granting her property upon a condition impracticable of being performed by her. Rather, the inference should be, in accord with (d) of the indicia above, that as the ability to comply depended upon the enjoyment of the property devised, the payments were to be made when the remainder in fee became consummate — here on the falling in of the life estates upon which it was limited. Laurens v. Lucas, 6 Rich.Eq. (S.C.) 217; Birmingham v. Lesan, 77 Me. 494, 1 Atl. 151. — 194 — The position of the complainants is that the devisee must have made the payments and waited through a period of time covering two life estates before enjoyment. Such a construction would be a harsh one, indeed, and one not to be adopted unless the court is compelled to do so by language of undoubted import. * * *” We concur with Chancellor Gray that Brannon v. Mercer, supra, is not controlling of the case at bar because the determinative circumstances are distinctively different from the facts and circumstances of the case at bar. Mr. Tigrett, Sr. had two dominant purposes in mind in making his will: First, to make sure that his widow was amply provided for for the remainder of her life. This he took care of by allocating all of the annual income from his 400-acre farm in trust with right of the trustees to encroach on the corpus if necessary to properly care for his widow. Second, his intention was to give each of his four children an inheritance in real estate substantially equal in value for their respective lives with remainder to their descendants in fee. It did not seem practical to the testator to divide his 400-acre farm into separate tracts of 100 acres each and therefore he adopted the following method to accomplish his dominant intention, to wit: For his daughter, Mrs. Cease, whose husband was not a farmer, he earmarked $22,000 cash value of government bonds for the purchase of real estate at some place convenient and satisfactory to her. For his daughter, Mrs. Wells, whose husband is a farmer, the testator set apart the 150 acres on the south side of the highway and also gave her the right to build a home on the north side of the highway near the residence of Mr. and Mrs. Tigrett, Sr. — 195 — Now, for his two sons, H. P. Tigrett, Jr. and I. B. Tigrett, Mr. Tigrett, the testator, had 248 acres of the homeplace left but because of the lay of the land and possibly other reasons the testator preferred not to divide the homeplace but wanted his eldest son, H. P. Tigrett, Jr., to have the entire homeplace of 248 acres. To accomplish this and still give his son, I. B. Tigrett, and his descendants a comparable amount of real estate as an inheritance the testator provided that H. P. Tigrett, Jr. should deed in trust for I. B. Tigrett, et al, the 133 acres lying immediately east of the homeplace. When H. P. Tigrett, Jr. expressed his reluctance to do so, his father, the testator, changed his will and gave H. P. Tigrett, Jr. the additional option of purchasing for I. B. Tigrett, et al, other lands of a value of $17,500 (he already had given I. B. Tigrett, et al, a home in Newbern, Tennessee, valued at $5,000). We concur with the finding of the Chancellor below that it was the intention and purpose of the testator as expressed in his will that H. P. Tigrett, Jr. make his election within a reasonable time after the death of his father as to whether he would convey his 133-acre tract of land in trust for I. B. Tigrett as a condition to receiving for himself and his descendants the full 248 acres of his father’s homeplace or in lieu thereof purchase other lands of a value of $17,500 for the benefit of I. B. Tigrett, et al, thus complying with the express wishes of the testator. We disagree with His Honor the Chancellor that the testator intended for the annual income from the 133 acres or the land purchased of a value of $17,500 would become part of the trust fund for the support of Mrs. Tigrett, Sr. Such a requirement would have been unfair — 196 — to H. P. Tigrett, Jr. because the annual income from the 248 acres of the- homeplace which he was to receive was to be held in trust for the support of his mother, Mrs. Sara Tigrett. We think the testator fully intended that H. P. Tigrett, Jr. receive the annual income from the 133 acres until his mother died and H. P. Tigrett, Jr. got possession of the homeplace; or in the alternative that he receive the income from the $17,500' tract purchased by him for I. B. Tigrett, et al, until his mother died when I. B. Tigrett would get possession of the $17,500 tract and H. P. Tigrett, Jr. would get possession of the 248-acre homeplace. If either had been done then both the letter and the spirit of the will of H. P. Tigrett, Sr. would have been complied with. There is no real contention that H. P. Tigrett, Jr. was not financially able to meet the condition of the devise as was true in Brannon v. Mercer, supra. Not only does the record show but this Court takes judicial notice that since 1958 there has been a great inflation in the value of farm land in West Tennessee, and particularly in the Newbern, Tennessee, area. Much of the farm land in this area has more than doubled in value since 1958. We concur in the finding of the Chancellor that because of the great increase in the value of farm land and the corresponding decrease in the purchasing power of the dollar that now it is impossible for H. P. Tigrett, Jr. to comply with one of the conditions of the gift. He cannot purchase sufficient farm land for $17,500' to give Isaac B. Tigrett and his descendants an inheritance in real estate comparable in value to that intended by his father, the testator. The other condition of the gift can be complied with by H. P. Tigrett, Jr. deeding over his 133-acre tract of land in trust for I. B. — 197 — Tigrett, et al, reserving, of course, the rentals therefrom to himself for the lifetime of his mother, Mrs. Sara Tigrett. If H. P. Tigrett, Jr. is still unwilling to do this, then we agree with the Chancellor that the only way to carry out the testator’s dominant purpose of giving I. B. Tigrett and his descendants a comparably equal devise of real estate is to award I. B. Tigrett and his descendants a portion of the 250-acre homeplace equal in value to the H. P. Tigrett, Jr. 133-acre tract. There are ample authorities in our Tennessee case law for such decree. In the case of Mears v. Wharton, 1914, 5 Higgins 329, cited by the Chancellor, by will dated November 25, 1904, the testator gave three legatees (a brother, a sister, and a sister-in-law) $1,000 value of bank stock for life. To the fourth legatee, a brother, he awarded five shares of bank stock par value of $500 and also a specific bequest of $575 in order to make his bequest equal to the first three legatees. To the fifth legatee, his sister, he awarded a specific bequest of $1,150 to make her award equal to the first four legatees. The testator died in May, 1913, at which time the sale value of the stock was $200 per share. At the date of the making of the will the sale values were $115 which value the testator had used in making up his bequests. If the value at the date of the death of $200 per share is used then three legatees would receive $2,000 each, one legatee would receive $1,575 and another legatee would receive only $1,150. From the opinion of the court we quote as follows: “* * * In none of the cases cited has the Court laid down, as a hard and fast rule, that any particular date must be taken at which the property devised, or — 198 — bequeathed, should be valued. The main, object and effort of the Courts seem to be, first, to ascertain the intention of the testator and then to carry it into effect. It being determined that the testator wanted his estate divided equally between his children, then the Court take such date to fix its value as will carry out the will of the testator, and divide it equally between the objects of his bounty. If it were necessary to take its value at the date the will was made, in order to equalize the legacies and thereby carry out the controlling intention of the testator, the Courts would not hesitate to do so. It is likewise true that, if necessary to carry out the intention of the testator and to give to each legatee an equal share of his bounty, to fix a value on his estate at the date of his death, or a reasonable time thereafter, the Courts would not hesitate to take its value at such date. “In the case under consideration, it being apparent that the testator’s wish and desire was that each of his legatees should receive an equal share of his estate, and it not being feasible to carry out that intention unless the value of his estate is taken as of the date of his death, and it being the duty of the Court to carry out his intention if it can be done without contravening any fixed law or public policy, we see no escape from our duty in this case, in holding that the value of these legacies must be fixed as of the date of the death of the testator. The proof shows that the market value of the bank stock is $200.00 a share, and in equalizing the shares of these legatees, the value of this stock will be fixed at these figures, and Gr. B. Mears and Mrs. Miller, or her heirs, will be paid out of the residum a sufficient amount of money to make — 199 — their legacies equal in value to that of the three other legatees; that is, G. B. Mears will receive in addition to the five shares of stock and $575.00 in money, $425.00 in money out of the residuary estate; and Mrs. Miller will be paid by the executors $850.00 out of such residum, and in this way the shares of each of the legatees will be equalized as the testator manifestly intended they should be, and it results that the decree of the Chancellor is, in all respects, affirmed with costs.” In the case of Wirt v. Cannon, 1867, 4 Cold. 121, we quote from the syllabus as follows: “2. Same (Construction of Wills). Case of Judgment. The testator devised his real estate to two of his children, Finis E. and Sarah, and then declares, ‘ That full justice may be done, it is my wish that my son, John Wirt, may be equal with my other two children in the division of the land, out of money he now owes me.’ The intention of the testator being to make his children equal; and the indebtedness of John to the testator not being equal to the shares of his brother and sister, he is entitled to a sufficiency out of the residue of the estate, after paying the specific legacies, to make his share equal to the portion of land allotted to his brother. ’ ’ From the case of Johnson v. Covington, 1922, 148 Tenn. 47, 251 S.W. 893, also cited by the Chancellor, we copy the syllabus as follows: “9: WILLS. Bequest in terms to son-in-law construed as gift to daughter, and daughter required to contribute where claiming as her own land devised to others. — 200 — Where a testator by the language of the several bequests and by a contemporaneous written declaration evidenced an intent to give equal shares of his estate to each of his children, though in the will he mentioned previous gifts to his sons-in-law, testator’s evident intention was that the bequest to each son-in-law was intended as a gift to the daughter; and, where testa.tor’s heirs elected to claim real estate to which they were entitled as remaindermen under their grandfather ’s will, devising to their father only a life estate, each of the heirs, including the married daughters, were required to contribute to the loss of the disappointed devisee to whom testator had undertaken to give the land in question. (Post. pp. 82-84.)”' Complainant I. B. Tigrett and his descendants have lost a substantial portion of their inheritance because H. P. Tigrett, Jr. failed to comply with either of the two conditions of the will within a reasonable time after the death of the testator. This was through no fault of I. B. Tigrett even though H. P. Tigrett, Jr. acted in good faith. To prevent a miscarriage of justice it is necessary that H. P. Tigrett, Jr. share the 248-acre home-place devise with I. B. Tigrett and his descendants. Such relief is akin to the equitable remedies of contribution and exoneration. The decree of the Chancellor awarding an interest to I. B. Tigrett, et al, in said 248-acre home-place and ordering a reference to ascertain the value of the 133-acre tract is affirmed with the modification that if H. P. Tigrett, Jr. should elect to convey in trust his 133-acre tract as provided in the will he will be entitled to receive the income therefrom until the death of his mother, Mrs. Sara Tigrett. — 201 — Upon a remand of this case if H. P. Tigrett, Jr. still refuses to deed the 133-acre tract of land in trust as provided by the will for the benefit of I. B. Tigrett and his. descendants, then a reference will be had to the Clerk & Master to determine the value of the 133-acre tract of land as of the date of the reference. The Clerk & Master will go upon the 250-acre H. P. Tigrett, Sr. homeplaee (Mrs. Wells is entitled to two acres of this under the will) and measure and set apart for the benefit of I. B. Tigrett and his descendants a portion of the 250-acre homeplaee equal in value to the 133 acres owned by H. P. Tigrett, Jr. and report his action to the Chancellor for confirmation. H. P. Tigrett, Jr. shall, of course, have the right to file exceptions as in other references by the Clerk & Master. Assignments of error, I, II, Y, and VII and supplemental assignments of error I, II, V, and VIII are overruled. Supplemental assignment of error No. IV is as follows: “The Chancery Court did not further consider and construe the will and the intention of its testator as testified by W. B. Shibley and Gen. John M. Drane, which evidence we respectfully submit as competent.” Assuming, but not deciding, that it was competent for the witnesses, W. B. Shibley, co-executor, and Hon. John Drane, draftsman of the will, to testify concerning the intentions of the testator, it was for the Chancery Court and later for this Court on appeal to determine the primary and dominant intentions of the testator in the light of the express terms and provisions of the will itself as well as the facts and circumstances surrounding the execution of said will. This Court has considered the testimony of both Mr. Shibley and Gen. Drane but — 202 — are of opinion that the Chancellor reached the correct result and we have affirmed his action. Supplemental assignment of error No. IV is overruled. Appellants, in their brief, have questioned the decree of the Chancellor assessing the four children of testator Avith the payment of any balance due on state and federal inheritance taxes after the exhaustion of personal property of the estate. While the executor-trustees have never filed a formal accounting, the proof shows that Mr. Tigrett, Sr. had $2,800- on deposit in the bank at the time of his death. H. Parks Tigrett, Jr. paid into the estate $2,500 as required by the will. Presumably all of the debts of the estate- have been paid including state and federal inheritance taxes. There was a balance of $600 in the executor-trustee bank account in October, 1966, when Mr. Shibley testified. The executors testified that they borrowed $5,000 from the bank to finish paying state and federal inheritance taxes and H. P. Tigrett, Jr. and Mrs. Mary Wells signed the note as sureties. Out of the income from the lands, this note has been reduced to $3,200. It is anticipated that future rentals over and above the support for Mrs. Tigrett will be sufficient to retire the note. Since the residuary estate under the will after the death of Mrs. Tigrett, Sr. goes to all four children equally, and since the children all seem satisfied with this plan of paying the inheritance taxes and debts, it is approved. If Mrs. Tigrett, Sr. should die before the costs of administration, including state and federal inheritance taxes, have been paid, then the four children shall be liable jointly and severally for the payment of the deficiency. — 203 — Assignment of error III complains of the action of the Chancellor in ordering a reference to determine fees to be paid solicitors for all the parties, insisting that only solicitors for the executor-trustees should be paid out of the funds in the hands of the executor-trustees. It was well within the discretion of the Chancellor to find that the petition for a construction of the will of H. P. Tigrett, Sr. was necessary and that their services inured to the benefit of the estate, and that such fees should be paid as part of the costs of administration of the estate. Phillips’ “Pritchard on Wills,” Section 378A and 655; Boulton v. Cochran, 41 Tenn.App. 43, 292 S.W.2d 511; Moore v. Neely, 212 Tenn. 496, 370 S.W.2d 537. The assignment is therefore respectfully overruled. The trustees have asked in their answer and cross-bill when Mrs. Wells shall select the two acres of land and timber. The Chancellor left it indefinite as to when, if ever, Mrs. Wells was required to make a selection of the two acres of land. We do not think the testator intended to require Mrs. Wells to build and live in a home on the two acres and we hold that she does have the right to forego the erection of a home thereon. However, since the two acres were devised to her for her lifetime with remainder to her descendants, we hold that a selection must be made of the two acres. Since it appears probable that H. P. Tigrett, Jr. will not convey his 133-a.cre tract for the benefit of I. B. Tigrett, and it is most probable in lieu thereof I. B. Tigrett and his descendants will be awarded a portion of the 250-acre homeplace, it becomes necessary that said two-acre tract be selected prior to the determination by the loAver court of the portion of the homeplace to be alloted in trust for I. B. Tigrett and his descendants. Upon a remand of the — 204 — case Mrs. Martha T. Wells and H. P. Tigrett, Jr. are directed to make selection of the two-acre tract of land as provided by Item VI of the testator’s will for the benefit of Mrs. Wells and her descendants. The trustees are directed to sell the merchantable timber (exclusive of shade and/or ornamental trees) and to hold the proceeds in trust for the benefit of Mrs.’ Martha Wells and her descendants. If Mrs. Wells elects not to build a home on the two acres the trustees shall have the discretion to expend said proceeds of timber for the permanent improvement of either the two-acre tract or the 150 acres lying south of the road since both were devised in trust for the benefit of Mrs. Martha Wells and her descendants. A complete construction of the will of H. P. Tigrett, Sr. requires adjudication of all the rights of the parties. We think it proper for this court to make- further adjudications even though they are not the subject of assignments of error. It appears that H. P. Tigrett, Jr. has been accustomed to renting the 250-acre homeplace and the 150-acre farm devised for the benefit of Mrs. Wells and her descendants from year to year on the basis of one-fourth of the cotton produced and $8.00 per acre cash rent for the remainder of the land. There are some 40 to 50 acres of cotton. H. P. Tigrett, Jr. has been paying an annual rental of about $5,000. Objection has been made by the solicitors for 1. B. Tigrett that H. P. Tigrett, Jr. is not paying sufficient rental per year for the farm land. The evidence is insufficient for this court to make an intelligent adjudication as to the amount of annual rent. H. P. Tigrett, Jr. is a trustee of the income of the 400 acres for the benefit of his mother and the four children — 205 — of H. P. Tigrett, Sr. Therefore, he is in the position of renting from himself. Under these circumstances, we think a reference should be had to the Clerk & Master to determine a reasonable annual rental of said lands and H. P. Tigrett, Jr. should be given the opportunity to rent said farm land at such rental. If he no longer wishes to rent the farm land himself then, of course, the trustees are obligated to rent the farm lands to other persons for the best price obtainable. In order that the rights of all the parties to this litigation, including contingent beneficiaries and remainder-men, may be adjudicated and protected, we think it proper that the executors and trustees file a full and complete report with the Chancery Court of Dyer County accounting for all funds coming into their hands both as executors and as trustees and showing all disbursements made by them. They will also report on their plans to reinvest the $4,000 now held by them representing the sale of the I. B. Tigrett home in Newbern, Tennessee. Said executors and trustees will also make annual accounting to the Chancery Court of Dyer County, Tennessee, until the estate of H. Parks Tigrett, Sr. is fully administered and the trusts created both by will and deed of H. Parks Tigrett, Sr. are terminated. All assignments of error not herein sustained are overruled. A decree will be entered in accord with this opinion and the case will be remanded to the Chancery Court for further proceedings consistent herewith. The costs (exclusive of attorneys’ fees) in the court below and in this court will be taxed one-half against H. P. Tigrett, Jr., individually, and one-half against the estate of H. P. Tigrett, Sr. T.C.A. Section 20-1621. — 206 — Upon the trial of this cause, Judge L. D. Bejach was unable to be present and Hon. John C. Nowell of Trenton, Tennessee Bar sat as Special Judge by consent of all the parties. Avery, P. J. (W. S.), dissents in part. John C. Nowell, Special Judge, concurs.