(dissenting in part).
I agree with the majority opinion that the controversy between the two sons of the testator, H. P. Tigrett, Jr. and I. B. Tigrett, is the principal cause of this litigation, which and that on the record now before us we must, by our own decree, settle all the issues between these two sons that can be done at this time. I agree that the Court below and this Court should determine the proper construction of the will relating to the time H. P. Tigrett, Jr. must comply with the will granting him the option of conveying his 133 acres of land to the trustees, for the property decreed for H. P. Tigrett, Jr. with the trust and other limitations required by the will, or in lieu thereof, pay to the trustees $17,500 with which to purchase land, taking title therto in themselves in trust, as provided by the will, for I. B. Tigrett and his child or children.
I do not agree with the majority opinion that H. P. Tigrett, Jr. can, within the time stated in the decree of the trial Court or the majority opinion, now rid himself of all obligation to the trust fund, created or intended to be created under the will, to be preserved by the trustees until the death of Mrs. Parks Tigrett, Sr. by now simply conveying the 133 acres to the trustees or paying *207the bare $17,500 to them for the purchase of land for I. B. Tigrett.
It is undisputed that H. Parks Tigrett, Sr. executed a prior will that provided no option whatever with respect to the requirement that H. P. Tigrett, Jr. convey the 133 acres to the trustees before he could take any devise under his father’s will, and that it was destroyed and revoked by the second will at the request of H. P. Tigrett, Jr., and the option of paying the $17,500 was the value that he and his father both agreed at that time of the 133 acres and both were well aware of that fixed value.
H. P. Tigrett, Jr. in his deposition in this case, in substance so states more than once. Here is a part of what he said:
“Q — Mr. Tigrett, I am sure you have read your father’s will very carefully many times, have you not?
A — Yes, sir.
Q — And is it not the intention of your father that all of the children share equally under his will?
A — At the time he wrote- his will that was exactly right.
Q — Is that not what the will says ?
A — I don’t believe he thought or any one could have looked forward into the-future and predicted what would happen. All he could do in all fairness to everybody was to make it fair at that time.
Q — That was his intention anyway?
A — Yes, sir.
*208Q — That all children share equally under his will?
A — Yes, sir.”
I agree with the statements in the majority opinion from which it can be inferred that the value of the 133 acres has increased through the years in the same proportions that the value of the 250 acres home farm has increased, and that if H. P. Tigrett, Jr. now conveyed the 133 acres, as provided by the will, there would be represented a comparative value of the respective devises, not only as between the sons of testator, but as between all four children, but nothing is plainer than H. P, Tigrett, Jr. has repeatedly refused to do so. Had he done so at the proper time the proceeds, rents and profits therefrom would have rightfully gone into the testamentary created trust fund. Likewise to the same effect had he paid the $17,500 to the trustees and the lands been purchased therewith, as required by the will, the rents and profits from that land would, if the trustees had complied with the will, have gone into the trust fund. So it is that the trust fund is that which has suffered by the failure of H. P. Tigrett, Jr. to properly and in right time exercise one of the optional requirements of the will.
The result is that he has had “his cake and eaten it at the same time” over the years. He has gotten rents from the 133 acres for all these years, which the testator intended should go into the trust fund account, and has likewise had the use of the $17,500' at the same time. If he had that money he has gotten the use of it and the rent from the 133 acres at the same time. If he did not have the money, he has saved for himself at least the interest thereon which his father did not mean for him to do.
*209Therefore, as I construe the meaning of the will, as applied to the equities of all the beneficiaries, H. P. Tigrett, Jr. should also be required to pay into this trust fund, after the 250 acres is divided or apportioned as required by the decree of the Chancellor, and by the majority opinion, if he now or in compliance with the decree, conveys the 133 acres as permitted to do so under the decree and. majority opinion, or elects to exercise the $17,500' optional provision, he should be also required to pay to the trustees for the use of I. B. Tigrett and his child or children, an amount of money equivalent to 6% interest per annum on the $17,500 from the date the Court determines the testator meant to fix that as an optional value of the 133 acres, which, in my opinion, must either be from:
1st — the date of the will, or
2nd — from the date of a reasonable time after the probation of the will, which end of the interest period must await the enforcement of the decree of the Chancellor as approved by the majority opinion and directions therein contained, and in event H. P. Tigrett, Jr. continues to refuse to do either within the time fixed in the majority opinion for his exercise of such option, he be held to have renounced the provision of the will in regard to the bequest for his benefit.
I do not agree with the majority opinion relating to the bequest in behalf of Mrs. Cease. I do not agree that the testator meant, nor that his will, from its “four corners” can properly be construed to so mean that “the testator expressly excluded the $22,000 from the trust”.
*210Let us look for a moment at the deed to his son, I. B. Tigrett in 1946, which date indicates was at about the time he executed his first will, and I think we will be able to see the beginning of his intention to devise each child real estate and particularly land. In that deed he names the same trustees, the same as he did in his will, to use, manage and control the devise to I. B. Tigrett. That deed contains the following:
“* * * have this day bargained, sold, transferred and conveyed and by these presents do hereby bargain, sell, transfer and convey unto H. P. Tigrett, Jr., and W. B. Shibley, Trustees, for the use and benefit of the said Isaac Tigrett, for and during his natural life with remainder at his death to his child or children, its or their heirs and assigns, forever, in fee simple, the following described house and lot * * *
“TO HAVE AND TO HOLD said property unto the said Trustees for the use and benefit of the said Isaac Tigrett for and during his natural life with remainder at his death to his child or children, its or their heirs and assigns forever in fee simple.
“Said trustees are hereby given the absolute right and authority, to handle, control and manage said property for the use and benefit of the said-Isaac Tigrett for and during his life and if they deem it practicable and to the best interest of the said Isaac Tigrett they shall sell said property and are vested with full power and authority to make a good and valid deed thereto, and reinvest proceeds of the sale in real estate taking title to the same extent and in the same manner as the title is herein vested. Upon the death of the said Isaac Tigrett this trusteeship herein created shall cease and *211the title to the said property is vested now in the child or children, its or their heirs and assigns forever, of the said Isaac Tigrett, subject to the trusteeship for and during his life, as aforesaid.” (Emphasis added)
The word “now” meant something to the grantors and means something to me. In trying to put myself in the same position of the testator as I undertake to construe his will, it means the remainder is a. vested one, and the verbiage of the will means, as to all grandchildren it is a vested one.
Let us now bring together, in a paraphrasing way what the will declares to be the bequest to Mrs. Cease, as follows:
“I hereby give, will, bequeath and devise all of my estate, real, personal and mixed, to my son, H. P. Tigrett, Jr., and my nephew, W. B. Shibley, jointly, as trustees, with the exception of $22,000.00 in cash value of government bonds which is disposed of as hereinafter provided for the sole use and benefit of my wife, Sara N. Tigrett, for and during her natural life, with remainder as hereinafter provided. * * *
“I have on hand 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. Shipley, for the use and benefit of my said daughter for and during *212her 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.”
Why would the testator provide that the trustees expend the $22,000 for land and take deed so that it became a part of the socalled “trust” and then leave the value of the land out of the trust? It would be much easier to spend the $22,000 than it would to convey the land that it purchased and why would the testator limit the title to three of his children and leave the other one free to defeat the intention of the testator that her children “take it at her death”?
I do not agree that the document referred to in the majority opinion as a “contract” limits the specific provisions of the will as I understand it, nor do I construe the referred to “contract” to be anything except a statement to be submitted to the Common Law and Chancery Court of Dyer County, for construction and decree, which was never done and is therefore no contract.
In my opinion the income from the investment of the $22,000 or any part of it paid to Mrs. Cease is a part of the “trust fund” to be accounted for on the death of Mrs. Tigrett, Sr. I do agree that Mrs. Cease must account for the mysterious $5,000 or $8,000 in bonds mentioned in the majority opinion, as something that the *213testator expended prior to Ms death, for there seems to be wholly insufficient proof that he, the testator, did so. To so conclude seems to me to be pure speculation. Certainly Mrs. Cease must account to the trust fund for the income she has received from that $22,000, or what part thereof she receives income from, to the date of the death of Mrs. Tigrett, Sr.
The express provision in the will with respect to the creation of the trust fund and disbursements therefrom are as follows:
“Said trustees are hereby given full authority to manage and control all of said property and to sell any of the personal property for the purpose of reinvestment or otherwise. All proceeds arising from the management and control of said property and the sale or sales thereof and the revenue and income from my farm and other property to be held by said trustees for the use and benefit of my said wife.
“All funds coming into the hands of said trustees as such shall be deposited in bank to them as trustees for the purposes hereinafter stated. * * *
“Said trustees shall keep a. true and correct account of all their transactions and activities as such trustees 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.”
I do not find any serious fault with the majority opinion respecting the bequests or devise to Mrs. Wells, but the lower Court was requested by the cross-bill to determine nine specific matters, to some of which he did not *214respond and which nine requests are before this Court as follows:
“1. Whether the inheritance taxes paid and to be paid by the executors are chargeable to the respective children, beneficiaries of the will, and if so, an order and decree for the respective payments to be entered;
“2. When shall Mrs. Martha T. Wells select her 2 acres of land for building purposes, and whether she may do so within a reasonable time after Mrs. Tigrett’s death, when the remaining assets of H. P. Tigrett’s Sr. and trust accumulations are definitely known; and which these defendants aver was the purpose and interest of H. P. Tigrett, Sr.;
“3. When should Mrs. Martha T. Wells select her timber for building purposes, as provided for in the will;
“4. Should the wants, needs and requirements of Mrs. Sara N. Tigrett, widow, exceed the trust income and remaining personal property, may the trustees sell off the land and/or timber, or incumber the lands by trust deeds for those purposes, and if so, in what proportions ;
“5. May lands valued at $17,500.00 be purchased by H. P. Tigrett, Jr., as provided in the will, for I. B. Tigrett, whether he selects it and its location, from lands available for purchase, which H. P. Tigrett, Jr. avers he has the individual right to do, upon the continued refusal of I. B. Tigrett;
“6. Should the tract of land desired to be purchased exceed $17,500.00 in value, may the difference be paid from the final distribution of the personal estate and trust accumulations from the shares of the respective *215beneficiaries remaining at the death of Mrs. Sara N. Tigrett, widow; and should the land purchased approximate the $17,500.00, may the difference be held in trust as though it was land and as provided for in the will for the trusts created?
“7. How and from what funds may the trustees’ attorney fees in this suit be paid, so that each of the four children and their estates contribute thereto;
“8. Do the defendants, as trustees, have the right and power to carry out the agreement made with Mrs. Mary T. Cease;
“9. All such other, further, general and special relief, as they are entitled to under the facts and will of H. P. Tigrett, Sr.”
It, therefore, seems that it may be necessary on the death of Mrs. Tigrett Sr. to then marshal the assets of the entire estate in order to properly decree the answers to above requests, or some of them.
It is, therefore, my opinion that we should not, at this time, decree further or otherwise than as suggested in this dissenting opinion as to the litigation relating to the optional demand of H. P. Tigrett, Jr. and the bequest to Mrs. Cease, and to do so with certainty, would be speculating on the date of the death of Mrs, Tigrett, Sr.
It is clear that the executors and trustees have neither complied with the provisions of the will nor the law governing their relationship and duties. They have not correctly or properly complied with the decree of this Court to supply the record on remand. The filing of fiduciary income tax reports in no wise complies with *216their required accounting, keeping and disbursement of the trust fund.
It is entirely possible that on the death of Mrs. Tigrett, Sr. there may have to be a marshalling of assets to completely and properly comply with the provisions of the will relating to the trust fund and the remainder interests in the several areas of real estate, particularly relating to the provisions of the class doctrine enunciated in the case of Walker v. Applebury, 218 Tenn. 91, 400 S.W.2d 865.
The case should be, in my opinion, remanded to the Chancery Court of Dyer County with instructions that the Court give no further or other consideration to the further issues until the death of Mrs. Tigrett, Sr., at which time all questions can and should be finally determined by proper decree.
I attach to this opinion an appendix, copy of the involved will, copy of the opinion of this Court and the order directing remand for further proof, and copy of the Chancellor’s order returning the record to this Court. By reference it is made a part of this opinion.
APPENDIX
WILL
MAY 7, 1960, COPY OF LAST WILL AND TESTAMENT OF H. P. TIGRETT, FILED AS FOLLOWS:
I, H. P. Tigrett, Senior, being of sound mind and disposing memory, do make and publish this my last will and testament, hereby revoking and making void all other wills by me at any time made.
*217ITEM I
I hereby give, will, bequeath and devise all of my estate, real, personal and mixed, to my son, H. P. Tigrett, Jr., and my nephew, W. B. Shibley, jointly, as trustees, with the exception of $22,000.00 in cash value of government bonds which is disposed of as hereinafter provided, for the sole use and benefit of my wife, Sara N. Tigrett, for and during her natural life, with remainder as hereinafter provided.
Said trustees are hereby given full authority to manage and control all of said property and to sell any of the personal property for the purpose of reinvestment or otherwise. All proceeds arising from the management and control of said property and the sale or sales thereof and the revenue and income from my farm and other property to be held by said trustees for the use and benefit of my said wife.
All funds coming into the hands of said trustees as such shall be deposited in bank to them as trustees for the purposes hereinafter stated.
In creating this trust it is my will and purpose for my wife to be amply provided for not only with the necessities and comforts of life, but with such additional funds as to satisfy and 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.
Said trustees are to furnish all medical, hospital and all other attentions required or desired by my said wife in a full and ample maimer.
In the event it shall become necessary to encroach upon the corpus of my estate for the purpose of carrying *218oiit the provisions of this will as hereinafter provided, my said trustees are hereby given full authority to' encroach thereon in the way and manner they think best in order to effectuate the end desired. This authority is given them to avoid any proceedings in court therefor and without approval of any court so to do.
ITEM II
Said trustees shall keep a true and correct account of all their transactions and activities as such trustees 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 of living.
ITEM III
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 *219the 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 is charged therewith. Any indebtedness to be created after the writing of this will is excluded from its provisions.
ITEM IY
I have on hand 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.
*220ITEM V
I hereby will and devise to the said trustees, H. P. Tigrett, Jr., and W. B. Shibley, 150 acres, more or less, of my farm lands situated in the Ninth Civil District of Dyer County, Tennessee, bounded on the North by Highway No. 77, on the East by B. P. Grisham lands, on the South by what is known as Ditmore gravel road, and on the West by Easley lands, to hold in trust for the use and benefit of my daughter, Martha T. Wells. Said trustees are hereby given the light and authority to sell and convey said lands if the beneficiary thereof, said Martha T. Wells, so desires but such sale shall be made only for the purpose of reinvestment in land and said trustees are empowered to execute and deliver a good and valid deed to the purchaser thereof and the proceeds therefrom shall be reinvested as aforesaid in other lands and the title thereto shall be taken to said trustees of their successors in trust to hold for the use and benefit of my said daughter for and during her natural life and at her death to her child or children or descendants of same, the child, or children of any deceased child taking the parents share and in the event my daughter, Martha T. Wells, shall die without child or 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 descendant of any deceased child, if any, per stirpes. In the event my said daughter, Martha T. Wells, shall not desire to sell the aforesaid land for reinvestment as above set out then and in that event upon her death title thereto shall pass as above set out.
*221ITEM VI
I will and devise to my nephew, W. B. Shibley, trustee, to hold for the use and benefit of H. P. Tigrett, Jr., that portion of my land consisting of approximately 250 acres, more or less, lying on the North side of Highway No. 77 in the Ninth Civil District of Dyer County, Tennessee, and bounded on the South by Highway No. 77, on the East by gravel road, Smith Parnell land and John Ellis place, on the North by County road and on the West by lands of Pace estate and what is known as Williams farm, now owned by H. P. Tigrett, Jr., but I exclude from this conveyance approximately two acres, the exact location thereof to be agreed upon by my son, H. P. Tigrett, Jr., and my daughter, Martha T. Wells and I hereby give and devise to H. P. Tigrett, Jr., and W. B. Shibley, trustees, said two acres in trust for the use and benefit of my said daughter, Martha T. Wells, together with a sufficient amount of timber to be selected from the said 250 acres by the said trustees to build a reasonable sized home for the use and benefit of Martha T. Wells. The trusteeship to the property shall continue during the life time of said Martha T. Wells with the provision of sale and reinvestment of proceeds as provided as to the 150 acre tract given for the use and benefit of said Martha T. Wells. Said two acres so devised is for the purpose of the said Martha T. Wells having a home on my home place and near the homestead together with a sufficient ingress and egress thereto from highway.
Said trust on said 250 acres shall continue only during the lifetime of H. P. Tigrett, Jr., and upon his death said land shall go to and become the property of his child, children or descendant of same, the child or children of any deceased child taking the parents’ share and in the *222event my said son, H. P. Tigrett, Jr., shall die- without child, or children or descendants of same then the title to said land 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.
At any time it is so desired on the part of the beneficiary the said W. B. Shibley, as such trustee, may sell and execute a good and valid deed to said land conveying the title thereto to the purchaser according to the wishes' of the said H. P. Tigrett, Jr., but in such event, the proceeds thereof shall be reinvested in land and title taken thereto in trust aforesaid during the life time of said H. P. Tigrett, Jr., with remainder at his death to pass as above provided.
ITEM VII
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 deceased child taking the parents 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 acres tract to be deeded to the trustees for the use and benefit of him, said I. B. Tigrett, by said H. 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 *223remainder as above set out) which together with property already given and conveyed to him, my son, I. B, Tigrett, in my judgment, makes him as equal beneficiary under this will.
The said trustees are hereby given the right and authority to sell and convey said land if the beneficiary, said I. B. Tigrett, so desires, but in such event the proceeds thereof shall be reinvested in land and title taken in said trustees or their successors in trust to be held during the lifetime of said I. B. Tigrett with remainder at his death to become the property of any child, children or descendants of same of my said son, I. B. Tigrett, the child or children of any deceased child taking the parents ’ share and in the event my said son, I. B. Tigrett, 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.
I hereby appoint the aforesaid H. P. Tigrett, Jr., and W. B. Shibley joint executors of this my last will and testament and direct that they shall not be required to give bond either as such trustees or executors.
In testimony whereof, I hereunto subscribe my name, this 28 day of October, 1952.
/s/ H. P. Tigrett, Sr.
The aforesaid instrument was signed by the said H. P. Tigrett, Sr., who- signified and acknowledged to us, the undersigned attesting witnesses thereof, that the aforesaid instrument is his will and he signed same in the presence of us, the undersigned, who, at his request and in his presence and in the presence of each other, the *224said date aboye written have set onr hands as subscribing witnesses.
/s/ Estelle Brown
/s/ John M. Drane
Id. Parks TIGRETT, Jr. and W. B. Shibley, Executors and Trustees Under the Will of H. Parks Tigrett, Sr., and individually,
Appellants
V.
I. B. TIGRETT,
Appellee
Court of Appeals of Tennessee,
Western Section.
ORDER OP REMAND
In this cause it appearing to the Court that the record should be immediately returned to the Chancery Court of Dyer County for completion as provided in the opinion, which is made a part of this order as fully as if copied herein, and attached hereto, does become a part hereof;
Therefore, the record will be supplied in accord with the matters set forth in the opinion and this minute entry. The record, when so supplemented, shall be returned to this Court within 60 days from the day it is *225received by its return to the Chancery Court of Dyer County, Tennessee, for all this and further and final consideration by this Court. Entered this October 21, 1966.
H. Parks TIGRETT, Jr., and W. B. Shibley, Executors and Trustees Under the Will of H. Parks Tigrett, Sr., and Individually,
Appellants
V.
I. B. TIGRETT,
Appellee
Court of Appeals of Tennessee,
Western Section.
Oct. 21, 1966.
From the Chancery Court of Dyer County; Honorable John T. Gray, Chancellor. Without final disposition in this court the record in this cause is remanded to the Chancery Court of Dyer County with direction to supplement the record in accord with the opinion and direction of this court.
Opinion filed.
Robert P. Adams, Trenton, Tenn., and Richard Holmes, Trenton, Tenn., for appellants.
Palmer and Walker, Dyersburg, Tenn., for appellee.
AVERY, J.
CARNEY, J.
*226J. C. Nowell, sitting by agreement as Special Judge in place of Judge L. D. BE JACH.
This is a will construction cause arising in the Chancery Court of Dyer County, Tennessee, seeking construction of the will of H. P. Tigrett, Sr., in its entirety and every provision thereof, whose will was executed in 1952 and who died in 1958.
There is no contest of the will and there is no question made with respect to its legal execution. The wife of testator survived him, together with four children, two sons and two daughters, each and all being sui .juris at the time the will was executed, probated and at the present, all are living.
A copy of said will was filed as Exhibit “A” to the original bill. From the contents of the original will it was obvious that all necessary parties were not before the Court and on July 28,1960 an order was made setting out the names of the children and grandchildren of the testator, directing process to issue as to all of the apparent necessary parties, making publication for non-residents etc. This order embodied an amendment to the original bill and shows it was received for entry “9/26/60”.
Process was served on the parties in accord with the order and on November 23, 1960, answer and cross-bill was filed by H. P. Tigrett, Jr. and W. B. Shibley, executors and joint trustees, and H. P. Tigrett, Jr. individually.
On June 24,1961, Mrs. Martha T. Wells and Mrs. Mary T. Cease filed an answer to the original bill.
*227As exhibits to these pleadings a copy of the original will is attached; copy of a deed to a house and lot in the city of Newbem; copy of alleged contract entered into sets out an agreement that appears to have been signed by the four children and the widow of deceased, relating to the $22,000 in bonds of the testator, the required investment by the trustees in land for Mrs. Mary T. Cease; notice which is alleged to have been given by H. P. Tigrett, Jr. to I. B. Tigrett; alleged notice from I. B. Tigrett to H. P. Tigrett, Jr. relating to the 133 acres of land mentioned in the will, the $2,500 mentioned, in the will and the $17,500 mentioned in the will.
Testator owned considerable properties, consisting of real estate farm lands, U.S. Government bonds and a small amount of municipal property at the time he made the will, all of which he owned at the time of his death, except one acre of farm land and the municipal property.
I. B. Tigrett filed the first suit which generally involved his right as a devisee and that of his brother, H. P. Tigrett, Jr. as a devisee, and joint executor with W. B. Shibley, and as joint trustees.
After the first suit was filed, the bill was answered and a cross-bill filed by H. P. Tigrett, Jr. and W. B. Shibley as joint executors and joint trustees and by H. B. Tigrett, Jr. as an individual. This answer and cross-bill states that:
“These defendants deny that complainant is entitled to any of the relief he seeks in his original bill * * *
“For further answer, these defendants aver that since complainant's original bill seeks a construction of the will insofar as it applies to him and the defendant *228H. P. Tigrett, Jr., and since by consent the others whose rights and interests are affected have been made parties, which these defendants believe necessary in any construction, these defendants file this answer as such and also in the nature of a cross-bill so that the entire will may be construed and the full rights of all the parties interested declared and decreed.”
It then enumerates nine matters to be determined by the Court. Thereafter, on July 5, 1961, guardian ad litems were appointed for the unknown and unborn heirs of the respective children of the testator and for the minor grandchildren of testator. I. B. Tigrett filed an individual answer to the cross-bill. Answers of minors, guardians therefor and the guardians for the unknown and unborn children were duly filed. These answers by the guardians were simply of a formal nature.
With the original bill, the answers thereto and the cross-bill, their answers thereto, the Court was requested in the respective prayers, for a complete construction of the entire will and of the rights, duties and activities required of the trustees.
All of the proof is by depositions.
The will of testator was prepared by the Honorable John M. Drane, a distinguished lawyer and member of the Dyer County Bar. In accord with the respective prayers in the pleadings, as the proof was all in, the Chancellor entered his decree. This decree will be further referred to hereinafter, for an appeal was duly prayed, granted and perfected to this Court, as will be hereinafter more specifically noted.
*229For tlie purpose of preparing this opinion, we Have separated it under separate headings and have quoted the provision of the will relating to these specific titles:
1 — WHAT PROPERTY WAS DEVISED FOR SUPPORT OF TESTATOR’S SURVIVING- WIFE?
“I hereby give, will, bequeath and devise all of my estate, real, personal and mixed, to my son, H. P. Tigrett, Jr., and my nephew, W. B. Shibley, jointly, as trustees, with the exception of $22,000.00 in cash value of government bonds which is disposed of as hereinafter provided, for the sole use and benefit of my wife, Sara N. Tigrett, for and during her natural life, with remainder as hereinafter provided.”
2 — AUTHORITY AND DUTY OF TRUSTEE AS RELATES TO TESTATOR’S SURVIVING WIFE:
“Said trustees are hereby given full authority to manage and control all of said property and to sell any of the personal property for the purpose of reinvestment or otherwise.
“All proceeds arising from the management and control of said property and the sale or sales thereof and the revenue and income from my farm and other property to be held by said trustees for the use and benefit of my said wife.
“All funds coming into the hands of said trustees as such shall be deposited in bank to them as trustees for the purposes hereinafter stated.
“In creating this trust it is my will and purpose for my wife to be amply provided for not only with the necessities and comforts of life, but with such addi*230tional funds as to satisfy and support her reasonable wants to tlm end that she may live and be provided for after my death as she is now living and being provided for.
‘ ‘ Said trustees are to furnish all medical, hospital and all other attentions required or desired by my said wife in a full and ample manner.
“In the event it shall become necessary to encroach upon the corpus of my estate for the purpose of carrying out the provisions of this will as hereinafter provided, my said trustees are hereby given full authority to encroach thereon in the way and manner they think best in order to effectuate the end desired. This authority is given them to avoid any proceedings in court therefor and without approval of any court so to do.”
3 — DUTY OF TRUSTEES AS TO MANAGEMENT, CONTROL AND ACTING THEREFOR OF THE INCOME FROM THE TRUST PROPERTIES:
“Said trustees shall keep a true and correct account of all their transactions and activities as such trustees 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.”
4 — DISBURSEMENT OF BALANCE IN TRUST FUND AT DEATH OF WIFE:
“Whatever balance shall be in said trust fund upon the death of my wife shall be divided equally among *231my 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 be divided equally among the aforesaid children of living.”
5 — FORGIVENESS OF DEBTS OWING BY CHILDREN AT TIME WILL MADE. AND PROVIDING FOR PAYMENT TO THE TRUST FUND IN CASH BY H. P. TIGRETT, JR.:
“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 mailing 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 is charged therewith. Any indebtedness to be created after the writing of this, will is excluded from its provisions.”
6 — DISPOSITION OF $22,000 SET UP FOR MRS. MARY T. CEASE:
“I have on hand 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 *232such, 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. ’ ’
7 — DEVISED BY WILL TO TESTATOR’S DAUGHTER, MRS. MARTHA T. WELLS:
“I hereby will and devise to the said trustee, H. P. Tigrett Jr., and W. B. Shibley, 15Ó acres, more or less, of my farm lands situated in the Ninth Civil District of Dyer County, Tennessee, bounded on the North by Highway No. 77, on the East by B. F. Grisham lands, on the South by what is known as Ditmore gravel road, and on the West by Easley lands, to hold in trust for the use and benefit of my daughter, Martha T. Wells. Said trustees are hereby given the right and authority to sell and convey said lands if the beneficiary thereof, said Martha T. Wells, so desires but such sale shall be made only for the *233purpose of reinvestment in land and said trustees are empowered to execute and deliver a good and valid deed to the purchaser thereof and the proceeds therefrom shall be reinvested as aforesaid in other lands and the title thereto shall be taken to said trustees or their successors in trust to hold for the use and benefit of my said daughter for and during her natural life and at her death to her child or children or descendants, of same, the child, or children of any deceased child taking the parents share and in the event my daughter, Martha T. Wells, shall die without child or 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 descendant of any deceased child, if any, per stirpes. In the event my said daughter, Martha T. Wells, shall not desire to sell the aforesaid land for reinvestment as above- set out then and in that event upon her death title thereto shall pass as above set out. ’ ’
8 — DEVISED TO W. B. SHIBLEY INDIVIDUALLY AS TRUSTEE FOR TESTATOR’S SON, H. P. THxRETT, JR.:
“I will aaid devise to my nephew W. B. Shibley, trustee, to hold for the use and benefit of H. P. Trigett, Jr., that portion of my land consisting of approximately 250 acres, more or less, lying on the North side of Highway No. 77 in the Ninth Civil District of Dyer County, Tennessee, and bounded on the South by Highway No. 77, on the East by gravel road, Smith Parnell land and John Ellis place, on the North by County road and on the West by lands *234of Pace estate and what is known as Williams farm, now owned by H. P. Tigrett, Jr., bnt I exclude from this conveyance approximately two' acres, the exact location thereof to be agreed npon by my son H. P. Tigrett, Jr., and my daughter, Martha T. Wells and I hereby give and devise to H. P. Tigrett, Jr., and W. B. Shibley, trustees, said two acres in trust for the use and benefit of my said daughter, Martha T. Wells, together with a sufficient amount of timber to be selected from the said 250 acres by the said trustees to build a reasonable sized home for the use and benefit of Martha T. Wells. The trusteeship to the property shall continue during the life time of said Martha T. Wells with the provision of sale- and reinvestment of proceeds as provided as to the 150 acre tract given for the use and benefit of said Martha T. Wells. Said two acres so devised is for the purpose of the said Martha T. Wells having a home on my home place and near the homestead together with a sufficient ingress and egress thereto from highway.
“Said trust and said 250 acres shall continue only during the lifetime of H. P. Tigrett, Jr., and upon his death said land shall go to and become the property of his child, cildren or descendant of same, the child, or children of any deceased child taking the parents’ share and in the event my said son, H. P. Tigrett Jr., shall die without child, or children or descendants of same then the title to said land 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.
“At any time it is so desired on the part of the beneficiary the said W. B. Shibley, as such trustee, may *235sell and execute a good and valid deed to said land conveying the title thereto to the purchaser according to the wishes of the said EL P. Tigrett, Jr., hut in such event, the proceeds thereof shall be reinvested in land and title taken thereto in trust aforesaid during the life time of said H. P. Tigrett, Jr., with remainder at his death to pass as above provided.”
9 — DEVISED TO H. P. TIGEETT, JR., AND W. B. SHIBLEY, TRUSTEES. FOR USE AND BENEFIT OF TESTATOR’S SON, I. B. TIGRETT:
“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 deceased child tailing the parents 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 acres tract to be deeded to the trustees for the use and benefit of him, said I. B. Tigrett, by said H. 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 trastees 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.
*236“The said trustees are hereby given the right and authority to sell and convey said land if the beneficiary, said I. B. Tigrett, so desires, but in such event the proceeds thereof shall be reinvested in land and title taken in said trustees or their successors in trust to be held during the lifetime of said I. B. Tigrett with remainder at his death to become the property of any child, children or descendants of same of my said son, I. B. Tigrett, the child or children of any deceased child taking the parents’’ share and in the event my said son, I. B. Tigrett, 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. ’ ’
“I hereby appoint the aforesaid H. P. Tigrett, Jr., and W. B. Shibley joint executors of this my last will and testament and direct that they shall not be required to give bond either as such trustees or executors.”
The nine matters sought to be determined by the prayer and requests contained in the cross-bill and an-. SAvers are:
“1. Whether the inheritance taxes paid and to be paid by the executors are chargeable to the respective present children, beneficiaries of the will, and if so, an order and decree for the respective payments to be entered ;
“2. When shall Mrs. Martha T. Wells select her 2 acres of land for building purposes, and whether she may do so within a reasonable time after Mrs. Tigrett’s death, when the remaining assets of H. P. Tigrett’s Sr. *237and trust accumulations are definitely known; and which these defendants aver was the purpose and interest of H. P. Tigrett, Sr.;
“3. When should Mrs. Martha T. Wells select her timber for building purposes, as provided for in the will;
“4. Should the wants, needs and requirements of Mrs. Sara N. Tigrett, widow, exceed the trust income and remaining personal property, may the trustees sell off land and/or timber, or incumber the lands by trust deeds for those purposes, and if so, in what proportions ;
“5. May lands valued at $17,500.00 be purchased by H. P. Tigrett, Jr., as provided in the will, for I. B. Tigrett, whether he selects it and its location, from lands available for purchase, which H. P. Tigrett, Jr. avers he has the individual right to do, upon the continued refusal of I. B. Tigrett;
“6. Should the tract of land desired to be purchased exceed $17,500.00 in value, may the difference be paid from the final distribution of the personal estate and trust accumulations from the shares of the respective beneficiaries remaining at the death of Mrs. Sara N. Tigrett, widow; and should the land purchased approximate the $17,500.00 may the difference be held in trust as though it was land and as provided for in the will for the trusts created?
“7. How and from Avhat funds may the trustees ’ attorney fees in this suit be paid, so that each of the four children and their estates contribute thereto;
*238“8. Do the defendants, as trustees, have the right and power to carry out the agreement made with Mrs. Mary T. Cease;
“9. All such other, further, general and special relief, as they are entitled to under the facts and will of H. P. Tigrett, Sr.”
Copy of deed of H. P. Tigrett, Sr., et ux. to H. P. Tigrett, and W. B. Shibley, trustees for I. B. Tigrett, is made an exhibit to the cross-bill.
An explanation of how the $22,000 in bonds had been handled in accord with the undated signed agreement by H. P. Tigrett, Jr., Mary T. Cease, Martha T. Wells, Sara N. Tigrett and I. B. Tigrett is copied into the cross-bill and answer.
In the preparation of this opinion the record reveals that there had been filed a petition in the Common Law and Chancery Court of Dyer County, Tennessee, which court has concurrent jurisdiction in matters of this character with the Chancery Court, and that some decree or order was entered in that Court construing or dealing with certain portions of the involved will, particularly relating to the devise to Mrs. Cease and the aforesaid agreement.
It also reveals that after the Chancellor filed his original opinion, a petition for rehearing was filed and that thereafter his original opinion was expanded to some extent, and the petition to rehear denied in every respect.
It further appears that the Chancellor did not dispose of the interpretation of the activities of the trustees, by authority under the will, an error is assigned in that regard.
*239Error is also assigned with respect to the action of the Chancellor dealing with the bequest- relating to the $22,000 in bonds and disposition thereof.
It is also revealed that the record does not show the action of the Common Law and Chancery Court of Dyer County in connection with the disposition of that $22,000, which could have a definite bearing on the decree to be entered in this Court. It is also revealed that the petition to rehear is nowhere carried into this record.
Therefore, it could not be determined by the Chancellor what effect the. decree of said Common Law and Chancery Court of Dyer County might have upon the proper opinion and decree to be rendered by him, either under the original answer and cross-bill or the answers to the cross-bill.
It also could not be determined whether the Chancellor had erred in denying the petition to rehear, since the petition did not appear in the record.
It is also revealed that the co-executor and co-trustee, W. B. Shibley, did not testify with respect to any of the issues involved nor did Mr. Drane, who wrote the will for Mr. Tigrett, Sr.
It also does not appear in this record what nor how the funds which were to be deposited in the bank in the name of the trustees were obtained nor how it was used or expended. In other words, there is no report of the trustees in this record, therefore, it is impossible to comply with the parts of the prayers of the cross-bill which requests the Chancellor to determine the duties of the trustees with regard to the balance of the fund, after the death of the widow of the testator, can be *240legally expended or disbursed or were obtained in accord with the duties and trust vested in them as such trustees.
It also appears to this Court that this Court can not properly dispose of the assignments of error so as to completely answer them in a proper and legal manner with the record in the condition that we find it. It is, therefore, ordered that this record be remanded to the Chancery Court, of Dyer County with instructions as follows:
1 — The records of the Common Law and Chancery Court of Dyer County relating to the action of the parties, trustees and executors included, embraced in the administration of the estate of H. P. Tigrett, Sr. or any part thereof, including the petitions, answers, testimony, if preserved, and the decree or decrees entered therein, be made a part of the record hereby remanded.
2 — The petition to rehear filed in this cause in the Chancery Court of Dyer County, be embraced within the remanded record.
3 — Any and every report of the executors and/or trustees, together with their accounting of the funds collected in accord with their duties and trusts vested in them as such.
4 — It further appearing, without explanation, that the co-executor and co-trustee, "W. B. Shibley, did not testify in the trial of this cause in the Chancery Court, he Avill be permitted to testify only on the remand in connection with the particular matters required to be supplemented to the record as it stood when heretofore certified and filed in this Court on appeal.
*2415 — That all matters required to be supplemented in this record, be done under the direction of the Chancellor in said Court and the entire record again submitted to him for such opinion, orders and decrees as he may care to further make, together with any additional exceptions and objections to such opinion, orders and decrees as the parties care to make.
6 — That on compliance with this order of remand the entire record be re-certified to this Court for further disposition as required by law, where this cause will be then further heard de novo in this Court.
It is further ordered that appellants from such orders or opinion of the Chancellor as may be finally made in this cause on the remand, may file such additional assignments of error as they consider necessary to the action of the Chancellor hereunder, within 10' days after notice that the record is re-filed in this Court and replies made thereto by the appellees within the time allowed under the rules of this Court and the law, as if it were the first time of filing this record in this Court.
It further appears to this Court that the cause was pending in the Court below from the date of the original petition therein on May 7, 1960, and that all the children, executors and trustees are now living, and that in view of the uncertainty of life and the personal responsibilities, duties and actions of the trustees and executors should be carried out as soon as practicable and the record will be remanded to this Court as herein directed within 60 days after the record with this order, has been received in the Chancery Court of Dyer County.
This action is taken in accord with T.C.A. secs. 27-327 and 27-329 and the decisions thereunder.
*242In this cause it appears that Judge L. D. Bejach, a regular judge of the Court of Appeals in this Section, on account of an attack of bronchitis and on advise of doctors, was unable to participate in the hearing of this cause. Thereupon, all parties thereto and attorneys, agreed that the Honorable John C. Nowell, an attorney at the Trenton, Tennessee, Bar, might sit with Judges Avery and Carney, two of the regular Judges for the Western Section of the Court of Appeals of Tennessee, in the hearing of this cause, whereupon, this cause was so heard in this Court, counsel for all parties being present and participating in the argument in the hearing.
AVERY, J.
CARNEY, J., and J. C. NOWELL, Special Judge, concur.
H. P. TIGRETT, Jr. et al. Appellants V. I. B. TIGRETT, Appellee
In the Chancery Court of Dyer
County, Tennessee No. 6747
CERTIFICATE OF CHANCELLOR
This case is now before the court upon an order of remand of the Court of Appeals in Jackson, Tennessee, sending the case back to have the record completed as to items not included in the original record as sent to the court of appeals, such order of remand specifying to what extent the present transcript in the Court of Appeals should be supplemented so' as to include the additional evidence set out in the order of remand. This completion of the transcript was to be made under the direction of the Chancellor of the Chancery Division.
A Bill of Exceptions was filed embracing the matter produced under the remand and asldng that the court *243consider this matter on the motion to rehear. The court has re-read its original opinion both including the opinion on the petition to rehear matter before the case was appealed to the Court of Appeals and has also very carefully read the Bill of Exceptions on the remand. After carefully considering all the matters including all the additional evidence contained in the Bill of Exceptions prepared under the order of remand the court is of the opinion that no new evidence was produced that would change the findings of the court under its two former opinions and the request of the motion to rehear under the remand is denied and the opinion of the court both in the original opinion and in the opinion on the motion to rehear heard before the appeal are both re-affirmed and the motion filed under the remand is as above stated here and now denied.
The court hereby certifies that the Bill of Exceptions filed herein includes all the evidence called for under the remand that was available.