Read v. Watkins.

decease to be for the use of Jesse Goodwin," that the wife of testator, the first taker, took an absolute estate, with unqualified power of disposition, which defeated the executory devise to said Jesse Goodwin: M. & Y., 303; 10 Yer., 290; 1 Cold., 227.

But in Brown v. Hunt, 12 Heis., 409, it is held "the power of disposition inconsitent with the devise over must be one given by the will, and not a mere incident at common law, to the estate given to the first taker": 5 Hum., 503; 1 Swan, 185.

So that the ordinary words conveying the absolute title, will not, without superadded words giving unlimited power of disposition, defeat an executory devise.

Testator, in the fifth clause of his will, directs that all the property, real and personal, of which his wife may die possessed, including any money she may leave, shall be equally divided amongst all his children.

And the sixth clause provides that if his wife should give to any of his children any part of the property or money he had given her, it should be accounted for on the settlement of his estate.

Clause sixth does not contain an unlimited power of disposition of the property testator had given his wife, but may more properly be regarded as a recognition of a power to make advancements to his children, and such a limited or special power, unless fully executed, would not defeat the limitation over.

In this will there is no such unqualified power of disposition, and the result is that the decree of the chancellor is erroneous, and must be reversed, and a decree entered here in conformity to this opinion, and 11-VOL. 11.

McGowan v. Taxing District.

the cause will be remanded for further proceedings. The costs of this court will be paid by the executor, Jas. D. Read, executor of Chas. L. Read, deceased, out of the assets in his hands.

MCGOWAN, Trustee, v. TAXING DISTRICT.

TRUSTEE. Compensation. Sale of land. The trustee of Shelby county is entitled to a fee of fifty cents upon each tract of land sold by him and bought by the Treasurer for delinquent taxes, levied for the Taxing District of Memphis.

FROM SHELBY.

Appeal in error from the Circuit Court of Shelby county. J. O. PIERCE, J.

GANTT & PATTERSON for McGowan.

C. W. HEISKELL for Taxing District.

FREEMAN, J., delivered the opinion of the court.

This agreed case raises the question whether the trustee of Shelby county is each lot or parcel of land

entitled to fifty cents for

sold by him and bought

by Treasurer, for delinquent taxes levied in favor of or for use of the Taxing District of Memphis?

It is conceded that the trustee has properly discharged his duty by advertising and selling 1,976 tracts

McGowan v. Taxing District.

or lots for taxes assessed for benefit of the Taxing District.

By the act of 1881, sec. 59, the trustee is entitled. to "compensation for his services in receiving and paying over to the rightful authorities all moneys received by him, commissions as therein specified, with a limit as to the amount to be received from this source."

By section 86 it is provided: "That the Comptroller of the Treasury shall issue his warrant for the fees of the trustee, clerk and printer, on all sales of land to the Treasurer of the State, said fees to be as follows: Trustee's fee fifty cents, printer's fee five dollars for notice required in sections 58 and 68, clerk's fee fifty cents for each separate tract, lot or parcel of land."

The claim of complainant is based on this section. We think the fifty cents is for each tract or lot sold, if applicable to sales made for the Taxing District, as such sales may continue for several days, as contemplated by law, and a compensation of only fifty cents for the entire sale, would be a mockery.

not the intention of the Legislature.

Such was

But the question of the right to this compensation for sales made for the Taxing District is insisted on the ground that by section 13 of the act creating the Taxing District, it is provided: "The county trustee shall, in addition to to the compensation provided in chapter 91, section 10, page 132 of the acts of the General Assembly, passed March, 1875, receive for collecting and disbursing the revenue of said Taxing District, the sum of $1,000 per annum." This sum

McGowan v. Taxing District.

has been paid the trustee, and it is claimed that the extra fee for sales of land is by this language excluded. Section 10 referred to allows compensation by way of commissions on amount collected by him, and he was forbidden to receive any compensation except as provided by the act. And SO we held in State ex rel. Baber v. Nolan, 8 Lea, 401, he was not entitled, under the act of 1879, amendatory of the above act to a fee of fifty cents for selling each tract of land, because there was no such fee expressly allowed by the act.

It is not denied that the trustee has properly sold this land, and is, by act of Extra Session of 1879, section 2, entitled to use the same means of compulsion of payment in the Taxing District as in the cases of collection of delinquent State and county taxes.

We cannot see how he can be excluded from the fee provided by the 86th section of the act of 1881. The land is sold by him for payment of taxes, is bought by the Treasurer of the State, and the fee fixed and affirmatively given is fifty cents for the service on each tract of land.

The $1,000 allowed by act of 1879, "for collecting and disbursing the revenue of said Taxing District," in addition to compensation by way of commission allowed by act of 1875, cannot fairly be held to forbid the right to receive a compensation provided in express terms by the subsequent act of 1881. If intended to exclude the payment of this fee in the case of sales for use of the Taxing District, it was easy to say so, and this has not been done. There is no necessary

Irby v. Irby.

antagonism between the two acts, the last provision is but an additional fee for a particular service that was not provided for by the act of 1875.

We therefore conclude, that for this particular service of the trustee, he is allowed the sum of fifty cents on each lot or tract of land sold by him in this case.

The judgment below is reversed and judgment here as indicated.

E. R. IRBY et al. v. W. E. IRBY et al.

1. CHANCERY PLEADINGS AND PRACTICE. Sale of real estate. Value. The only test of the value of property at a forced sale is what it will bring.

2. SAME.

Same. Title. When the sale of property is forced, the court has no power to give a bidder assurance of a good title, and proffer to bid on the terms of such assurance cannot be entertained.

3. SAME. Same. Clerk and master. Terms of sale. The master, in executing an order of sale, may demand an immediate compliance by a purchaser with the terms of sale, when he has reason to doubt the good faith of a bidder.

4. SAME. Same. Biddings re-opened. Advance bid. After the biddings at a master's sale have once been opened and a public resale had, the court may well, upon another offer of an advance of ten per cent, confirm the sale to the reported bidder with his consent at the new advance.

FROM SHELBY.

Appeal from the Chancery Court at Memphis. W. W. MCDOWELL, Ch.

2