author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Jerry William ARMBRUSTER, Appellant.
    No. 10080.
    Missouri Court of Appeals, Springfield District.
    Sept. 10, 1976.

      Paul Crider, Jr., Public Defender, Rolla, for appellant.
    John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Judge.

Defendant Jerry William Armbruster, tried as a second offender, was convicted by a jury of robbery in the first degree and was sentenced to 30 years in prison. Defendant does not question the sufficiency of the evidence to support the conviction.

The first of defendant’s four appellate contentions, each unavailing, is that the trial court erred in admitting into evidence the “pre-trial identification” of defendant by Janet Congiardo, the victim. The trial court had denied defendant’s pre-trial motion to suppress this evidence and had overruled defendant’s objection to its introduction at the trial. Defendant claims that the attacked evidence was inadmissible because “the totality of the circumstances surrounding the identification of defendant at the scene was so suggestive and conducive to irreparable mistaken identification as to violate” his constitutional rights. Defendant also says that the attacked evidence rendered inadmissible Janet’s in-court identification of defendant.

On the morning of October 28,1974, Janet Congiardo, employed as a cashier by Western and Southern Insurance Company, was working alone in the company’s office in Rolla, Missouri. The office was well illuminated and Janet’s eyesight was good. The robbery was perpetrated by a man who was in the office with Janet for 10 to 12 minutes prior to its commission. Only the man and Janet were there during that period. Janet had seen the man at the office on two occasions during the previous two weeks. During the time the man was in the office prior to the robbery he and Janet engaged in about 10 minutes of “small talk.” The man then left the office and, according to Janet’s testimony, “in no more than two minutes he came running in the door and around my desk with a knife in his hand and he robbed me.” The robbery took place about 9:30 a. m.

Janet said that “it seemed like quite a while” that the robber was in the office while the offense was being committed. During that time she had an additional opportunity to observe him. She testified that the man took $48.25 from the cash drawer and $4.00 or $5.00 out of f safe and put it in his pocket before he fled the scene. “Just minutes” after he left Janet went next door to a beauty shop and told the girl there that she had been robbed and asked her to call the police.

About 10 a. m. Officer Kelley arrived and Janet gave him a description of the robber. Kelley “immediately started back to my patrol car to put the description on the radio.” As Kelley did so, another police car arrived at the scene. This took place about 10:10 a. m. This car contained three men: the defendant and police officers Sandifer and Waterman.

These two officers had started toward the insurance office “to back up” Kelley. While en route they saw the defendant “and another gentleman having an altercation — looked like there possibly might be a fight.” Sandifer arrested the defendant. Sandifer added: “We still did not know what we had at the insurance company. We put the defendant in the police car and proceeded on.” The defendant had a butcher knife, State’s Exhibit 8, in his possession at the time of the arrest. Later at the police station, when the defendant was searched, “we found $51 or $52 just stuffed in his pocket.”

Kelley testified that as he was giving the description of the robber to the other two officers “I realized I was describing the suspect they had in the car with them.” Kelley immediately went back into the insurance office. According to Janet, he told her “that from the description I gave him of the robber Kelley thought that he might be the one they had in custody and Kelley asked me if I would identify him.”

As she stepped out the door, the defendant was coming toward the insurance office with officers Sandifer and Waterman. When Janet saw the defendant she said “Oh, my God, it’s him” and covered her face and went back inside. Janet testified that when she did so she was very upset. This testimony was then elicited from Janet on cross-examination by defendant’s counsel:

“Q. Now, are you sure in your own mind that this suggestion of Officer Kelley, coupled with your state of mind at the time, didn’t taint your identification, ma’am?

A. No, I spent several minutes with him, even before he actually pulled the knife on me, and I — no way I could be mistaken.”

When shown State’s Exhibit 8, the butcher knife, Janet said “It looks like the knife the robber had.”

Defendant particularizes his attack upon the admissibility of Janet’s testimony concerning her pre-trial identification of defendant by asserting that the confrontation took place at a time when Janet was “hysterical” and that it “occurred following suggestive remarks made by Officer Kelley.” Defendant relies primarily upon Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

In Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380, 34 L.Ed.2d 401, 409, the United States Supreme Court summarized the holding in Stovall to be that a defendant could claim that the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. “This we held, must be determined ‘on the totality of the circumstances.’ ”

In Neil, 409 U.S. at p. 198, 93 S.Ct. at p. 381, 34 L.Ed.2d at p. 410, the court said:

“It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. [377], at 384, 88 S.Ct. [967], at 971, 19 L.Ed.2d 1247. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself.”

On the following page it said:

“As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

In the case at bar Janet had a good opportunity to view the criminal at the time of the robbery. She also viewed him for 10 or 12 minutes prior to its commission and while they were engaged in small talk. She had seen him on two recent prior occasions. Her “degree of attention” was high. Her description of the robber, given to Officer Kelley, was accurate enough to cause Kelley to recognize the defendant as fitting her description. At the confrontation Janet demonstrated a high level of certainty in the identification. The length of time between the crime and the confrontation was less than 40 minutes. The totality of the circumstances, gauged by the foregoing factors, supports the admissibility of the pretrial identification. State v. Dodson, 491 S.W.2d 334, 336[3-5] (Mo. banc 1973); State v. Smith, 465 S.W.2d 482, 484[1] (Mo.1971); State v. French, 528 S.W.2d 170, 173[7] (Mo.App.1975).

Missouri cases have approved the practice of law officers taking a criminal to the scene for immediate identification by the victim. See for example, State v. Jackson, 477 S.W.2d 47, 51 (Mo.1972) (“a proper procedure, justified by the exigencies of the situation.”); State v. Dodson, 491 S.W.2d, supra, at 337[4] (“proper and desirable for the police to ascertain at the earliest possible moment whether the person arrested was or was not the person sought”); State v. McDonald, 527 S.W.2d 46, 48 (Mo.App.1975).

“In Missouri, a judicial or extra-judicial identification by a person testifying at trial is admissible.” State v. Sigh, 470 S.W.2d 503, 505[2] (Mo. banc 1971); State v. Maxwell, 502 S.W.2d 382, 391[10] (Mo.App.1973); Anno. 71 A.L.R.2d 449, 460.

Defendant’s claim that Janet was “hysterical” at the time of the confrontation lacks support from the record. Although Officer Kelley said that she was “in hysterics” when he first asked her to look at the defendant, Kelley also stated that he talked with her and that she “calmed down” before the confrontation took place. Janet said that she was “very upset” at the time she identified the defendant. However, her identification was positive.

The law does not require, as a condition to the admissibility of the testimony of the victim of a crime, that he remain unruffled during its commission and aftermath. Janet’s emotional reaction was one to be expected under the circumstances. The record does not show that it reached such a degree as to impair her testimonial competency as a matter of law. Her emotional condition at the time of the confrontation was a proper subject of inquiry because it bore upon her credibility but there is no showing that her mental state was such that she lacked “sufficient understanding to receive, remember and narrate impressions.”

Defendant brands as “suggestive” the statements made by Officer Kelley to Janet prior to the confrontation. Kelley told Janet that from the description she gave him of the robber, Kelley thought the defendant might be the man they had in custody and he asked her if she would identify him. Defendant does not question the fact that the defendant did fit the description which Janet had given Kelley only a few minutes before the confrontation. Kelley did not tell Janet that the man in custody was the robber. He stated that, from the description, the man might be the robber.

The statements attributed to Kelley contained no element of inaccuracy or undue suggestiveness. Similar statements made by a police officer to a witness have been held not to render an ensuing show-up unnecessarily suggestive and improper. State v. French, 528 S.W.2d 170, 173[7] (Mo.App.1975); People v. Smith, 40 A.D.2d 1068, 339 N.Y.S.2d 249 (1972); People v. Lynch, 111 Ill.App.2d 52, 249 N.E.2d 649 (1969); People v. Logan, 25 N.Y.2d 184, 303 N.Y.S.2d 353, 250 N.E.2d 454 (1969); Anno. 39 A.L.R.3d 791, 801.

This court concludes that there was no error in admitting the testimony of the pre-trial identification of defendant. It follows that the trial court did not err in permitting the introduction of the evidence concerning the in-court identification of defendant because the only attack upon the latter testimony was on the ground, now ruled invalid, that evidence of the pre-trial identification was inadmissible. Defendant’s first contention has no merit.

Defendant’s second contention is that the trial court erred in admitting into evidence, over defendant’s objection, testimony “concerning the arrest of defendant for a separate and independent crime.” This contention refers to testimony of Officer Sandifer with regard to the circumstances prompting the arrest of the defendant.

Sandifer testified that defendant “was in front of the Edwin Long Hotel, him and another gentleman, having an altercation— looked like there possibly might be a fight.” This incident took place three to five blocks from the scene of the crime and within 30 minutes after its commission. At the time of the arrest defendant had in his possession State’s Exhibit 8, the butcher knife, and $51 or $52 was found “just stuffed in his pocket.”

Sandifer’s laconic description of the circumstances prompting the arrest may fall short of constituting proof of the commission of a separate offense. Defendant cites no statute which would be breached by conduct consisting of “the defendant and another gentleman having an altercation— looked like there possibly might be a fight.” Assuming, but not deciding, that Sandifer’s testimony might be construed as showing a violation of § 562.240 V.A.M.S. (disturbing the peace), this court holds that there was no error in admitting it.

“The general rule is that proof of the commission of separate and distinct crimes by the defendant is not admissible, unless the proof has a legitimate tendency to establish the defendant’s guilt of the charge for which he is on trial. If evidence of other crimes reasonably tends to prove a material fact in issue, it should not be rejected because it incidentally proves defendant guilty of other crimes.” State v. Kilgore, 447 S.W.2d 544, 547[3] (Mo.1969).

In Kilgore the court held that firing of shots from defendant’s automobile during flight from the scene of a burglary, the latter being the offense on trial, was admissible although it constituted evidence of another crime. The court said that such evidence had a legitimate tendency to establish defendant’s connection with the burglary.

In State v. Smith, 358 Mo. 1, 212 S.W.2d 787 (1948) the offense on trial was robbery. A knife had been used in its commission. Evidence that defendant was in possession of the knife and threw it away just before he was arrested by police officers was held admissible although the arrest took place two and one half hours after the robbery and three miles from it. The court pointed out that the evidence “was not incompetent on the ground it tended to convict defendant of a separate offense since it had probative value in connecting him with the crime for which he was being tried. Evidence which shows the defendant possessed, or had access to articles or weapons with which the crime was committed is relevant under one of the exceptions to the general rule that the state is not ordinarily allowed to show other offenses.” (Emphasis added) Smith at p. 789. To similar effect see State v. Boyer, 476 S.W.2d 613, 617[2] (Mo.1972). See also State v. Thompson, 280 S.W.2d 838, 841[7, 8] (Mo.1955).

Defendant’s second contention has no merit.

Defendant’s third contention is that the trial court erred in overruling his objection to a portion of the prosecutor’s closing argument. In the statement of facts section of his brief, the only reference defendant makes to this episode is as follows: “The prosecutor, in his closing argument, made reference to the state’s evidence as being uncontradicted.”

On that fragile factual foundation defendant constructs the argument that this was a “direct reference to defendant’s failure to testify” and was violative of Rule 26.08 V.A.M.R. and § 546.270 V.A.M.S.

The pertinent portion of Rule 26.08 reads: “If the accused shall not avail himself . of his . right to testify . on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” § 546.270 contains the same language.

The flaw in defendant’s contention is demonstrated by the following language appearing in State v. Morgan, 444 S.W.2d 490, 493[2] (Mo.1969):

“State v. Craig, Mo.Sup., 406 S.W.2d 618, 624[12], held that the comment that the testimony of the state’s witnesses is ‘uncontradicted’ is not an improper comment on defendant’s failure to testify, citing State v. Willis, Mo.Sup., 328 S.W.2d 593, and authorities, 1. c. 595. This was followed by State v. Hampton, Mo.Sup., 430 S.W.2d 160, to the same effect.”

In each of the following cases an argument to the effect that the state’s evidence was “uncontradicted,” at least in the absence of additional facts or circumstances, was held not vulnerable to the objection made here: State v. Baker, 439 S.W.2d 515, 516[1] (Mo.1969); State v. Caffey, 404 S.W.2d 171, 178[12] (Mo.1966); State v. Thompson, 425 S.W.2d 80, 85[9] (Mo.1968); State v. Jones, 491 S.W.2d 271, 274[4] (Mo.1973); Cloud v. State, 507 S.W.2d 667, 669[6] (Mo.App.1974); Anno. 14 A.L.R.3d 723, 763.

In State v. Frankoviglia, 514 S.W.2d 536, 541[5] (Mo.1974) it is said:

“The key words of the rule and statute are ‘accused’ and ‘testify,’ and the test is whether the jury’s attention was called to the accused’s failure to testify. The cases consistently require for reversal of a conviction that there be a direct, no-nambiguous and unequivocal prosecutorial comment on the failure of the defendant to become a witness.”

Defendant’s third point has no merit.

Defendant’s fourth contention is that the trial court “committed plain error in failing to declare a mistrial on the basis that the prosecutor had made reference in bad faith in his opening statement to an admission of guilt by defendant when the prosecutor knew such evidence was inadmissible.”

During his opening statement the prosecutor told the jury that after the defendant was arrested he was taken to the police station where his rights were explained to him. The prosecutor then said: “Later that evening in the presence of Officer Sandifer, after the defendant had been fed, there in the presence of Officer Sandifer and the chief of police, this defendant stated that he had robbed this particular office earlier in the day.”

Defendant’s counsel made no objection to the quoted statement which is the one now under attack. Defendant’s counsel proceeded to make his opening statement. The state then put on the following witnesses: William Bess, Janet Congiardo, Sharon Harris, and Officer Kelley. A recess was taken. After the recess, out of the presence of the jury, and at the close of the morning session, defendant’s counsel orally moved “to suppress any evidence on that particular subject matter this afternoon.” The motion referred to the statement allegedly made by the defendant to Officer Sandifer and the chief of police.- Defendant’s counsel stated to the court that “we filed a request for discovery” prior to the trial and “this is the first knowledge that I have that this defendant made any admission whatsoever.” The transcript does not contain the “request for discovery” nor does it contain the state’s response, if any, thereto.

The prosecutor then said “Well, I would like to say to the court that that was not brought to our attention until today, my having information about the conversation. Just for the record, I wish to state that.”

The court sustained the motion to suppress. There was no request made for a mistrial or any additional relief.

Defendant says that the prosecutor’s statement was made “in bad faith” but the record contains no factual support for that assertion. The defendant made a belated request for relief and received all the relief he then requested.

“Plain errors affecting substantial rights may be considered ... on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 27.20(c).

This court’s review of the transcript, in light of the point raised, does not lead it so to “deem.” See State v. Berry, 526 S.W.2d 92, 102-103[19-23] (Mo.App.1975). There is no “strong, clear showing” that injustice will result if the rule is not invoked. State v. Embry, 530 S.W.2d 401, 404[2] (Mo.App. 1975). The plain error rule “cannot be used as a vehicle for review of every alleged trial error which is not asserted or properly preserved in the trial court.” State v. Murphy, 521 S.W.2d 22, 25[2] (Mo.App.1975).

Defendant’s fourth contention has no merit.

There is no error in the matters of record reviewed pursuant to Rule 28.02 V.A.M.R.

The judgment is affirmed.

All concur.

      . Later in the day Janet again identified him in a lineup held in the city hall. Defendant, who was represented by counsel at that lineup, makes no complaint with regard to it.

      . “[I]t may be laid down here as a general principle that a person is competent to testify as a witness if he has sufficient understanding to receive, remember, and narrate impressions, and is sensible to the obligation of an oath. Testimonial competency, therefore, is to be distinguished from credibility of a witness and from a witness’ possession of knowledge sufficient to enable him to testify concerning a specified matter.” 81 Am.Jur.2d Witnesses § 69, p. 109. See also McCrary v. Ogden, 267 S.W.2d 670, 673[7] (Mo.1954).

      . Compare State v. Romprey, 339 S.W.2d 746, 750[6, 7] (Mo. banc 1969). It need not be determined whether there was a violation of an ordinance and, if so, whether such constituted “a separate offense.” Defendant makes no mention of an applicable ordinance and this court does not take judicial notice of any such ordinance. City of St. Joseph v. Roller, 363 S.W.2d 609, 611 [3] (Mo.1963).

      . “[Ejvidence which is relevant to the case on trial is not inadmissible simply because it proves or tends to prove another offense. If evidence is relevant to the general issue of guilt or innocence, there is no valid reason to reject it merely because it may prove or tend to prove that the defendant committed some other crime or engaged in some other act or transaction. As long as there is some logical connection, other than the defendant’s propensity to commit crime in general, between such other crime, act or transaction and the case on trial, the evidence may be received . . . [T]he following are cited as examples of other crimes which have been held to be relevant:
      (a) Evidence which places the defendant in the locality of the crime on trial. . . .
      (c) Evidence which shows the circumstances of defendant’s arrest . .
      (e) Evidence related to exhibits which are themselves relevant.”
      Underhill’s Criminal Evidence, 6th Edition, Vol. I, § 207, p. 619.


source: Caselaw Access Project

author: HENRY, Justice. HENRY, Justice.

license: Public Domain

text:
    STATE of Tennessee, Petitioner, v. William Lee BURKHART, Respondent.
    Supreme Court of Tennessee.
    June 28, 1976.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Ronald Webster, Dist. Atty. Gen., Ralph E. Har-well, Herbert S. Moncier, Asst. Attys. Gen., Knoxville, for petitioner.

      Wade M. Boswell, Knoxville, Philip L. Whitson, Strawberry Plains, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari in this criminal action in order to examine the constitutional right of a criminal defendant, who is represented by counsel, to cross-examine witnesses and to argue his own case.

The Court of Criminal Appeals reversed defendant’s conviction for first degree burglary, and awarded a new trial, upon the authority of Wilson v. State, 50 Tenn. 232 (1871) and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

I.

A proper construction of the Federal and State constitutional provisions is dependent upon an understanding of the historical background of the rules relating to the testimony of a criminal defendant and his right to counsel. We summarize the historical data contained in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).

For centuries, parties to civil and criminal actions were disqualified as witnesses. In sixteenth century England, a criminal defendant could not testify, nor call witnesses in his own behalf nor be represented by counsel. Quoting from 1 Stephen, History of the Criminal Law of England, p. 326, the Court, in Ferguson, noted that the criminal trial of that period has been described as:

[A] long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other’s arguments with the utmost eagerness and closeness of reasoning. 365 U.S. at 574, 81 S.Ct. at 759.

By the seventeenth century he was allowed to call witnesses, but still could not testify in his own behalf.

Disqualification for interest was in vogue when this nation was formed. Neither in England nor in this country could criminal defendants testify in their own behalf. With the advent of the nineteenth century this disqualification came under attack. This was long after the adoption of the Constitution of the United States in 1788 and of Tennessee in 1796.

In 1859 Maine became the first state to permit criminal defendants to testify — and this only on a limited basis. In 1864 Maine adopted a general competency statute for criminal defendants, “the first such statute in the English-speaking world.” 365 U.S. at p. 577, 81 S.Ct. at p. 760. By the end of the nineteenth century every state of the American Union had adopted such a statute except Georgia, and this was corrected by the decision in Ferguson, supra.

By Chapter 79 of the Public Acts of 1887 the Tennessee General Assembly declared:

In the trial of all indictments, presentments, and other criminal proceedings, the party defendant thereto may, at his own request, but not otherwise, be a competent witness to testify therein. (Sec. 40-2402, T.C.A.).

Prior thereto, in order to achieve a measure of justice by appeasing the rigor of this common law rule, there came into being the practice of permitting the use of unsworn statements. As a part of the common law, or by statutory sanction in some states, this practice was followed; however, it was generally recognized to be “simply a stopgap solution for the serious difficulties for the accused created by the incompetency rule.” 365 U.S. at 585-86, 81 S.Ct. at 765.

In Ferguson, supra, the Court commented on this rule as follows:

“The custom grew up in England out of a spirit of fairness to give an accused, who was otherwise disqualified, an opportunity to tell his story in exculpation." State v. Louviere, 169 La. 109, 119, 124 So. 188, 192. The abolition of the incompetency rule was therefore held in many jurisdictions also to abolish the unsworn-statement practice. “In such cases the un-sworn statement of an accused becomes secondary to his right of testifying under oath and cannot be received.” State v. Louviere, supra, 196 La., at 119, 124 So., at 192. “The privilege was granted to prisoners because they were debarred from giving evidence on oath, and for that reason alone. When the law was changed and the right accorded to them to tell their story on oath as any other witness the reason for making an un-sworn statement was removed.” Rex v. Krafchenko, [1914] 17 D.L.R. 244, 250 (Man.K.B.). 365 U.S. at 586, 81 S.Ct. at 765. State

Along with the competency statutes and the unsworn statement practice, there must be considered briefly the evolution of the right-to-counsel requirement. For the history of this phase of the historical background we turn to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

This right has existed throughout our existence as a nation, but it represents a deviation from the early common law. As observed by the Court in Faretta, “[a]t one time, every litigant was required to ‘appear before the court in his own person and conduct his own cause in his own words.’ ” 422 U.S. at 823, 95 S.Ct. at 2535, 45 L.Ed.2d at 575, quoting from 1 Pollock & Maitland, History of English Law (1909) n. 16, at 211.

In civil and misdemeanor cases there was a right to counsel but accused felons and traitors were “on their own.” Due process rights were unknown. Gradually, and by 1836, in England the ban on counsel in felony cases had been lifted. But, at no point during this evolution was counsel ever forced upon the defendant against his will. It is interesting to note that, according to Faretta, the only tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant was the Court of the Star Chamber, in the late sixteenth and early seventeenth centuries.

It is a fact of history that in Colonial America lawyers were somewhat less than popular. Lawyers were not banned from appearing in behalf of clients, but in several colonies, Massachusetts, Virginia, Connecticut and the Carolinas, they were prevented from charging for their services.

The basic right of self-representation was thus thrust upon early colonials and it is a part of our heritage.

The right of self-representation was guaranteed in many colonial charters and declarations of rights. These early documents establish that the “right to counsel” meant to the colonists a right to choose between pleading through a lawyer and representing oneself. After the Declaration of Independence, the right of self-representation, along with other rights basic to the making of a defense, entered the new state constitutions in wholesale fashion. The right to counsel was clearly thought to supplement the primary right of the accused to defend himself, utilizing his personal rights to notice, confrontation and compulsory process. And when the Colonies or newly independent States provided by statute rather than by constitution for court appointment of counsel in criminal cases, they also meticulously preserved the right of the accused to defend himself personally. 422 U.S. at 828, 95 S.Ct. at 2537, 45 L.Ed. at 578-79.

All of this is the background against which the Sixth Amendment right to counsel, the provisions of Tennessee’s Constitution, and state and federal cases must be considered.

II.

We now focus upon the requirements of the Federal Constitution as interpreted by the Supreme Court of the United States.

The Sixth Amendment to the Constitution of the United States enumerates the essential rights of an accused in criminal prosecutions. Among other things, it guarantees that every criminal defendant “have the Assistance of Counsel for his defense.” This basic right is a part of the “due process of law” that is guaranteed by the Fourteenth Amendment.

The Sixth Amendment guaranty of the effective assistance of counsel has been recognized and amplified by the courts of Tennessee. See McKeldin v. State, 516 S.W.2d 82, 86 (Tenn.1974), wherein we recognized that the Constitution mandates effective assistance and “requires the guiding hand of counsel at every step in the proceedings”. See also Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975), wherein we strengthened standards of competence of counsel.

Both state and federal decisional law are crystal clear on the constitutional mandate for the effective assistance of counsel. However, neither the Supreme Court of the United States nor this Court has resolved the issue presented in this controversy, viz., the right of a criminal defendant to be represented by counsel and simultaneously, and in the same trial, to cross-examine witnesses, make an unsworn statement or present argument in his own behalf, or otherwise participate along with his counsel.

The United States Court of Appeals for the Sixth Circuit, in United States v. Conder, 423 F.2d 904 (1970), has spoken to the matter with great clarity:

While not as often the subject of litigation, the right of a defendant in a criminal case to defend pro se is as clearly established as a criminal defendant’s right to counsel, (citing cases) The right to defend pro se and the right to counsel have been aptly described as “two faces of the same coin,” United States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964), in that the waiver of one right constitutes a correlative assertion of the other. While it may be within the discretion of a District Court to permit both a criminal defendant and his attorney to conduct different phases of the defense in a criminal trial, see United States v. Burkeen, supra [355 F.2d 241, 245 (6 Cir. 1966)] for purposes of determining whether there has been a deprivation of constitutional rights a criminal defendant cannot logically waive or assert both rights. The defendant must make a choice, and he should not be permitted to manipulate his choice so that he can claim reversible error on appeal no matter which alternative he apparently chose in the District Court. 423 F.2d at 907-08.

In reversing the trial judge in the instant case, the Court of Criminal Appeals relied, in part, on Faretta v. California, supra. The whole thrust of Faretta is that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta does not touch upon the basic issue involved in this controversy and, therefore, affords no authority for the claimed right of a criminal defendant to have the benefit of counsel and simultaneously to represent himself.

Faretta puts it beyond question that a criminal defendant has a constitutional right, knowingly and intelligently, to forego his right to counsel and to represent himself, provided he is “made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing’ . . . ” 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582. It also stands unequivocally for the proposition that he may not be required to accept the services of court-appointed counsel.

The rules that emerge from these cases are (1) that a criminal defendant has a right to the effective assistance of counsel; (2) that he has a constitutional right to represent himself; (3) that he may not be forced to accept the service of counsel, and, by implication, (4) that he must make a choice between self-representation and representation by counsel.

III.

Article 1, Section 9, of the Constitution of Tennessee, in delineating the rights of the accused in criminal prosecutions, provides, in part, that:

[T]he accused hath the right to be heard by himself and his counsel; (Emphasis supplied).

The Constitutions of 1796 and 1834 contain this identical provision. Additionally, this constitutional right has been recognized by our General Assembly. Section 40-2001, T.C.A. provides:

In all criminal prosecutions, the accused is entitled to a speedy trial, and to be heard in person and by counsel. (Emphasis supplied).

The opinion of the Court of Criminal Appeals emphasizes the fact that the constitutional provision is couched in the conjunctive. We do not consider this to be of any consequence. It will be borne in mind that the Constitution of 1796 was written at a time when a criminal defendant did not have the right to testify in his own behalf, and when the right to counsel was not firmly entrenched in American jurisprudence. It was the purpose and intent of the framers of our Constitution to recognize and protect these two basic rights, but not to establish their simultaneous enjoyment in a single criminal trial.

The other authority considered by the Court of Criminal Appeals to be controlling is Wilson v. State, 50 Tenn. 232 (1871). As is pointed out in Justice Blackmun’s dissent in Faretta, supra, “until the middle of the 19th century, the defendant in a criminal proceeding in this country was almost always disqualified from testifying as a witness . . . . Thus, the ability to defend ‘in person’ was frequently the defendant’s only chance to present his side of the case to the judge or jury.” 422 U.S. at 850, 95 S.Ct. at 2549, 45 L.Ed.2d at 591. Cited for this proposition is Wilson v. State, followed by this comment:

Such Draconian rules of evidence, of course, are now a relic of the past because virtually every State has passed a statute abrogating the common-law rule of disqualification, (citing Ferguson, supra ). With the abolition of the common-law disqualification, the right to appear “in person” as well as by counsel lost most, if not all, of its original importance. 422 U.S. at 851, 95 S.Ct. at 2549, 45 L.Ed.2d at 591.

Thus, the Wilson holding, to the effect that a criminal defendant may make an argument or an explanation of the circumstances proved against him, but can state no facts not already shown to the jury, has been eroded by the adoption of Sec. 20-2002, T.C.A., making a criminal defendant a competent witness in his own behalf. The holding in Wilson is no longer valid authority and is therefore not significant in the disposition of this case.

A substantially stronger holding is contained in Hopkins & Hoopers v. State, 78 Tenn. 204 (1882), wherein the Court held as follows:

This ordinance [Art. 1, Sec. 9, Const, of Tenn.] was intended to soften the rigor of common law which gave to persons accused of crime the right to appear for themselves, but deprived them of the right to be heard through and represented by counsel learned in the law.
In the practice under our constitutional rule, it is very seldom the accused exercises the right of being heard by himself. He leaves to his counsel the entire management and control of his defense, still, if he were to demand it, the courts would be obliged to allow him to assist in the conduct and argument of his case. 78 Tenn. at 205.

Again, this case was decided in 1882, some five years before the adoption of the statute making a criminal witness a competent witness in his own behalf, and is no longer-to be considered authoritative.

After quoting Article 1, Section 9, and emphasizing that it accords to an accused “the right to be heard by himself and his counsel”, the Court of Criminal Appeals comments:

Our Supreme Court has carefully construed and preserved this unique right, which is not found in the United States Constitution nor in any other to our knowledge, of an accused to act as his own advocate even though represented by counsel.

It is true that the Constitution of the United States does not contain such a c'ause. However, such clauses are the rule, rather than the exception in other state constitutions. Footnote 10 to the majority opinion in Faretta, indicates that twenty-six other states have constitutional provisions granting to the accused the right to be heard or to defend in person and by counsel. 422 U.S. at 813, 95 S.Ct. at 2530, 45 L.Ed.2d at 569, Fn. 10. It further lists three states which grant the right to defend in person or by counsel and six states providing the accused with the right to defend either by himself, by counsel, or both.

Research indicates that cases construing this clause from other state constitutions consistently hold contrary to the decision of the Court of Criminal Appeals and follow the general rule that the right to dual or hybrid representation is not mandatory, but permissive, and rests within the sound discretion of the trial court. The rule is based upon a compelling policy to retain in the trial judge the power to maintain an orderly administration of justice at the trial level.

The Constitution of the State of Oregon (Article 1, section 11), accords to an accused the right “to be heard by himself and counsel.” In State v. Whitlow, 13 Or.App. 607, 510 P.2d 1354 (1973), a case wherein the defendant asserted a right to dual representation, the Court said:

The fact that the Oregon constitutional provision uses the conjunctive between “defendant” and “counsel,” as do similar provisions in most state constitutions, has repeatedly been held not to mean defendant may intermittently use and then discard counsel. (Citing cases).
Numerous cases . . . hold that whether the court allows defendant to make a closing statement or, indeed, whether he shall be allowed to intermittently use counsel during the trial while he conducts his own defense is within the sound discretion of the trial court. (Citing cases).
* * * * * *
The trial judge is peculiarly well situated to exercise such sound discretion. Besides being able to appraise whether a defendant seeks to use such tactics as a way to avoid taking the oath, possible penalties for perjury and statutory methods provided for attacking credibility, the trial judge is likely to know whether the word is circulating among defendants awaiting court proceedings and frustrating the efforts of courts to ascertain the truth. 510 P.2d at 1356.

The court in Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970), interpreting Arkansas Constitution, Art. 2, § 10 (“right to be heard by himself and counsel . .”), also addressed itself to the reasons behind the rule:

[W]e think that this matter is best resolved by the sound discretion of the trial court in order that it may maintain order, prevent unnecessary consumption of time or other undue delay, and preserve its dignity and decorum. 457 S.W.2d at 840.

And the court in Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970), interpreting Colorado Constitution, Art. 2, § 16 (“right to appear and defend in person and by counsel .”), explained the rule this way:

The defendant in a criminal trial has a constitutional right to be assisted and represented by counsel. He also has the constitutional right to defend himself providing that the trial judge shall find him competent to conduct his own defense. However, the language of our constitution cannot be interpreted to provide that the defendant can assert his right to be represented by counsel and at the same time actively conduct his own defense. 467 P.2d at 54.

In People v. Richardson, 4 N.Y.2d 224, 173 N.Y.S.2d 587, 149 N.E.2d 875, cert. denied, 357 U.S. 943, 78 S.Ct. 1395, 2 L.Ed.2d 1557, the court observed.

We perceive no ground for complaint that adherence to such a rule may work an injustice upon a defendant or affect him unfairly. In the first place, the defendant is always able to suggest to his lawyer the matters to be discussed or stressed in his closing address to the jury. In the second place, the trial court, as previously observed, is empowered to allow the defendant himself to sum up if, in the exercise of a wise discretion, it deems such action called for. 173 N.Y.S.2d at 590, 149 N.E.2d at 877.

For additional cases espousing the “discretion” rule, see People v. Mims, 160 Cal.App.2d 589, 325 P.2d 234 (1958); Thompson v. State, 194 So.2d 649 (Fla.App.1967); People v. Bright, 78 Ill.App.2d 2, 223 N.E.2d 215 (1966); McDowell v. State, 225 Ind. 495, 76 N.E.2d 249 (1947); State v. Velanti, 331 S.W.2d 542 (Mo.1960); State v. Townes, 522 S.W.2d 22 (Mo.App.1974); Stiner v. State, 539 P.2d 750 (Okl.Cr.1975); Fowler v. State, 512 P.2d 238 (Okl.Cr.1973).

IY.

We are persuaded that our constitutional provision was designed to ameliorate the rigorous rules of the common law. At the time of its adoption the framers intended to insure that every accused citizen enjoyed the benefit of counsel and a correlative right to be heard in person. At that time these rights were recognized by giving to the defendant the right to make an un-sworn statement and to argue his case, and the simultaneous right to be heard by counsel. With the adoption, in 1887, of the statute (40-2402, T.C.A.) making the defendant a competent witness in his own behalf, the rights of criminal defendants were expanded.

In Tennessee today a criminal defendant continues to have essentially the same rights. The only difference is that criminal trial procedure has been refined and in the process the defendant has gained the right to be a sworn witness testifying in his own behalf. Paraphrased, the constitutional proviso might now read:

In all criminal prosecutions the accused has the right to testify as a witness in his own behalf and to be represented by counsel.

He does not have a constitutional right under the State or Federal Constitution to participate in propria persona in his own defense and simultaneously to be represented by participating counsel.

He may conduct his own defense without benefit of counsel or with an attorney present in the capacity of “elbow counsel.”

The choice is his; he represents himself or he is represented — one or the other, but not both.

He does not have a constitutional right to make an unsworn statement. Quite aside from the fact that such a statement would be of questionable value, there is for consideration the patent unfairness to the State of permitting a defendant to make an unsworn statement, not subject to cross-examination, and without leave for the State to comment upon his failure to testify in the regular manner. The State too has an interest in a fair trial.

We have discussed these issues in terms of constitutional imperatives and have reached our stated conclusions on a basis of defendant’s participation as a matter of right, as opposed to a matter of grace.

It is the foremost responsibility of the trial judge in a criminal action to insure a fair, just and orderly trial. To this end he must have a reasonable amount of judicial discretion. If the interests of justice so require, the trial judge, in exceptional circumstances, may permit the defendant to participate in the trial, to include the cross-examination of witnesses and the argument of his own defense. But this discretion should be exercised sparingly and with caution and only after a judicial determination that the defendant (1) is not seeking to disrupt orderly trial procedure and (2) that the defendant has the intelligence, ability and general competence to participate in his own defense. Unsworn statements will not be permitted under any circumstances. We caution, however, that when a defendant argues in his own behalf he is limited to fair comment on the evidence and may not use argument as a guise for an unsworn statement.

V.

We apply these rules to the facts of this particular case.

This defendant had no constitutional right to cross-examine witnesses, make an unsworn statement or to argue in his own behalf.

There is nothing in the record to indicate any exceptional circumstances that would justify this defendant’s participation. He had the benefit of competent counsel. There is no showing that he had the intelligence, ability or competence to contribute anything of value to his own defense. The record does, inferentially, show his familiarity with criminal procedures gained as a defendant in various other felony trials, but based upon their outcome, there is no suggestion that this experience could qualify as on-the-job training.

The judgment of the trial court is affirmed and that of the Court of Criminal Appeals is

Reversed.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

OPINION ON PETITION TO REHEAR

HENRY, Justice.

A petition for rehearing has been filed on behalf of the respondent, William Lee Burkhart. After a complete and careful examination of the record and analysis of the proof presented therein, the Court is of the opinion that the petition is without merit, and is hereby respectfully denied.

COOPER, BROCK, FONES and HARBI-SON, JJ., concur.

      . In advance of trial, this indigent defendant, through his court appointed counsel filed a written motion for leave (1) “to cross-examine witnesses at his trial” and (2) “to make a statement to the jury, without being required to take the witness stand to testify at the trial.” The trial judge denied the motion. It was renewed in open court on the day of the trial and again denied. On motion for a new trial, counsel treated the second portion of the motion as being for leave to “make final argument on his own behalf.”

      . For statement of general rule, see 21 Am. Jur.2d, Criminal Law, § 311; Anno., “Accused —Participating in Defense”, 77 A.L.R.2d 1233 (1961), and 5 Wharton’s Criminal Law and Procedure (Anderson Ed. 1957, § 2016)


author: HENRY, Justice.

text:
    Nellie Gupton HARRIS, Appellant, v. Jawana Gupton BITTIKOFER, Appellee.
    Supreme Court of Tennessee.
    Aug. 9, 1976.

      Walter S. Clark, Jr., Nashville, for appellant.
    Charles Watson Cross, Nashville, for ap-pellee.
   OPINION

HENRY, Justice.

The question in this suit for the construction of a will is the nature or quantum of the estate acquired by Nellie Gupton Harris in certain property devised by her mother. The Chancellor, relying upon Whitfield v. Butler, 30 Tenn.App. 221, 204 S.W.2d 537 (1947), held that the will vested in the plaintiff “a life estate with remainder to the defendant ... or her heirs”.

While we are not in full accord with the learned Chancellor’s reasoning and do not fully concur in the precise results he reached, we are in agreement with his conclusion that Nellie Gupton Harris took a life estate under her mother’s will.

I.

The pertinent provision of the will of Angie Heflin Gupton reads as follows:

I . devise to my daughter, Nellie Alberta Gupton Harris, ... all of the property of every character, kind and species, including real estate of which I may die possessed. . To have and hold the same during her natural life, and her bodily heirs, if any, forever; provided however, that in case said Nellie Alberta Gupton Harris, should die leaving no bodily issue, and her husband, James V. Harris, should survive her, then all I have bequeathed to her, shall revert to my granddaughter Jawana Sue Gupton or her heirs. (Emphasis supplied)

The case is before us on the technical record only and the pleadings are meager. Nellie Gupton Harris is alive; we infer she has no bodily issue from the fact that she is the sole plaintiff and the defendants are Jawana and her “unknown and unborn heirs”. The record is silent as to Nellie’s husband. The will was dated March 5, 1955. Jawana is an adult. Default judgment was taken against her so that we do not have the benefit of her responsive pleading. The pleading of the Guardian ad litem sheds no light on the circumstances of the parties. The result is that this will must be construed from its language and without resort to any extrinsic evidence.

The appellant (Nellie) insists that the will should be construed to create an estate tail with the result that § 64-102, T.C.A., abolishing estates tail, comes into play and operates to convert the devise to a fee simple estate.

The appellees, the unknown and unborn children of Jawana, insist that Nellie received a life estate and Jawana, and her heirs, received a remainder in fee.

II.

As a prelude to an orderly discussion of the questions presented by this controversy we examine and analyze the pertinent provisions of the will of Angie Heflin Gupton.

The opening sentence of the paragraph under consideration may be abridged and restated as follows:

I give to my daughter, Nellie, all of my property.

It will be noted that in the original form, and as restated, this sentence contains no emphatic or unequivocal words such as “in fee simple”, or “absolutely” or “absolutely and in fee simple forever”, or any other equivalent wordage from which a clear and unambiguous intent to pass a fee simple title may be inferred. Under § 64-501, T.C.A., and universal decisional law, this language, standing alone, was sufficient to convey a fee simple title.

But, it does not stand alone.

The ensuing sentence, couched in the form of the habendum clause of a deed, completely alters its meaning and significance. These two sentences might be combined into a single sentence, which we abridge and restate as follows:

I give to my daughter, Nellie, all of my property, during her natural life and upon her death to her bodily heirs, if any, forever; provided, if Nellie should die leaving no bodily issue, and her husband, James V. Harris should survive her, all such property shall pass to my granddaughter, Jawana, or her heirs. (Emphasis supplied).

It should be noted at the very outset that the only interest actually identified in the will is a life estate. Any other estate must arise by construction of law, based upon an imputed intent on the part of the testator. The clause, “during her natural life” is of critical and controlling significance.

III.

We first address the insistence of the appellant that Nellie took a fee tail estate convertible under § 64-102, T.C.A. to a fee simple interest.

To adopt this approach, it is necessary to hold that a fee tail estate may come into being under a conveyance specifically and initially limited to, a life estate. This we are not prepared to hold. Such a construction would be contrary to the massive weight of the decisional law of Tennessee.

Section 64-102, T.C.A. is a codification of the Tennessee statute, designed to abolish estates tail, and reads as follows:

64-102. Estates tail abolished. — Any person seized or possessed of an estate in general or special tail, whether by purchase or descent, shall be held and deemed to be seized and possessed of the same in fee simple, fully and absolutely, without any condition or limitation whatsoever, to him, his heirs and assigns, forever, and shall have full power and authority to sell or devise the same as he thinks proper; and such estate shall descend under the same rules as other estates in fee simple.

While there is authority contra, as will be pointed out, the greater weight of the better reasoned cases compel the conclusion that this statute has no application where the first taker takes only a life estate.

The early case of Kirk v. Furgerson, 46 Tenn. 479 (1869), stands for the proposition that a conveyance “to A and his heirs”, coupled with a gift over in default of issue, creates an estate tail convertible under the statute (now § 64-102) to a fee simple. This continues to be the law where the instrument shows facially that an absolute estate was transmitted to the first taker.

In Skillin v. Loyd, 46 Tenn. 563 (1869), relied upon by the appellant and supportive of her position, where the devise was to Julia Frances Spring, “and the heirs of her body, for her own sole and separate use during her natural life”, the Court held that this language created an estate tail converted into a fee simple. This case is out of harmony with later cases and is one of the few cases we find wherein a devise of a life estate, accompanied by fee tail language, was held sufficient to create a fee tail estate.

The earliest case cited to us by appellee is Williams v. Williams, 57 Tenn. 566 (1873) which we discuss later in another context. (See Sec. IV, infra). There the language of the devise was:

I will and devise to my grandson Melville Williams, during his life, and then to the heirs of his body . . and in the event of his death without such heirs, then to my residuary legatee and his heirs . . . (Emphasis supplied). 57 Tenn. at 567.

In legal effect this language is precisely the same as that contained in the case at bar. Applying the statute (§ 64-103) abrogating the rule in Shelley’s Case, the Court held that Melville Williams took a life estate and his heirs took a contingent remainder.

Appellant places strong reliance upon Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12 (1897). There the pertinent portion of the will, after the creation of a trust (all money), read:

The legacy to be held in trust for my said daughter, subject to the foregoing limitations and restrictions, for and during her natural life, and, in the event of her death without living children, her share of the estate to go to my sons (naming them) equally, and, in case either of them shall be dead, leaving living children, then to their child or children. (Emphasis supplied). 98 Tenn. at 195, 39 S.W. at 14.

Actually there were no limitations or restrictions on her spending the money while unmarried, and “[i]n the meantime the money is in her hands to use without limitation”. 98 Tenn. at 202, 39 S.W. at 14.

The Court held (1) that the term “during her natural life”, measured “the duration of the trustee’s, and not the duration of the daughter’s estate”, (2) that there was no valid executory devise since the first taker could defeat the limitation over and (3) that the daughter, upon the death of her father, took an absolute estate. It is evident that the Court’s opinion was based, in substantial part, on the factual situation and the testator’s intent.

We consider next two cases decided by the old Court of Chancery Appeals, that are cited by both sides in support of their respective insistences. The first of these is Stratton v. McKinnie, 62 S.W. 636 (Tenn.Ch.App.1900). After devises of certain properties to children and grandchildren, including an unqualified devise of a lot on Spruce Street to Mary McKinnie Hughes, the will provides:

The property herein devised to my several children is to remain their own during their natural lives, and to descend to their bodily heirs, if any . . . . If any of my said children or grandchild B. McKin-nie Stratton should die without bodily heirs, then that portion . . . shall be equally divided among the living children . . .. (Emphasis supplied). 62 S.W. at 637.

In a most excellent opinion by Judge M. M. Neil, later Chief Justice of this Court, the Court recognized the applicability of Shannon’s Code Section 3674 (now § 64-103, T.C.A.), abolishing the Rule in Shelley’s Case, and the rule of construction that a subsequent clause must control a prior clause in a will, and held:

[W]e think it clear that the absolute estate apparently given ... in the second item of the will must be cut down to a life estate, with remainder to her bodily heirs. ... It results that there was given to Mary McKinnie Hughes a life estate in the lot on Spruce Street, and with remainder to such persons as shall be her bodily heirs at the expiration of that life estate. 62 S.W. at 640.

Secondly, reliance is placed by the respective parties on Cook v. Collier, 62 S.W. 658 (Tenn.Ch.App.1901), another case wherein Judge Neil wrote for the Court. To the extent here pertinent the will provision was as follows:

I give and bequeath to Columbus C. Collier the sum of $10,000 ... to have and to hold during [his] natural life and at [his] death to [his] children, or, in the event [he] has no children, to the surviving brothers above mentioned. (Emphasis supplied). 62 S.W. at 659.

It will be noted that this language is somewhat analogous to that in the case under consideration. The Court held that C. C. Collier took the money for life, and at his death without children, a surviving brother took the remainder.

Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207 (1915), wherein Chief Justice M. M. Neil wrote for the Court, involved a devise after a title absolute. The precise language was

[To] Edward and the heirs of his body, and if he should die without heirs, then the land I have given him to go to his sister, Lucinda, and her heirs. 135 Tenn. at 591, 188 S.W. at 208.

The Court correctly held that the devise to Edward was in fee since such a devise operated to create an estate tail convertible to an estate in fee simple. But, again, the Court was dealing with an absolute interest as opposed to a life estate.

Another case relied upon by appellant is Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989 (1918). There property was devised to trustees for the use of a daughter and

[after her death] the whole legacy to be divided among her children, if any, and if she should die without lawful issue, . to be equally divided amongst [other daughters], (Emphasis supplied). 140 Tenn. at 342, 204 S.W. at 992.

The Court held that the clause, “and if she should die without lawful issue” was sufficient to create an estate tail, at common law, in the daughter. The Court quoted with approval from an English case quoted in Nott v. Fitzgibbon, 107 Tenn. 54, 58, 64 S.W. 26, 27 (1901), as follows:

That it was perfectly manifest that the testator did not intend the estate to go over so long as any issue of the first taker were in existence; and I consider it to be a settled point that, whether an estate be given in fee or for life, or generally, without any particular limit as to duration if it be followed by a devise over in case of the devisee dying without issue, the devisee will take an estate tail. 140 Tenn. at 350, 204 S.W. at 993.

Appellant relies heavily upon Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353 (1924) wherein the language of the devise was as follows:

I give and bequeath unto my daughter, Mary Josephine Harwell, and her bodily heirs, if she should die leaving no heir or if she should leave an heir or heirs, and they should die before they come to their majority of their years, then said land revert back to my estate (Emphasis supplied). 151 Tenn. at 589, 271 S.W. at 353.

In legal import, except for the life estate, this language is analogous to that of the case at bar. The Court agreed that it was the intention of the testator to create a life estate in the daughter; but, admittedly disregarded the clear intent of the testator and held that under the statute (now § 64-102, T.C.A.) the daughter took an estate tail convertible to a fee simple. The basis of this holding was that the statute abolishing estates in fee tail and converting them to fee simple was not a rule of intention or construction but a rule of property.

In Walker v. Wynn, 4 Tenn.App. 572 (1927), the granting clause conveyed to

Nancy M. Walker, for and during her life and after her death to the heirs of her body. 4 Tenn.App. at 573.

The habendum was to

Nancy M. Walker, the heirs of her body or in case of no heirs of her body at her death, to my own living children forever. . . . Ibid.

The only issue was whether Nancy took a life estate or held title in fee simple. The Court, after commenting on the Meacham line of cases, said:

[T]hey are all cases in which, in the first instance an absolute estate was given to the devisee or legatee. No case is referred to in which this rule has been applied where a plain life estate was given. On the contrary, in two of this group of cases [Meacham and another] the opinion of the court is clearly indicated that the doctrine does not apply to a life estate but only where an absolute estate is given in the first instance. Ibid, at 574.

The Court, relying largely on Williams, supra, held that Nancy took a life estate.

It is appropriate that at this point we note the case of Whitfield v. Butler, 30 Tenn.App. 221, 204 S.W.2d 537 (1947), cited by the Chancellor and primarily relied upon by the appellees.

The writer of this opinion has had a detailed familiarity with this celebrated Giles County case since its very inception and can say, with demonstrable authority, that no court has ever “construed” the will of Cope Whitfield; the courts could only attempt to “unravel” this unique document. With utmost deference to the Chancellor and to counsel, this case stands for nothing except the proposition that it is abject folly for a layman to attempt to write his own will.

Reduced to the bare essentials, by the first item, the testator gave all his property to his wife and children, and expressed the desire that his wife control it with the help of a son, until all the children became of age. Then he added the proviso that if she remarried before the children became of age, the son was to take charge of it and “the man she marrys be forever barred from having anything to do with it forever.” 30 Tenn.App. at 223, 204 S.W.2d at 538.

By the fourth item he provided:

And at the death of my wife, her part of the estate comes back to my said children and that at the death of my children their property goes to their heirs, if they have no children of their own I want it to stay in the Whitfield family. Ibid.

After signing his name he apparently felt that he had not sufficiently entailed his property, so he started over, and provided:

I also desire that when my children become of age that all of the children with mother . . . divide the property equally . . ., as, I want it, each ones part so as they can not run through with it and want it to go from them to their heirs. Ibid.

The Court held that the widow and children took life estates with remainder over to the grandchildren.

We reject Skillin v. Loyd and Anderson v. Lucas, supra, as being out of harmony with the prevailing view as expressed in the other cases discussed in this section.

We hold that § 64-102, T.C.A. has no application to those cases wherein the first taker is devised a life estate. Ensuing sections will further clarify this holding.

IV.

Relevant to the cases discussed in the preceding sections and particularly bearing upon the construction to be given to the clause, “if [Nellie] should die leaving no bodily issue”, is the rule of Meacham v. Graham, supra, sometimes designated as the rule of “substitutional construction”, to the effect that if there is an absolute power of disposition or an immediate gift to a devisee followed by a limitation over in the event of death of the first taker without issue, the limitation over will take effect only in the event of the death of the devisee before the death of the testator, “unless a contrary intention clearly appear[s] from other provisions.” 98 Tenn. at 208, 39 S.W. at 15. But it is important to note that this is but a rule of construction and not of property, Shannon v. Union Planters Bank, 537 S.W.2d 919 (Tenn.1976), notwithstanding contrary language in some of the older cases.

Our courts have addressed themselves to the definite failure vis a vis indefinite failure of issue in numerous and exhaustive opinions and with results which have not always been consistent.

The general rule of Meacham has been followed by numerous cases and continues to be a valid rule of law in this jurisdiction However, our courts have not hesitated to apply exceptions to the general rule.

In Cook v. Collier, 62 S.W. 658 (Tenn.Ch.App.1901), the Court made it clear that the rule would not apply where the “limitation over were to take effect on the termination of a life estate.” 62 S.W. at 660. To the same effect is Meek v. Trotter, 133 Tenn. 145, 180 S.W. 176 (1915), pointing out that Meacham, and its progeny all “dealt with immediate devisees or gifts to the one declared to be, under the rule, vested with title absolute.” 133 Tenn. at 151.

In Harwell v. Harwell, supra, the thrust of the Court’s holding in this regard is that the use of the words, dying without heirs, imports an indefinite failure of issue, i. e., death at any time. Hence the Court’s holding that an estate tail was created by the conveyance involved in that case.

In Walker v. Wynn, supra, the Court declined to follow the Meacham line of cases, holding that “[T]hey are all cases in which, in the first instance an absolute estate was given. . . .”4 Tenn.App. at 574.

Eckhardt v. Phillips, 176 Tenn. 34, 137 S.W.2d 301 (1940), contains an elaborate discussion of future interests. In holding that this is a rule of construction and not a rule of property, and that under the facts presented, the limitation over was to take effect upon the death of the first taker without issue irrespective of when death might occur, the Court said;

[R]ules of construction do not vary with the character of parties litigant, nor do they permit examiners of titles to isolate such words as “if he die with or without issue”, or words of like legal import, and to attribute to them the unerring significance of the death of the first legatee or devisee before the testator. (Emphasis supplied). 176 Tenn. at 44-45, 137 S.W.2d at 305.

This Court in Griffin et al. v. Griffin et al., 183 Tenn. 693, 195 S.W.2d 5 (1946), recognized the rule of Meacham as a rule of construction and held that it has no application where “the first taker was given only a life estate.” 183 Tenn. at 700, 195 S.W.2d at 8.

In Vickers v. Vickers, 205 Tenn. 86, 325 S.W.2d 544 (1959), placing first emphasis on the intention of the testator, the Court construed the clause of a limitation over, “should either die without issue”, to mean death at anytime and not just during the lifetime of the testator.

This particular phase of this controversy is eloquently described by Professor Traut-man, writing in Vol. 13, Vanderbilt Law Review (1960), page 1113-14 as follows:

If the testator’s will gives “to A, and if he die without issue, to B,” should there be a further narrowing of its interpretation so that it will mean that the gift to B is to become effective only if A dies without issue during the life of the testator? This is sometimes described as a substitutional construction because it does not create a future interest in B; it substitutes an absolute interest to B for a similar interest which A would have received had he survived the testator. This construction will make the title even more readily merchantable because either A or B will have an indefeasible interest on the testator’s death. On the other hand, did the testator not intend that B’s gift would become effective if A died without leaving descendants, whether it happened before the testator’s death or after? In most cases the latter would seem to be the normal interpretation of the testator’s intention, and it would seem that the substitutional construction would be adopted only in those cases where there is rather specific evidence tending to show such an intention. Unfortunately, in Tennessee as well as other jurisdictions there are a considerable number of cases adopting substitutional construction and a considerable number adopting the straight definite failure of issue construction; and, more unfortunately, in most cases these different interpretations of the testator’s possible intention are handled by the courts as if they are competing propositions of law, or a rule of law, and an exception to it, rather than what they really are — an effort by the courts to determine from the evidence what the testator probably intended with respect to each family situation. (Emphasis Supplied).

On the matter of substitutional construction and intention, see also Nichols v. Masterson, 186 Tenn. 38, 208 S.W.2d 332 (1948); on intention, see Patterson v. Alexander, 509 S.W.2d 834 (Tenn.1974), and Martin v. Taylor, 521 S.W.2d 581 (Tenn.1975).

In Gregory v. Alexander, 51 Tenn.App. 307, 367 S.W.2d 292 (1962), the Court held that a deed, reserving a life estate, and providing that at grantor’s death the land was to go to Rosalie Cox and her heirs, if any, and if she dies without bodily heirs, it is to revert to grantor’s heirs, was operative to give grantee a life estate with remainder to her bodily heirs, to be ascertained at the time of her death.

There remain for consideration three opinions authored by the present Chief Justice of this Court.

The first of these, Lones v. Winzer, 486 S.W.2d 758 (Tenn.App.1971) was written by Chief Justice Cooper while Presiding Judge of the Court of Appeals for the Eastern Section.

In that case the will, after a straight-out devise to the testator’s son, Alvin Lones, provided:

In the event my son, Alvin Lones, should die without having married or should die without leaving children of his own, then I will and devise the said farm to my two daughters. . . . 486 S.W.2d at 759.

It should be noted that there was no language in this will indicating the creation of a life estate, or as phrased by Justice Cooper:

On considering the will in its entirety, we find ourselves in agreement with the Chancellor that there is no provision in the will showing an intent on the part of the testatrix to devise less than a fee simple . . . . [T]he testatrix intended the “devise over” provided in the second paragraph to come into play on the death of Alvin Lones during the lifetime of the testatrix . . .. Ibid, at 760.

The second case, Martin v. Taylor, 521 S.W.2d 581 (Tenn.1975), was written by Justice Cooper after becoming a member of this Court and was concurred in by all present members.

After an exceptionally strong statement on the vitality of the testator’s intent, Justice Cooper used, and quoted, language which puts this present problem in precise perspective:

Further, this court is committed to the rule that in the absence of a contrary intention clearly indicated in the will and codicil, where there is an immediate gift to A, and a gift over in case of A’s death without issue, the gift over will take effect only in event of A’s death before the testator. Nichols v. Masterson, 186 Tenn. 38, 208 S.W.2d 332 (1948); Templeton v. Stong, 182 Tenn. 591, 188 S.W.2d 560 (1945); Eckhardt v. Phillips, 176 Tenn. 34, 137 S.W.2d 301 (1940); Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12 (1897). “There is still another rule equally as well established . . ., and that is, where the disposition of the property which is devised is preceded by a prior estate for life or years, the death without issue refers to a death occurring during the period of the intervening estate, such as before the death of the life tenant, unless there are words in the will which show that the testator intended to refer to a death occurring before his decease, or at a later date than the termination of the particular estate.” Carr v. Carr, 8 Tenn. C.C.A. 406, 410 (1918). See also McCord v. Ransom, 185 Tenn. 677, 207 S.W.2d 581 (1948); Templeton v. Stong, 182 Tenn. 591, 188 S.W.2d 560 (1945); Eckhardt v. Phillips, 176 Tenn. 34, 137 S.W.2d 301 (1940). 521 S.W.2d at 584.

Finally, we rest our holding upon a reiteration of the conclusions announced by this Court on 24 May 1976, in the case of Shannon v. Union Planters National Bank, supra, involving a will creating a life estate with survivorship provisions.

After recognizing the rule of Meacham as followed in ensuing cases, and noting its continuing validity, the Court said:

The present case, however, is distinguishable from all the above-cited cases in which the rule was applied to defeat the limitation over. In those cases the first-named devisee was granted a fee simple or other absolute interest in the property being devised. . . . When the limitation over is dependent upon the termination of less than an absolute estate, the rule of Meacham v. Graham does not appty- (Emphasis supplied). 537 S.W.2d at 922.

This is precisely the situation in the case at bar.

Y.

We devote this section to the Rule in Shelley’s case, and the Tennessee statute in derogation thereof.

We look to Simes, Law of Future Interests (1966), p. 46 for an accurate definition.

If a life estate in land is conveyed or devised to A, and by the same conveyance or devise, a remainder in the same land is limited, mediately or immediately, to the heirs of A, or to the heirs of A’s body, and the life estate and remainder are of the same quality, then A has a remainder in fee simple or in fee tail.

To bring a conveyance or devise under the Rule it must contemplate a freehold interest, but not a fee simple since a fee simple may not be followed by a remainder. This is because, under the doctrine of estates, a fee simple represents the totality of the ownership. There must be a freehold in the ancestor. The remainder must be limited to the heirs or heirs of the body of the person to whom the life estate is given. The remainder and the life estate must be created by the same conveyance or devise, and both must be of the same quality, i. e. both legal or both equitable interests. Law of Future Interests, pp. 48-51.

It is important to bear in mind that the Rule only operated on the remainder given to the heirs of the ancestor, but does not disturb his estate. As Moynihan puts it “Thus, in the simple case of A conveying to B for life, then to the heirs of B, the Rule leaves undisturbed the life estate given B but converts what would be a contingent remainder in B’s heirs into a vested remainder in B himself.” See Moynihan, Introduction to Real Property, (1962), p. 142.

The devise, in the instant suit would have created, at common law, a fee simple estate in Nellie Harris, under the Rule in Shelley’s case. But this Rule no longer prevails in Tennessee, and has not since 1851. By § 64-103, T.C.A., it is provided:

Where a remainder is limited to the heirs or to the heirs of the body of a person, to whom a life estate in the same premises is given, the persons who, on the termination of the life estate, are heirs or heirs of body of such tenant, shall take as purchasers, by virtue of the remainder so limited to them.

Broadly speaking, title to real estate may be acquired either by descent or by purchase. Title by descent is based on inheritance as an heir, or on escheat. Every other acquisition is by purchase, whether it be by gift, conveyance or devise. Words of limitation mark or define the quantum of the estate; whereas words of purchase are related to the grantee. “Heirs” is a word of limitation. For example, when A conveys “to B for life”, the words “to B” are words of purchase; the words “for life” are words of limitation.

It would seem evident that under the statute, Nellie would take a present posses-sory life estate and her children or heirs would take a future interest which ripens into a present possessory estate in fee upon the culmination of the prior particular estate by the death of Nellie, survived by issue.

We analyze the Tennessee cases from this perspective.

We think this case is controlled by a line of cases starting with Williams v. Williams, 57 Tenn. 566 (1873), which, according to our research, is the first pertinent reported Tennessee case after the adoption of the statute abolishing the Rule in Shelley’s case. There the language of the devise (see Section III) was, in legal effect, precisely the same as that contained in the case at bar.

The Court held (1) that [t]he limitation of this property ... to Melville Wil-Hams for life, and then to the heirs of his body, falls precisely within the terms of the celebrated canon of property known as “the rule in Shelley’s case” (57 Tenn. at 567), (2) that under Code Sec. 2008, Code of 1858, (now § 64-103, T.C.A.) Melville Williams took a life estate; (3) that his heirs took a contingent remainder, and (4) that Code Sec. 2004, Code of 1858, (the context indicates that the Court intended 2007, now § 64-102, T.C.A.) had no application.

As a predicate for the remainder of this section we deem it appropriate to quote from this opinion, the following apt language:

When under the rule it is declared that the words heirs are words of limitation of the estate, it is meant of course that those words point out the line of succession in which the estate is to go, and when it is said they are not words of purchase, it results that they are words of descent, as descent and purchase are the only two modes of acquiring real estate. Hence it followed that although the estate of the first taker was in form of a life estate, the rule vests the entire estate imported by the limitation in him, as no one could take as heir of another in whom there was no descendible estate. Therefore, when the statute declares that those who are entitled, on the termination of the life estate, shall take as purchasers, it uses the most apt words to abolish the “rule in Shelley case”; and, inasmuch as the heirs do not take by descent but by virtue of the remainder limited to them, it follows that by this enactment of the Legislature the first taker is deprived of any estate in the inheritance, and his interest is restricted in fact to what, under the rule, it was in form, viz: a particular estate for life. By applying these rules of the statute to the limitations in this will, it is seen that the complainant has but a life estate in the property disposed of by the second item. The statute further declares that those persons who are heirs, or heirs of the body, at the termination of the life estate shall take. It results therefore that the remainder in this case is a contingent remainder, inasmuch as it is uncertain who the heirs of the body of Melville Williams will be when his death occurs; but it is very plain that on his death the estate will vest in those persons who at that time answer the description of heirs of his body, whether born now or hereafter. 56 Tenn. at 568-69.

There is an obvious interplay and a seeming inconsistency between § 64-102, T.C.A. abolishing estates tail and § 64-103 abolishing the Rule in Shelley’s case; however, the inconsistency is more apparent than actual. If the criteria hereinabove set out are applicable, we have a Rule in Shelley’s case situation and § 64-103 comes into play.

The Court in Williams did not discuss the relationship between these two statutes. It simply stated:

The old Act of 1784, Code 2004, providing in effect that a person seized of an estate in general or special tail shall be held and deemed to be seized in fee, has no application in this case, for the reason that the complainant does not take an estate in tail under this limitation, but only an estate for life. (Emphasis supplied)

This will came before the Court again in Williams v. Williams, 62 Tenn. 55 (1873), and the same result was reached. It was again before the Court with the same result in Campbell v. Lewisburg & N. R. R. Co., 160 Tenn. 477, 26 S.W.2d 141 (1930).

In Delk v. Williams, 10 Tenn.App. 246 (1929), the Court held that where a deed conveyed real estate to a grantee “during her natural life and at her death to go to her bodily heirs”, the statute was applicable and a life estate is vested in the first taker and the remainder, at her death goes to her bodily heirs.

The late Justice Swiggart, writing for the Court in Savings Bank & Trust Co. v. Bed-ford, 161 Tenn. 187, 30 S.W.2d 227 (1930), analyzed a will wherein the pertinent language was as follows:

That Julian T. Bedford shall have the West half for life and at his death the remainder shall go to the heirs of his body; . . . . 161 Tenn. at 191, 30 S.W.2d at 228.

After quoting with approval from Williams v. Williams, supra, Justice Swiggart, with great clarity and insight, wrote:

The devise to Julian T. Bedford expressly limits his estate to the period of his life. If he is given more, it is by virtue of the words of the devise: “and at his death the remainder shall go to the heirs of his body.” Before the statute, these words were words of limitation or descent, and directed that the fee should “descend” from the life tenant to the heirs of his body. Since the fee could not “descent” from him who had it not, the words of descent or limitation were held to vest the fee in him who was, in form, only a life tenant. But the statute stripped these words of descent or limitation of their previously possessed characteristic, when used in connection with the creation of a life estate, and recreated them as words of purchase, no longer to convey the meaning of descent or inheritance. The statute therefore destroyed the only premise upon which the “rule in Shelley’s case” could stand; and hence the ruling in Williams v. Williams, supra, that the statute “uses the most apt words to abolish the rule in Shelley’s ease.” (Emphasis supplied). Ibid at 195, 30 S.W.2d at 229.

A case of substantial significance bearing upon this issue is Guy v. Culberson, 164 Tenn. 509, 51 S.W.2d 500 (1932), wherein Justice Cook wrote for the Court. The deed was

to David Guy to be occupied by him and family as a home during his natural life and at his death to his bodily heirs . To have and to hold to the said David Guy, his natural life and heirs forever. (Emphasis supplied). 164 Tenn. at 511, 51 S.W.2d at 501.

Relying upon § 64-103, T.C.A., the Court held that Guy took a life estate with remainder over to bodily heirs living at the time of his death.

A more significant case is Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174 (1956), wherein Justice Burnett tacitly recognized the conflict between § 64-102 and § 64-103, T.C.A. This suit involved title to property conveyed to “Ralph Parker and at his death to his bodily heirs.” 200 Tenn. at 605, 293 S.W.2d at 175.

The interplay between these Code sections is discussed in these words:

We think unquestionably if the deed now under consideration said “to Ralph Parker and the heirs of his body” that it would have created, under the statute last above referred to, a fee simple estate in Parker. The language used in the conveyance herein though is different. The language here used is equivalent to saying “to Ralph Parker for life and then to the heirs of his body.” Under a deed with language of that import at common law it would have vested a conditional fee in the grantee and under the statute De Donis would have vested a fee tail estate in him by reason of the application of the rule in Shelley’s case. This rule was abolished by Sec. 64^103, T.C.A., which is a codification of the Public Acts of 1851-52, Chapter 91, Sec. 1. It seems to us that as a result of the abolishing of the rule in Shelley’s case, Code Section last above referred to, Sec. 64-103, T.C.A., the conveyance today would vest in the grantee a life estate with a contingent remainder in his heirs. 200 Tenn. at 609-10, 293 S.W.2d at 176.

It will be borne in mind that the language in the case sub judice was to Nellie Gupton Harris “during her natural life, and her bodily heirs, if any, forever . . . ” The similarity is evident.

Further, the Butler Court said:

Clearly under this statutory provision the heirs or heirs of the body of the grantee which before would have only enlarged the life estate of the parent into a fee has the result of limiting the interest of the grantee in the property devised to a life estate with a contingent remainder in fee to those who at the death of the life tenant will answer the description of the heirs of his body. Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 487, 26 S.W.2d 141. And a more recent case sustains this same position, that is the case of Guy v. Culberson, opinion of which was prepared by the late Mr. Justice Cook and is found in 164 Tenn. 509, 51 S.W.2d 500, 501. In that case the conveying clause was “to the said David Guy his natural life and heirs forever.” The Court held in this case that the statute abolishing the rule in Shelley’s case was applicable because the estate was expressly limited to the grantee Guy for his life and that the rule doing away with estates tail under Sec. 64-102 was not the applicable rule. Ibid, at 610-11, 293 S.W.2d at 177.

This case positively affirms Williams v. Williams, supra, and the cases hereinabove cited growing out of that case. The Court stated that “[i]t is impossible for us to make any distinction or legal difference between a conveyance ‘to Ralph Parker for life and at his death to his bodily heirs’ and a conveyance ‘to Ralph Parker and at his death to his bodily heirs.’ ” Nor can we draw any distinction between either phraseology and a devise to Nellie Gupton Harris “during her natural life, and . . her bodily heirs, if any, forever . . . Indeed, if anything this latter devise is stronger in intent and implication.

Butler was quoted, with obvious approval in Fehringer v. Fehringer, 222 Tenn. 585, 439 S.W.2d 258 (1969).

We think this is a classic case for the application of § 64-103, T.C.A.

VI.

Various competing rules of construction are urged upon the Court.

The appellant earnestly insists upon the application of the rule that courts will refuse to cut down an estate granted in fee or absolutely, by subsequent provisions of the will conveying a lesser estate or interest, absent language which is “clear, unmistakable and certain.” Meacham v. Graham, supra. We agree that this is a recognized rule of construction; however, we find it to be inapplicable in the case at bar.

First, there is no clear language manifesting an intent to convey an absolute estate. Secondly, the only interest positively identified and designated in the will is a life estate. There is no ambiguity.

We have come a long way in ridding the law of wills of some of its harsh and unyielding rules of construction since this Court decided Polk v. Faris, 17 Tenn. 209 (1836). In that case the Court declared:

[I]t matters not how strongly or how clearly the grantor may intend that the instrument should not be controlled by the rule of law, yet, if the proper construction of the terms which he has used in the entire instrument bring it within the operation of the rule of law, the rule of law, and not his intention, must have effect. 17 Tenn. at 236.

When Polk v. Faris was decided, a harsh and technical rule of the common law was in the early stages of revision and viewed in the context of the times it is not difficult to see how courts could conclude that rigid application of corrective legislation was imperative. Today, we labor under no such compulsion. We regard the intention of the testator, to be gleaned from the entire instrument and the attendant circumstances, to be the overriding consideration and once that intention has been determined, it would be contrary to public policy and a rejection of reason for courts to frustrate the donor in his declared purpose. Thus, the one great Commandment in the construction of wills is the intention of the testator.

The primacy of the rule of the intention of the testator was first announced in Hoggatt v. Clopton, 142 Tenn. 184, 192, 217 S.W. 657, 659 (1919), in these words:

The cardinal rule in the construction of all wills is that the court should seek to discover the intention of the testator. To this rule all other rules of construction must necessarily yield.

It was last enunciated by this Court in Martin v. Taylor, 521 S.W.2d 581, 584 (1975):

Auxiliary and subsidiary rules of construction have been created as convenient aids to determine the intent of the testator, but being subordinate to the cardinal rule, or the rule of intent, they must necessarily contain the saving clause, “unless a contrary intention appear from the will.” (Emphasis supplied).

We hold that the testator intended definite failure of issue, i. e. at the death of the life tenant.

The estate tail at the common law rested upon the theory that a limitation over to another in fee upon the death of the first taker without issue, referred to an indefinite failure of issue, i. e. failure at any time. If the testator intended a definite failure of issue, then a gift over arises by purchase as opposed to limitation and no estate tail is created. See Vol. I, American Law of Property (1952), Sec. 2.14, p. 120. Again § 64-102, T.C.A. does not come into play to create an estate tail.

Where it is clear, as we think it is here, that the testator intended the words used to be words of purchase, a fee tail estate does not arise. Collis v. Citizens Fidelity Bank & Trust Co., 314 Ky. 15, 234 S.W.2d 164 (1950).

VII.

We hold that under the will of her mother, Nellie Alberta Gupton Harris took a life estate, with alternative contingent remainder as follows:

First, to Nellie’s issue, if any. This interest would ripen into a present possessory interest in fee upon the culmination of the prior particular estate, by the death of Nellie.

Secondly, should Nellie die without issue and her husband, James V. Harris, survive her, the property vests in Jawana Sue Gup-ton in fee simple.

If Nellie should die without issue and not survived by her husband, James V. Harris, it will revert to the estate of Angie Heflin Gupton for failure of the second of two conditions precedent.

The decree of the Chancellor is modified accordingly and

Affirmed.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

      . The word “revert” in the will obviously is intended to mean “pass to”, “go to” or words of like import.

      . See Sec. IV, infra, for a further commentary on this case.

      . By Item 2 he disposed of all his debts by making them “null and void” and asserting that “my estate not bound for anything of that kind.”

      . See e. g., Vaughn v. Cator, 85 Tenn. 302, 2 S.W. 262 (1886); Stratton v. McKinnie, 62 S.W. 636 (Tenn.Ch.App.1900); Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937 (1903); Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119 (1908), treating it as a rule of property; Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207 (1915).

      . A life estate is a freehold estate not of inheritance. Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353.

      . Simes, Law of Future Interests (Second Ed. 1966) pp. 43-44; see also Moynihan, Introduction to Real Property (1962) p. 31; Tiedman, The American Law of Real Property (Third Ed. 1906) p. 667.

      . The context indicates that the Court intended Sec. 2007, Code of 1858, (now § 64-102, T.C. ' A.).