¶1concurring: I concur in the result reached by the majority but think that under the facts in the instant case it is unnecessary to decide whether income is to be distributed currently within the purview of section 162 (b) where the executor can require the dis-tributee to furnish a refunding bond. A decision on this ground is somewhat broad as a refunding bond could apparently have been required by the executors under the law in Tennessee (Williams, Code of Tennessee (1934), sec. 8336), and no doubt could be required in a large number of other States having similar statutes, even if there had been no provision concerning refunding bonds in the will. Where, as here, under the law of Tennessee, the State having jurisdiction of the administration and distribution of the estate, the petitioners did not have a present enforceable right to the income in question regardless of whether they could have been required to furnish refunding bonds, it appears to me unnecessary and inappropriate to rest the decision on the ground adopted by the majority.
¶2Under the common law (McClanahan v. Davis, et al., 49 U. S. 169, 178) applicable in Tennessee (Nashville & American Trust Co. v. Baxter, 171 Tenn. 494, 105 S. W. 2d 108, 113; Hadley v. Kendrick, 78 Tenn. 525), the executor is required to apply the personal estate first to the payment of debts (including taxes) and the legatees are not entitled to possession of the estate without the executor’s consent, even though the testator has provided otherwise. Since income received by the estate during the period of administration becomes part of the personal estate and is subject to the claims of creditors (Union Planters National Bank & Trust Co. v. Beeler, 172 Tenn. 317, 112 S. W. 2d 11; Bonham v. Bonham, 180 Tenn. 364, 175 S. W. 2d 328; Globe Indemnity Co. v. Bruce, (C. A. 10) 81 F. 2d 143, 152, certiorari denied 297 U. S. 716; People's Pittsburgh Trust Co. v. United States, 6 F. Supp. 447, 454), the legatees had “no present enforceable right” to the income in question in the absence of the assent of the executors to its distribution, while the debts and taxes remained unpaid, even though the will is construed to state the contrary.
¶3, Respondent has cited no cases or statutes that would require a different conclusion and none have been found by an independent research. Williams, Code of Tennessee, section 8335, providing for the distribution of the surplus “immediately after the expiration of eighteen months” has been construed to be directory and not mandatory (Nashville & American Trust Co. v. Baxter, supra). Also, while the petitioners might have had the right to apply to an equity court to compel a distribution, it was certainly within the discretion of such court to refuse their request and to grant the executors additional time. Williams, Code of Tennessee, sec. 8196.7. In general the language in the decisions of the Supreme Court of Tennessee indicated that it would be improper to make a distribution while, as here, the debts and taxes remained unpaid. Delaney v. Delaney, 190 Tenn. 632, 231 S. W. 2d 328, 330; Union Planters National Bank & Trust Co. v. Beeler, supra; Hutchinson v. Montgomery, 172 Tenn. 375, 112 S. W. 2d 827, 828; Nashville & American Trust Co. v. Baxter, supra. See also Nashville Trust Co. v. Commissioner, (C. A. 6) 136 F. 2d 148, 151; George F. Thompson, 6 T. C. 285; Williams, Code of Tennessee, secs. 1291, 1292, 1297, 1298, 1309; Kegs. 105, sec. 81.99. As petitioners at best had only the right to apply to a court to compel distribution, under the authorities cited in the majority opinion the income was not distributable currently regardless of the executor’s right to require a refunding bond.
¶4For the same reasons I consider it unnecessary to determine whether, under the terms of the will, which designated his wife and namgd children “or to such of them who survive me and are living at the time of actual final distribution of my estate” as his residuary legatees, the petitioners were entitled to distribution of the income of the estate prior to “actual final distribution” of the estate.