Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-14
b Bank q Tsanssss y. charss . NeI.ea anl Co..

OF Tennessee, At nash vine, Deesn Be
Term, Is5s.
The Bank Of Tennessee Charles L. Nelson and others
The Bank recovered three judgments against G
, I Nelson in 1854. amounting to betwee seven an
eight hundred dollars. Upon which executions Wer
issued and returned ''no property found Maihe,
Nelson, ihe faher If Charles Z died in 1856 leag
ing eill 10 which he devised snd ksoue he'd al
his land slaves and other preFcstv 10 his widow fo
life. and then to his children. rclnliaE the sal,
Charles The original bslI wss fled lst Janusrg
1857. TO subject the remainder fChsrles to the Bay
meni 81 these Judgments, and in the meantime Il
enjOin him from dispOsing Of the same Irjanctioni
and attachments were issued On The 9Th April
1858. an amended bill was fled. allrging that the
said viii nulliiy to the land because il was
attesied and proved by two more Of the s0us who
were interested under it, in the remainder Of the
properly real and personal AZORES aid and claim
ing that the land descended TO the heirs and that
The interests Of their debtor should be made liable
10 the judgments of complainant The will was
proved IN common form at the Nov term. 1856 Of
Rutherford County Court by he said attesiing Wit
Essses, without opposition. They charge that the
will tho5gh void for want OF proper sestai5n co1-
itutes cloud upon the title 50 that the interest Of
their debtor would rot seu for its value, and ask
1 that the cloud be removed. by declaring that the
viii IS void, or hat issue OF dspisaUd "a non be
ordered to be tried at lsw, test The validity Of The
paper In the event that the viii Is ained thev
pray IecIec 70 sell ire remainder interest Of
their debtor to satisfy their judgments
The fact that he witnesses to the will were the
deVIsess and egatess under IT, wsssdmitie5. where
/ upon he court held ihst, upon the suggestion Of
fraud or irregulariy in the execuioa Of aftesiaios
under the act Of 1884 the original paTer should he
produced; and ooA jurisdiction 10 declare e iavalid
on that ground and did so deeree as TO tie realty
though go1d as TO The personality, and declared
that the present interest Of Chages TO the laud as
heir, and his remainder in the personally should be
sold for the debts Of complainant From this decree
defendants appealed
The 9th sec Of the act of October, 1884, eh 10,
Code sec 21989 makes attesied copies Of wills al
mitted to probate equal evidence the original but
provides that il fraud in sdra wing or obtsiaing' or
''sny irregulariy in the executing or attestSsi5nn
IS suggested" the original shall be produced
What effect this is to have is net well de6ped and
as this case, in view does reqaire sa expo
sition, will not be ATTEMPTED. but left for ease
that necessarily raises the question: when con,
slderation may be giysn to it. II is insisted for
complainant that under that proviso, power may be
exercised by Chancellor, TO disregard Ihe probate
and without ordering issue to try the validity Of
the will, or suspending his action until the same
may be done BY proper proceeding in the County
and Circuit Courts for reprobate in solemn FORM
determn the question Of the validity Of the will on
the ground that the witnesses to it, and by whom IL
was proved in common form, Eers nos such as are !
reqired bJ The 1lth Of the act Of April 17S4 ch
22 to make good aud sufficient" will for lands !
The ro'itlOn assumed is, that when the ''sugges-
ton referred to by the prOviso is made, no rights
as TO realty can be successfully asserted under the
will, without proving it by legal witnesses on the
trial as at common law The Chsnce'lor assumed
this jurisdiction and declared the will void as to the
land, because be attestng witnesses were not such
required BY the said act but we're sinterest-
cd in the devises" Of the will On the olhsr hand,
1t IS insisted that he had no sueh jurisdiction. but
thai the probate in the County Court having Rener
81 and exclusive juris1ietion Of the subject was
binding upon every body until revoked by calling
for reprobaie and the trial of issue rf dsUsaUif
rel non 10 The Circuit Court But as We have said
those questions need not now be decided asthis case
csn be disposed Of upon other grounds
We think the complainant DOES not occupy DO
sition 10 question the validity Of the probate. on
the ground assumed. The vii! has been proved in
a court Of general jurisdiction of those subjects
No enc, without an il terest ia tbe esiae can con
test vi j, or call for reprobate. The complain
snt is only creditor Of one of The jeyisees. ami
can only set upon his rights. The debtor is content
With the will, and chooses to avail himself Of no
objection to it that may exist although il re- I
iuees fee in the lsnd to which he would be enti-
led by law to a remainder interest If he aequi>
ssees in its validity by waving lis right 10 object
'ud contest il, for the iDc0mpeency Of sttesting
Witnesses, or on any other ground how can his
,reditcr who has 10 pass through him to reach the
property, make the objection for him2 Bat this
sss is still stronger Before the filing of this bill
nA ~ Lut ptODdiey Win lne
'her devisees, eleven in number, being aware Of I
he difficulty which existed in relation to the at
esting witness, entered into written agreemeat I
'nding themselves to abide BY the provisions of the
viii, and permit it to 60 to probate, without Obee,
IONS This seems TO have been the result Of
N honest and laudable desire on their part, 10 ,
AIRY out, and not PROSTATE the deliberate aud !
ying wishes and purposes, Of their father By waiv>
ng the advantages the law would give them by al I
Pposiie course 1t was the surrender of a pres /
Mt, for future interest, for the benefit of their
lother. Nov, upon what principle q creditor {
any one Of the devisees and Iegstees disregard a
nd set aside this arrangement! We think it clear s
hat it cannot be done, and thai, so far these
omplainants are concerned at all events, the will
10 be taken well proved and valid, bosh to the
eally and personality.
Yet by the will the debtor has q vested remainder
J the land and slaves, and that it is attached in
bis bill There is no doubt but that vested re-
lainder in land may be sold for debt even BY sn
xecutriz at law, but that the law is OherRiss in =
he ca Of slaves was held in Allen IS SsRuy, T.
erg. So, and that decisi9n has never been dis =
lrbed but it is affirmed in lockwood vs. Nye, :
Swan 5l6 But in this last case, the law Is laid II
own ciherenily as 10 the power Of court OF o
quity, 20 decree q sale Of a remainder In slaves
II the debts Of the reminder man under attach
eDt bill and we adhere to that case, aud approve
the reasons upon which it is sustained. Ait
man has snou d in some form be subject to his
ebts more especially since all proceedings against
is body have been refused by the mild and humane =
Olicy OF our law U
It follows from this conc'usion, that the COM Z
ainsn;s entitled TO decree 10 sell the remain y
sr interest Of their debtor 10th in the land and u
aves, for the satisfaction of their judgments q
yains; him. The purchaser will take all the rights
Charles L Nelson under the will and no more. n
be decree Of the Chancellor will be modified Ct
conform to this opinion The costs here and below
i'll be paid cut at the proceeds Of the sale
CARUTHERs