Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-05-08
DECISIONS OF THE SUPREME COURT.
OFFICIAL.
Decisions OF the Supreme Court of the
state of Tennessee at Nashville, De-
cember Term, 1850.

state of Tennessee at Nashville, De-
ccmber Term, 1860.
John Keith and others vs. Alvin c. RaglAnd and Others
The question in this case is as to the proper mode
of proceeding to procure the vacation, recall of
the probate of the vii of Jas Ii. Ragland in COM
mon form in lS49, and have it repr0pOunded for
probate in solemn form, under an ISSUE of devisavh
vel non.
This Court In the case of Cornwell vs. Cornwer
ii Hump, 4S5, adopted as the most convenient and
approved practice, that which is settled in North
Carolina in the case of Harvey, VS.. Smith Dew and
Bat S Il. 1873. According to which some party in>
erested in the estate case of intestacy (for no
others will be heard) must present petition to the
county Court setting forth his interest, and the
grounds upon which the contest is to be made.
The executor must be cited or summoned to appear
and answer the petition. Upon the case thus pre-
scented the county Court may either set aside the for
mer probate, and send up the case TO the Circu
Court for issue and trialIo refuse to do so. From
taeIr judgment either party may appeal.
In the case before US, the petition was filed by
the defendants who were proper parties, children OF
the deceased. at March Term 1860, Of the County
Court of Jackson, and the Court set aside the pro-
bate. But the other party was not cited to appear.
Properly concluding that this order OF the Court
was irregular. the parties did not take up the
TO the Circuit Court under it. but filed more for
NAL petition on the 18th May 1860 the June Term
of the County Court and caused subp9nas to be is
and answer.
The parties did appear, and moved to dismiss the
petition upon the single ground that the County
Court then had no Jurisdiction of the case because
it had at the preceding March term set aside the
original probate, and ordered the case to the Cir
cut Court for trial. taking proper bonds &C. accord
ing to the statute. The record to that effect was
referred to and relied upon. The Court Overruled
the motion, when an answer upon the merits was
filed by Keith and pro cOnfeSSO taken against Craig
no q order
the probate and ordering the case to the Circuit
Court From this order the appeal was taken, and
the whole case went up.
In the Circuit Court at the first term, the appel
ants moved the Court to 'dissmiss this cause aud
strike it out from the docket because the petition
before the County Court to contest the same
not to and because the County Court had
jurisdiction of the cause at the time, as the pro-
bate in common form had been set aside at the
March term proceedings. And further, to quash
and dismiss said proceeding because there was no
ground shown IN said petition to contest said will
and because the contracts did not give bond as re-
quired by law, in the County Court or offer it to do
So
To remedy this last difficulty bond was then
OF the various grounds assumed in support of
the motion, the first is mainly rehed upon, viz that
the petition to the County Court was not verified by
affidavit.
We have no express decision on this point, and
our act of 1885 and the Code silent the subject
But in North Carolina 1t seems to have been held in
two cases that such petitions must be accompanied
with an affidavit. Iredels Dig. S43. paragraph 45.
In a recent work in this State, entitled. the His
tory of Law Suit $50 it is laid down to be the
correct practice The proper practice is there set
out with particularly.
This court has said in the case of Cornwell als
ready cited, referring to Wynne VS.. Spiers Hump.
407 that it is matter of course to set aside the
probate of a will for reprobate. If this were
great mischief and confusion would be produced.
Estates long settled up and distributed in many
cases, under wills regularly proved in common
fern wsuld be called back, and titles to property
disturbed and damaged to the great injury often of
innocent persons. In view of these serious
sequences, a good case should be prina facie made
out and that in a reliable form before the solemn
adjudication of the proper tribunal even in common
form in favor of a will should be disturbed. Titles
to real well as personal estate, are put at haz
ard by these contests. But it is important for the
rights of those entitled to property by succession
and inheritance the just and equal rules of the
statutes of descents and distribution, that in all
proper cases wills should be open to contest and
unsOlemn probates aside for that purpose. 1t is
not however, requiring too much of those who al
lege that wrong has been done them IN recorded
probate under the forms of law to verify the truth
of these allegations against it by affidavit
But in this case the party was too late in making
the objection. This should have been done in the
County Court, when appearance was made in
obedience 10 the summons or citation. Instead of
that motion made to dismiss the petition upon
another and insufficient ground, and the failure
of which an answer was filed, and this objection
made for the first time in the Circuit Court. That
Court did right then to overrule the motion and
ordering an issue deUsaUit UeI non to be made up.
And the appeal from that ruling must fail here. So
the Judgment of the Circuit Court will be affirmed,
and the cause remanded for issue and trial.
CARUTHERs.