Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-10-28

into bis estimate of the value Of his legacy the proper
ton 0f the land yet unsod, that would come 70 him un
der this viii and according to his own statement has
left The bona i'd, of this sale Of his legacy in very
questionable condition This witness relation TO the
cord II very different from that Of executor who has
just qualified, who ronouuces, who is naked trus
Tee HIMSELF taking interest Hereunder. The cNocu-
tor IN this certainly has interest in the record
though he is party 20 it. IF this paper is set aside by
whatright title he claim the ogaces, specific and
residaary, which he has accepted Ender The Will and
| having accepted, sold for full valuo.
We are to be understood speaking Of his acts
done executor, and strictly m accordance win inc
8uter of that Office for il may be that ID these he
came o. questioned should tho will hereafter be
set aside Therefore, do not decide in this case that
The ccecutor is incompetent wncss because OF Els
liability over t. the heirs and distributes for his acts
done as executor should the paper not be established
hereafter as will but especially Preermit any opinion
ca THIS point ----
safey rested upoa the fact hat Dc IS esaee, under
this naper has accepted the legacy, without considera
tou Rs volunteer and has disposed Of IL, after he had
notice of this contest and does not occupy IN this res
pect ihe equitable position Of an innocent purchaser
Abs while the law. may exempt him from all liability,
hou5 the paper hereafter be set aside for all has bona
ida acts done Us executor J afford no shield 10 him
for these act done by him egatee, and tao iact that
lao has sold his legacy cannot think effect the ques
ton Of his liability over, because be sold IT, not as exc
ror: but personal owner and legatee under the viii,
and Should The will be set aside be Is put in the attitude
of having sold legacy, 20 which he thought be
titled or fun and fair consideration, but to which in
fact h. had no right.
II tae will should be established, then he sold some
thing If value % the purchasers if not established,
then &c sold nothing and holds their money without any
far Consideration equivalent, and be Is put in the
painfU attitude alone by swearing to make good to
bis purchasers the subject Of the sale Every consideTa-
ton OF morals and fair dealing unite him to the very
verge Of Yeracy, that verge nearest perjury. witness
thus situated taxes the stand between two cross fres
the heirs and distributes upon the hand threaten
him with loss Of legacie IL he 70 less than is
necessary 10 establish the viii the other hand, be IS
pressed 10 the point by those who purchased ms
legaciss, and whose money he has taken vs. cannot
establish painful precedent while the principle that
the next Of kin 10 the deceased may release all interest
in the estate Of the cstatc, and thereby become
petent witness against the m has been held to be the
law in G State in the Of Patton, executor, w. Al
lison q al, Hump, 800 the principle that no one
compelled to accept estate cast upon him, by tesla
cy ntesacy, and may therefore, release all claim to
any part Of it. before he accept it We have no knowl
edge Of any that permits egatec 70 sell his inter-
under WILL and thereby become a witness sustain
the viii which his legacy depends; here he first
oept and then, the presumption that his acceptance
and the consent Of the executor has completed his title,
sells both transactions based upon the validity Of the
will; then becomes wincs 10 establish the will, and
the Of the value Of his legacy not made to de-
pend so much upon the intrinsic vaue thereof upon
the strength bodnCs and dstinctncs Of the testimony
which he Is expected to give not only regards the
value, but the existence or noncxistence legally OF the
legacy itself is dependent upon the swearing AS exalted
an opinion as VIC have Of humane nature think this
presents too great temptation to be adopted as pre-
cedent This carries its own condemnation. Here
the witness held to his interest egatee until at
ter the issue made up and certified, and he thereby
notified Of the jeopardy 10 which about to be eX-
posed the greater part Of his legacy in due course OF
admnisraon Of the estate must have been in his own
hands executor 10 his own in money, and this
money be sells for other money 20 become witness to
prove in effect that the money parted with was legally
his. IN the Of Harris Palmer, q Penn 29G, the
Supreme Court says: "Though a logatee may release
or renouucc legacy, and thus become competent wit
to prove will yet he cannot make himself compe
tent b. assigning his interest TO another" And thus
overTgod egitmatc line OF decisions begOtten" in
that Slato BY previous decision TO the contrary and
this principles affirmed, 10 the Of Post Avery,
Watts and Scrscant 81, and is recognized by this
court 10 the Of Anderson BrOdie Iergcr, 297.
We therefore without passing upon the other points
pressed in argument at the bar, in the court
below his Honor the Circuit Judge, upon the
question Of the ucompeteucy Of this witness and remand
the cause for a rev trial.
EDWARD H. EAST, Special Judge.
Attest J. G. Frazer, Clerk.