Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-28
LEGAL.
Decision Of the Supreme Court OF Ten.
nessee. az Nashville, December Term

"essee' az Nashville. Deeember Term
1887.
Reported Tor the Union and Dispatch by s. }.
Henderson, Attorney al Law.
IxcouPEfEyCE or A LEGArEE TO PROVE Will
IRON WHICH HIS LEGACy DEPENDs.- lega-
lee may release or renouBce legacy, and
thus become a competent witness 10 prove
will bat he cannot make himself competent
by assigning has interest to another
Daniel Barker e ole. ~. James W. Mason
e 0is.
This H. au appeal 10 error upon an issue Of
dsUes9usf pet non. aomng from the Circuit Court
Of Montgomery county, The alleged testatOr
was born In the State o. Virginia, and at the age
ofthirteen years ran away from that State, go
ing FIRST 10 North Carolina, afterwards removed
90 tennessee. aud Bnally liked has residence in
MONTGOMERY c0unty.s where he lived many
years before his death. His nearest Kindred we're
grand nephew8 and nieces. none Of whom he
had ever seen, except one anu ne so cpIIesl'oii
dence had passed for more than nifty years II
ever. between thea. lie began lie without "A
dollar, but a. the time Of his death had accumu-
lated an estate Of more than $4,000 consisting
of land negroes and other property. lie had
been married. but has wife had been dead for
many years. lie was man OF good sense ana
strong vigorous character. Tic had been heard
90 say that he did not desire that any OF hs rel
atives should have his property, but that he IN
tended 20 give ID 90 working. stable and prudent
men, who would take care Of Il. This OF some
other cause made him an object OF Interest in
his neirhbOrhoOd, and the record shows that
more than one Of his neighbOTs had 'eXpecta-
tons" Of his bounty, ofwhich he was aware
lie seemed TO have poor opinion OF has rela-
tives though no did not personally know them;
thought them thriftless and they in turn seemnOt
10 have known Of his existence or whereabouts,
save he was visited one time, by one Joshua
Barber. who remained with him short time
and when he was about returning 20 Virginia.
the old man gave him n horse suit Of clothes
and some money. But failing to hear from him
according % promise began 90 doubt whether
he was ia tact "A relative but an lmpOsteT. This
brief uncertain and unsatisfactory relation
tended in no degree to excite any warmth OF
feeling upon which much hope OF future love or
family tie could be based.
The paper offered as the will was written by
one John Bowman, and bears date OF october
"a. 1882 At the time Of the execution Of the
paper, the alleged te5tator was more
than eighty years Of age, was almost
blind aud wholly illiterate. II was duly
attcstcd by two certificates. but was not read
over 90 the deceased IN the presence OF these
two witnesses. nor could they declare that be
knew its cuutchts. BY this paper the property
is disposed Of 90 various persons. none OF whom
we've al all related 10 tho deceased; nut al OF
whom were acquaintance, and probably friends,
and were persons Of character; one tract OF
land is divided between two doyisecs; the ne
groes are grouped into families and these iami-
lies disposed Of yariOusly. Another tract OF
land Is ordered 10 be sold by the executor; a
third tract 20 be sold after the death Of the ten
ant for life which has not vet occurred. There
are also various specified pocuniary legacies Of
from $500 20 5000 each and amounting in all TO
S6jOO aud a general residuary clause ~ favor OF
This paper was admitted 10 probate m com
mon form. in the proper court In August, 1855,
the testator having died the month previous
BY this paper John Bowman. the writer, was
made cXecutOr-was left legacy OF $500 speci
fcially, aud made a residuaB legateo.
lie accepted the office Of executor and pro
ecutod the will at the time this issue was made.
al tho May term. 1860 so far as 10 sell the per
sonal estate 70 pass the negroes % the iegatees.
O. whom they were given TO pay OF all the speci-
fed pocuniary legacies; 90 cell one tract
Of laud. aud BY petition 20 court,
Jointly with the resdusTy legatoes, he being one
Of the number procured decree. and had sale
made of some eight or nine young negroes. not
disposed OF specifically by the will, having been
born since the date Of the viii. and the proceeds
OF this sRlo divided among the persons mentioned
in the residupry clause.
Ifanything remains 10 be done under this will
by its executor besides selling the real estate
held by tenant for life the record makes no dis
closure Of a. The issue was certified 10 the Cir
cult Court in May, 1850. and the trial Of the issue
was had before the Circuit Judge and jury in
September. 1860, upon which trial the jury found
IN favor of the viii, and judgment entered ac-
cordingly. and from this an appeal Is taken to
this court.
ON the trial ofthe case in the Circuit Court.
the issue was between the heiIs az Law and the
devisees and legatees under the will, the eXecu-
tor being no party Of record, he having de-
chned 10 BECOME party. but passiyely permit
ted the others 70 contest the matter IN the
trial below after the two attestng witnesses had
been examined and the fact Of the execution Of
this will settled, because that the testator was
bhnd ~ the time OF ITS execution, and was more
over illiterste Having signed his name mere
~ mechanically. u was incumbent upon the
party proposing 20 set up the paper 70 show that
the testator had knowledge Of ts contents. Bee
Natters0n ~. NattersOn, J Head, l and 1
Cox ~ Cox. Sueed, 81 and 70 show this fact,
u was proposed 70 introduce the executor. John |
Bowman, 60 which objections were made be
cause Of iucompetency. These objections are |
various. lst. Because he was executor. I'd. Be
cause he was a legatee. b Because he had an |
interest In the record. And 10 meet theee OBJ /
jecuons, or some OF them, the following paper |
was duly provon and read TO the court;
l. John bowman, IN consideration Of thirteen /
hundred and siNty-seven aud nirety-one hum
dredths dollars, Co me paid, have this day sold /
transferred. and DO release unto james w Man
son, here naming the other legatees and devil
sees under the will) all the night. claims inter
est and demand that have a. a ieaates under
the will Of J ohm Barber deceased. or may here
after have. whether that interest Is derived from
property. real or personal. which passes under
or Is disposed OF BY sad wll and agree 60 sc
count 90 them, az executor Of SAID John Barber |
for all such legaoics as may be coming 90 me 1
under said Will, provided said viii shall be es-
tsbhshed but II declared not % be the will Of i
said Barber. I am. as executor. 20 account TO the
heirs at law Of said Bsroer for the same in 40
cordancc with the laws Of the State-the object /
and intent of this instrument being % assirn 20 /
them whatever interest / have ne iagafee. This
18th day OF May, 1861.
Upon the production OF this paper. and praof
of its execution and acceptancg by the psrues
10 whom it was made. the Circuit judge over
ruled all objections 60 the competency Of tins
witness. aud allowed him 10 tcstiiy in the cause
the effect Of his testimony being 10 settle the /
question Of the full and complete knowledge Of |
the teststor OF the contents and requests OF the
will On cross eNaminatou this witness stated /
that only about $500 Of the consideration money !
a. expressed in said conveyance had been paid /
90 him, aud that be held the note ofthe parties
who had a3e9pted the conveyance from him for
the balance. and that he intended O. collect this
note ID the law Nould allow him aud when
pressed with . further cross question 70 the ef-
feet that al tho Will should be SGT aside. and he
should collect the note, would lac appropriate
10 60 his own use and never pay 10 bach e. the !
parties y be said II d. my privilege GO make /
whatever appropriation 4 please OF nay own
money
The question presented Tor the decision OF this
court arises upon the ruling ot hls Honor, the
Circuit Judge. upon the question OF the compc-
teucy OF this witness.
lst. Is an executor a competent witness for the
WHY By the ecclesiastical law he was inc0mpe-
tent, see Dean 70 Russell. Phil S3i. 1873 Il an.
jackson az. Whitehead, Phil. So, ~. h ~;
Munday us, Slaughter. ? CARTS -, 80 b 46es
and these decisions rested mainly upon tue
s1ound tast in LuEiand an oxCcutoF Is liable 90
costs Il nc iais % set NJ the vail Of his testatOr
and bocause he q party % the suit. THIS rule 4
al tue Ecclesiastical Courts LED o. parliamentary
interference and by statute : Victoria chapter
- sectiuu IL q o. enacted That no person /
shall, on account of has being 40 excontn4 II a /
Will be Incompetent % be hdmitied q witness ID l
prove the eaecution Of such wall. or 5 witness
II , isS me o., navy % any ahdy thereoh. See
A. to the rule that prevailed az common law
m England, Phillips saws. " 10 NAV be LAID down
as general rule. thgt executors Ia trust. trus-
7 &c ana ~ ehts are not Incompetent merely On
the ground OF their liability IL action . See /
Pbii., Nv iCossn HnD a.. Starkie avs.
An sepne executor Is Competent 10 supp5rf
tnc VIII ~ ftoei ~ the surety Of the tesfNior
aithgnss ne may become a. an executor ~ "a.
iarr, Stark, Nv; "a and q Ras held Al lotg 49,
ns the time ~ Lord Hale, that an exseats@
having ne interest in the surplus Is a s',ea ~
ness 10 prove the vail in a causc reIetias,,' ~.
estate. aud uh has been followed rs manv stbrr
decisions g. the same eject Goodilttie a. Me-
ford. Dong lSs Cos r.. Tracy. \. Wa ~
owe us Collie, ] b 36; Heaih a. nan
Taunt. S26 Phippe o. piicaeF, Taanf, ~.
Jefferson ~. Bromley II East 30
ITO beoonbnued