Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-10-28
SUPREME COURT OPINION.
NASHVILLE, TENNESSEE, DECEMBER TERM Isl
DANIEL p. BARBEE EFT AL. "a. JAMES W MASoN
ET AL.

DANIEL p. BARBEE EFT A D. a.. ) AN 70 W. 49,
st AL.
This is an appeal u error upon an issue Of alua,,
vel son coming from the Circuit Court oi N go q
county The alleged testa5or was born 10 '"o -,
Virginia, and the age of thirteen g 49,; s0er
from that State, going hrst 20 Noitn eI bis resi-
wards removed 10 Tennessee, sid nnai'y ~ - -,
dence In Wontromery county, where nc -, -
years before his death At the tinae OF lts - =
nearest kindred were grandnepho" auo -, or
whom he had ever except one, ana 10
5, had rassed for more than fifty years, u ever, De
tween them lie begun life without aoliar Ou at tne
time of bic death had accumulated an esta0e Of NOR
than s5oao0 consisting u lands, negroes ana e'nei
,r,,.rty He bad been married but bic wife bad been
dead for many years. lie man OF good sense ana
strong, vigorous character
He had been heard say that be did not desire hat
his relatives should have his property, but that
he intended 90 give it 70 working stable and puaen'
men who would take care " Il. This OF some olnci
cause made him object o. interest IN his negh0oi
hood and the record shows that more than one Of DE
neighbors had expectations" Of bis bounty, Of when
he was
He seemed TO have poor opinion Of bis relatives
though be did not personally know them-thoagn' ue
thrftlcss and they in turn not % have known "a
his exigteace or whereabouts save he visited ono
time by ono Joshua Barbce who remained WIZ MIN d
short time, and when be about returning 70 HsI
the old gave him hoTse, Euit OF clothes ane -
money. But failing 20 hear frUn bum, hoe0ltNs
promise, began % doubt whether be was DID lae' '
tive, but imp0ster This brief, uncertain anu u
satisfactory relation tended IN degree 70 cAei'e az
warmth OF tecllng upou Whlcn huIu H'lD 70 '
family tic could be based. -
The naper offered rs the viii vas written by one John
Bowman, and bears date October l4h, looZ. "a. ny
time Of the execution Of this paper the aiegea Iii
was more than eighty years VI age-"4s a. ts -
and wholly ilite.ac. Il duly ntesied y w VIZ
ncsscF but was not read % the deceased 'Ho
presence Of these two wnesFe1 nor could they
that he knew its contents. By TINS paper ho PIOPo'
Is dispe.J Of IN arous personsu0ne Of whom were NJ
all related 10 the deceased, but an OF WhoM NeIo NJ
quaintHuces and probably friends ana were cfsoIs %
general good character One tract Of lana Inil1t p
tween two devisceE The negroes are grouou ii'o
lilies and these families disposed Of vauOusy another
tract Of land r. ordered be sold by the executor
third tract % be sold at the death Of tenant Tor HE
which has not vet occurred There also various spe
cGc pecuuiary sgaccs Of from $500 10 600 EACH and
amounting IN an TO $1,000, and general residuary
clause ia favor Of The persons who took the Pecuniay
legacies.
in the propcr court August 1855, the tcstatOr having
died the month previous By this paper John Bowman,
the writer mado executor, was left legacy Of 500
specifically, and made rcsiduary lcgatee lie accepted
the Office and proceeded 10 discharge Of the
duties and bad executed the will at the time this issue
madeat the May term, 1860, far as 70 sell the
personal estate, 10 pass the negroes to the egatees 70
whom they given, 10 pay OF all the specific pecuni
airy cgacieF 90 cell tract Of land and by petition b.
court Jointly with the rcsduary cgatees he being
Of the number, procured decree and had fale made Of
some eight or nine young negroes not disposed OF spec
hcay by the will having been born since the date OF the
will and the proceeds of this sale divided among the
persons mentioned in the rcsduary clause II anything
remains % be done under this will BY It's executor be-
sides selling The real estate held by tenant for life the
record makes disclosure Of IT, The issue was ccr
fed 90 the Circuit Court In May 1860. and the trial Of
this issue had before the Circuit Judge and jury in
September 1866, upon which trial the jury found in ia
Of the will, aud judgment entered accordingly, and
from this appeal il taken 10 this court.
On the trial Of the in the Circuit Court the issue
between the heirs at law anl the deYsces and lcga
tees under the WILL the executor being party Of re
he HrnffB ~ lUF
ly permitted the others 10 contest tho matter In the
trial below after the two attcstiug witnesses had been
examined and the fact Of the execution Of the will set
tied, because that the tcsta0r blind az the time Of
he execution, and was, moreover wholly ieratc, hay
ing signed bic name merely mechanically i was IN
cumbcnt upon tc party proposing 70 set up the paper
10 show that The tostator bad knowledge Of It's contents
see NaitcrHou vs. Waticrson, Head, ], ard Cox vs..
Cox, Suoed 50 and 10 show the fact ii proposed
10 INTRODUCES the executor John Bowman, to which OBJ
icc'ions we're made, because Of ncompeency These OBJ
jocuous various-hrst, because he was executor
second, because be egatoe third because be had
an interest n the record 10 meet these objections,
or Of thcm the following paper duly prevent
and read 20 the court: "I John Bowman in consider
alton Of thirteen hundred and sixty-soy collars and
Exty-ouo cents paid have this day sold transfer
red aud do release unto James W. Manson, here
log the other egatccs and dsyiseos under the Will all
the right claim, interest anC demand that have as
legatcc under the will Of John Barbce deceased OF may
hereafter have, whether that interest is derived from
property real personal Itch passes under dis
posed # 10y fad will AID agree TO account 70 uiem
executor %" said John Bartee FOR all such legacics
may be coming 90 under said will provided, said
viii shall be established but IL declared not 10 be the
will 81 said Barbec, am executor TO the
heirs at Law Of said Barbos for the in accordance
with the laws Of the State The object and interest Of
this Instrument bciag 20 assign to them whatever inter
cst have as logatoe. This I'th day Of May 1901
Upon the production Of this paper and proof of It's
e'ution and acceptance by parties 10 whom it was
made, the Circuit Judge oyeruod all objections to the
competency Of this witness, AID allowed him 70 testify
iu tlc cause, the effect Of bis testimony being TO settle
the question Of the fun and complete knowledge Of the
i'siator, Of the contents aud requests Of the will. On
cross examination Ibis witness stated that only about
$500 OF the consideration money expressed in said
conveyance had been paid to him. and that he had the
note Of the parties who had accepted the conveyance
irons him for the balance, aud nat he intends collect
this note II the law would ALLOW him. and when pressed
with further question: to the effect that if the
will should be set aside and he should collect the note
would he appropriate IL 10 his and pay IL
back 20 the parties 2" he said Ii is my privilege 10
make whatever appropriation | please Of my own
money
The question presented for he decision Of this court
arises upon the ruling Of his Ouor the Circuit Judge
upon the question Of the competency Of the witness l.
Is executor competent witness for the will BY the
ecclesiastical law he incompetent. See Dean vs..
RUSSELL Phil, 234 I +. r. r., All jackson VS..
. Phil, 577; I f. h. r., AS, Munday vs..
Slaughter, Curtis, p: e. K. r. % Modern Probate
Of Wills I6g and these decisions rested mainly upon the
grouud that W England executor is liable TO If
party TO the suit
This rule of the Ecclesiastical Courts led to Parlia-
nentary interference, and by statute Victoria c. 90.
3 H. it rs enacted that SHALL account Of
his being executor Of will, be incompetent be ad
nittcd witness to prove the execution Of such WILL
witness to prove the validity inyalily thereof" See
Williams on Elk, 307.
As to tho rule that prevailed At common law in Eng
aud, Phillips says II may he laid down general
ue that in trust rUstees and agents not
Incompetent merely the ground Of their liability 20
l,tons." See Phil Ev (Co'Sen Ill., 81. Starke
oys AN acting executor is competent 60 support the
will by proof Of the sanity Of c tcstator although he
nay become liable executor &c tort 2Starke
sv., IA And IL vas held ong ago the time of
.ord Hale that an executor having no interest in the
urplus is good witness TO prove the will in cause
eating 20 the estate, ana this has been followed by /
many other decisions TO the effect Goodtcllc
Viliord, Doug. 1895 Goss VS. .racy 2. Wins, PSI |
owe W.. Joliac b., 3G5 Heath VS. Hall Taunt. /
90 Phipps Pitcher, Ttunt, 20 Betteson vs.
,romley, - East 25.
In the case Of Lowe vs.. JollHc. which was an iruc
ERECTED out Of chauccry, the In trust who
rev the will examined 10 prove the sanity Of The
stator an when it objected 90, because he having
ctcd. would &c Liable, If the vii not up dam
ges Lord Mansfield said, " His beng liable 60 actions
akcs no difference for all agents aud YET they
aked question Of the ncompetency Of executor in trust
reason Of interest without regard TO the question Of
,sts.
In Phipps VS.. Pitcher, Taut, 22O, It was decided
lat an executor who was clothed with a trgst 90 pay
,bs and lay cut money for TIC benefit Of The testaoF
lidrcn, and with power u sell freehold lands in fee
Id who had accepted, was good attestng witnoss-he
king no interest under the will. This difference be
cen ecclesiastical and law courts Of England,
this question, has lead 10 different decisions in the
'uris Of tbs States Of The Union
Justice Redfed, IN bs work wills, vol q. mage 25S,
ys the competency Of an executor to be one of the
illnesses 70 viii seems 90 be well settled in the Amer
N states cnd, TO sustain the proposition, ae refers TO
r'H1s state Reports which, when examined do full
sustain She text many Of these decisions being based
'oh local statutes passed 70 effect she competency Of
ecutors, and other statutes fixing hc costs of tho con
ST. SO that the executor could not be made responsible
these, and thereby relieving him of the objection ia
nj in The ccclcsasiical law nl n-.,n -. 49,