Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-29

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LEGAL.
nectsiou of the Supreme Court Of Ten
nes-ee, at Nashville, December Term
1867.
Rsported for the Union and Dispatch, by s. ).
Henderson. Attorney at Law.
Daniel s. Barker IF ots. Us. James W Mason
II ale.
concluded
Z, the case Of Lowe %. Jollife. which was an
i-sae directed out Of Cnancery, the executor IN
frugr. who when the will was examiner 70
prove the sanity OF the te'tator. anu When li
was objected 70. because he having ac'su Mouiu
he liable ii the will was not set M, 70 damages.
Lord Mansfield said Ibis being liable 70 aclOh5
makes no difference, for 80 are an aKenls' 1 alu
vet thew are allowed to be Wltnes'es-, ms
case presented the naked question OF the III
c5mpetency of executors in trust, by reason OF
interest without regard 20 the question on c"5ts
In pbippa us Pitcher Iaunt -, t was 9e-
cided that an executor VINO was ciotneu e WI ~
trust 10 pav debts and lay out money LOT ths
benefit of the testat0r's children, ana WIN
power 10 sell freehold In fee, and VINO mas ae-
cepted was a good attestng witness ne lahthb
mo- interest under the Will. IhH diuerence De.
tween Fcclesiastical and Common Law courts OF
England on this question, has led 70 diueIeht
decisions IN the courts Of the states Of the
Union. Mr.. Justice Redheld, m MS WoIh on
wills vol. page 2j3. says the eompetency -; 3i
an executor 10 be one Of the Witnesses 10 Wlll
seems 90 be well settled m the American
States 81" and 20 su stain this proposition ne re
fers 20 various State reports, Whicu Hneh *
amiued 40 not fully sustain the text. Many OF
these decisions being based upon local Statutes
passed 90 effect the competency OF executors.
and other statutes, hXlng inc COST on
the contest, 80 that the executor could
not be made responsible for these and thereby
relieving him Of the objection taken m the &c
clesiasticnl law. And again m some states nc
Is declared 20 be a nominal party to the record
and is relieved Of the incompetency that apphes
10 parties of record by statute allowing nolnl-
nal parties 10 become Witnesses But nc adds {;
" But where the executor IS enhted 10 coinmls
siong upon the estate so far a. personal property
is concerned. IT, has been decided that an inter
est IL thereby created. which renders hun IN
competent" Ia. 1853, referring 20 laylOr 10.
Taylor. ] Rich, 6bl. Workman ~, DOnshe-
neck. Strobhart, (South Cardinal $50, 20 Barb.
23S. Tucker rR. Tucker Ire. lbl. Morton
rs Ingram. u Ire, 36S. Jones, Law, Az.
And such are the decisions OF the courts OF Norm
In the case Of Avnett rs. Weeks It ais, 3
Hump. 5g7 this court decided that on an
issue of dencqGUn Del non, the person appointed
executor is competent witness aud the au-
thority referred 20 by the member who gave the
opinion of the court, IS, that m Lnglan5 IN
either the Ecclesiastical OF Common Law
Courts, an executor IS a competent witness ne
was certainly mistaken as regards the Eccle-
siastical Court Independent OF the statute OF
Victoria, before referred 10. At all events, how
ever, the law may be upon the question OF the
competency Of an executor without interest. TO
be a witness upon an issue Of dcccs0rH gel non m
this State, in q case in which be IS no party 10
the record aud before ne accepted or took upon
himself the administration of the estate, It ls not
necessary 30 decide in this case. Here the
executor had been dischargiug tho trusts OF the
will for five years, had sold land
had given of the negroes had upon
application 20 court IN the capacity OF reslduary
legatee and executor, jointly with the other le-
gatees, sold some eight OF nine negroes, and had
received the purchase money, had accepted n
legHcU under fie mil and sold it for full value.
made this sale after having notice Of the issue /;
made 10 for the purpose Of becoming witness
10 sustain the will by which he obtained the le-
gacy; took into has estimate OF the value OF ms
legacy, the proportion OF the land that would
como TO him under this will, and according 70
his own statement has left the bona fdes Of this
sale of his legacy in very questionable condi-
ton.
This witnesses relation to the record is very
different from that of an executor, who has Just
qualified, or who rCnounccs, OF who Is a naked
trustee, himself taking no interest there
under. Tho executor in this case certainly
has an interest in this record, though he rs
no party 20 IL. If this psper rs set aside, by
what right or title can he claim the legacies,
specifa aud residuary, which he has accepted
under the will. and having accepted, sold for
full value.
We are not 10 bo understood as speaking of
his acts done as executor, and strictly m accord
ance with the duties Of that office, for IL may be
questioned even should the will hereafter be
set aside. Therefore. we do not decide m this
case that the executor Is incompetent as a wit
moss, because of his liability over 20 the heirs
and distributes, for his acts done executor.
should the paper not be established hereafter rs
"a will, but especially pretermlt any opinion on
this point Bat we do think his cOmpe-
tency as witness can be safely rested upon
the fact that he Is a legatee under this pa
per; has accepted the legacy without consd-
Grafton ~ a volunteer, and has disposed of it,
after he had notice of this contest, and does not
occupy m this respect the equitable position of
an innocent purchaser
And while the law may exempt him from all
liability, should the paper hereafter be set aside
for all his bona de acts, done as executor II can
afford no shield 90 him for those acts done hy
him ms "a legatce. and the tact that he has sold
his legacy cannot, we think, affect the question
OF his liability over, because he sold It, not as
executor. but az personal owner and legatee
under the will. and should the will be set aside.
he Is put in the attitude Of having sold a legacy.
60 when he thought he was entitled for a fuli
and fair consideration but 70 which ia fact he
had no right. 1.-THE will should be established.
then be sold something OF value 20 the pur-
chaser. fnot established, then he sold nothing,
and holds this money without far consideration
OF equivalent. aud be is put m the painful atti-
tude now, alone by swearing Go make good to
his purchasers. the subject of the sale Every
consideration of morals and fair dealing invite
him 60 the very verge Of veraclty that verge
nearest perjury. witness thus situated, takes
the stand between two cross-hrcs. The heirs
and distributes upon the one hand threaten
him with a loss OF legacies. If he swears
60 less than rs necessary 60 establish the
will. On the other hand. he Is pressed to
the same point by those who purchased
has leEacic9, and whose money he has
taken. We cannot establish painful prece-
dent, while the principle that the next Of kin
20 the deceased may release all interest in the
estate, OF the estate and thereby become a com
petcnt witness against the will, have been held
60 be the law iu this State In the case of Patton
eN. Us. Allison Cf diF.. Hump. 800 on the prin-
ciple that no one Is competent % accent an es-
tate cast upon him by tostacy or intostacv, and
may, therefore. release all claim 60 any part of
II tsf1rC he accepts n. ehaye no knowledge of
any case that permits legatee 90 sell his inter
est under VIII, and thereby become a witness
90 sustain the will on which his legacy depends
Here 20 hrst oocgptF, and then. on The pre-
sumption that hIs acceptance. and the
consent 81 the executor has COMPLETED
has title. sells, both transactions based unan the
validity OF the will, tncu becomes a witness 10
establish the will, and the measure of the valne
ni nus ioRao! rs not made Go depend so much
upon the intrinsic value thereof as upon Tho
strength, holdncss and distinctne>s If fhe tcsti-
mouy which be expected 60 give. mon only =, a.
regaI"s o., value. but the existence on non
existence, legally, OF the legacy itself is de-
pendent upon the swearing. As exa,foa an
opinion a. We may have Of human nature we
thlnk tms presents TOO great temptation 70 be-
adopted as q precedent. This case caused its
own condemnation. Here the witness hci5 IN,
To ms interest as "a legstOe until after the isslr
Wa made ur ami certified and be thereby mott
htd 81 the jeopardy 10 which m W
about TO be exposed. The greater parf
81 ms legacy iu due course OF admipistra
non 81 the estate. must have been in ms gv-,,
hands, las executor, O. his own use "a ,roy,'
and tins money be soils for other monev. al h.,
come witness 60 prove in effect thai ~ = r,,lr,
parted nom was legally has. Ia tho case mi T.,,
81 Palmer, II Penn. 1N. the supreme C,,,rt -.
Though leFatee may release or rrHa..,-. !, l.
gacy. and thus become a competent vitn.s, a.
prove will. yet be cannot make hims.lf -.
pgtent by assigning bis interest e. another -
thus overrUled an Legitimate lien III l,S,.,'.,,.
heEotton' ip that state by previous dcri.i,f, a.,
the contrary. And this principle b. afirme5 I'M
the case OF fart ~. Avery, 5 Watts 4 sergeant
5ll, and is recognized By this court ia the eas.
OF Anderson gs Brasher. lcrLcr ~. We
therefore, without passing upon other points
pressed IN argument az the bar. as errors ia the
court below, reverse his Honor. the Circuit
Judge upon the question Of the Incompetence III
this witaess. and remand the causo FOR a new
trial kpWARO III. EAST.
Special Judge.
XEIInVy PINE TnnRUNC,