Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-25
SUPREME COURT DECISIONS.
December Term - Nashville,
1870. t'@
Joseph e. HeiskeII, AttOrney-Gen-
cral and Reporter.
10. c. Bowers, ct ais, vp. P. s. Lester, ct ais.

tuted over the subject matter. ~
The petitions were filed under sections
| 2,312-13 and ID, of article II of the Code
entitled, Distribution of estates, in the
| words: ---.,rr p :
| "Any distributee or legatee of the es-
tate may after the expiration of two years
from the grant of letters, apply to the
County, Circuit or Chancery Court of the
county or district in which administration
was taken out, to compel the payment of
his distributiVe share or legacy" -
| "The application shall be by bill or pc
tition; shall set forth the claim of the ap-
plicant as legatee or distributee; shall al
lege that the assets of the estate are more
than sufficient TO pay the debts, charges
and other claims, if any, entitled to
| priority, and be verified by affidavit"
''The proceedings under such applica-
ton shall be conducted as other equitable
actions, and heard and determined sum-
marily as soon as practicable"
| To ascertain whether the petitioners
are entitled to proceed in this case, under
the foregoing sections, we must construe
them in conjunction with sections 2,313
and 2,3l6, which are, can affidavit be-
fore Commissioner of Tennessee, or be-
fore any consul or notary public, as to
the pedigree or heirship of any person,
msy be received as evidence thereof by
any executor, administrator or other per-
son or tribunal having the partition and
distribution of property or estates"
''But, every legatee and distributee be-
fore receiving his portion of the deceas-
eds estate, or some other for him, shall
give bond with two or more able surelies,
in penalty double the amount of his
| share, payable to the State, conditioned,
that if any debt or debts, truly owing by
| the deceased, shall be afterwards sued for
and recovered or otherwise duly made
| appear, said legatee or Distribute shall
refund and pay his ratable part of such
! debt or debts out of the part or share so
allotted to him"
1t is evident from the language of this
statute tina: it was the purpose of the
Legislature to confer upon the County
! Court merely power to ascertain from
the records of the Court of the settle
ments of the executor or administrator
the condition of the personsl
estate, from which the legacy or distri-
butiye share is claimed, and 10 do this
by credIting the trustee with proper dis
buTsements and charging him with as
sets in his hands, striking a balance, and
then by simple calculation ascertaining the
share of the distributee or legatee, and
upon this to make an order for the pay
ment of the interest thus sunlnlarily as
Certained.
1t could not have been contemplated
that the County Court should have iuris-
dctiOn TO cOnstrue wills, TO try questions
OF set off, pass upon complicated ac-
counts between the executor and distrib-
utee or legatee, to try question: of infan-
cy or other cOntTOVerted fact, as it must
do in this case, if it determine the matter
at all. These are matters of litigation
which cannot be tried in q summary
proceeding
Under this statute the only power the
County Court has is simply to order the
payment of the legacy or distributive
share readily ascertained without compli-
cation or plausible dispute and without
issue or litigation.
1t was not intended that the executor !
or administrator should answer. The |
petition, with & view to litigate and con-
test, is only to perform the Office Of no.
tlce in q summary proceeding. the stat
ute expressly declaring that the proceed |
ing shall be S1,1lnlCri2y heard and de- |
termined as soon as practicable.
Certainly if more was intended, or if |
the jurisdiction indicated by the proceed !
ings in this case had been the object of |
the Legislature, there would have been
more deiuiteness in the act of Assembly. |
II would have provided for process TO !
bring the executor or administrator be- |
fore the court. 1t would have provided |
for tho enforcement Of the liability of his |
securities upon his bond. It would have |
prescribed the term of the court to which |
the proceeding should have commenced-I
whether the monthly or quarterly-and |
would have invested the court with the |
power TO issue execution against the ex- |
ccutor or administrator and his securities,
all of which essentials are absent from |
the law and caTn0t be supplied by intend |
mCnt or implication. The County Court |
IS one 81 limited and not general jurisdic-
ton, and it has been the policy as well as
the duty of the courts to cOnfine it 10 /
such jurisdiction as the Legislature in
terms conferred, and not to enlarge by
construction jurisdiction out of which
much TuiDous litigation has already re-
suited. See Bond vs.. Clay, 2 Head 379.
This construction of the law is made
Conclusiyely correct by section 2,2I5.
Can it be for a moment presumed that the
Legislature intended TO authorize any
court, in matters Of contest, to treat as
evidence the cXpayte affidavit of any one,
however honorable or reliable, to ascer-
tain the rights of litigant disputants,
without giving the adversary of him who
produces such affidavit, the opportunity
to test by CTOss-ey2uInatiOn the memory,
honesty and means Of knowledge of the !
witness, and al the saue time allow the
party using such affidavit to produce and
rely upon it al the trial, without having
first filed IN the cause, or given his ad-
VcrsaTy notice Of its existence, that he
might be enabled to explain il by the
counter affidavit. Of the same party, or
SHOW its falsity by proof aliundel Surely,
no law, making power in this country ever
contemplated such doctrine; OF, if it did,
it had no power for its institution, and to
have declared it ia plain terms would
libhG bC-u ~ AA+LSCIAAA Its authority anu 1
promulgate nuliity through the statute
book. Il being the peculiar theory of
our institutions to arrive at truth in all
matters of disputed or contested right by
thorough Investigation, each party being
secured in the inalicnable privilege IOf
testing the proJf for and against him, and
of unwilling the falseh God that may be
attempted to be pracuced upon him.
The idea, then, controlling the Legisla-
ture was, the law limiting executors and
administrators under ordinary circum-
stances to two years for the settlement of
estates and for Inst time and purpose,
allowing them to Resin the effects of
decedcuts, thought it but simple Justice
that at the end Of that period, the persons
eventually entitled to the residue of cs-
tates after the payment of debts, should,
instead of the representative, have the
use snd profits Of such remaining estate.
upon executing the Tcfundiug bond dircc-
led by section 2, 3IG, The law contcm-
plates the use, ard not the absolute
ownership of the fund by the Iegatee or
dis.ri1utac; such use To riDcp in qhsoIufe