Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1880-11-16
SUPREME COURT OPINIONS;
AT KNOXVILLE. NOVEMBER II, 1880.

AT KNOXVILLE. NOVEMBER II, 1880.
Reported for the Chronicle by L. Tillman, Jr.
Will--residusry devisee, will take special
legacy, when. f.ss
Since the alteration of the law in This
state by which q will is made to speak and
take effect as to realty, as we'll as personal
ty, as if executed Immediately before the
the death of the testator, special exception
of property from residuary devise
and giving it to another devisee, will
not prevent tho excepted property from
going to thejresiduary Geyisee IL the except
/ ing devise fail because void, if it appear
fl ON the whole will that the property was
excepted merely for the purpose of giving
it to the specific deviseeI and not in order
to take it away from TIE residuary depisee.
60 sper, Js-Reev es. sex'r, vs. Reeves
freeman disseRts. j., "a @ -..-
Duress-relief against note executed under
A note executed TO bank by father
to take up two notes of bis son On which
the names of the father and other persons
were forged as endorsers, will be cancelled
in equity when it appears that the informa>
ton of the forgery was suddenly sprung
upon, the father at q prlvste. Interview
between him and the officers of the bank,
one of whom was q lawyer, brought about
By the bank. no opportunity being given
the father to consult with friends or obtain
legal advice, and his state of mind being
little short Of mental alteration, Cooper,
J.-Cofman VS.. Lookout bank,
l.. gAdministraton--Bill to sell land Case
made, when.
Where a personal representative files q
| bill to have lands sold under the provisions
| of section 2267 of code, it devolves upon
| him to make out prima fscie case of the
| necessity of the sale before decree can be
| had Crh
| ment with the county court is produced
showing assets exhausted and debts cut
| standing or due the representative for ad-
vances out of his own means to pay just
debts against the estate.--Freeman, j.
| Shields, admir-, vs.. Allsup.
2. Pleading Defence of heir by answer.
| In such q proceeding the heir may by
answer point out errors IN the settlement
4 with the county court and upon proof have
| the same disallowed; and only such errors
as are thus specifically pointed out can bt
considered on the hearing. .--ldem.
iAdministrator-Retainer- Right Of w her
/ exercised.
A personal representative has the righ
to retain assets Of the estate TO satisfy
debt due himself, but he must do so with
in two years and six months from hi
qualification or his claim will be barred
Idem. ,--
SHmS-h OF TeL&llST.
The fact Of retainer must be evidenced
by settlement, or some other explicit &C
sppropriating the money to the debt. suci
as csncelling note, or crediting & bool
account, or the like.-ldem..
Corporation-Eank Of Tsnnessee-~Dissolu
tion.
/. The Bank of Tennessee ceased to exis
as corporation at the end of five year
from the 1st of January, 1868, and any &C
tion at law, wherein it is the real plaintiff
brought after that date, must fail.-Mc'
Farland, J.-Kyle VS.. Ewing, trustee.
Same-Trustee of-Msy sue in own nam
when. ea--
But upon note payable to truste
Of the bank made before the dissolution
| thereof, al action could be maintained il
the name of the trustee alone, even if be
gun after the dissolution, and the unneces
sary use of the name of the defunct corpo
ration as nominal plaintiff might be OBJ
jscted as surplusage.-Idem.
Constitutional law-Act impairing obliga
tion of contract.
The act of the legislature of March, 1876
(chapt. O. is void in so far as it attempts T.
release debts due to the trustee of the BAN
which under the trust il is his duty to col
lect and appropriate to the payment c
creditors of the bsnk.-Idem.
| DLALut0 O1 lluIltdLlOH-I di6Ial pay U16ub.
A partial payment made as part of th
debt is not, Of itself. equivalent to an &C
knowledgeme of the debtors Obligation
to pay the residue, and will not, therefore
remove the bar of the statute. mcfarland
J.,-Smith vs.. Curl.
Attorneys lien.
Where decree has been given to
party upon bill brought for that purpose
setting aside sale of his lands made unde
void judicial proceedings, the attorney Q
such party will not be allowed lien o.
the surplus of rents, after deducting i'm
provements and taxes, superior to tn
claim of the purchaser for reimbursement
of his purchase mopey.-Freeman, j.
Hays vs.. Dalton. IN. B.-Wright VS.
Duield End Baxter, oVerruled on th
point.l s~T-
Where party calls for jury in chance
ry he must bring himself strictly With
the provisions of the statute, and the issue
submitted must be material, otherwise th
finding of the jury and judgment thereo
will be reversed by this court and th
proper judgment given here upon the fac
and Issues appearing in the record
Furney, J.-Hollowsy rs. Handy.