Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1882-10-01
SUPREME COURT OPINIONS.
Reported for the CHRONICLE by Maj.
s. Prosser, September Term. 1882 I

The estoppel of judgment or decree
extends to all matters material to the de-
cision of the cause which the parties, ex-
erclslng reasonable diligence might have
brought forward at the time.
A judgment or decree to be bar as res
adjudicata must be on the merits, but to
| this end it is not necessary that the itiga-
| ton should be determined on the merits in
the moral or abstract sense of these words !;
| it is sufficient that the status of the action
was such that the parties might have had
their suit thus disposed of, if they had
properly presented and managed their re-
spective cases.
| A decree dismissing bill upon demurrer
on the ground of lapse of time or laches
| is on the merits, and bar to another suit
between the same parties or their privies,
about the same subject matters, and for the
same purpose.
| The Code, S2755, which authorizes a
| plaintiff to comm nce new action within
| one year after the rendition, in
a suit commenced by him within the time
limited by the statute of limitations, of a
| Judgment or decree against him upon any
| ground not concluding his right of action, :"
does not apply when the judgment or de-
| clee is on the merits. In suit by heirs to
recover lands descended from an ancestor,
and for this purpose to set aside a judgment
| against the ancestor as void for want of
| notice or fraud, and a sale of the lands
made under the judgment during the life of
| the ancestor, the time of limitations or
| laches would begin to run against the an
| cestor. Park vs. Cliff ct al. Opinion by
| Cooper.
l. Will.-Rule of construction. In con-
| struction of lost wills and testaments, the
L
are to be considered for the purpose of dis
covering the intention of the testator, and
such intention, when discovered, is of
paramount and controlling influence.
Williams VS.. Williams, 10 yer. %.
All the parts of will must be construed
in relation to each other, so as, if possible,
to form one consistent whole.-Jarmon on
Wills, 100; Wood vs.. Polk, IL; Hei. 220.
2. Contracts made with executors, ad-
minis rators, guardians and trustees, impose
upon them personal liability merely; and
! does not bind the estate. So, if a personal
representative executed note and promise
as such to pay, the amount called for, such
promise is only binding upon the maker
personally, although their official designa-
ton be added to their signatures. An ex-
ecutor who borrows money or extinguishes
debts by the execution of his own note he
is only personally lable-E. L. Iron Co. VS..
Gask1l, Lea, 742, So Ala, 104; Sanford
vs. Hogard, 29 Ala, 6o4; Dickerson VS.
Carnutf ct al, Southern Law Journal, vol.
ii, ADJ; Cruise VS.. Jones, Lea sc; Steele
VS.. McElroy, Sneed, 341, l Heis, 698; s
Sneed, 61O, IL Heis, 651.
3. Will.-The will directs the executrix to
sell the testators Rogers place, and apply
the proceed, if necessary, to pay debts
against the estate, but if not necessary for
that purpose, TO be used to support the
family. Held.-Does not justify mortgage
or trust conveyance to secure borrowed
money by the executrix. The executrix
borrowing money on her own note, creates
a personal liability merely. Held. Cannot
mortgage the property of the estate to Sc
cure her own debt. The general rule as to
execution of powers, being that the inten-
! ton of the grantor of a power, as to the
| mode terms and conditions of its execution
| must be observed
f. Representation executor borrows
money TO pay debts, and does extinguish
debts, and executes his notes therefor
Held "A creditor of the estate to that ex
tent Held.-Such creditor of such repre-
sentative entitled to subrogation or substitu-
ton to the rights of the representative.
Douglass VS.. Fogg, Leigh, $50; Dixon on
subrogation, l65; Tradesman Building
Company VS.. Thompson, 10 Reporter SOB;
Coe VS.. Il. r. Co 4th Stewart 103 1856.
5. Sureties-Sureties not entitled to the
remedies of the creditor by substitution
until the debt is fully paid. Leaking cases
in equity, vol. 1, top page 155.-Motley VS..
Harris, l Lea, SIT.
6. Dower-Homestead A widow emit
tied to dover and homestead when her hus-
band makes provision for her by WILL in
personal property or real estate or both,
and dies insolvent, without formal dissent
in court, but by informal dissent opera
lions of law.-Jarmon VS.. Jarmon Lea,
672; code, sec. 2,404.
Life estate-Homestead vests in hus-
band and wife jointly, and the death of
either rests in the survivor, and is a life
estate; one can only make disposition of
it by the assent of the other, in the mode
prescribed by law.
NEUTRALITY-SUSPICIOUS. or admlnistra-
tors-Request for delay Request for delay
to sue by administrator; demand must be
for definite time at his special request.
Request for delay until 81 have assets of
the estate, and will pay out of same when l
have them to pay with"-Held; not spe-
| cial request, nor for definite time, and will
not prevent the bar of the statute of limita-
tion.-Rickett VS.. Rickett, Lea, 1853, opin-
ion byJ. II. Gaut, SPECIAL judge. Judge
Mcfarland dissents.
A fire insurance policy contained this con
dition: IF the within mentioned premises
shall become vacant or unoccupied
without the assent of the company
endorsed hereon, then, and in
every such case, this policy shall be void"
The premises insured was dwelling
hOnga The tanant left tho nd
the house was burned ON the fourth day
after he left it and while the premises were
still vacant.
Held that the foregoing condition means
that the policy is void only so long as the
vacancy shall continue; but the house having
been burned while vacant the company is
discharged from all liability on the policy,
and complainant cannot recover.-Thos.
Ridge VS.. the Scottish Commercial Insurance
Co.
Opinion by Mcfarland.