30 Tenn. 485 | Tenn. | 1850
delivered the opinion of the court.
At the August term, 1834, of the county court of Smith, the will of Francis Cornwell, deceased, was proved in common form by the two attesting witnesses, and Silas C. Cornwell entered into bond and assumed the office of executor. At August term, 1849, Larkin Cornwell filed his petition, stating that Francis Cornwell, the supposed testator, was his grandfather, that said paper writing was not a valid will, and praying that he be permitted to contest it, and that it be certified to the circuit court for that purpose. The order was made, and the case transferred to the circuit court; and at subsequent terms of the county court, other orders were made therein, purporting to be made nunc pro tunc, to supply deficiencies in the first order, one of which professes to set aside and annul the probate of common form. The executor was not cited to appear in the cpunty court, but appeared in the circuit court to resist the proceeding, and on his motion, the orders taken in the county court are set aside and annulled, and the will remanded to the county court to have the force and effect properly appertaining to it, in virtue of the probate in common form; and from this judgment, the said contestant has appealed in error to this court.
In Wynne vs. Spiers, 7 Hum. R. 407, the court say: “it is
We may therefore regard the proceeding in the county court, as a suit asking the court to set aside the probate of common form, and to transfer the will to the circuit court to be proved in solemn form, on the issue, devisavit vel non. The county court has no other or further jurisdiction in the matter, and its judgment in this respect being final, it maybe appealed from by either party. We may further assume, upon principle, as well as authority, that the parties to the suit must be interested in the contest; that is, the contestant must be interested in the estate of the deceased, in case of his intestacy, and the executor is the proper party to represent those who are interested in the provisions of the will. We do not
As to the form of the suit, the case of Harvey vs. Smith, 1 Dev. & Batt. Law R. 188, was by petition, summons and answer; the case of Gibson vs. Lane, 9 Yer. R. 475, was by petition, but it does not appear in the report, what process was taken against the executor; the case of Wynne vs. Spiers,7 Hum. 395, was by motion and citation to the executor “to show cause, why the probate of said will should not be contested,” and the defendant appeared and filed an informal plea, stating the ground of his defence. The practice in this case, seems to have been inconvenient and imperfect, as there was no pleading on the part of the contestant, stating the grounds of his suit, and to which the executor could technically and properly make defence, by plea or answer.
We think the practice adopted in Harvey vs. Smith, was proper and convenient; the petition should state, the interest of the plaintiff and the facts upon which he relies to set aside the probate, and re-propound the will; the executor, being summoned, should make his defence, by answer to the peti-. tion, and thus, the nature of the contest between the parties, will appear, in this as in other cases, by their pleadings, and the court be the better able to determine it.
Now, in the case before us, the proceeding is very defective in several respects. It does not appear that the contestant was so related to the deceased as to be interested in his estate in case of intestacy, as he states merely that the deceased was his grand-father, but it does not appear, but that his own father may be living. In the next place, it does not appear that the executor was made a party to the suit, or that he appeared and made defence in the county court. The case
The action of the circuit court set aside, and annulled this proceeding, and we affirm its judgment. Let the judgment be affirmed.