117 Tenn. 135 | Tenn. | 1906
delivered the opinion of the Oonrt.
The defendant in error, claiming in the character of heir, filed the petition in the present canse asking that there be certified to the circuit court of Knox county, to be tried upon an issue of devisavit vel non, an instrument bearing date the 30th of November, 1901, and probated by the county court of that county in April, 19OR, as the last will and testament of R. R. Swepson, then lately deceased. The petitioner alleged as a ground for this action that this instrument was not the last will and testament of Mr. Swepson, in that, for more than twelve months before his death, he had been of unsound mind and memory, and thus was incapacitated from making a last will and testatment; and further, that the instrument in question was the result of undue influence exercised upon him. The petition contained the further averment that by this instrument the petitioner was given nothing, but that the whole of the estate, both realty and personalty, by its terms passed to others named "as beneficiaries therein.
The defendants to this petition, answering, denied that R. R. Swepson was mentally incapable, at the time of making and publishing this instrument as his last
The county court heard evidence upon the issue thus raised by the answer as to the right of petitioner to malee this contest, and dismissed his petition, from which action the petitioner prayed and was granted an appeal to the circuit court. Upon the trial of the cause upon the same issue in this latter court, the circuit judge reversed the action of the county court, sustained the petition, and sent the case back to that court with a direction that it certify the will in question to the circuit court, for the trial of the issue of devisavit vel non. Upon this action error is assigned by the defendants to the petition.
The record shows that, at the trial in the circuit court, evidence was introduced by the petitioner showing that Robert Redd Swepson died on March 23, 1902; that he was never married, and that his next of kin were his nephews and nieces, the children of deceased sisters; that the petitioner was a nephew of Robert Redd Swep-son ; and that, if the latter had died intestate, the petitioner would have inherited one-twelth of his estate under the laws of Tennessee.
To meet this case and support the averment of their answer on the point in question, the defendants produced in open court an instrument of writing purporting to be the will of R. R. Swepson, dated September 22, 1900, together with its codicil, dated April 10, 1901, which, together disposed of the entire estate of the testa
All of this evidence was excluded, however, upon petitioner’s exception, and the judgment was then rendered, as has been already set out, which is now made the subject of criticism on this appeal in error.
It is well settled in this State that the right of a proposed contestant- to impeach a will, if disputed, presents a controversy separate from and preliminary to the contest itself, in which it is competent for the contestant and contestee to offer evidence as to the issue joined, and that an appeal lies from a decision thereof, before the contest is heard. Wynne v. Spiers, 7 Humph., 393; Keith v. Raglan, 1 Cold., 474; Crocker v. Balch, 104 Tenn., 6, 55 S. W., 307; Gore v. Howard, 94 Tenn., 581,
The plaintiffs in error invoke tkis rule, upon the theory that, if the present contest should succeed, the defendant in error would be without interest in the estate, as the effect of a finding that the later will, which was executed, according to the testimony of Mr. Lucky, to take the place of and as a substitute for the earlier one, was invalid on either of the grounds alleged in the petition, would be that the earlier one remains in force, and by that, the defendant in error, in the disposition of the entire estate to other beneficiaries, is left without any substantial interest therein; and, this being so, he is not entitled to make the present contest.
If the testimony directed to this point is competent, then we think the petitioner must be repelled, as the rule of law is well settled that, if the later will fails for any reason, the earlier will remains in full force and effect.
This rule is announced by various text-writers on the subject and has been often applied by the courts, especially where the earlier will is canceled by the testator with the purpose of making a new one, which, in some way, is disappointed. The rule is thus stated by Mr. Jar-mon, in his work on Wills (volume 1, p. 294) : “And it may be observed that, where the act of cancellation or destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the effi
Mr. Pritchard, in his valuable work on Wills and Administration, in section 272, states the rule in very similar language.
But the operation of the rule is not confined to cases of cancellation. Mr. Page, in his recent work on Wills, in section 257, says in the following language: “The testator may not at the time he performs the act be competent to make a will,.and in such case he cannot form the intention to revoke a will. A will can only be revoked by a person of sufficient age, mind., and memory to make a valid will. . . . Since the intention to revoke is an essential element of revocation hy it, manifest on the will, it follows that, where such outward act is caused by the undue influence of another, it is not a revocation.”
These authors support their text by reference to many cases from courts of last resort, among them being Ford v. Ford, 7 Humph., 92; and Stover v. Kendall, 1 Cold., 561. In the first of these cases, from our own reports, the rule is indirectly recognized. It is there said that, if a testator of unsound mind order his will to be burned, and it is burned, it will be established after his death as it existed in its integral state, if that be ascertainable; if it be not burned, there would be, of course, no revoca
The question, then, arising is: Can the unprobated will, of date September 22, 1900, made when, upon the uncontroverted testimony in this record, the testator was of sound mind and memory, be relied upon in bar of petitioner’s right to contest the later will, which was made as a substitute for the prior will? In other words, can this earlier unprobated will be introduced in evidence to show that, while petitioner had an apparent interest as heir, yet he is without substantial interest in the estate, even if he should succeed in the present contest?
In McCutchen v. Loggins, 109 Ala., 457, 19 South., 810, the facts were as follows: The bill was filed by
The case went to the jury and they found the unpro-bated instrument of June, 1888, to be the last will of the testatrix, and upon this finding the bill of complainant was dismissed. By appeal the case was carried to the supreme court of Alabama, where it was, in substance, held: First, that the complainants had no status in court to contest the will of 1876 save as beneficiaries under the unprobated will of 1888, but that as such beneficiaries they did have the right to impeach, if they could, the earlier will; second, that in meeting this attack of the complainants the contestee could avail himself of the unprobated will of June, 1888, which reaffirmed the will of 1876.
In other words, the court there holds that a contestee may rely upon an unprobated will for the purpose of showing that the contestant had no real interest in the estate, and this, although it appeared that a former will in favor of the contestee had already been admitted to probate. It is evident that the court did not regard the probate of the earlier will as being an estoppel upon the contestee to rely for his defense upon a later unprobated instrument.
Barksdale v. Hopkins, 23 Ga., 332, presents a case furnishing an analogy of value in the consideration of the question at bar. The facts in that case were that one Barksdale propounded a writing, dated in 1848, for probate as the will of one Mrs. Bunkley. To the admission of this writing to probate certain of the next of kin of the deceased entered a caveat, resting on several grounds.
To this objection the court made the following answer:
“Now, that this proposition may be true, a second one has to be true, to wit, this: That in a probate court a will can have no revocatory efficacy, unless it has been admitted to probate, or is offering itself for probate. Is then this latter proposition true?
“These are cases in which it cannot be true that the revoking will was admitted to probate. The revoking will was void. They are cases, too, in which it cannot be true that the revoking will offered itself for probate; that a will professing itself to be revoked should yet offer itself for probate is absurd.
“This second proposition, then, is not true. What is the true proposition on the subject to be deduced from these cases? It would seem to be this: That, whenever a will is efficacious for the purpose of revoking a former will, a probate court may take notice of it for the purpose, although such will is one that has not been admitted to probate, or even one that is not capable of being admitted to probate.”
Thus it will be seen, in the first of these cases, a contestant was repelled by an unprobated will, and, in the second, an instrument, which was not only unprobated, but not offered for probate, was held to be competent as evidence to defeat the probate of an eariier will, which was propounded for probate. If these authorities are sound (and in Rudy v. Ulrich, 69 Pa., 177, 8 Am. Rep., 238, the supreme court of Pennsylvania said the propo
But, for the petitioner, it is said, though it should turn out that he has no interest in this estate, yet, as heir he has an apparent interest, and this entitles him to make this contest.
Under our- authorities, however, a contestant must have a substantial interest which is to be served by his contest. Wynne v. Spiers, supra, and the various cases citing it.
Let it be granted, however, to the petitioner, that prima facie, being one of the next of kin of the deceased, he had the right claimed for him by his counsel, yet we think this prima fade case is necessarily met and destroyed by the existence of the earlier, valid, but unpro-bated, will. This leaves him a stranger to the estate, and as such without any right of contest.
It is insisted, however, that, having probated the last will, the plaintiffs in error are estopped from relying on the earlier will for any purpose, that they will not be permitted to occupy the inconsistent positions of relying upon the last will, and setting up the earlier one as a
The question as to the release of interest in the testator’s estate, and its effect upon the rights of the parties, though next of kin, to raise the issue of devisavit vel non upon his will, did not arise incidentally in the case last cited; nor was it disposed of in an incidental way by this court upon appeal. To the contrary, the question went to the coré of the issue then being tried, and it was held that, save as to one of the parties, who claimed that she had never signed a release, or authorized any one to sign for her, and whose evidence tending to show that fact was rejected by the trial judge, the judgment of the court below, holding that the contestants who executed
If it be, as was held in that case, that it was competent to determine the question as to the effect of these releases upon the right of contestants to impeach the probated will of the testator, it would seem that a court should equally have power to adjudge the same question, arising, as it did in this case, upon an unprobated will, confessedly valid in every respect, disinheriting the contestant. In each case the contestant is shown, by the evidence offered, to be without substantial interest in the controversy. If the one is to be repelled by his own act, why should not the other by the act of the person who had the estate to bestow or withhold at his pleasure?
We find nothing in our cases, unless it be in Miller v. Miller, 5 Heisk., 723, which conflicts with this view. In Wynne v. Spiers, supra, a husband instituted a proceeding to contest the will of his deceased wife, and the executor, in bar of his claim, set up a deed of marriage settlement made by the husband and wife, and also a compromise, or agreed decree, rendered by the chancery court settling the respective rights of the husband and the wife as to the estate of the wife. As to these defenses, the court said: “It is insisted that the stipulations of the deed of marriage settlement of 1844 are such, in point of legal effect, as to exclude him from the succession to her separate property, even if she had made no will. We think this is very probably so. But we
Prom this it will be seen that the court did not rule that the deed of marriage settlement was incompetent on the issue then being tried, but simply expressed hesitancy in giving the effect to it on the trial of this preliminary issue claimed by the contestee. The case presented another ground upon -which the contestant was clearly barred from maintaining his suit; that is, the agreed decree referred to, and without determining the other point, the estoppel was rested upon that. However, the doubt, or hesitancy, there expressed as to the incompetency of such an instrument as evidence on the matter in question, we think, is set at rest in Gore v. Howard, supra, for the release there held to be competent had no superior evidential efficacy to the marriage settlement relied upon in the earlier case.
In Miller v. Miller, supra, a contest over the will of a deceased husband -was instituted, in part, by a widow, who had dissented from it Avithin the statutory period, and, among other objections, it was urged that she could
This court, therefore, reversing the action of the trial judge, and rendering the judgment which he should have given, orders that the petition in this cause be dismissed, at the cost of the petitioner.