17 Tenn. 329 | Tenn. | 1836
delivered the opinion of the court.
Three distinct grounds have been taken by the plaintiff in error, upon which a reversal of the judgment of the circuit court is claimed. First, that the verdict of the jury which affirmed the contested paper, to be the last will and testament of John Gibson dec’d., is not sustained by the testimony heard on the trial, but that the weight of the testimony was in opposition to the verdict, and that the circuit court ought on that ground to have granted a new trial. We have repeatedly determined during the present term, and such is the uni
Secondly. The second ground upon which the plaintiff in error insists that the judgment should be reversed, is that the court erred in not charging the jury as requested by plaintiff, “that the widow of deceased, took an absolute estate in the personal property bequeathed to her by the testator, but on the contrary, in charging them that she took only a life estate ⅛ the said property, and that the limitation over was good.”
The pertinency and materiality of this exception, it is argued, arises from the fact, that Thomson, one of the attesting witnesses called in support of the will, was upon cross examination asked “whether the testator negatived anyone proposition mide by the wife?” He answered that he didin one particular, and that was in answer to a request from the wife, that as to the negroes left to her she should .b.e allowed to do with them as she pleased at her death. Those words are not in the will, and the request, if made, was in terms negatived-; yet it is said that the legal effect of the words in fact by construction and operation of law, an investn widow, of the absolute interest. It needs nothi^ than a distinct statement of this ground to show that injg not Jeq^.f ble. The rules of law in the construction of instrtóyjy^, a§S” the rules of property, may often defeat the purpos{ tor, but this surely will not prove that he who drew’í those interested under it, have been guilty of fraud.' what in point of legal operation is the amount of Mrs. Gibson’s interest under the will, it would be at this time not only •unnecessary, but improper for this court to decide.
The third ground is, “that the court erred in not permitting
Judgment reversed.