69 Tenn. 526 | Tenn. | 1878
delivered the opinion of the court.
This is a contest as to the validity of a will— verdict and judgment in Circuit Court of Bedford in April, 1874. Writ of error granted in this court on complainants giving bond and security for costs in February, 1876. The entry on the record says, “which was accordingly done.”
The party could waive additional security on the bond besides the makers, if he chose, and ought not to be allowed to set by and by silence acquiesce in the sufficiency of the bond until the case is called for hearing, and then raise what should have been a preliminary objection, which ought to have been disposed of before.
It is next objected that the parties prosecuting the writ of error were not parties to the suit in the court below. This is true as a matter of fact, that is they were not actively concerned or- named as parties to the record in the contest in the court below. They are children, or a child and grandchild of the testator, the grandchild representing his parent, who is dead. In this aspect of the case they are interested in the result, as the will gives the entire estate, we believe, to the wife, and if it is set aside the parties seeking to prosecute the writ of error will be heirs
The general rule undoubtedly is, that only parties upon the record can appeal, or bring a writ of error. Moreau et als. v. Saffarans & Co. et als., 3 Sneed, 602. The reason of the general rule is given in the above case, “ because not being parties, they cannot, in contemplation of law, be affected possibly by the decree.”
But in the issue devisavit vel non, the heirs and distributees are affected, and their rights conclusively settled by the result of the judgment, whether parties to the record or not. We think, therefore, the rule cannot apply to such parties, and they should be an exception to the general rule growing out of this peculiar effect given to such adjudication.
The next question presented is as to the correctness of his Honor’s charge. The contest was made in the court below on the question of capacity of testator, and whether the will was not obtained by or under the influence of the wife. On this last, probably, was the main contest. His Honor said to the jury, “when you come to consider the question of undue influence, the declarations of testator in refer
"We need not discuss this question at length. The general question was examined at length in an opinion at last term by Judge McFarland, MS., Alexander v. -, in which the rule was held the other way, following the case of Reel v. Reel, 1 Hawks., N. C., and other cases. We refer to that opinion for the reasons for our conclusion, and feel satisfied with what was then held.
For this error in the charge the case must be reversed, and remanded for a new trial.