57 Tenn. 58 | Tenn. | 1872
delivered the opinion of the Court.
In 1851, John W. Goode died, having made a last will and testament, leaving his property, real and personal, under the control of his widow, Pamelia W., and appointing her his sole executrix, with power to dispose of any of his property at her discretion, and reinvest the proceeds in other property. No security was required to be given for the faithful execution of the trusts of the will. The testator had real estate in Memphis and in Arkansas, a number of slaves, and debts due him at the time of his death. The testator also left surviving him, two daughters, Sallie L., wife of -complainant George T., and Mary, wife of William Harris, who, with their husbands, are the complainants in the bill; and two sons, the defendant William S. and Patrick Goode, who died after
In 1866, complainant, George T., administered upon the estate of said John W. Goode, deceased, and subsequently took out letters of administration upon the estate of Mrs. Goode. Numerous parties defendant are made, including persons who hired slaves, and the bill seeks to hold them, liable for the hire, as well as to hold the estate of C. J. Clack, deceased, liable not only for such hire, but also for money and property alleged to have been received by him and for which he did not account. The bill was filed in September, 1866, in the Chancery Court at Somerville. The administrator of Calvin J. Clack answered, and admitted that his intestate, during the life of the executrix, assisted her in the settlement of her husband’s estate, and after her death, there being no administration on her estate or her husband’s, that said Calvin J., at the request of the children of said John W. Goode, who were his nephews and nieces, continued in charge of the estate, for the purpose of preserving and pro
When .the master states a fact or result which he has been directed to ascertain and report, he should briefly cite or refer to the evidence upon which he predicates his report. This is/ especially necessary in stating an account where the items constituting it are numerous and the evidence voluminous. Application was made “ to reopen the account and report of the clerk and master and to retake proof,” which was refused by the court; but the administrator of Calvin J. Clack was allowed to file an amended answer, which was accordingly done; and in said amended answer
The administrator of Calvin J. Clack in support of his application to reopen the account and allow the taking of further proof, offered and read his affidavit, which is made part of the record by bill of exceptions. Affiant states, that his intestate is not indebted to Goode's estate; and, that he had no notice or opportunity to cross-examine the witnesses on whose testimony he is charged; that in the winter preceding the taking of the account taken, May, 1869, he caused notice to be issued to be served upon the proper parties to take the depositions of fifteen to twenty witnesses by whom he would have proved the payment of large sums of money for the maintenance and education of the children of Goode, and other material facts in his defence; that by a failure of the mails or other cause, the notices were not returned until after the expiration of the time fixed for the taking of the depositions: that soon after this, martial law was declared in the county of Giles, where most of the witnesses resided, and legal proceedings were suspended, and the people were in terror and confusion on account of the threatening conduct of the militia; and, that a proposition to compromise the suit had been made, and complainant still was expected in Giles county to negotiate the same. The names and residences of the witnesses are given and the facts to be proved by them severally, are stated. It is further stated in the affidavit, that since the taking of the account in May, 1869, affiant has ascertained
For defendants it is insisted the decree upon the account is erroneous, because in the reference order, no question is adjudicated, and proper directions were not given to the master as the basis of his account and report.
The first order of reference which was rendered at May term, 1868, was undoubtedly defective, directing simply that the master should take an account to charge the defendants, giving them no authority to hear proof of or report any matter in discharge of any liability which might be ascertained by the account to exist against them, and the rep’ort was properly set aside upon exception. The master, up to June term, 1868, had no authority in making his report to take notice of any evidence which might have been taken by the defendants, in exoneration of the liability he was directed to report against them. At this term, for the first time, an order was made directing the master 'to - hear proof as to debits and
The only remaining questions to be determined, are, has the decree attained the justice of the case, and did the Chancellor properly exercise his discretionary power in refusing to reopen the case for further testimony. The decree against the estate of Calvin J. Clack, is for upwards of $13,000. There is in the record evidence of facts which satisfy us that he is entitled to large credits upon this sum. Yet the report gives him no credit at all. We do not feel satisfied from the evidence, of the correctness of the decree against Calvin J. or Spencer Clack’s estate, and upon the strong facts presented in the affidavit of Clack, we think the chancellor erred in refusing to allow the account to be reopened and further testimony to be taken. Wé think there has not been such gross negligence on the part of defendants as to deprive them of the privilege of taking testimony to
The decree in this case will be reversed, and, as the liability of the defendants, who are charged as hirers of the slaves, will depend upon, or may be affected by the state of C. J. Clack’s account, the case will be remanded for a further account between all the parties.
The costs in this court will be paid one-half by complainants, and the other half by defendants.