26 Tenn. 394 | Tenn. | 1846
delivered the opinion of the court.
The defendant, in Error, in January 1841, intermarried with the Testatrix of the plaintiff in Error, and entered into a marriage agreement with her, by which her separate property, amounting to about $20,000 was settled upon her for her sole and separate use. A petition for divorce, and to be revested with all her property, absolutely, was filed by the Testatrix in the Chancery Court for the County of Sumner, and pending said suit, a compromise between the parties, so far as related to the property of the wife, was entered into by the husband and certain Trustees on the part of the wife, by which the husband conveyed, of said trust property, about $8000 to the Trustees of the wife, and this in consideration of being permitted to remain absolute owner of the balance of said trust fund, and to be free from the debts of the wife, and from all liability to support and maintain the wife. In the meantime, the suit for a divorce was to be proceeded in by the Chancery Court of said county, and it was agreed by said parties in said deed of compromise that said deed, and all its stipulations, should be returned to the next term of the Chancery Court, and should become the decree of said Chancery Court, as to the rights of the parties in relation to said property.
Before said Chancery Court was held, the said Elizabeth O. Spiers departed this life, having first made and published her last will and testament, as she was expressly authorised to do by a stipulation of said deed of compromise. She appointed Alfred R. Wynne, the plaintiff in error, her executor, and he took upon himself the said office. When the Chancery Court was held in the October following, the death of Mrs.Spiers, was suggested in said case, and admitted, and by consent of parties, the same was revived against the said executor, and the said deed of compromise, by like consent formally set forth at length, and made the decree of the Court in the said suit. Subsequently to all these proceedings, the said Charles Spiers, the husband, filed his petition in the County Court; praying that the probate of said last will and testament might be set aside, and that the executor in said will might be compelled to repro-
As to the first question, whether an appeal lies in such cases, the counsel for the plaintiff in error, refer to the act of 1794, ch. 1, sec. 63, which gives an appeal from any sentence, judgment or decree of the County Court, and the still broader provisions of the act of 1844, ch. 99, sec. 1, which gives an ap
2nd. Ought the Circuit Court to have set aside and quashed the proceedings of the County Court, upon any of the grounds referred to? In other words, was the husband, under the circumstances, entitled to set aside the probate and have a re-probate of his wife’s will? He was not a stranger. On the contrary, the situation in which he stood to the testatrix, prima facie, entitled him to have her will re-propounded. What then shall
The matter of estoppel, from the fact, from the substance and from the form of said decree of revivor and final decree, as much precludes the husband from having the will propounded for a re-probate, as if, in the life of the wife, there had been a divorce a vinculo, or as if the marriage had never taken place, and he had been an entire stranger.
The judgment, therefore, of the Circuit Court must be reversed, and this court proceeding to give such judgment as the Circuit Court ought to have given, set aside and quash all the proceedings of the County Court.