Arnett v. Weeks

• Decision Date: 31 December 1847
• Citation: 27 Tenn. 547
• Parties: ARNETT, Executor, v. WEEKS et al.
• Court: Tennessee Supreme Court

27 Tenn. 547

ARNETT, Executor,

v.WEEKS et al.

Supreme Court of Tennessee.

December Term, 1847.

Samuel Weeks, a citizen of Franklin county, Tennessee, was married to his third wife at an advanced age, and made a will a short time before he died, which took place in his eighty-eighth year. He willed his property to his last wife and two daughters. He appointed David Arnett executor of this will. An issue was made up by the children of a previous marriage, with the executor and the devisees in the will, as to the validity of the will, which was certified to the circuit court for trial. It came on at the January term, 1847, and was submitted, by the presiding judge, Marchbanks, to a jury. It was proved on the trial that the executor said “he never felt so awful as he did when the witnesses proved old man Weeks' will; that it was no more the old man's will than it was his.” This evidence was objected to, but it was admitted to go to the jury.

The judge, in his charge to the jury, made the following comments on the evidence, to wit, that David Arnett had no personal interest in the subject-matter of the will, but, being a party to the suit, it was competent for the defendants to give in evidence his declarations; such declarations, however, were not conclusive, but were competent to be taken into consideration by the jury, in connection with all the other evidence before them; and it was for them to determine, when taken in such connection, what weight and effect they were entitled to, if any; that the legatees had a right to have the validity of the will tried upon the testimony and upon the facts detailed in evidence, without being prejudiced by the opinions of the executor.

The jury found that the instrument of writing offered for probate was not the last will and testament of the deceased, and judgment was given accordingly. From this judgment the executor and legatees appealed.

M. Taul, for plaintiffs.

W. E. Venable, for defendants.

Turley, J., delivered the opinion of the court.

This is a case of an issue of devastavit vel non, tried in the circuit court of Franklin, which was found against the will, from which the executor appeals.

Although we think the jury might from the proof have well found in favor of the will, yet this is not a case in which we would reverse the judgment upon the proof. But, upon the trial, declarations made by the executor of his opinions in relation to the execution of the will, made out of doors and not upon oath, and which were well calculated to produce an improper effect upon the jury, were received, though objected to. The executor has no interest whatever under the will, being a mere naked trustee. The admissions of a naked trustee...