Ford v. Ford

• Citation: 26 Tenn. 92
• Parties: FORD v. FORD.
• Decision Date: 30 September 1846
• Court: Tennessee Supreme Court

26 Tenn. 92

FORD

v.FORD.

Supreme Court of Tennessee.

September Term, 1846.

Loyd Ford, on the 1st of March, 1840, made a will, which directed an emancipation of his slaves, John Ford and others, and appointed two of his sons, James and Grant Ford, executors.

These sons refused to act as executors, and the slaves by their next friend, Phebe Stuart, offered the will for probate in the county court of Washington county. The case was certified to the circuit court of Washington county. An issue was made upon the validity of the will, and tried by Judge Lucky and a jury at the October term of the said court, in 1845, and a verdict and judgment given, establishing the will, from which the defendants appealed.

Sneed, for plaintiffs in error.

T. A. R. Nelson and R. J. McKinney, for defendants in error.

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

This is an issue of devisavit vel non. A paper was propounded for probate, as the will of Loyd Ford, in the county court of Washington county, by Phebe Stuart, as the next friend of the defendants in error, who are persons of color, and were the slaves of the said Loyd Ford. In the said will there is a bequest to the said slaves of their freedom, and a devise to them of a portion of the testator's real estate. The executors named in the will appeared in the county court and renounced the execution thereof, and thereupon a portion of the distributees and heirs at law of the said Loyd Ford appeared and contested the probate of the paper as the will of Loyd Ford. The court thereupon certified to the circuit court the fact of such contestation, to the end that an issue might be made up in said court; and the executors named in the will having renounced, the court appointed Joseph Crouch administrator, pendente lite. The contestants thereupon entered into bond to said Crouch, conditioned to prosecute the contest with effect, or pay all costs. When the proceedings of the county court were brought to the circuit court, an order was made that an issue be made up to try and determine whether the paper aforesaid is in truth and in fact the last will and testament of the said Loyd Ford, deceased. On the trial of this issue the jury found that the paper produced is the last will and testament of Loyd Ford, deceased. The contestants moved that the verdict be set aside, and a new trial be awarded, which the court refused, and thereupon this appeal in error is prosecuted.

The counsel for the plaintiffs in error insists that the judgment in this cause should be reversed for the following errors:

1. It is said that there are not proper parties to this suit; that devisees are not proper parties in any case, and that in this case the devisees are slaves, have no rights, and can be parties to no legal proceedings. The act of the 20th February, 1836, ch. 18, sec. 2, provides that where a will shall be presented for probate, and shall be contested, it shall be the duty of the court to require of the persons so contesting to enter into bond and security, payable to the executors mentioned in said will, conditioned for the prosecution of the suit, or the payment of costs. The legislature thus indicate that the executor is the proper party with whom the contesting party is to make up the issue. But as in this case, it may often occur that the executor named in the will may refuse to propound the will for probate, and may renounce the office of executor. In such case the executor named cannot be a party. But it does not follow that no issue can be made. If this were so, then the executor named in the will might, by refusing to propound it and declining to act as executor, defeat all the interests, however important and valuable, of the devisees in the will. This cannot be. But it is argued that some person ought to make up the issue who shall represent the entire estate of the testator, and in case the executor shall renounce and refuse to propound the will for probate, the county court should appoint some person to make up the issue and conduct the investigation of the case. It is not easy to perceive what relation such person would sustain to the estate, or what authority he could exercise. The court appointed an administrator, pendente lite, to take care of the estate during the litigation; but he has nothing to do with the will, nor any connection with the litigation in relation to it. Nothing in any of our statutes on this subject requires that a party shall represent the entire estate, nor, in our opinion, is there any reason why he should do so. A will may contain the disposition of only a single article of property bequeathed to one legatee, the testator choosing to die intestate as to the remainder of his estate. In such case, if there were an executor, he would represent, probably, but a small portion of the estate. Besides, it is the settled law that if an issue be made by only one of many heirs, whose interest it may be to defeat the probate of the will, the decision of that issue is conclusive upon all others, whether they are parties or not. The reason is that it is the nature of a proceeding in rem, where a decision in relation to the thing in controversy settles the rights of all persons interested therein forever. There seems to be no more reason why all the interests in the establishment of a will shall be represented by some one person than that all those opposed to its probate should be necessary parties. It may often happen that no one but the persons interested in the establishment of a will can be induced to exert any agency in the matter; and, as the statutes do not prescribe the manner in which the issue shall be framed, nor who shall be parties, we are of opinion that when the executor refuses to propound a will for probate any legatee may do so; and whoever shall seek to contest a probate contests with the party thus propounding. The act of January the 25th, 1836, ch. 5, sec. 9, declares that when the county court certifies a contested will to the circuit court, “an issue shall be made up in the circuit court, and the validity of the will tried therein.” No particular form is required, but the party propounding the paper affirms it to be the testator's will, and the contesting party denies it. The judgment of the court, upon an issue thus made up by parties interested on the one side to establish, and on the other to defeat, the probate, will be conclusive of the fact, although others not parties may be interested on either side of the question.

But it is said the devisees in this case are slaves, and have no rights, either perfect or inchoate, until the will manumitting them shall be proved; because it is a principle of law that rights derived through a last will and testament to personalty can be evidenced only by the probate. It is certainly true that the probate is the only legal evidence of the will, and, by consequence, of the rights derived through the will. But this does not prove that parties may not have rights in reference to a paper purporting to be a will before it shall be proved. We only know it is the will of the party by the probate; but the existence of a paper, purporting to be a will, and containing certain provisions, gives to the parties, in reference to whom those provisions are made, rights as to the paper which others cannot claim. Thus, if A be named as executor, he has a right to the possession of the paper, and a right to propound it for probate. So, if the executors refuse to act or propound the will, we have said a legatee may do it. But we are met with the objection that none but free persons have a right to sue, and that the persons of color in this case are still slaves. A slave is not in the condition of a horse or an ox. His liberty is restrained, it is true, and his owner controls his actions and claims his services. But he is made after the image of the Creator. He has mental capacities, and an immortal principle in his nature, that constitute him equal to his owner but for the accidental position in which fortune has placed him. The owner has acquired conventional rights to him, but the laws under which he is held as a slave have not and cannot extinguish his high-born nature nor deprive him of many rights which are inherent in man. Thus while he is a slave, he can make a contract for his freedom, which our laws recognize, and he can take a bequest of his freedom, and by the same will he can take personal or real estate.

A will must take effect on the death of the testator, and yet a devise of property to a slave, in a will bequeathing him his freedom, is valid. To hold that it is so necessarily implies that the bequest of freedom confers rights before the will is proved. For if a devise of property were made to the slave of another, and after the death of the testator the slave should be emancipated, he could not take under the will. The devise would be void. The conclusion is that, although until the will is proved they have no legal evidence that they are free, yet the bequest of freedom in the paper purporting to be a will confers upon them a right to invoke the action of the proper tribunal that this evidence of their freedom may be afforded. If this were not so, the right of the owner to emancipate, and the right of the slave to receive his freedom, might be alike frustrated, if the executor named in the will shall refuse to act--a conclusion which would shock humanity, and be an indelible stigma on our jurisprudence. But if it were conceded, as the counsel contends, that the county court should have appointed some person to make up the issue, we do not perceive why the next friend Phebe Stuart, may not be regarded in that light. She propounded the will, and prosecutes the enquiry into its validity in behalf of the slaves, and was recognized by the county court in that character.

2. The paper propounded is witnessed by Robert G. Hale, Sarah Hale, and Elizabeth Jane Hale, the two last of whom make their...