Gore v. Howard

• Decision Date: 23 March 1895
• Citation: 30 S.W. 730,94 Tenn. 577
• Parties: GORE et al. v. HOWARD et al.
• Court: Tennessee Supreme Court

30 S.W. 730

94 Tenn. 577

GORE et al. v. HOWARD et al.

Supreme Court of Tennessee.

March 23, 1895

Appeal from circuit court, Overton county; W. M. Hammock, Judge.

Action by Isaac Gore and others against B. H. Howard and others to set aside the probate of the will of John Maxwell, deceased. Judgment for defendants, and plaintiffs appeal. Reversed.

W. W Goodpasture, W. W. Windle, and Joshua Haile, for appellants.

J. A Barnes and G. B. Murray, for appellees

McALISTER J.

The question presented for determination in this case is whether the petitioners are entitled to have set aside the probate of the will of John Maxwell, deceased, and contest the same upon an issue of devisavit vel non. The circuit judge was of the opinion that petitioners, having in the lifetime of the testator released and relinquished to him, for a valuable consideration, all their interest or right of expectancy in his estate, have now no such legal status with reference thereto as would entitle them to wage such a contest. The testator, John Maxwell, departed this life in May, 1891 after having made and published his last will and testament which was duly probated in common form in the county court of Overton county. The testator had been twice married, and left surviving him a widow and six children, three of whom were the issue of the first marriage. By the terms of his will the testator devised his entire estate, real and personal, to his widow, Lily Ann Maxwell, and her three children, and no provision was made for either of the three children by the first marriage. These three children, it is claimed, had been provided for in the lifetime of the testator, and had relinquished all further interest in his estate. It appears that after the said John Maxwell had intermarried with his second wife, and three children had been born to them, he divided between the three children of his first marriage all of his estate which he had accumulated up to the date of his second marriage. Each of his three children by the first marriage executed to him a written instrument similar in form to that executed by Robert and Margaret Winton, which is in words and figures following, to wit: "We, Robert M. Winton and Margaret Winton, his wife, for and in consideration of the sum of $600.00 advanced by John Maxwell to me, the said Margaret Winton, and applied, to wit, to the purchase of the track of land on which we now live, and the further consideration of four hundred dollars, advanced by the said John Maxwell to his daughter, the said Margaret Winton, which is applied towards the purchase of a tract of land bought of Jno. A. Roberts, the title to which is to be made to the said Margaret Winton, and in consideration of other advancements made by the said John Maxwell to said Margaret, not herein specified, we, the said Margaret Winton and Robert M. Winton, her husband, do agree and bind ourselves to accept the several amounts of money and property advanced to the said Margaret aforesaid, in full satisfaction of all their interest or the interest of the said Margaret in such she now has or may hereafter have in the estate of her father, the said John Maxwell, either in his lifetime or after his death. It being understood by us and agreed that the amounts we have received is all that we are ever to receive from the said John Maxwell or his estate, either during his life or after his death; that the said Margaret Winton is to receive nothing more either as heir or distributee of her said father, John Maxwell. Given under our hands, this 3rd day of May, 1877. Robert M. Winton. Margaret Winton." This instrument was duly acknowledged in proper form before the county court clerk of Overton county, Tenn., and the privy examination of the married woman was taken in the manner prescribed by law. As already stated, a similar instrument and obligation was executed by the two remaining children of the first marriage. The will of John Maxwell was probated on the 18th of March, 1893, and soon thereafter the three children of the first marriage filed their petition in the county court of Overton county, seeking to set aside the probate of said will, and praying that said instrument be certified to the circuit court for an issue of devisavit vel non. The executor and devisees under the will filed an answer to said petition, in which they averred that said petitioners, by reason of the releases executed by them in the lifetime of the testator, had relinquished all interest in the estate of John Maxwell, and had no such interest in said estate as would entitle them to contest the validity of said will. The defendants also insisted that the petitioners were estopped by said instruments to claim any interest in said estate. The county court refused to set aside said probate, and dismissed the petition. On appeal, the circuit court heard the cause upon a transcript of the record of the county court, upon consideration whereof the decree of the county court was affirmed. Petitioners appealed to this court, and have assigned errors.

The cardinal inquiry arising in this case is in respect to the validity of the releases executed by the children of the first marriage. If said instruments are of binding efficacy the petitioners had no such interest in the estate of the testator as would entitle them to maintain a proceeding to set aside his will. It is well settled that such persons only as would be entitled to share in the real or personal estate of the deceased if there were no will, or if the will were set aside, are entitled to impeach its validity. Pritch. Wills & Adm. § 339; Wynne v. Spiers, 7 Humph. 394. A stranger will not be permitted to contest the will, or disturb the existing probate. A kinsman who is not nearest of kin, and who would take nothing under the statutes of distribution if there were no will, cannot contest it. A creditor of an heir of the testator cannot have an issue made to try the validity of the will, or in any other way, directly or collaterally, attack the probate in common form in the county court. Bank v. Nelson, 3 Head, 634. Nor can a grandson of the testator contest the will unless it appears that his own father is dead. Cornwell v....