Kiernan v. Casey

• Decision Date: 24 March 1906
• Citation: 93 S.W. 576
• Parties: KIERNAN v. CASEY et al.
• Court: Tennessee Supreme Court

93 S.W. 576

KIERNAN v. CASEY et al.

Supreme Court of Tennessee.

March 24, 1906.

Appeal from Chancery Court, Davidson County; John Allison, Chancellor.

Action by Rose Ann Kiernan against Bridget Casey and others. From a judgment of the Court of Chancery Appeals, affirming a judgment for defendants, plaintiff appeals. Affirmed.

K. T. McConnico, Jas. A. Ryan, and S. L. Sinnott, for appellant. T. G. Kittrell, E. L. Doak, Geo. N. Tillman, Preston Vaughn, and Jno. M. Gaut, for appellee.

BEARD, C. J.

Rose Casey died about the 6th of July, 1897, a resident citizen of Longford county, Ireland. Among other properties she was the owner of an undivided one-half interest in real estate in the city of Nashville, Tenn. She made and published in Ireland her last will and testament, by which she gave to her daughter, Bridget Casey, one of the defendants in the present lawsuit, this property. The will was attested by two subscribing witnesses, and was in all respects executed, published, and attested in accordance with the laws of Tennessee relating to wills disposing of realty. The will was presented to a superior court in Ireland of competent jurisdiction, and was proven by the subscribing witnesses to have been duly executed, and was there admitted to probate and letters testamentary were issued.

The bill in the present cause was filed by a daughter of the deceased against the devisee in the will and others, alleging that Rose Casey died intestate and that, as one of her heirs, she was entitled to a sale of this property for partition of the proceeds among the various parties interested, as it was incapable of being partitioned in kind. As against this claim of the complainant, Bridget Casey set up and relied upon the will in question. To establish the due execution of this will she relied upon the depositions of the two subscribing witnesses thereto, who testified distinctly to all the facts essential to the due execution of a will disposing of real property in this state as well as upon a copy of the will and its probate, duly authenticated (as we understand from the agreement filed in the cause) by the proper officer of the court where the probate was made. A number of questions argued before the chancellor and in the Court of Chancery Appeals, which has recently considered the case, have been eliminated by the opinion of this latter court and by the agreement of parties, so that the only questions submitted for our consideration are as follows:

(a) Whether, under the laws of Tennessee, probate of said wills is necessary for their validity and operations.

(b) If so, whether they have been probated in accordance with the laws of Tennessee.

We think the first of these questions has been conclusively answered by the case of Smith v. Neilson, 13 Lea, 461, and that the answer there made dispenses with any reply on our part to the second. In that case the will of William Smith, relied upon by the complainant, was executed by the testator in the state of South Carolina and proved and admitted to record in that state, but had never been proved, recorded, or registered in this state. One of the questions presented in the record was whether the will, in the condition above indicated, could be relied upon as a muniment title to land in this state, and it was held that it could. This court, in disposing of the point in issue, said: "That it was the settled rule of English law, recognized by our courts as in force in this state, that a devise of land was in the nature of a conveyance and special appointment; that there was no provision in England until recently for the probate of wills of realty, and it was therefore necessary to establish such a will by proof whenever any question occurred in court...