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(248 S.W.) 3. Wills 434—Foreign judgments admitting BACHMAN, J. In February, 1918, Mrs.

to probate may be made conclusive by stat. Mary Ella Calhoun Foote, for many years ute.

à resident of, and domiciled in, the city of A state may, by statutory enactment, afford New York, died, leaving a will by which, conclusiveness to foreign probate judgments after providing for the support of a dependand decrees.

ent foster child, the residue of her estate 4. Wills 434—Full faith and credit clause was given to Vanderbilt University, at

inapplicable to probate of will affecting realty Nashville, · for the purpose of erecting a in another state.

building in commemoration of, and to be The full faith and credit clause of the fed- named for, her father. At the time of her eral Constitution and the Acts of Congress, ef- death Mrs. Foote owned both personal and fective thereof, are inapplicable to make a judgment admitting a will to probate in one

real property in New York and certain valustate conclusive in another state, wherein real able real property in Nashville, In June, property is conveyed by the will, nor does this 1918, in conformity with the statutes of limitation apply only to the questions relating the state of New York, the will was duly to due execution, but includes as well questions offered for probate by the executor in the of testamentary capacity.

Surrogate Court of New York county, 5. Wills Em434–Though probate proceedings where, with notice by mail to the contestare in rem, they are not conclusive as to ants herein and without contest, it was adrealty without state.

judged to be the last will and testament of Though probate proceedings are recognized the deceased, and that, at the time of its as actions in rem that are conclusive as to per-execution, the testatrix was in all respects sonalty, under Shan. Code, g 3922, declaring competent to make a will and not under any person interested to contest the validity

restraint. A certified copy of the will, toof a will may do so in the same manner as though it had been originally presented for pro- gether with duly authenticated proceedings bate in the courts of the state, foreign probate of probate thereof in the state of New York, proceedings cannot be deemed conclusive as to were filed in the county court of Davidson realty located outside the state of probate. county, Tenn., where in May, 1919, the pe.

tition herein was filed by the heirs at law 6. Appeal and error m719(1)-Court's ruling, though excepted to, not reviewable, where no of the testatrix, nonresidents of New York, error is assigned thereon.

seeking to invalidate the will because of Though an exception may have been taken undue influence and unsoundness of mind. to a ruling of the court below, the matter is Upon answer by the executor, denying the not presented for review, unless an appeal is allegations of the petition and asserting the taken therefrom and error assigned thereon. validity of the will, the contest was certified 7. Wills Com 324(2)--Where there is evidence to the circuit court, where, upon the issues of testator's unsoundness of mind, issue must there made, a trial was had which resultgo to jury.

ed in a mistrial. At a subsequent hearing, Where there is testimony directly asserting after the introduction of evidence by the the unsoundness of mind of a testator, and contestants, motion was made on behalf of this is the determinative issue, the case must the executor for peremptory instructions in be submitted to the jury.

favor of the will upon the two grounds: 8. Wills 401 - Administrator's defense not First, that the judgment of the Surrogate raised till second trial in circuit court held Court of New York, upon the testamentary still available.

capacity of the testatrix, was conclusive, The defense asserted by an administrator, and, second, that there was no evidence of in a proceeding to contest the validity of a

unsoundness of mind. The court sustained will, not raised in the county court and not asserted until the second trial in the circuit the first ground of the motion, overruling court, held nevertheless still available to him,

the second ground, and there was verdict

and judgment sustaining the will. Appeal Certiorari to Court of Civil Appeals.

was taken to the Court of Civil Appeals, in

which court, upon the question of the conProceeding by George R. Calhoun and clusiveness of the foreign probate, the judgothers against J. H. Kirkland, executor, to ment of the circuit court was reversed. contest the will of Mary Ella Calhoun Foote, The case comes here upon petitions for cerdeceased, which had been probated in New tiorari, the executor assigning error to the York and a copy of probate filed in this action stated, and the contestants bringing state. After a judgment of the Court of forward an assignment that the executor Civil Appeals, reversing judgment for de.

was precluded from relying upon the judgfendant, both parties petition for certiorari. ment of the New York courts, for the reaJudgment aflirmed.

son that such defense was not presented in J. B. Daniel, Jos. C. Higgins, and G. B. the county court and not until the second Kirkpatrick, all of Nashville, for plaintiffs. | hearing in the circuit court.

Stokes & Stokes and J. M. Anderson, all [1] We think there was no error in the of Nashville, for defendant.

holding of the Court of Civil Appeals that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the adjudication of the courts of New York, as differing requirements as to the formal exupon the question of the validity of the will ecution of the power, exist in certain jurisdicthere probated, was not conclusive nor bind- tions according to the policy or statutes of the ing upon the courts of this state, in so far several states, and to subject realty in one state as the devolution of real estate here situat- of others could not, in keeping with territorial

to the operation of such varying restrictions ed is concerned..

sovereignty, be permitted." It is to be noted that no question is made, nor could there upon reason be, with refer [3, 4] It is, of course, clear that the state ence to personal property of the testatrix may by statutory enactment afford concluor real property situated in the state of siveness to foreign probate judgments or de. New York. As to the former, legally fol- crees, and such legislation is the basis of lowing, as it does, the person of the owner, some of the decisions urged in support of the there can be no dispute that its disposition contention of the executor. We have in Ten. must follow and be in accordance with the nessee no such legislation; on the contrary, law of the testatrix's domicile at the time of our statutes on the subject have been uni. her death and the decree of the court of such formly construed as declaratory of the comdomicile, admitting the will to probate, is, mon-law application of the lex domicilii in both by comity and federal treatise, conclu- the testamentary disposition of personal sive in other jurisdictions. Williams v. Saun- property and the lex situs in the case of ders, 5 Cold. 60; Martin v. Stovall, 103 Tenn. immovable or real property. Such was the 1, 52 S. W. 296, 48 L, R. A. 130.

construction placed upon chapter 31 of the [2] With respect to real estate, it is con- Acts of 1823, Code, $ 3922. by the decision ceded by counsel that compliance with the in Williams v. Saunders, supra, and which forms, requirements, and solemnities pre- has been adhered to in all subsequent deciscribed by the law of a state for the convey- sions upon the subject. So also by chapter auce or devise of real property within its 497 of the Acts of 1903, with respect to wills borders is essential for the valid transfer of executed in accordance with the laws of such property, and that the laws of, or judg-countries other than the United States; and ments of, the courts of foreign jurisdiction by chapter 87 of the Acts of 1909, with renot in conformity to the lex situs can have spect to the probate of foreign wills, suppleno application, but it is insisted that a menting the act of 1823, the rule announced foreign adjudication of testamentary capac- is clearly maintained. In view of the rule ity to dispose of lands situated in this state and policy adopted, the full faith and credit is conclusive and binding and cannot be re- clause of the federal Constitution and the litigated in our courts. That there is some act of Congress effective thereof can have no conflict in the authorities from other juris- application; those necessary and wholesome dictions upon the question bere made is safeguards of the judgments of the courts of shown by the annotations to the following the several states were not intended to, nor cases, State of Montana ex rel. v. District can they, have the effect of extending the con. Court of the Twelfth District et al., 34 Mont. trol or jurisdiction of the courts of one state 96, 85 Pac. 866, 6 L. R. A. (N. S.) 617, 115 Am. over the territory embraced within the boundSt. Rep. 510, 9 Ann. Cas. 418; Selle v. Rapp, aries of another. As stated in Dibble v. 143 Ark. 192, 220 S. W. 662, 13 A. L. R. 494, Winter, 247 Ill. 243, 93 N. E. 145: but the decided weight of authority, and in

"The courts of one state are without juris. our opinion the better reasoning, is in ac- diction over the titles of land in another state. cord with the rule announced by our deci- A local statute has no extraterritorial force, sions, that as to questions of the disposition and can be exercised only upon persons and of immovable property by will the ultimate property within the jurisdiction of the state determination of testamentary capacity, as where such statute is enacted. The law of the well as of formal requisites, lies in the courts state where the real estate is situated governs of the state where the property is situated.

exclusively. *. * The probate of a will in Williams v. Saunders, 45 Tenn. (5 Cold.) 60; made at 'the testator's domicile, can have its

one state, though conclusive as to personalty if Carpenter v. Bell, 96 Tenn. 294, 34 S. W. 209; only force in establishing the devise of lands Martin v. Stovall, 103 Tenn. 1, 52 S. W. 296, in another state by virtue of some law of the 48 L, R. A. 130; Pritchard on Wills, $ 56, pp. state in which the lands are situated. 61, 62; Caruthers, History of a Lawsuit (3d This doctrine is consistent with the clause of Ed.) 8 619.

the federal Constitution which requires full

faith and credit to be given in each state to "That this rule must obtain for the proper the records and judicial proceedings of every maintenance of the state's sovereignty over other state." lands within its borders in the orderly transfer and secure holding thereof is obvious, for tes

See, also, Keith v. Keith, 97 Mo. 223, 10 S. tamentary capacity is one of the necessary links W. 597; Evansville Ice & Cold Storage Co. V. in the chain of title to realty, and it is only Winsor, 148 Ind. 682, 48 N. E. 592; Nelson v. by observance of the rule that this important function of government is rendered immune Potter, 50 N. J. Law, 324, 15 Atl. 375; Hines from foreign interference or substitution of au- v. Hines, 243 Mo. 480, 147 S. W. 774; Bowen thority. Restrictions upon the power of tes- v. Johnson, 5 R. I. 112, 73 Am. Dec. 49.

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(248 S.W.) United States are in accord with the conclu- court to the effect that there was no evidence sions reached with respect to the constitu- of the testatrix's unsoundness of mind at the tional provisions sought to be invoked. time of the execution of the will. While Robertson v. Pickrell, 109 U. S. 608, 3 Sup. the record shows an exception to the action Ct. 407, 27 L. Ed. 1019; McCormick v. Sul- of the court, there was no appeal therefrom, livant, 23 V. S. (10 Wheat.) 192, 6 L. Ed. 300; and no assignment of error was presented to Darby v. Mayer, 23 U, S. (10 Wheat.) 465, 6 the Court of Civil Appeals. Were the quesL. Ed. 367. It is sought by counsel to restrict tion before us, however, we would be conthe principle of the foregoing decisions to the strained to hold the action of the circuit matter of the execution of a will in conforin- court correct, as the record contains testiity to the lex situs, but in our opinion, for the mony directly asserting the unsoundness of reasons abore stated, the same applies with mind of the testatrix. This was the deequal force to the question of testamentary terminative issue, and one, particularly in capacity.

contests of this character, wholly within the [5] It is argued that the probate of the province of the jury. As said in Tyrus v. will in the state of New York was an action Railroad, 114 Tenn. 579, 86 S. W. 1074:

is binding upon all the contestants here. Pro- the power to direct a verdict in any case in bate proceedings are recognized as actions which there is a dispute as to any material eviin rem, and the will itself is the thing in-dence or any legal doubt as to the conclusion quired into, but the validity of the will de to be drawn from the whole evidence, upon the pends upon the adjudication of the capacity issues to be tried.” of the testatrix to dispose of lands in Tennessee, which we hold must be determined by The petition for certiorari filed by the conour laws and cannot be concluded by a for- testants is founded upon the action of the eign decree. Judgments in rem, to be effec- Court of Civil Appeals in refusing to hold tive and binding, must proceed out of courts that the proponent was estopped to submit of competent and conclusive jurisdiction; as a defense the conclusiveness of the foreign thus, as pointed out, it is universally held probate, because the question was not first that the probate of wills of personalty in the presented in the county court. domicile of the testator cannot be eisewhere [8] The right to contest a will is a preattacked because of the conclusive jurisdic- liminary question which may, and by the bettion of the domicilliary courts; all persons in- ter practice should, be tried in the county terested must have their claims there pre- court with the right of appeal to the circuit sented. But to hold, in cases as the present, court (Shaller v. Garrett, 127 Tenn. 665, 156 that contestants of a foreign will devising S. W. 1084, and cases cited) but the question local lands, even with actual notice of pro is not concluded by failure of original debate proceedings in the foreign court, must fense in the county court. The circuit court become parties and have there determined bas full jurisdiction of the formation and the validity of the will, would be to nullify trial of all issues involved in the contest of our statutes and decisions, declaring that wills. Thus upon petition in the county any person interested to contest the validity court, to contest a will, if the executor does of such foreign will may do so in the same not appear nor answer, and the contest be manner as though it had been originally pre- certified for the trial in the circuit court, it sented for probate in our courts. Code, & was held in Cornwell v. Cornwell, 30 Tenn.

(11 Humph.) 485, that the executor could 16,1] Error is assigned upon the failure of there present the question of petitioner's the Court of Civil Appeals to act upon the right to contest. second ground of petitioner's motion for The judgment of the Court of Civil Appeals peremptory instructions made in the circuit is affirmed, with costs.

248 S.W.-20


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GREEN, J. The complainant filed this bill LOOKOUT KNITTING MILLS v. REID et al. to recover damages for breach of contract to (Supreme Court of Tennessee. March 3, 1923.) supply it with certain yarns. The contract

was a verred to have been made with defend1. Pleading en Ill-Plea to jurisdiction over- ant Reid acting as broker for the Ft. Valley ruled for insufficiency may be amended. Cotton Mills, a Georgia corporation. The

After a plea in abatement questioning the original bill sought to attach by garnishment jurisdiction of the court has been overruled for certain funds charged to be due from the insufficiency, it may under the statute of_jeof- Signal Knitting Mills, a Tennessee corporaails (Thomp. Shan. Code, &$ 4583, 4587) be tion located at Chattanooga, to the Ft. Valamended notwithstanding section 6205, providing, "upon a plea or demurrer argued and over- ley Cotton Mills. An attachment was issued, ruled, no other plea or demurrer shall be re- and also an injunction prohibiting the Signal ceived, but the defendant shall answer," an Knitting Mills from paying any debt due or amended plea to the jurisdiction being not with- to become due to defendant Ft. Valley Cotin the mischief intended to be remedied by that

ton Mills. section.

The Signal Knitting Mills answered that it 2. Pleading on 106(1)-Plea in abatement held was not indebted in any sum to the Ft. Valnot double.

ley Cotton Mills. The original bill was filed DeA plea in abatement containing a denial that cember 10, 1919. The complainant filed an the funds garnished were defendant's property, and alleging ownership in the garnishee, heid amended and supplemental bill on May 18, not double, since no matters, however multi- 1920, reiterating the charges of the original farious, will make a pleading double if together bill, and adding as defendants the Hamilton they constitute but one connected proposition National Bank of Chattanooga and the Citior entire point.

zens' Bank of Ft. Valley, Ga. It was averred 3. Pleading Om 104(1)-Failure to allege non- that there was a sum of money on deposit

ownership of property within jurisdiction not in the Hamilton National Bank to the credit fatal to plea in abatement questioning juris. of the Citizens' Bank of Ft. Valley, Ga., but diction.

that said fund in reality belonged to Ft. ValA plea in abatement denying the jurisdiction ley Cotton Mills, and it was sought to imof the court, and alleging certain garnished pound this fund as the property of the Ft. funds did not belong to defendant, but to ap- Valley Cotton Mills, and attachment accordother, held not insufficient for failure to allege defendant had no other property within the ingly issued and was levied on said fund in jurisdiction, or that defendant had not received the Hamilton National Bank. any funds from the garnishee since commence

The Hamilton National Bank answered, ment of the suit.

stating that it had said fund on deposit to 4. Carriers Em58_Funds paid for shipments the credit of the Georgia bank, and submit

made under draft and bill of lading subse- ted itself to the orders of the court in respect quently sold to bank held not subject to gar- thereto. The Citizens' Bank of Ft. Valley, nishment.

Ga., answered, and a verred that the fund atA purchaser of yarn under contract provid- tached belonged to it; that it represented the ing for regular shipments was garnished by one proceeds of a draft which the Ft. Valley suing the seller, and enjoined from making fur- Cotton Mills had drawn on a shipment of ther payments at a time when nothing was owing. The seller thereupon declined to make yarn made to Chattanooga; that a bill of ladfurther shipments, and the contract was modi- ing for this yarn was attached to the draft; fied so that an advance payment was made for that the shipment was made to the order of one shipment and others were made through a the Citizens' Bank of Ft. Valley, Ga., at bank by draft with bill of lading attached, which Chattanooga, with directions to notify the was discounted and sold outright to the bank. Signal Knitting Mills; and that the Signal Held, that the garnishee was not required to Knitting Mills had paid this draft and obinsist upon strict performance of the contract; tained the bill of lading for the yarn. The and that, since the bank purchased the draft outright, the fund paid upon delivery of the Citizens' Bank of Ft. Valley, Ga., further yarn belonged to it, and was not subject to stated in its answer that it had purchased garnishment.

this draft in due course of business for the

usual discount, and that it was an innocent Appeal from Chancery Court, Hamilton holder thereof for value, and that the yarn County; W. B. Garvin, Chancellor.

and proceeds of the draft belonged to it. Suit by the Lookout Knitting Mills against The Ft. Valley Cotton Mills filed a plea in Edward S. Reid and others. From decree for abatement as follows: defendants, complainant appeals. Affirmed

"Plea in Abatement. Miller & Miller, of Chattanooga, for appellant.

“Comes the defendant Ft. Valley Cotton

Mills for the sole and only purpose of quesStrang & Fletcher, S. B. Smith, and Can- tioning this court's jurisdiction in the above. trell, Meacham & Moon, all of Chattanooga, styled cause by plea in abatement, and for for appellees.

plea in abatement to the attachment sued out

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(248 S.W.) and levied in this cause upon a fund in the other pleadings, namely, by the answer of the hands of the Hamilton National Bank says, Citizens' Bank of Ft. Valley, Ga., and by the that the property upon which the attachment answer of the Signal Knitting Mills. All the was levied, the fund impounded by attachment issues were identical. They were two: (1) in the hands of the Hamilton National Bank, which fund is the proceeds of a draft, was not, who owned the fund attached in the Hamilat the time of the said levy and impounding, ton National Bank? (2) Did the Signal Knitand has never been, the property of this de- ting Mills at the time of the filing of the fendant. Wherefore it prays that said attach- ) original bill or thereafter owe any sum of ment be abated and quashed.

money to the Ft. Valley Cotton Mills? “[Signed] Ft. Valley Cotton Mills,

Upon a consideration of the proof the chan"By C. J. Davis.

cellor found these issues against the com"Cantrell, Meacham & Moon, Solicitors.

plainant, and dismissed its bill. Complain"State of Georgia, County of Houston. "Comes C. J. Davis, who, being first duly ant thereafter applied for leave to file an sworn, makes oath and says that he is secre- amended and supplemental bill, wbich was tary of the Ft. Valley Cotton Mills, and duly refused. authorized in the premises; that he has read The complainant then appealed to this the foregoing plea, knows the contents there court, and has assigned numerous errors. of, and that said plea is true in substance and [1] It is first insisted that the chancellor in fact. [Signed] C. J. Davis.

erred in permitting the second, or amended "Sworn to and subscribed before me this June 18, 1920. W. R. Fuller, Notary Public.

plea in abatement to be filed. It is contend"My commission expires 9-13--1923."

ed that such practice is prohibited by statute,

and further that a plea in abatement is not The complainant had the plea set down amendable in substance as a matter of law. for hearing as to its suficiency, and the plea Our statutes of jeofails seems to answer was overruled by the chancellor because it this. They are: did not go to the whole attachment, only going to the fund in the hands of the bank, and

"No summons, writ, pleading, process, resaying nothing about any indebtedness of the turn, or other proceedings in any civil action

in any court, shall be abated or quashed for Signal Knitting Mills to the Ft. Valley Cot- any defect, omission, or imperfection.” Thompton Mills. The chancellor was further of son's Shannon's Code, 8 4583. opinion that the plea was insufficient because "The court may allow material amendments it did not meet the charge of fraudulent at any stage of the proceedings, upon such conspiracy which the amended bill made to terms, and subject to such rules, as it may the effect that the proceeds of the draft in prescribe.” Thompson's Shannon's Code, Š

4587. truth belonged to the Ft. Valley Cotton Mills, and that the transaction was handled in the name of the Citizens' Bank of Ft. Valley, Ga., These statutes authorize the amendment of

and conceal the fund from credi- any pleading and authorize material amrendtors of the Ft. Valley Cotton Mills.

ments at any stage upon terms, etc. The plea in abatement was overruled July Section 6205, Thompson's Shannon's Code, 21 , 1920. On July 31st following, leave was providing, “Upon a plea or demurrer argued asked of the court to file a motion to amend and overruled, no other plea or demurrer the plea in abatement, and an order permitting shall be received, but the defendant shall anthis motion to amend to be filed was entered swer the allegations of the bill," etc., is not on the same day.

applicable to the situation presented here. A later order was entered December 18, The manifest purpose of this section is to 1920, allowing an aprended plea in abatement prevent delay, and a plea to the jurisdiction to be filed upon terms, and said amended plea is not a dilatory plea. Other matters in a tu abatement was filed December 22, 1920. plea held insufficient may be relied on in the The motion to file an amended plea was re

Brien v. Marsh, 1 Tenn. Ch. 625; sisted and the affidavit of counsel for the Ft. Whittaker v. Whittaker, 10 Lea (78 Tenn.) Valley Cotton Mills in support of the amend- 99. The jurisdiction of the court, however, ed plea stated that the delay in calling up cannot be challenged by answer (Thompson's the motion was due "to conflicting engage- Shannon's Code, $s 6128, 6129), but an anments of counsel, who have agreed that the swer after an insufficient plea overruled matter might be passed.” The statement as would foreclose the question of jurisdiction. to the reason for this delay is nowhere con- The plea, being insufficient, would be of no troverted in the record.

more help on appeal than below. The second plea was attacked by motion To hold that an imperfect plea to the jurisas insufficient for reasons that will be here- diction could not be amended would therefore after noted. It was, however, sustained by be to deny to the unfortunate pleader all opthe chancellor. Complainant joined issue on portunity to correct a “defect, omission or the amended plea, and proof was taken. This imperfection” and to brush aside section proof

, while primarily taken on the issue 1583, Thompson's Shannon's Code. tendered by the amended plea in abatement, To harmonize the Code sections quoted in reality covered the issues raised by the (Thompson's Shannon's Code, $S4583, 4587,

to cover

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