(248 S. W.)

3. Wills 434-Foreign judgments admitting to probate may be made conclusive by stat

ute.

A state may, by statutory enactment, afford conclusiveness to foreign probate judgments

and decrees.

4. Wills 434-Full faith and credit clause inapplicable to probate of will affecting realty in another state.

The full faith and credit clause of the federal Constitution and the Acts of Congress, effective thereof, are inapplicable to make a judgment admitting a will to probate in one state conclusive in another state, wherein real property is conveyed by the will, nor does this limitation apply only to the questions relating to due execution, but includes as well questions of testamentary capacity.

BACHMAN, J. In February, 1918, Mrs. Mary Ella Calhoun Foote, for many years a resident of, and domiciled in, the city of New York, died, leaving a will by which, after providing for the support of a dependent foster child, the residue of her estate was given to Vanderbilt University, at Nashville, for the purpose of erecting a building in commemoration of, and to be named for, her father. At the time of her death Mrs. Foote owned both personal and real property in New York and certain valuable real property in Nashville. In June, 1918, in conformity with the statutes of the state of New York, the will was duly offered for probate by the executor in the Surrogate Court of New York county, where, with notice by mail to the contestants herein and without contest, it was adjudged 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, § 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 realty located outside the state of probate. 6. Appeal and error 719(1)-Court's ruling, though excepted to, not reviewable, where no error is assigned thereon.

5. Wills 434-Though probate proceedings are in rem, they are not conclusive as to realty without state.

Though an exception may have been taken to a ruling of the court below, the matter is not presented for review, unless an appeal is taken therefrom and error assigned thereon. 7. Wills 324 (2)-Where there is evidence of testator's unsoundness of mind, issue must go to jury.

Where there is testimony directly asserting the unsoundness of mind of a testator, and this is the determinative issue, the case must be submitted to the jury.

8. Wills 401 - Administrator's defense not raised till second trial in circuit court held still available.

The defense asserted by an administrator, in a proceeding to contest the validity of a will, not raised in the county court and not asserted until the second trial in the eircuit court, held nevertheless still available to him.

Certiorari to Court of Civil Appeals.

Proceeding by George R. Calhoun and others against J. H. Kirkland, executor, to contest the will of Mary Ella Calhoun Foote, deceased, which had been probated in New York and a copy of probate filed in this state. After a judgment of the Court of Civil Appeals, reversing judgment for defendant, both parties petition for certiorari. Judgment affirmed.

J. B. Daniel, Jos. C. Higgins, and G. B. Kirkpatrick, all of Nashville, for plaintiffs. Stokes & Stokes and J. M. Anderson, all of Nashville, for defendant.

were filed in the county court of Davidson county, Tenn., where in May, 1919, the petition herein was filed by the heirs at law of the testatrix, nonresidents of New York, seeking to invalidate the will because of undue influence and unsoundness of mind. Upon answer by the executor, denying the allegations of the petition and asserting the validity of the will, the contest was certified to the circuit court, where, upon the issues there made, a trial was had which resulted in a mistrial. At a subsequent hearing, after the introduction of evidence by the contestants, motion was made on behalf of the executor for peremptory instructions in favor of the will upon the two grounds: First, that the judgment of the Surrogate Court of New York, upon the testamentary capacity of the testatrix, was conclusive, and, second, that there was no evidence of unsoundness of mind. The court sustained the first ground of the motion, overruling the second ground, and there was verdict and judgment sustaining the will. Appeal was taken to the Court of Civil Appeals, in which court, upon the question of the conclusiveness of the foreign probate, the judg

ment of the circuit court was reversed.

The case comes here upon petitions for certiorari, the executor assigning error to the action stated, and the contestants bringing forward an assignment that the executor was precluded from relying upon the judgment of the New York courts, for the reason that such defense was not presented in the county court and not until the second hearing in the circuit court.

[1] We think there was no error in the holding of the Court of Civil Appeals that

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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 sovereignty, be permitted."

(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. Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049; McCormick v. Sullivant, 23 U. S. (10 Wheat.) 192, 6 L. Ed. 300; Darby v. Mayer, 23 U. S. (10 Wheat.) 465, 6 L. Ed. 367. It is sought by counsel to restrict the principle of the foregoing decisions to the matter of the execution of a will in conforinity to the lex situs, but in our opinion, for the reasons above stated, the same applies with equal force to the question of testamentary capacity.

time of the execution of the will. While the record shows an exception to the action of the court, there was no appeal therefrom, and no assignment of error was presented to the Court of Civil Appeals. Were the question before us, however, we would be constrained to hold the action of the circuit court correct, as the record contains testimony directly asserting the unsoundness of mind of the testatrix. This was the determinative issue, and one, particularly in contests of this character, wholly within the province of the jury. As said in Tyrus v. Railroad, 114 Tenn. 579, 86 S. W. 1074:

"There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to be tried."

The petition for certiorari filed by the contestants is founded upon the action of the Court of Civil Appeals in refusing to hold that the proponent was estopped to submit as a defense the conclusiveness of the foreign probate, because the question was not first presented in the county court.

[5] It is argued that the probate of the will in the state of New York was an action in rem, and that therefore the judgment is binding upon all the contestants here. Probate proceedings are recognized as actions in rem, and the will itself is the thing inquired into, but the validity of the will depends upon the adjudication of the capacity of the testatrix to dispose of lands in Tennessee, which we hold must be determined by our laws and cannot be concluded by a foreign decree. Judgments in rem, to be effective and binding, must proceed out of courts of competent and conclusive jurisdiction; thus, as pointed out, it is universally held that the probate of wills of personalty in the domicile of the testator cannot be elsewhere attacked because of the conclusive jurisdiction of the domicilliary courts; all persons interested must have their claims there presented. But to hold, in cases as the present, that contestants of a foreign will devising local lands, even with actual notice of probate proceedings in the foreign court, must become parties and have there determined 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. 3922.

[6, 7] Error is assigned upon the failure of the Court of Civil Appeals to act upon the second ground of petitioner's motion for peremptory instructions made in the circuit 248 S.W.-20

[8] The right to contest a will is a preliminary question which may, and by the better practice should, be tried in the county court with the right of appeal to the circuit court (Shaller v. Garrett, 127 Tenn. 665, 156 S. W. 1084, and cases cited) but the question is not concluded by failure of original defense in the county court. The circuit court has full jurisdiction of the formation and

(11 Humph.) 485, that the executor could there present the question of petitioner's right to contest.

The judgment of the Court of Civil Appeals is affirmed, with costs.

GREEN, J. The complainant filed this bill LOOKOUT KNITTING MILLS v. REID et al. to recover damages for breach of contract to

supply it with certain yarns. The contract

was averred to have been made with defendant Reid acting as broker for the Ft. Valley Cotton Mills, a Georgia corporation. The original bill sought to attach by garnishment certain funds charged to be due from the Signal Knitting Mills, a Tennessee corporation located at Chattanooga, to the Ft. Val

(Supreme Court of Tennessee. March 3, 1923.) 1. Pleading111-Plea to jurisdiction overruled for insufficiency may be amended. After a plea in abatement questioning the jurisdiction of the court has been overruled for insufficiency, it may under the statute of jeofails (Thomp. Shan. Code, §§ 4583, 4587) be amended 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 received, but the defendant shall answer," an amended plea to the jurisdiction being not within the mischief intended to be remedied by that section.

2. Pleading

not double.

106(1)-Plea in abatement held

A plea in abatement containing a denial that the funds garnished were defendant's property, and alleging ownership in the garnishee, held not double, since no matters, however multifarious, will make a pleading double if together they constitute but one connected proposition or entire point.

3. Pleading 104(1) -Failure to allege nonownership of property within jurisdiction not fatal to plea in abatement questioning jurisdiction.

A plea in abatement denying the jurisdiction of the court, and alleging certain garnished funds did not belong to defendant, but to another, held not insufficient for failure to allege

defendant had no other property within the jurisdiction, or that defendant had not received any funds from the garnishee since commencement of the suit.

4. Carriers 58-Funds paid for shipments made under draft and bill of lading subsequently sold to bank held not subject to garnishment.

and also an injunction prohibiting the Signal Knitting Mills from paying any debt due or to become due to defendant Ft. Valley Cotton Mills.

The Signal Knitting Mills answered that it was not indebted in any sum to the Ft. Valley Cotton Mills. The original bill was filed December 10, 1919. The complainant filed an amended and supplemental bill on May 18, 1920, reiterating the charges of the original bill, and adding as defendants the Hamilton National Bank of Chattanooga and the Citizens' Bank of Ft. Valley, Ga. It was averred that there was a sum of money on deposit in the Hamilton National Bank to the credit of the Citizens' Bank of Ft. Valley, Ga., but that said fund in reality belonged to Ft. Valley Cotton Mills, and it was sought to impound this fund as the property of the Ft. Valley Cotton Mills, and attachment accordingly issued and was levied on said fund in the Hamilton National Bank.

The Hamilton National Bank answered, stating that it had said fund on deposit to the credit of the Georgia bank, and submitted itself to the orders of the court in respect thereto. The Citizens' Bank of Ft. Valley, Ga., answered, and averred 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 further shipments, and the contract was modified so that an advance payment was made for one shipment and others were made through a bank by draft with bill of lading attached, which was discounted and sold outright to the bank. Held, that the garnishee was not required to insist upon strict performance of the contract, and that, since the bank purchased the draft outright, the fund paid upon delivery of the yarn belonged to it, and was not subject to garnishment.

Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Suit by the Lookout Knitting Mills against Edward S. Reid and others. From decree for defendants, complainant appeals. Affirmed.

Miller & Miller, of Chattanooga, for appellant.

Strang & Fletcher, S. B. Smith, and Cantrell, Meacham & Moon, all of Chattanooga, for appellees.

yarn made to Chattanooga; that a bill of lad-
ing for this yarn was attached to the draft;
that the shipment was made to the order of
the Citizens' Bank of Ft. Valley, Ga., at
Chattanooga, with directions to notify the
Signal Knitting Mills; and that the Signal
Knitting Mills had paid this draft and ob-
tained the bill of lading for the yarn. The
Citizens' Bank of Ft. Valley, Ga., further
stated in its answer that it had purchased
this draft in due course of business for the
usual discount, and that it was an innocent
holder thereof for value, and that the yarn
and proceeds of the draft belonged to it.
The Ft. Valley Cotton Mills filed a plea in
abatement as follows:

""Plea in Abatement.

"Comes the defendant Ft. Valley Cotton Mills for the sole and only purpose of questioning this court's jurisdiction in the abovestyled cause by plea in abatement, and for plea in abatement to the attachment sued out

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(248 S. W.)

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 4583, Thompson's Shannon's Code. tendered by the amended plea in abatement, in reality covered the issues raised by the