Statement of the Case.

plaintiff had against him at the time of the death of the testator or now has against his estate, or against this defendant in her capacity of executrix of his last will and testament; that in the event that the plaintiff shall elect to take, or in the event that it shall be adjudged that plaintiff take and accept, the devise contained in said last will and testament so intended to be in satisfaction of all her claims and demands against the estate of said testator, the plaintiff in that case be required and directed by the judgment of this court to execute and deliver to this defendant, in her representative capacity, as the executrix of said last will and testament, and also to this defendant in her individual capacity, a release in due form of law of this defendant and the estate of said testator from... all her claims and demands, as in said last will and testament provided, as to the testator's estate; and that in the event that plaintiff shall not elect to take or accept, nor be required to take or accept, the devise to and provisions for her contained in said last will and testament, and it be found that the plaintiff is entitled to an accounting as to said alleged trust estate as found, and to recover any amount for or on account thereof, this defendant prays that in such case" her counter-claim be set off against such recovery.

To this answer a special replication was filed.

The cause was referred on January 29, 1880, to a referee, who made his report July 1, 1880, whereupon it was ordered and adjudged:

"1st. That Anna M. Carpenter, the plaintiff in this action, do recover of or against the estate of the said Ayres P. Merrill, deceased, and of the executrix as such, or of any person or persons having the possession, custody or control of said estate or part thereof, the sum of sixteen thousand four hundred and thirty-six dollars and seventy cents, hereby adjudged to be due to plaintiff, or so much thereof as said estate or any part thereof will pay.

"2d. That all of the above-mentioned sum of $16,436.70 be paid to the said plaintiff or her said attorney, except sixtytwo hundred dollars thereof, which last-mentioned sum shall be paid to a suitable person to be appointed by said court as,

Statement of the Case.

trustee for the purposes above referred to, and that such appointment be made on notice by plaintiff to defendant, William N. M. Merrill, or his attorney herein.

"3d. That the above-mentioned deed of conveyance by Ayres P. Merrill to Maria E. Strange is hereby adjudged to be absolutely null and void from the beginning, so far as the same in anywise affects the above-mentioned indebtedness of said estate to said plaintiff.

"4th. That any bequest or devise in said last will and testament of said, Ayres P. Merrill contained in favor of any person or persons whatever is subject to the payment of the whole amount above-mentioned as due from said estate to plaintiff, and to interest thereon at the rate of six per cent per annum until paid.

"5th. That plaintiff have execution against the property which was of said Ayres P. Merrill at the time of his death for the amount last above-mentioned, and interest thereon until paid, besides sheriff's fees and expenses as provided by

law."

On January 15, 1875, Mrs. Carpenter filed a bill in the Chancery Court of Shelby County, Tennessee, No. 1805, against Mrs. Strange as executrix, setting forth in substance the same matters as alleged in her suit in New York, and praying, among other things, that the real estate be attached and held "to secure the recovery that complainant may recover on account of this suit or any other one complainant has brought or may bring on account of the premises set forth."

The writ of attachment was issued as prayed for and levied upon the real estate described.

On

The bill was taken pro confesso April 30, 1875, and a receiver appointed. In October this decree was set aside upon the motion of Mrs. Strange and she filed a full answer. the 14th of February, 1876, the receiver was, on her motion, discharged from exercising custody and control over lot No. 59, and directed to deliver possession thereof to her, but it was ordered that the discharge should in no way affect the attachment of the property.

In January, 1881, Mrs. Strange caused the will of her father

Statement of the Case.

to be probated in Tennessee, where she had then taken up her residence, and letters were issued to her there.

On February 2, 1881, Mrs. Carpenter filed her bill in the Chancery Court of Shelby County, Tennessee, No. 3912, against Mrs. Strange as executrix and individually, and the heirs, distributees and legatees under Merrill's will. This bill set forth the death of Merrill in New York in November, 1873, testate; the probate of the will in February, 1874, by Mrs. Strange; and its probate in Tennessee in January, 1881; and that complainant had "never renounced her claim upon the testator's estate and has never claimed anything under said will or received anything." She averred that she was a creditor of said estate on account of trust funds received by Merrill in his lifetime, and that the claim had been reduced to judgment in a suit brought against Mrs. Strange, as executrix, in the Supreme Court of the county and State of New York, which judgment was for the sum of $16,436.70. A certified copy of the record in the New York case was made an exhibit to the bill and prayed to be taken as a part thereof.

It was then stated that Mrs. Strange became possessed of Merrill's property soon after his death; that complainant, being informed that Mrs. Strange had qualified as executrix in Tennessee, filed her bill, No. 1805, against her as such executrix to recover the amount due from Merrill, and among other things sought to attach the real estate of the testator, and that it was attached and a receiver appointed; that by the said proceedings she sought to impound the real estate and hold it subject to the judgment sought to be recovered in New York against the estate and Mrs. Strange, who was a nonresident of Tennessee, and said suit No. 1805 was ancillary and auxiliary to the suit in New York; that judgment was recovered in the latter; and that there was no need of proceedings to recover judgment in No. 1805.

Complainant further alleged that Mrs. Strange had been collecting rents of all the real estate in Tennessee, and as to lot No. 59, the New York court, in the suit referred to, had declared the deed to her of that lot fraudulent and void. Complainant reiterated that she was a creditor of the estate

Statement of the Case.

of Merrill in the sum of over $16,000 by judgment recovered, to the record of which she again referred, and said that "she seeks to recover on said judgment just as if specially sued on in a law court. Said judgment is still owned by complainant and is unsatisfied and unpaid, together with cost and interest. Complainant believes there are other creditors of said estate, the names of whom and the amounts due same she has not been able to learn."

Complainant charged that the insolvency of the estate had been duly suggested in the county court of Shelby County; that the personalty had been exhausted in the payment of debts, and that there remained nothing but the real estate to pay such debts; and averred that she "files this bill in behalf of herself and all other creditors and persons interested in the estate who may wish to come in and be parties herein." Complainant further represented that lot No. 59 had become, by virtue of the judgment of the New York court, assets of Merrill's estate, and liable for the payment of debts, together with the other real estate, and prayed that the administration and settlement of the estate be transferred from the county court to the Shelby chancery court; that an account of the assets and liabilities be begun, and a settlement had with Mrs. Strange as executrix, and that she pass her accounts and settlement in the latter court; that Mrs. Strange be made to account for the money left her in trust; that the legatees under the will account for legacies turned over to them and be postponed until the debts were paid; that the creditors and others interested be permitted to become parties to the proceedings; that the clerk and master make publication for all creditors to file their claims on or before the 15th of May, 1881; that the judgment recovered by the complainant in New York be allowed and a decree rendered thereon against the estate; and that the realty be sold to pay complainant's claim, and also any other bona fide debts and claims. Complainant further prayed that the receiver in charge of part of the, property be put in charge of lot No. 59, and that the receiver in No. 1805 be made and continued receiver in this case; that a new trustee be appointed to manage the trust

Statement of the Case.

fund recovered for complainant in the suit in New York, under the control and supervision of the court; and for general relief. Publication of notice to creditors to prove their claims was thereupon ordered. All parties defendant appeared, and the minor heirs, by their guardian ad litem, moved to dismiss so much of the bill "as seeks to enforce the alleged rights of complainant as a devisee of A. P. Merrill, deceased, for the reason that it appears by the bill that the devise to complainant was conditioned upon the renunciation by her of all claim against the estate of said testator for the fund held by him in trust for complainant. The bill not only fails to show a compliance with this condition, but affirmatively shows the contrary, to wit, that complainant has elected to claim and sue for said trust fund. The bill shows no sufficient reason for non-compliance with the said condition, nor for setting it aside as null and void." This motion was heard by the court and overruled, the order reciting that the "solicitors for Mrs. Carpenter insisted that no such claim was asserted, and that for their client they disclaimed any right or purpose to hold or claim a devise under the will." A motion by Mrs. Strange to dismiss the bill in No. 3912, because of the pendency of the other bill, was overruled as premature.

Mrs. Strange answered as executrix and in her own right, admitted that she had made no settlement as executrix in New York, and that the personalty was disposed of, and among other things pleaded and relied upon, as executrix and individually, the statutes of limitation of the State of Tennessee, and as executrix that no personal assets whatever had come to her hands to be administered in Tennessee; and she further averred that the bequests in item No. 3 of the will had not been paid, either in whole or in part; claimed lot No. 59 as her own under the deed made to her in 1867, and stated that the will left no realty belonging to Merrill except Nos. 98 and 100 Madison Street. Answers were filed for the other defendants, adopting Mrs. Strange's answer, and pleading all of the statutes of limitation of the State of New York and of the State of Tennessee applicable in any way to the The answer of the minors submitted their case to the

case.