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. Statement of the Case. court, and also relied on the statutes of limitation. W. N. M. Merrill filed a claim in the suit, setting forth a trust created by Mercer in 1857, by conveyance to A. P. Merrill for the benefit of claimant, and that the lands described in the conveyance were sold in 1860 for $6000 or thereabouts. And he insisted that any surplus remaining after the payment of the judgment in favor of his sister Anna M. should be paid into court in trust for him and the heirs of his body, or for his sister Anna M. in default of such heirs. By consent of the parties the two cases, Nos. 1805 and 3912, were consolidated and ordered to be heard together, and upon the hearing an authenticated copy of the record, proceedings and judgment in the Supreme Court of New York in the case of Carpenter v. Strange, Executrix, et al., which has been hereinbefore referred to, and was filed as an exhibit to the bill in No. 3912, was put in evidence. This transcript, although the record in this court shows that the suit in New York was brought shortly after February, 1874, commences with an amended summons, dated March 19, 1878, and an amended complaint, which was sworn to on that day. The caption runs in the name of the people of the State of New York and recites that they "having examined the records and files in the office of the clerk of the county of New York and clerk of the Supreme Court of said State for said county, do find a certain judgment roll there remaining in the words and figures following, the same being a full and perfect record, to wit," (and then follows the record) and the conclusion is: "All of which we have caused by these presents to be exemplified and the seal of our said Supreme Court to be hereunto affixed." This is tested in the name of the presiding justice of the Supreme Court for the city and county of New York and subscribed by the clerk and the seal of the court affixed, and accompanied by the certificate of said justice to the effect that the clerk whose name was subscribed to the exemplification was the clerk of the county of New York and of the Supreme Court, duly appointed and sworn, and that full faith and credit were due to his official acts, and that the seal affixed to the exemplification was the seal of the Supreme Court and the attestation VOL. CXLI-7 Statement of the Case. was in due form of law; and a further certificate of the clerk was attached under the seal of the court, that the judge who certified was presiding justice of the Supreme Court. When the record of the New York court was offered in evidence in No. 3912, counsel for the defendants objected to its admission "upon the ground that neither the executrix in Tennessee nor the heirs or legatees were bound by it, and that it was incompetent and inadmissible as evidence in this cause for the reason that it was not in any way binding upon said respondents in this proceeding, and for the further reason that the said record shows upon its face that the judgment was erroneous and ought not to have been rendered." The chancellor, however, admitted the record, and, being of opinion that Mrs. Carpenter was entitled to recover from Mrs. Strange, executrix, according to the tenor and effect of said proceedings and judgment, decreed that she recover the sum of $16,436.70 with interest. The chancery court further held that the statutes of limitation constituted no valid defences against the recovery; and further held and decreed "that the filing of this bill was an election by complainant to renounce all benefit under the will of said Merrill, and she is barred and precluded from ever claiming anything under its provisions." It was further ordered that a trustee be appointed to receive and control $6200 of the recovery when realized, according to the terms of Mercer's deed of settlement for the benefit of complainant, and that the balance of the recovery belonged to Mrs. Carpenter as her own individual property; and that this branch of the cause be referred to a master to take proof and report: (1) What assets have come or should have come to the hands of said executrix in this State. (2) What debts are due and owing to the creditors of said Merrill, deceased. (3) What realty belongs to said estate, and upon what terms should a sale be made. (4) What debts of said Merrill have been paid in this State. The chancellor further ordered that upon the third inquiry either party might submit proofs as to the ownership of lot No. 59, the court refusing to set aside the deed to Mrs. Strange by force of the judgment or decree in the New York court, Statement of the Case. holding that the order of that court declaring the deed void was inoperative in this case, and reserving the question as to its validity as to complainant and other creditors of Merrill, and also all other questions not adjudged, including costs. The record in No. 1805 was read by defendants upon the hearing. An appeal to the Supreme Court of the State was taken by the defendants from so much of the decree in No. 3912 as awarded a recovery to complainant against Merrill's estate, and ordered the settlement of the accounts of his personal representative; and by complainant from so much of that decree as refused to declare the deed of Merrill to Mrs. Strange void by force of the New York judgment. In No. 1805 the court ordered complainant's bill to be dismissed, and an appeal was prayed therefrom. The appeals having been duly prosecuted, the cases were referred to commissioners under the Tennessee practice, who made an elaborate report, holding that the chancellor erred in not decreeing that the deed to Mrs. Strange was void as to Mrs. Carpenter's debt, and that he should have held the land therein conveyed liable and subjected it to the payment of her debt; and also that the bill in No. 1805 should not have been dismissed except without prejudice, and, with these modifications, that the decree should be affirmed and the cause remanded for further proceedings, the estate wound up and administered as an insolvent estate, and, upon exhaustion of the personalty, that the lands should be sold to pay the debts. Exceptions were filed to the report of the commission, and the Supreme Court of Tennessee heard the cause upon the chancery court record and the report and exceptions, and April 16, 1887, set aside the report and reversed the decree of the court below, but on the 20th of April, on motion of the defendants, vacated that decree and entered another in lieu and stead thereof, which stated that the court was of opinion (1) That the record of the proceedings in New York was fatally incomplete and defective in that the transcript commenced with an amended complaint, and because the certificate was insufficient; (2) That the New York court had no power or jurisdiction to |