Melville Fuller

“ The attack upon the deed seems to have been predicated upon the theory that the realty therein described belonged to the corpus of the estate, and could only be claimed by Mrs. Strange as devisee, and to have been thrown in as ancillary to the main object of the suit, which was the recovery of judgment for the indebtedness against Mrs. Strange as executrix. But Mrs. Strange claimed title as an individual, and, under the pleadings as they stood, it might well be held that dealing in any way with the real estate was not legitimately within the issues. ”

“ She was in privity with the decedent as to his property by the terms of the will, and the judgment against her as executrix in New York bound her in Tennessee upon the probate of the will and her qualification there. It is unnecessary to consider whether the legatees or heirs could have made any defense to the judgment upon the merits, for there was no attempt to do so. But the adjudication of the supreme court of New York that the deed of Merrill to Mrs. Strange was void so far as affecting the indebtedness of the estate to Mrs. Carpenter rests upon far different grounds. ”

“ Carpenter may have entertained the idea that the trust money was probably invested in the lot devised, and that the condition was so unjust that it ought not to be enforced, and gave expression to those views in the pleadings on her part in the three suits brought essentially to enforce her money claim, she should therefore be subjected to an estoppel, operating as a forfeiture of that claim, certain in every material particular, both as regarded the obligation to elect and the act by which the election was held to have been made, is one to which we cannot give our assent ”