January 18, 1923. The opinion of the Court was delivered by
MR. JUSTICE WATTS.
This is an appeal from a decree of his Honor, Judge DeVore, in the above case. The decree will be reported for a proper understanding of the case.
The appellants by five exceptions allege error. This Court has repeatedly held that it is incumbent on the appellant to show that the circuit decree is against the weight of the evidence. In the instant case the appellants have failed to do this, and all exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES MARION and FRASER concur.
MR. CHIEF JUSTICE GARY did not sit.
MR. JUSTICE COTHRAN, (dissenting):
This Court, in my opinion, should adopt what is known as the Tennessee rule: That upon grounds of public policy a party who states facts under oath during the course of a trial is estopped to deny such facts in a subsequent suit to which he is a party. 21 C.J., 1236. In the case at bar the defendant escapes liability to account for assets of the Bryant estate which in an accounting as administrator of the Gray estate, he testified he received as assets of the Bryant estate, and thereby escaped accountability to the Gray state. His solemn admission should not be discarded by the ignominious declaration of his perjury in the first proceeding (37 L.R.A. [N.S.], 429 note), and that is all he offered.