The opinion
On PETITION TO BeHEAR.
Mr. Justice Bailor
delivered the opinion of the Court.
Petition to rehear has been filed in which it is insisted that the Court erroneously decided the case on matters dehors the record in that the basis of our original opinion took into consideration that there was now pending in the Circuit Court of Washington .County, a will contest to try the issue
devisavit vel non.
To dispose of this portion of the petition for rehearing it is only necessary to quote the supplemental brief filed by counsel for the petitioner on October 9,1947, in which he made the following statement:
“Upon the argument of this cause in this Court on October 6th, 1947, Mr. Justice Bailor, about the close of of the argument, inquired whether or not the record shows that there is a suit
devisavit vel non
pending in the Circuit Court to set this will aside, to which counsel for both sides stated that while the record did not so show,
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there was in fact such, a suit pending,
and that counsel were willing for the Court to take that into consideration in passing upon the case.”
(Italics ours.)
The real basis for the filing of this bill "was to have the Chancellor declare
as a matter of law,
that the will herein was invalid because of its defective execution. Recognizing that the exclusive jurisdiction of will contests is in the Circuit Court, the Chancellor was unwilling to make this declaration and in view of the fact that the bill was filed by one who alleged that she was the Executrix, and was unable to exhibit letters testamentary to prove that fact, and was seeking a construction of a document alleging that it was the last will and testament of Callie Dyer when it could not be certified as such, we think it abundantly clear that the Chancellor did not abuse his discretion in refusing a declaration. The making or refusing of a declaratory judgment is discretionary.
Harrell
v.
American Home Mortgage Co.,
162 Tenn. 371 , 36 S. W. (2d) 888 . The making of declarations under the statutes should be exercised with the utmost caution.
Newsum
v.
Interstate Realty Co.,
152 Tenn. 302 , 278 S.
W.
56 .
After the present bill was filed in the Chancery Court, and apparently after the Chancellor’s memorandum was filed in which he suggested his lack of jurisdiction and the propriety of the suit at law, the notice of the contest was filed in the County Court. The filing of the contest in the County Court transfers jurisdiction to the Circuit Court,
Lillard
v.
Tolliver,
154 Tenn. 304 , 285 S. W. 576 , and the fact that the County Court fails to certify, in accordance with sec. 8103 of the Code, does not affect the fact that exclusive jurisdiction is in the Circuit Court, and the latter Court may, by
certiorari,
compel certifica
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tion of the record.
Wisener
&
Brown, Executors,
v.
Maupin and Wife,
61 Term. 342.
However, according to the petition for rehearing, counsel for both sides agreed that the lawsuit should be held in abeyance until our decision of this Chancery case. By their agreement, we think for the reasons fully set forth in our original opinion, counsel agreed to put the cart before the horse, and that the agreement should have been to hold the Chancery suit in abeyance until the final determination of the suit at law. If that final determination of the lawsuit is to the effect that the will is invalid, no construction of the instrument will be necessary, and if the will be held valid and there remain matters requiring a declaration by the Chancellor, doubtless, then the pleadings in the present suit may be amended to meet the situation.
We agree with the Chancellor that he had no jurisdiction to determine the validity of the will on the record as it was presented to him on the demurrer, and affirming our former opinion, petition to rehear is denied.
All concur.