The opinion
On Petition to Reheab.
'Petition to rehear has been filed in which Eule 32, 185 Tenn. 879 , is so far ignored that a principal part of the petition is a quotation from brief of appellant filed formerly in this Court. The proposition made that the Chancery Court was without jurisdiction because the exclusive jurisdiction for the administration of estates was in the County Court, was fully made in oral argument at Jackson and repeated in the brief filed.
It is insisted that since in our former opinion we held that notice by the Clerk to the personal representative was the “equivalent to the commencement of an action,” that the time in which the personal representative might file exceptions only commenced to run after the Clerk *97 Rad served the notice. The foregoing quotation was not our holding in this case, but was the holding of the Court in an opinion by MR. Justice Burnett quoted in our former opinion at page 4. In the opinion in this case we held that since the Clerk had wholly failed to give the notice, that an essential element of due process had been omitted. From the allegation of the bill, it appears that the Clerk never gave the notice. So that the question whether the personal representative had or had not lost the right to file exceptions, was never presented by the pleadings in this case.
Furthermore, the jurisdiction of the Chancery Court was clearly made out on the allegations of fraud,— that the defendant had concealed the fact that the claim had been filed, and had assured the personal representative that no claim would be filed. Under its inherent jurisdiction, the Chancery Court had jurisdiction of the case, and it was the opinion of some members of this Court that such fact should be the basis for our opinion.
In this view, it is clear that this bill was not filed by the executrix for a declaration of her rights and duties with regard to the estate, and there is no basis for assessing part of the costs against the estate.
Petition denied.
All concur.