
    H. Stone & G. Moyers in error v. J. W. G. Ringer.
    I. Bevivoe. Appeal. Where a plaintiff dies after judgment and before the end of the term, the defendant may appeal without revivor.
    2. Same. Widow. Tear’s support. A plaintiff dying after judgment, the judgment was assigned to the widow by commission- ’ ers as part of her year’s support. The defendant having appealed, held that the widow might revive, and proceed in the appeal in her own name.
    MOTION TO SET ASIDE REVIVOR AND REMAND CAUSE.
    Pierce, Richards & Dix for the motion.
    
      Heiskell, Scott & Heiskell for defendant in error.
    The plaintiff below having obtained an order to revive the cause in the name of the widow of the plaintiff below, to whom the County Court had set apart the judgment, subject to liens for fees, and to certain orders of the husband in his lifetime, for amounts to be paid out of the same; the defendant’s counsel moved to set aside the order, on the ground that the widow had no right to revive in her own name, and cited the Code 2849, 2854, 2859, 2285, 2286. They also moved to dismiss the appeal and remand the cause, because the appeal was taken after the appellee was dead, citing Taylor v. Savage, 1 How. (H.S.), 282; S.C. 2 How., 395.
    C. "W. Heiskell against the motion to 'remand,
    cited Tidds Pr., 932, and note A.; Marr v. Bell, 1 Tenn., 368; Elkins v. Sams, 3 Hay., 44; Preston v. Surgoine, Peck., 81; Battle v. Bering, 7 Ter., 531, 532; 1 Meigs’ Dig., 956. On the motion to set aside order, he cited Cate v. Settle, Thompson’s Cases, 63, Hist, of a law suit, § 437.
   TubNey, J.,

delivered the opinion of the Court.

An execution issued after the death of a party is valid, and a sale under it good when the execution is tested as of a term before the death of the party. The proceeding is regarded as against an individual in life, the execution that issued after the death bearing teste of a time when the party lived.

By parity we bold that from a judgment rendered in tbe lifetime of a plaintiff, and in bis favor, tbe defendant may appeal at tbe term of tbe rendition, tbongb after tbe death of tbe plaintiff, tbe appeal and bond therefor having relation to tbe date of tbe judgment, and becoming a part of tbe record in tbe cause.

In contemplation of law, tbe appeal is prayed and granted, and tbe bond executed as of that day, although of actual date subsequent.

Otherwise, a defendant aggrieved might lose bis only means of redress, viz., by appeal, as by our law an appeal must be prayed, and tbe bond executed at the same term in which tbe judgment is rendered, and if a representative must qualify, or be appointed and qualified, and tbe suit revived in' bis name before tbe appeal can be taken, comparatively few cases in which a death occurs after judgment and during tbe term could be considered by an appellate court.

Upon tbe assignment by commissioners of a year’s support to tbe widow, tbe articles so assigned vest in tbe widow, as provided by statute, her title thereto, relating back to tbe moment of tbe death of tbe husband. Tbe administrator has no interest therein, and tbe widow may institute suit for their recovery, or have revived in her name a suit pending in tbe name of tbe husband to recover them at tbe time of bis death.

Tbe order of revivor is proper, and must stand.  