dissenting.
I dissent from the majority opinion. I do not believe that Elizabeth T. Austin should be permitted to use the estate as a “battering ram” against her siblings to attack a transaction in which the three children were all willing participants. By permitting her to sue in the name of her mother’s estate, she is doing indirectly what the majority opinion concedes she cannot do directly. The sale by the Rolich Corporation of the stock of the Unaka Corporation was a transaction designed to insulate the children, including Elizabeth T. Austin, and their father from, and thereby defer and presently avoid, a substantial tax liability. Because of an apparent falling-out among the children, the tax benefits of that transaction — including those enjoyed by Elizabeth T. Austin — are now apparently in jeopardy.
I believe the majority is wrong in permitting this suit to move forward in the name of an estate when it is clearly an action being pursued by Elizabeth T. Austin because she perceives some advantage to herself in doing so. In fact, the estate of Mary T. Austin is nothing more than her three children — the sole beneficiaries of the estate. Each of these three children freely participated in the transaction which is the subject of this litigation. Elizabeth T. Austin is now being permitted to use the fiction of the estate in an attempt to upset what she once viewed as a favorable transaction, and thereby unleash a substantial tax liability with potential penalty and interest assessments.
I would hold, as the Chancellor did, that Elizabeth T. Austin is equitably estopped, by her prior conduct, from pursuing this suit. See Uffelman v. Boillin, 82 S.W.2d 545, 569, 82 S.W.2d 545 (Tenn.App.1935). I would affirm the judgment of the Chancellor.