Opinion
December Term, 1805.
The probate of a will may be set aside after the term expires at which the will was proved and a second probate be ordered by the same court. The court will look to all the circumstances of the case, to aid its discretion in ordering a second probate.
THIS was a petition to the County Court of Pitt, to set aside the probate of a paper-writing which had been proved in said court as the last will and testament of James Stewart, deceased. and to contest the said will upon an issue to be made up under the direction of the court. The petitioners were the heirs at law and next of kin of the said Stewart. Joel Dickenson, one of the petitioners, resided in the town of Greenville, where the court was held, and on the first day of the term was informed by John Spier, the executor, that he would have the said will proved on that day, which was accordingly done, and the court continued to sit for four days afterwards. Dickenson (100) neither caveated the probate nor during the term made any application to the court upon the subject. William H. Williams, the other petitioner, resided in Fayetteville and had no previous notice of the said probate, but was informed of it shortly afterwards. The will was proved at November Term, 1802, and at February Term, 1804, the petitioners filed their petition to set aside the probate of the said will and to require the executor to exhibit the said will for probate again in the said court. The case was taken to the Superior Court of Law for New Bern District, and by that court was sent to the Court of Conference upon the question "whether the probate of a will in the usual form can be set aside after the term has expired at which it was proved, and a second probate ordered by the same court; and if so, at what length of time it may be done.
Gaston for petitioners.
Harris for defendant.
From New Bern.
We are of opinion that the probate of a will in the usual form may be set aside after the term has expired at which the will was proved, and that a second probate may be ordered by the same court. As to the length of time at which this may be done, that must depend upon the particular circumstances of the case. The court will look to all circumstances which can aid its discretion in ordering a second probate.
Cited: Redmond v. Collins, 15 N.C. 439; Armstrong v. Baker, 31 N.C. 112; Crump v. Morgan, 38 N.C. 99.