Opinion
June Term, 1828.
From Washington.
The court in which an issue of devisavit vel non was finally tried is the proper one in which to demand a reprobate, and where the trial was in the Superior Court, a demand of reprobate in the county court was held to be erroneous.
THIS was an issue of devisavit vel non. On the trial it appeared that the supposed will had been offered for probate at October Term, 1804, of Tyrrell County Court, when an issue was made up, which by appeal was finally tried in the Superior Court for the district of Edenton, where the will was established. It remained undisturbed until the Spring Term, 1849, of Chowan Superior Court, when the defendant in the present issue filed a petition for a reprobate, upon which, at Spring Term, 1821, Badger. J., set aside the former probate, and directed an issue of devisavit vel non to be tried in that court. On the next Spring Circuit, Paxton, J., thinking that the Superior Court of Chowan had not jurisdiction to try the issue, set aside that part of the former order directing the trial to be had in that court. The supposed will was then offered for probate in Tyrrell County Court, when the present issue was made up, tried, and carried by appeal to the Superior Court, and then removed to Washington.
Badger for the plaintiff. (460)
Gaston and Hogg for the defendant.
Before the trial in the court below the defendant insisted that the county court of Tyrrell had no jurisdiction to take the probate, but that it should have been demanded in the Superior Court of Chowan, where the record of the former trial remained. His Honor, Judge Donnell, reserved the point, but did not decide it, as the defendant obtained a verdict. The cause came here on the appeal of the plaintiff upon other points which it is unnecessary to notice.
The demand of probate must be dismissed, for that it should have been made in Chowan Superior Court, as the court in which the will was established. It was the judgment of that court to which the case was regularly removed that established it, and not the judgment of the court in which it was first offered for probate; the judgment of the latter was vacated or annulled by the appeal. It would have been desirable to the Court that the parties should have agreed between themselves on some county for the trial of the matter in controversy, to prevent a further accumulation of costs, and we have accordingly advised it to them; but as they have not accommodated it, we are constrained reluctantly to render the above judgment.
Cited: Sawyer v. Dozier, 27 N.C. 97.