Opinion
June Term, 1820.
In a petition to have a probate of a will set aside, and a re-probate in solemn form, all the heirs at law and distributees need not be made parties; it is sufficient if the petition be brought by one of them, and all the executors, devisees and legatees claiming under the will be made defendants.
THIS was a petition filed by Odom and others against Thompson and others, from BERTIE, in which the petitioners set forth that one Hinton died seized of real estate in fee, and possessed of personalty, and that the petitioners were heirs at law and distributees of Hinton; that after his death some of the defendants caused a certain paper to be proved in the county court as his last will, and the persons named therein as executors thereof being dead, obtained letters of administration; and that the other defendants claimed an interest in the said real or personal estates as devisees or legatees under the said will. It was also charged that Hinton was totally incapable of making a will, and that the said probate had been effected ex parte and without notice to the petitioners, and prayed for a solemn probate. The defendants filed an answer in which they set forth, (59) amongst other things, that certain other persons therein named were heirs at law and next of kin of Hinton, and traced their pedigree so as to show that fact. The case was set down for hearing upon the petition and answer, and brought up from the county court to the Superior Court, where it came on for hearing at April Term, 1818, when it was objected, on behalf of the defendants, that a re-probate of the will in solemn form would not be ordered by the court unless all the heirs at law and next of kin and all the devisees and legatees were made parties; and the case was adjourned to the Supreme Court for a decision upon the question "whether the petitioners were bound to make any other parties?"
The case was submitted without argument.
remarking that the case had been transmitted here under the former organization of the Court, and therefore only the question submitted could be decided, said, as to that question, that all the persons interested in supporting the will are made defendants in the case, and upon a controversy whether the will ought to be re-proved or not there is no necessity of making any others, and the cause was remanded for further proceedings.
(60)