Odom v. . Thompson , 9 N.C. 24 ( 1822 )

Taylor, Chief-Justice.

There are two allegations in the peí ilion, which if true, render ii essential to justice that the will should be re-proved; these are that the petitioner:;, \v!;o are heirs at law, and next of kin to the testator. were either infants or under coverture when the will was proved, and that no notice was given to theta. The other is that die will and the several codicils annexed, were signed and executed by thetestaiorwhen he was utterly incapable of making a will. These statements must, upon the face of the proceedings, bo taken as true, since the Defendants have made no answer to thorn ; and although they might not be informed as io the state of the testators* mind when tho will was made, cinco they arc not tho persons who offered it for probate, yet some answer should have been made to the charge j and if they knew nothing about it, they should have answered so. For these reasons alone, without enquiring into the other questions made, 1 think there ought to be a re-probate.

Hall, Judge.

This case seems to bopeculiarly situated. — If the question whether this petition contains matter sufficient to authorise the Court to say, there shall be a rehearing of the probate of the will, is not considered by this Court at this stage of the proceedings, it is difficult to say that any other '-pportunity will be afforded. Suppose it should be sent bark to be finally settled by rehearing the l)1,0^a^e the will : if that question should terminate fa-vourably for the 1 defendants,i/iet/ would have no ind uceinent to take the opinion of this Court on the merits of the petition. If the question should be otherwise decided, and the paper writing should be found not to be a will, this Court yvouhl hesitate long before it would undertake to jSct that finding aside, although they might have thought in the first instance that the prayer of the petition for a rehearing of the probate of the will ought not to he granted ; for that reason, I think the merits .of the petition should be now decided on.

Henderson, Judge. — Concurred.