Davis v. . Blevins , 123 N.C. 379 ( 1898 )

This is an action of ejectment, in which the will of George Bower becomes a necessary link in the chain of plaintiff's title. The plaintiff offered this will in evidence, on the back of which was written, "State of North Carolina — Ashe County. I certify that the foregoing will has been duly proven and recorded as the law directs. James Wagg, Clerk County Court."

The plaintiff also offered in evidence the following record on the minute docket of October Term, 1861, of the Court of Pleas and Quarter Sessions of Ashe County: "The last will and testament of Col. George Bower was duly produced in open court for probate, and (382) duly proved according to law."

"And, on motion, America C. Bower was appointed administratrix with the will annexed (it appearing that no executor had been appointed in said will), and she filed her bond in the sum of one hundred thousand dollars with C. H. Doughton, Q. F. Neal, and Robert Gambill as sureties. Bond accepted, and the administratrix qualified as the law directs."

But his Honor still being of the opinion that said will had not been sufficiently probated, sustained the defendant's objection and ruled out the will. Plaintiff excepted, and submitted to a judgment of nonsuit, and appealed.

The only question presented by this appeal is the sufficiency of the probate of the will of George Bower, to be allowed as evidence in the trial of this case. The question presented here is a very different one from what would have been presented upon a caveat, and appeal from the judgment of the county court of Ashe County in 1861. That would have put the sufficiency of the probate directly in issue, and the trial would have beende novo. This appeal only attacks the judgment of the county court, collaterally, which in our opinion could not be done.

"The probate of wills is a judicial proceeding in rem, and the judgment is a judgment in rem and is good against the world." 2 Freeman on Judgments, sec. 608.

It must be presumed that when the county court admitted this will to probate and proceeded to judgment, in which it held that the will "was produced in open court for probate and duly approved according to law," that it was so proved. This view is sustained In re Young'sWill, at this term. Hutson v. Sawyer, 104 N.C. 1; Jenkins v.Jenkins, 96 N.C. 254, on pp. 258 and 259; Moody v. Johnston, (383)112 N.C. 798, 800.

On the argument, objection was taken to the record of probate because it was on the minute docket. But this is no ground of objection, as the minute docket is the docket upon which such records were made, as the courts of probate were constituted at that time, and was therefore found just where it should have been found. The defendant cited R. R. v. Mining Co.,113 N.C. 241, in support of the ruling of the court. But in doing so he failed to note the fact that that decision was made under the present statute and The Code practice, and is not in point in this case; and, not being in point, it is not necessary that we should make any ruling as to its correctness, and we do not. But, as it became necessary to consider it, as it was cited as authority by defendant, we are not willing that it should pass without our calling attention to it, with the suggestion that it may have been put upon incorrect principles.

The clerks now have jurisdiction of the probate of wills, and they should not admit one to probate without taking the proof as provided by statute. But as they have jurisdiction to admit wills to probate, when they do so — whether their judgments in rem are not "binding on the world," and whether they can be collaterally attacked — quaere.

In our opinion the will of George Bower was competent evidence, and should have been admitted in evidence on this trial. Error.

New trial.

Cited: Cochran v. Improvement Co., 127 N.C. 396.

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