Hendrick v. Mayfield

ByNüm, J.

The complaint and demurrer thereto, present the question of jurisdiction only. The Court of Probote has exclusive jurisdiction of proceedings for the recovery of lega-ciés and distributive shares of estates. Bat. Rev. chap. 45, sec. 134. Heiley v. Foard, 64 N. C. Rep. 710. Hunt v. Sneed, 64 N. C. Rep. 176.

When, however, a specific pecuniary legacy has been given and has been assented to by the executor, it becomes a debt, and must be recovered by action brought to a regular term of the Superior Court. Such were the cases of Miller v. Barnes, 65 N. C. Rep. 67; and Hodge v. Hodge, 72 N. C. Rep. 616.

In Beawell v. King, 71 N. C. Rep. 289, the promise was made by the executor to pay the interest on a specific pecuniary legacy; yet that was held to be insufficient to give the Superior Court jurisdiction, and the exclusive jurisdiction of the Court of Probate was sustained. To the same effect is Bell v. King 70 N. C. Rep. 330.

In the case before us, no specific sum was bequeathed to the plaintiffs or claimed in the complaint. Nor does the complaint allege a promise of the executor to pay any sum certain or' any sum uncertain. It is alleged that the executor had paid one of the plaintiff legatees $608.19, but that can only be construed into an assent to that amount and no more. It is certainly not an assent to pay the balance claimed. No specific sum was willed to the plaintiffs, but only the residue of an estate which might remain after a life support out of it, to the father of the testator. It was uncertain what that residue would be, and it would only be ascertained by an account to be taken. No assent of tlie executor to such a .legacy as this, will deprive the Court of Probate of its appropriate jurisdiction.

There is no error.

Per Cukiam. Judgment affirmed.