In re the Estate of Davis

BROCK, J.

At this point in the controversy the only evidence which has been offered (there are no agreed or stipulated facts) is some untran-scribed evidence offered at the hearing before the Clerk (Buncombe), on 21 October 1969.

There are numerous unestablished facts argued in the briefs of the parties, and numerous unestablished facts alleged in the motion filed with the Clerk (Buncombe), but at this point we are not at liberty to accept them as correct. Therefore we have only summarized certain pertinent facts which were found by the Clerk (Buncombe) .

All parties, in their briefs, treat Exhibit B. which was attached to the motion filed by N.C.N.B., et al, with the Clerk (Buncombe), as being a true and exact copy of the order of probate entered by the Clerk (Iredell) on 8 July 1969. The following is the first paragraph of the order of probate as set out in the said exhibit:

“A paper writing, without subscribing witnesses, purporting to be the last well and testament of Nancy S. Davis, deceased, is exhibited for probate in open court by Dr. J. S. Holbrook, Chairman Board, James W. Davis Foundation, one of the executors therein named; and it is thereupon proved by the oath and examination of Miss Elizabeth Hill that the said will was found among the valuable papers and effects of the said Nancy S. Davis after her death, at the Davis Hospital.”

There is no finding at any place in the order of probate by the Clerk' (Iredell) that Nancy S. Davis died a resident of or domiciled in Iredell County, and appellants contend the failure to so find is fatal to the Clerk (Iredell) acquiring jurisdiction of the administration. It is appellants’ contention that, in the absence of a finding of residence or domicile, lack of jurisdiction appears on the face of the record and that the Iredell probate can be ignored or attacked collaterally.

In support of this contention appellants cite Collins v. Turner, 4 N.C. 541; Smith v. Munroe, 23 N.C. 345; Johnson v. Corpenning, 39 N.C. 216; London v. R. R., 88 N.C. 584; Springer v. Shavender, 118 N.C. 33, 23 S.E. 976; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240; In re Estate of Cullinan, 259 N.C. 626, 131 S.E. 2d 316.

In Collins, Smith, Johnson, London, Beynolds, and Cullinan, the Supreme Court was considering appeals from direct, not collateral, attacks on probates; and, therefore, upon their facts, these cases do not support appellants’ contention. In Springer the Supreme Court was considering an attempted administration of the estate of a living person, and held the entire administration to be void ab initio; this ruling, of course, does not support appellants’ contention.

“Every court, where the subject-matter is within its jurisdiction, is presumed to have done all that is necessary to give force and effect to its proceedings, unless there be something on the face of the proceedings to show to the contrary. This must be the rule, unless we adopt the conclusion that the Court is unfit for the business which by law is confided to it.” Marshall v. Fisher, 46 N.C. 111. “Jurisdiction is presumed when the contrary does not appear on the record.” Reynolds v. Cotton Mills, supra. “[W]here a probate has no inherent or fatal defect appearing upon its face, the judgment of the court having full jurisdiction of the matter, cannot be indirectly or collaterally attacked, but the assault upon it must be made in the court where the judgment admitting the will to probate was rendered, and in accordance with the statutory provisions enacted for such purpose.” Edwards v. White, 180 N.C. 55, 103 S.E. 901.

We are of the opinion, and so hold, that the failure of the Clerk (Iredell) to add the words “late of the county of Iredell" after the name of the deceased, or his failure to make some specific finding as to her domicile or residence in the order of probate, did not thereby create a showing of lack of jurisdiction in Iredell County so as to entitle appellants to ignore or collaterally attack the Iredell probate. Unless the record of the probate proceedings in the estate of a deceased person affirmatively shows a lack of jurisdiction, an assault upon it for lack of jurisdiction must be made directly.

Appellants have filed in this Court a “demurrer ore tenus and motion to dismiss” the motion filed with the Clerk (Buncombe) by N.C.N.B., et al, on the grounds that the said motion does not “contain a statement of facts sufficient to constitute a cause of action,” and on the grounds that the said motion “does not state a claim upon which relief can be granted.”

The parties do not argue and we do not decide three procedural questions raised by appellants’ “demurrer ore tenus and motion to dismiss.” They are: (1) is it proper to demur to a motion; (2) are appellants bound by Chap. 1A of the General Statutes, effective 1 January 1970; and (3) if so, can the question of failure to state a claim upon which relief can be granted be raised for the first time on appeal? See G.S. 1A-1, Rule 12(h)(2). We do not decide these questions because, in any event, appellants’ “demurrer ore tenus and motion to dismiss” is again an undertaking to attack collaterally the probate in Iredell County. We have decided that a collateral attack is improper.

Appellants are free, if so advised, to proceed directly in Iredell County.

Affirmed.

Bbitt and Geaham, JJ., concur.