Summary
In Bidwell v. King, 71 N.C. 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.
Summary of this case from Hendrick v. MayfieldOpinion
(June Term, 1874.)
An action to recover a legacy of $150, although it is alleged the executor promised to pay the interest on it and failed, must be brought in the probate Court of the County in which the will was proved.
This was a CIVIL ACTION against the defendant as executor, to recover a legacy, tried before Mitchell, J., at Fall Term, 1873, of ALLEGHANY Superior Court.
Attorney General Hargrove and Furches, for defendant.
No counsel contra in this Court.
The feme plaintiff, residing in Alleghany County, became entitled to a legacy under the will of her grand-mother, who died in Lenoir County, in which her will was admitted to probate and the defendant, a resident therein, qualified as executor.
The plaintiff alleges that the defendant promised to pay her the interest on the legacy until a certain contingency arose, (her marriage,) at which time he was to pay the principal thereof. That she had intermarried with the other plaintiff, and that defendant had failed to comply with his promise.
At the return term the defendant moved to dismiss the complaint for want of jurisdiction, in this, that the action ought to have commenced in the Probate Court. At the trial his Honor overruled the motion; when the defendant demanded that it should be transferred to the Superior Court of Lenoir County. His Honor refusing this, the defendant appealed.
Two objections are made to plaintiff's action.
1. That it should have been brought in the Probate Court. We are of opinion that it should have been. The facts do not bring it within the principles decided in the case of Miller v. Barnes, 65 N.C. 67. Here it is not alleged that the defendant ever promised to pay the (288) principal of the legacy; although it is alleged that he promised to pay the annual interest, and failed to do it. The Probate Court has general original jurisdiction of actions to recover legacies. Bell v. King, 70 N.C. 330, and no circumstance is here alleged to make the case an exception to the general rule. The Superior Court had no jurisdiction of the action.
2. An executor is entitled to be sued in the county in which he proved the will and qualified as executor. Stanly v. Mason, 69 N.C. 1, and Foy v. Morehead, Id., 512.
PER CURIAM. Action dismissed. Cited: Hendrick v. Mayfield, 74 N.C. 632; Clark v. Peebles, 100 N.C. 352; Wood v. Morgan, 118 N.C. 750; Alliance v. Murrell, 119 N.C. 126; Craven v. Munger, 170 N.C. 426; Godfrey v. Power Co., 224 N.C. 661; Wiggins v. Trust Co., 232 N.C. 394.