70 N.C. 330 | N.C. | 1874
This was an action for the recovery of a legacy, made returnable to the regular Spring Term, 1870, of the Superior Court for Macon county, and removed by consent of parties at Eall Term, 1871, to the county of Buncombe.
“ The Clerks of the Superior Courts shall have jurisdiction of the probate of deeds, the granting of letters testamentary and of administration, the appointment of guardians, the apprenticing of orphans, to audit the accounts of executors, administrators and guardians, and of such other matters as shall be prescribed by law.” Constitution, Art. IY. sec. 17. Here is an express grant of jurisdiction to grant letters testamentary and of administration, and to audit the accounts of executors and administrators; but the manner of enforcing the collection of legacies and distributive shares, is left to be regulated by legislation.
And this was done by the Act of 1868-’69, ch. 113, sec. 83. We have held, that in every case where the Court of Probate can give an adequate remedy, the party asking it must apply to that Court; and that it has, under the clause of the Constitution and the legislation,1’'sufra, original jurisdiction of special proceedings for the recovery of distributive shares and legacies, which have not been assented to by the executor. But since those decisions the Legislature has passed the act of 1870-71, ch. 108, for the express purpose of curing such mistakes, as the one before us. His Honor was of opinion that this act, if not unconstitutional, did not apply to actions for the recovery of legacies, since special proceedings for certain other purposes are mentioned in the act, and the subject of legacies is mot mentioned.
But this construction is too narrow, and would defeat many of the beneficial purposes of an act which was intended to cure defects of jurisdiction, not only in petitions and special proceedings, but also in any action which may have been improperly brought. Much of the jurisdiction of Clerks or Probate Judges has been conferred by legislation and is subject to be changed by the same. The act of 1870-71, sufra, was reenacted and enlarged on the 3d day of March, 1873, acts of 1872-73, ch. 175. And it is worthy of observation that the act of 1870-71, has been brought forward in Battle’s Revisal,
The judgment of the Superior Court is reversed, and judgment entered here for the plaintiff' for two thousand dollars, the amount of the legacy.
Per Curiam. Judgment reversed and judgment for plaintiff.