47 N.C. 387 | N.C. | 1855
William S. Miller qualified, and at a subsequent term, Edward H. Bissell also qualified, as executor to the last will and testament of J.H. Bissell.
An order to show cause was made by the County Court, which was duly served and returned, and upon argument of counsel on the respective sides, the Court adjudged that the letters testamentary which had issued to Edward H. Bissell on the estate of John H. Bissell, be revoked.
From this judgment the said Edward H. Bissell prayed and obtained an appeal to the Superior Court, and in that Court the following clauses of the last will and testament of John Humphrey Bissell, were adduced and relied on by the parties respectively in support of their views: "In order to render most available my property, or proceeds thereof, I make and appoint the said E.H. Bissell sole executor, unless William S. Miller, Esq., wishes to act jointly, or in case of the death of the said E.H. Bissell, I advise that William S. Miller would act; and I authorise him or them to take possession and sell, c."
Afterwards he made and published the following codicil: "I have made William S. Miller my sole executor: the will is with Edward, in Charlotte." Again; "I revoke any part of my former will that may be inconsistent with this arrangement, except the discontinuance of Edward as my executor; I have never entertained the smallest unkindness to Edward or Henry."
The case being considered by his Honor below, the Court approved and confirmed the judgment of the County Court, *388 ordering the revocation of the letters testamentary to Edward H. Bissell, from which judgment he appealed to this Court. The proceedings in this case were instituted by the county court of Mecklenburg to revoke letters testamentary, granted by it at a previous term, to the defendant upon the will of Humphrey Bissell, deceased. By his will the testator appointed the defendant, E.H. Bissell, together with William S. Miller, his executors; the will was published in and subsequently the testator made a codicil, wherein he appointed William S. Miller his sole executor. In the codicil is this clause, "I revoke any part of my former will that may be inconsistent with this arrangement, except the discontinuance of Edward as my executor." The will was proved by William S. Miller, and letters granted to him; at a subsequent term, E.H. Bissell applied for letters testamentary which were granted to him. It does not appear that any person, claiming an interest in the estate of Humphrey Bissell, had moved in this matter, but that the proceedings were instituted by the County Court mero motu The sole question upon which our opinion has been required is, as to the power of the Court to move in the matter without the application of some person claiming an interest in the property; in other words, whether the County Court, having discovered that the letters testamentary had been irregularly granted to the defendant, has the power to revoke them, without incitement thereto by any one. His Honor below decided that they had, and in this we concur.
Proceedings in the probate of wills, are in rem, there are, strictly speaking, no parties — no plaintiff and no defendant: The issue to try the validity of the will is made up by the Court, or under its direction. The whole proceeding is under the judicial control of the Court. Here, by the codicil to the will of Humphrey Bissell, William S. Miller is appointed, in *389 express terms, sole executor; and that his meaning may be not misunderstood, he revokes any part of his will which is inconsistent with this arrangement. Now, to suppose that he intended that the defendant should continue in the appointment made by his will, is entirely inconsistent with the sole appointment of William S. Miller, and the will, in that view, is inconsistent with the codicil. That he did not intend the exception in the codicil to have that effect, is evident from the apology to the defendant, which immediately follows the exception. Besides, he uses the word arrangement not devises or legacies. We are of opinion that there is no error in the judgment of the Superior Court, which is hereby affirmed.
PER CURIAM. Judgment affirmed.
