79 N.C. 42 | N.C. | 1878
BYNUM and RODMAN, JJ., dissenting. This is an action by the plaintiff as a creditor of defendant's testatrix, and in behalf of all other such creditors, brought to the Superior Court at term time praying for the necessary accounts, sale of lands, and for the payment of the assets to the said creditors according to their several amounts and rights, etc. After this action was in progress and defendants had entered their appearance, the defendant executor filed his petition in the Probate Court for the sale of the real estate of his testatrix for assets, and thereupon and upon notice the *46 plaintiff moved for an order restraining further proceedings in the Probate Court, which was refused by His Honor. This we think was error.
The plaintiff is proceeding under the act of 1876-'77, ch. 241, sec. 6, which provides: "That in addition to the remedy by special proceeding as now provided by law, actions against executors, administrators, collectors and guardians may be brought originally to the Superior Court at term time, and in all such cases it shall be competent to the Court in which said actions shall be pending to order an account to be (44) taken by such person or persons as said Court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief as the nature of the case may require."
Sec. 7. "That all laws and clauses of laws coming in conflict with the provisions of this act be and the same are hereby repealed."
The defendant claims the right to administer the estate in the Probate Court alone by special proceeding under the act, Bat. Rev., ch. 45, sec. 73. These acts, in our view, do not present an instance of a conflict, but of concurrent jurisdiction. The latter act instituted a new mode of settling the estates of deceased persons and was a necessary consequence of that excellent provision of our law requiring creditors to be paid prorata.
The former act (1876-'77) does not necessarily change the mode of administering the estate materially, but only permits it to be done in another Court. "The rule is, where there are Courts of equal and concurrent jurisdiction, the Court possesses the case in which jurisdiction first attaches." Childs v. Martin,
There is error in the interlocutory order appealed from.