80 N.C. App. 160 | N.C. Ct. App. | 1986
Lead Opinion
Defendant contends that the trial court erred in denying his motion to transfer the matter to Anson County for a determination of his interest under his father’s will. We agree.
Plaintiff asserts that G.S. 1-307 supports the decision of the trial court. That statute provides that "[executions and other process for the enforcement of judgments can issue only from the court in which the judgment for the enforcement of the execution or other final process was rendered . . . .” Plaintiff maintains it
Defendant on the other hand asserts that G.S. 28A-3-1 is controlling. That statute provides that “[t]he venue for the probate of a will and for all proceedings relating to the administration of the estate of a decedent shall be: (1) If [sic] the county in this State where the decedent had his domicile at the time of his death. . . .” Defendant’s father lived in Anson County at the time of his death and the will was probated there. Defendant argues that his interest under the will must be determined in Anson County before plaintiff can execute on that interest.
While we are sympathetic to plaintiffs attempts to collect the 1974 judgment on which defendant has made no payments, the better policy requires an initial determination of defendant’s interest under the will in the county of probate. Once this determination has been made, plaintiff may then seek an order for execution from Forsyth County Superior Court if defendant has an interest which can be sold. To allow a party to seek construction of a will in conjunction with and pursuant to G.S. 1-307 would overly burden that procedure and open the door to possible confusion in the administration of estates. For this reason we hold that the trial court erred in denying defendant’s motion to transfer the matter to Anson County. We vacate the order of the trial court and rescind all actions pursuant to that order.
Vacated.
Dissenting Opinion
dissenting.
I dissent. I do not believe there was a construction of the will in Forsyth County in spite of the recitals in the court’s order. I believe it was proper to sell whatever interest the defendant might have in his father’s estate in Forsyth County. The purchaser of this interest may then bring an action in Anson County to determine what this interest may be. I vote to affirm.
