27 N.C. 97 | N.C. | 1844
In the county court of Camden Haywood S. Bell propounded (98) a script as the last will and testament of Margaret Dozier, *75 deceased, in which he was nominated executor. It purports to devise both real and personal estate to Edmund D. Sawyer, and is duly attested by two competent witnesses. The heirs and next of kin of the party deceased contested the probate, and an issue of devisavit vel non was made up under the direction of the court. On trial the jury found, and the court pronounced, against the instrument; and from the sentence Haywood S. Bell prayed an appeal, which, by consent of the other parties, was allowed without an appeal bond.
In the Superior Court Edmund D. Sawyer intervened, and was allowed also to propound the same paper, as the devisee and legatee therein named. Bell then moved that he might be dismissed from the office of executor of the said will and be allowed to withdraw from the case; and, to that end, Bell in open court executed under his hand and seal an instrument in which he renounced the said office and released all rights to him given or accruing by the said will, and deposited the same with the clerk of the court, and prayed that his said renunciation might be entered; and the said Sawyer consented that the said Bell might be dismissed from the case, and undertook to carry on the same instead of Bell, and at his own expense. The court thereupon allowed the motion of the said Bell by accepting his refusal of the office of executor and dismissing him from the cause.
Afterwards the issue of devisavit vel non came on to be tried between Sawyer and the heirs and the next of kin of the deceased, and, to maintain the same on his part, besides the two subscribing witnesses, Sawyer offered as a witness the said Haywood S. Bell. He was objected to on the other side upon the grounds that he was liable for the costs in the county court, and also that he had not effectually renounced the office of executor. But the court admitted him, and the jury found and the court pronounced for the paper; and thereupon the other party appealed to this court. If the acts of the Superior Court on which Bell's competency as a witness depends had been those of the county court it would hardly be a question that he was effectually discharged from both his office and the cause, so as to be admissible as a witness. The proceeding is in rem, and the object of the court of probate ever is to have all parties in interest cited to see procedings [proceedings]: When cited they may either stand by passively or take an active part on either side, according to their interest or inclination. Thus, every party in interest may become a party in the cause at any time before the decision. The *76 admission of Sawyer, therefore, would certainly have been proper in the court of the first resort.
Ordinarily, too, every one may withdraw from a cause when he chooses. This will not be denied in a case in which the party desiring to withdraw claims an interest under or against the script for himself merely. Such withdrawal by one named a devisee or legatee may cause the court to condemn him in costs, and, no doubt, generally would; but it can affect the rights of no other person. He leaves the script in the possession of the court, and the cause still pending, and the instrument must still be proved in the way required by the court of probate. St.John's Lodge v. Callender,
The other objection to his competency arose out of his relation to the cause, and the court by reason of the office of executor conferred on him by the will. That circumstance certainly distinguishes him from *77
those who claim but a personal benefit under the instrument. As executor, it was his duty to exhibit the will in the court of probate, as its proper depositary. That duty he performed. It was also his duty to propound it for probate, preparatory to his ultimate duty of obtaining the probate, when made, by taking the oath of an executor, or else to renounce the office, so that the will might not be unexecuted, but letters of administration with the will annexed granted to some other person. An executor has the absolute right of refusal at any time before he has undertaken the office or intermeddled with the estate. In this case there is no suggestion of such intermeddling; and we think he has not assumed the office definitely by propounding the will, so as to preclude him from the right of renouncing, or, at all events, so (101) as to preclude the court of probate from the power of dismissing him. The probate of a will, and the granting of a probate to, or taking the probate by the executor are distinct things. The former is the act, as it is technically called, of the court, recording the proof of the script and pronouncing in favor of it as a will; and the latter is an official copy of the will, and of that act, with a certificate, or open letters thereon, under the seal of the proper office, that the executor has taken the oath of office. He is then executor complete of an established will. Sometimes the probate is before one tribunal, and those letters issue from another. Thus, by Laws of 1715, ch. 10, the Governor, the general court, or the precinct court, had cognizance of the probate of wills, while the letters testamentary could only issue out of the secretary's office, under the seal of the colony, and signed by the Governor, and countersigned by the secretary, after the executor's taking the oath for performing the will before the secretary or a justice of the peace. That the executor does not assume the office by propounding the will is clear from the power exercised of granting letters ad colligendum or pendente lite. It is not an act which made him responsible to creditors, unless he also intermeddled with the effects; and it is upon the ground that the recourse of creditors should not be divided that the law will not allow an executor, after intermeddling, to renounce at his pleasure. But after the probate of a will it has always been usual in this State to allow an executor to refuse the office, and much more pending a contest about the probate. Indeed, merely swearing in and taking probate by the executor do not debar the court from dismissing the executor. Mitchell v. Adams,
As to the sufficiency of the executor's refusal in this case, if made in the proper court, there can be no doubt. It is true, the refusal must be by some act recorded in the court of probate. But the court may treat several matters as refusals, though they be not expressly so; as if the executor refuse to take the oath when convened, that may be recorded as *78 (102) a refusal to take the office. Toller's Ex., 42. Here both by personal declaration in court and by a written instrument executed in court he renounced, and the court, as its act, accepted and recorded them as a refusal.
The chief doubt in the case, if there be any, is as to the authority of the Superior Court to allow of the executor's refusal as the ground of dismissing him both from his office and the cause. By the act of 1777 the county court is to "take the probate of wills" and order them to be recorded in proper books, and make orders for the issuing of letters testamentary, and all original wills shall remain in the clerk's office of the county court, except when removed before any other court, upon any controversy. That act also provided for an appeal for any person thinking himself injured by order of the court for letters testamentary, or letters of administration, and declared that the Superior Court should have cognizance thereof, and determine the same, and upon such determination should proceed to grant the letters to the persons entitled to the same. Under that act the probate was upon allegations and proofs directed to the court alone, as to the spiritual court in England, and without the intervention of a jury. By the words of the act the whole case was removed by appeal into the Superior Court, which determined who should be executor or administrator, or, in other words, whether there was a will or not, and consequently had all incidental powers necessary to the exercise of the general powers of the ordinary in those respects. Laws 1789, ch. 308, afterwards defined the method more particularly of the probate of wills, and among other things directs that if a will be contested, its validity shall he tried by a jury, on an issue to be made up under the direction of the court. This act is silent upon the subject of an appeal; but, undoubtedly, either under the special provision of section 58 of the act of 1777, before quoted, or under the general provision in section 75 for an appeal from every sentence, judgment, or decree of the county court, parties were entitled to, (103) and have always obtained appeals in testamentary causes, since the act of `89, as before. The whole case was taken up by the appeal, so that the Superior Court had plenary jurisdiction to proceed to trial de-novo
and decide the whole matter. Hence, in a contest between two persons which of the two were entitled to administration, upon appeal it was held in the Superior Court that there was a general jurisdiction in that court, and that administration should not be granted to either of the applicants in the county court, but to a third person, who applied for the first time in the Superior Court. Blunt v. Moore,
Our conclusion, therefore, is that there was no error on the trial of the issue or the sentence of the court for the will. This judgment will be certified to the Superior Court, to the end that the said court may (105) remit to the county court the original will there remaining, with a transcript of the proceedings and probate thereof in the Superior Court, that the said will may be recorded in the county court, and that further proceedings may be had thereon according to law.
PER CURIAM. No error.
Cited: Hutson v. Sawyer,