In Re Wood's Will

81 S.E.2d 127 (1954)

240 N.C. 134

In re WOOD'S WILL.

No. 105.

Supreme Court of North Carolina.

April 14, 1954.

*128 Davenport & Davenport, Nashville, for respondents, appellants.

Charles P. Green, John F. Matthews, Louisburg, and Cooley & May, Nashville, for petitioner, appellee.

JOHNSON, Justice.

The respondents insist that, in the absence of a prior ruling by the Clerk of the Superior Court, `Judge Bone was without jurisdictional power to hear and determine their demurrer and motion. The contention is untenable. True, the Clerk had exclusive original jurisdiction of the proceeding; that is, nothing else appearing, it was within his sole province in the first instance to determine whether the decedent Wood died testate or intestate and, if he died testate, whether the script in dispute is his will. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330; G.S. §§ 2-16(14), 28-1, and 31-12 to 31-31.1. And this is so, notwithstanding the script is alleged to have been lost, the rule being that the jurisdiction of the Clerk to take proof of a will is not affected by its loss or destruction before probate. Anderson v. Atkinson, 234 N.C. 271, 66 S.E.2d 886; In re Hedgepeth's Will, 150 N.C. 245, 63 S.E. 1025.

However, when the respondents filed answer denying the petitioner's averment that the script offered for probate is the last will and testament of the decedent, such denial raised an issue of devisavit vel non and necessitated transfer of the cause to the civil issue docket for trial by jury. In re Ellis' Will, 235 N.C. 27, 69 S.E.2d 25, and cases cited; G.S. § 1-273. This being so, jurisdiction to determine the whole matter in controversy, as well as the issue of devisavit vel non, passed to the Superior Court in term. G.S. § 1-276; Wright v. Ball, 200 N.C. 620, 158 S.E. 192; Faison v. Williams, 121 N.C. 152, 28 S.E. 188. See *129 also In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526.

Necessarily, then, Judge Bone had full jurisdictional power and authority to hear and determine in the first instance the respondents' demurrer and motion to strike. In re Ellis' Will, supra; Collins v. Collins, 125 N.C. 98, 34 S.E. 195.

Next, the respondents challenge the sufficiency of the petition to state a cause of action for the probate in solemn form of the alleged will. A perusal of the petition discloses allegations of these ultimate facts: the death of the testator, that he made and left a last will and testament, the terms of the instrument and existence of property passing under it, formal requisites of execution, testamentary capacity of the testator, lack of revocation or destruction animo revocandi by the testator, loss or destruction by some person other than the testator and that the instrument cannot be found after diligent search and inquiry, and the names and addresses of the persons interested in the alleged will, including known heirs at law and next of kin of the decedent. These allegations suffice to sustain the petition and overthrow the demurrer. In re Hedgepeth's Will, supra. See also McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971; In re Will of Wall, 223 N.C. 591, 27 S.E.2d 728.

As to the respondents' motion to strike portions of the petition, the rule is that the denial of a motion to strike will not be disturbed when appellant is not prejudiced thereby. Ledford v. Marion Transportation Co., 237 N.C. 317, 74 S.E.2d 653, and cases cited. Here our examination of the petition leaves the impression that no harm in law will come to the respondents from a reading in the presence of the jury of the portions of the petition sought to be stricken.

The respondents also point to the failure of the record to show (1) service of process on some of the interested persons and (2) appointment of guardian ad litem for those under disability, and urge that for these reasons the cause is not properly constituted. Be this as it may, the defects shown are not fatal and do not warrant quashal of the proceeding. The court below may, and no doubt will, see that these defects are remedied before the cause goes to trial.

The judgment below is

Affirmed.