Gregory v. Ellis

• Decision Date: 31 January 1880
• Citation: 82 N.C. 225
• Parties: JOHN T. GREGORY Executor, v. BENJAMIN F. ELLIS and others.
• Court: North Carolina Supreme Court

82 N.C. 225

JOHN T. GREGORY Executor,

v.BENJAMIN F. ELLIS and others.

Supreme Court of North Carolina.

January Term, 1880.

SPECIAL PROCEEDING to sell Land for Assets commenced in the probate court of HALIFAX on the 15th of December, 1879, and heard at Chambers before Seymour, J.

The plaintiff is clerk of the superior court and probate judge of Halifax county, and as executor of his testator filed a petition in said probate court to sell land for assets to pay debts. The defendants moved to dismiss the proceeding, for that, the plaintiff being the judge of the court had no jurisdiction to hear a case in which he was interested. The motion was overruled and the defendants appealed to the judge of the superior court who reversed the decision and allowed the motion, from which ruling the plaintiff appealed.

Messrs. Mullen & Moore, for plaintiff .

Mr. Thos. N. Hill, for defendants .

DILLARD, J.

George W. Owens domiciled in Halifax county, left at his death a will, wherein John T. Gregory was named the executor, and being under disqualification to act as probate judge in the matter of the proving and admitting the will to record, by order of the judge of the district the probate was had before the probate judge of the adjacent county of Northampton.

Afterwards in the course of the administration of the estate, the plaintiff as executor presented a petition for license to sell land for assets to pay debts in the probate court of Halifax of which he was the judge, and from the ruling of the plaintiff acting as probate judge on the objection to his competency to decree a sale, an appeal was taken to the superior court and from the judgment of the superior court an appeal is taken to this court.

The point presented by this appeal is as to the jurisdiction of John T. Gregory in his character as probate judge to decree upon the petition of himself as executor praying a license to sell the lands of his testator.

Under the fundamental maxim that no one ought to be judge in his own cause, if we had no statute law upon the subject, no judge whether probate or other could take jurisdiction of any cause wherein he was a party or otherwise had a pecuniary interest. This principle is of universal application as a rule of the common law and subject thereto must be the exercise of all the powers of a judge. Broom's Legal Maxims, 118; 1 Hopkins Ch. Rep., 1; 2 Strange's Rep., 1,173.

In accordance with this principle, in every grant of jurisdiction, it is always to be understood that the powers conferred are limited by the tacit exception that the judge is not to decide his own cause. This rests on the policy of having the judicial tribunals free from every temptation to wrong as far as may be possible and to have its decisions above suspicion, and such as to command respect. So sacred is this exclusion of jurisdiction in causes where the same person is suitor and judge, that by common consent no judge can, if he would, act in a cause in which he is interested; and if he do, that his judgments ought not to stand, and any statute in terms conferring the power to act in such cases would be void. Cooley Const. Lim., 175; Hobart's Reports, 212.

In the view taken by us of the point presented for our determination, it is not necessary that we inquire and decide in this case whether this inflexible principle in its extent embraces the proposed exercise of jurisdiction by the probate judge of Halifax county, as we are of opinion that the statutes on the subject of the probate of wills in connection with others in pari materia settle the question as ruled by His Honor in the court below.

In Bat. Rev., ch. 90, § 2, the jurisdiction of a judge of probate is defined, and among the powers granted is the power to take proof of wills and grant letters testamentary or of administration, and in section three of the same chapter a...