In re Finlayson's Estate

• Decision Date: 11 April 1934
• Docket Number: 196.
• Parties: In re FINLAYSON'S ESTATE.
• Court: North Carolina Supreme Court

173 S.E. 902

206 N.C. 362

In re FINLAYSON'S ESTATE.

No. 196.

Supreme Court of North Carolina

April 11, 1934

Appeal from Superior Court, Wayne County; Moore, Special Judge.

Proceedings in the matter of the Estate of H. L. Finlayson, deceased wherein a petition was filed to revoke and cancel letters testamentary issued to Mrs. Emma Finlayson Cannon, executrix and to set aside and vacate the probate of the last will and testament of the deceased. From a judgment of the superior court affirming an order of the clerk of the superior court denying their petition, the petitioners appeal.

Judgment affirmed.

This is a special proceeding instituted by the petitioners before the clerk of the superior court of Wayne county, on August 28 1933, for an order that letters testamentary issued by said clerk to Mrs. Emma Finlayson Cannon, executrix of H. L Finlayson, deceased, be revoked and canceled, and that the probate by said clerk on May 28, 1931, of a certain paper writing as the last will and testament of the said H. L Finlayson, deceased, in which the petitioners are named as legatees, be set aside and vacated, on the ground that the said clerk was without jurisdiction to probate said paper writing as the last will and testament of H. L. Finlayson, deceased, or to issue said letters testamentary, for that:

(1) H. L. Finlayson was not domiciled at the date of his death, or immediately previous thereto, in Wayne county, N. C., or in any other county in said state.

(2) Not being domiciled in the state of North Carolina at or immediately previous to the date of his death, H. L. Finlayson died out of said state, leaving no assets in Wayne county, or in any county in said state.

At the hearing of the proceeding by the clerk of the superior court of Wayne county on the petition of the petitioners and the answer thereto of the respondent, evidence was offered by both the petitioners and the respondent, Mrs. Emma Finlayson Cannon, in support of their respective contentions; the respondent contending that at the date of his death H. L. Finlayson was domiciled in Wayne county, N. C., the petitioners contending the contrary. On consideration of all the evidence, the clerk found as a fact that at the date of his death H. L. Finlayson was domiciled in Wayne county, N. C., and on this finding denied the petition. The petitioners excepted and appealed to the judge of the superior court of Wayne county. At the hearing of the appeal, the judge found from all the evidence that "the testator, H. L. Finlayson was born and raised in the City of Goldsboro, in Wayne County, North Carolina; that Wayne County is the domicile of his origin and that he had never abandoned said domicile, or acquired a domicile in any other County or State; and that at the date of his death, H. L. Finlayson was domiciled in Wayne County, North Carolina."

From judgment affirming the order of the clerk denying their prayer that the letters testamentary issued to Mrs. Emma Finlayson Cannon, executrix, be revoked and canceled, and that...