Morgan v. Bass

• Decision Date: 31 December 1842
• Citation: 3 Ired. 243,25 N.C. 243
• Court: North Carolina Supreme Court
• Parties: ANN E. MORGAN v. SALLY BASS.

3 Ired. 243

25 N.C. 243

ANN E. MORGAN

v.SALLY BASS.

Supreme Court of North Carolina.

December Term, 1842.

A general probate of a will, containing dispositions of realty as well as personalty, is presumed, if on its face the will purports to have been executed with the ceremonies necessary to pass lands, and unless something is shewn to remove the presumption, to have been a probate of it both as to real and personal property.

And in the case of an unattested will, which may pass realty, if in the testator's hand-writing, &c. (according to the act, Rev. St. c. 122, s. 1,) when it appears from the record that the will was proved both as to real and personal estate, it must be intended that all the requirements to render an unattested will effectual for the devise of lands, had been shewn to the satisfaction of the court.

But from a general probate of an unattested instrument as a will, such a legal inference does not arise.

An instrument, which has once been proved as a will of personalty, may be subsequently propounded as a will of real estate.

The cases of the University v Blount, No. Ca. Term Rep. 13; Blount v Pasteur, 2 Hawks, 237; and Redmond v Collins, 4 Dev. 430, cited and approved.

Appeal from the Superior Court of Law of Halifax County, at Fall Term, 1842, his Honor Judge BATLLE presiding.

This was an application to the County Court to admit to probate, as a will of real estate, an instrument signed Ann McKennie Pasteur, which had been previously proved in the same court as a will of personalty only. The application was dismissed in the County Court, and an appeal taken to the Superior Court, where the same sentence was passed, and the plaintiff then appealed to the Supreme Court. The material facts are set forth in the opinion delivered in this Court.

B. F. Moore for the plaintiff .

Badger for the defendant .

GASTON, J.

At May Term, 1837, of the County Court of Halifax, Frances Clark offered for probate, as the last will and testament of Nancy Pasteur, an instrument in writing, purporting to be signed by her, but unattested by any witness, in which, with the exception of a small legacy to the defendant, Sally Bass, the testatrix declared that she constituted the said Frances Clark her sole heiress. The probate was caveated by the defendant, and thereupon an issue was made up, whether the said instrument be or be not the last will and testament of Nancy Pasteur. This issue, at the succeeding August Term of the said court, was tried, and the jury found that the paper writing offered was the last will and testament of Nancy Pasteur, and thereupon a judgment was rendered that the caveator pay the costs, and Frances Clark was permitted by the court to qualify as the executrix of the said will. At the August Term, 1841, of the said court, the plaintiff, Ann E. Morgan, who is stated upon the record to be the assignee of Frances Clark, applied to the court to be permitted to prove the said instrument as a will valid to pass real estate, “which,” the record states, “had been already proved as a will of personalty.” It appears that thereupon the defendant caveated the probate prayed for, and an issue was made up, “whether the paper writing was executed in form sufficient in law to pass real estate or not.” The cause was continued for the trial of this issue from term to term, until the February term, 1842, when, on motion of the defendant, the cause was dismissed. From this sentence the plaintiff appealed to the Superior Court, and, the sentence being there confirmed, appealed thence to this Court.

That the probate of this instrument in August, 1837, was a probate of it as a will of personal property only, seems not to have been disputed between the parties, and we think that it was properly so regarded. Our statutes have indeed provided, that “all probates of wills in the County Court shall be sufficient testimony for the devise of real estate, and attested copies of such wills, or the records thereof by the proper officer, shall and may be given in evidence in the same manner as the originals.” Rev. St. c. 122, s. 9. But it is well settled that this enactment applies only to the probate of wills valid to devise real estate. In England, the ordinary can take probate only of a will of personalty, and until our act of 1784, in which was inserted for the first time the enactment before recited, our County Courts as courts of probate possessed no other jurisdiction. But after that act, as the probate was made evidence of the devises in the will, it became the duty of these courts to enquire whether the will offered for probate was valid so as to devise lands. They thus became courts of probate as to wills of every description, and a general probate of a will, containing dispositions of realty as well as personalty, was presumed, if on its face the will purported to have been executed with the ceremonies necessary to pass lands and unless something appeared to remove the presumption, to be a probate of it in both characters. Thus, in the case of The University v Blount, No. Ca. Term Rep. 13, where there was a probate of a will, purporting to be attested by two subscribing witness, made upon the oath of one, it was held that it was necessary to the efficacy of a probate of a will of realty, that it should appear therefrom to have...