Miller v. Barnes

Joshua Miller and Others, Deacons of Thyatira Church v. Geo. T. Burnest and Kate C. Barnes.

Miller v. Barnes, 65 N.C. 67 (1871)

Court: Supreme Court of North Carolina · State Highest Courts
Decided: January 5, 1871
Judges: Settle
Citations: 65 N.C. 67

Cited by 6

Headnotes

Though the Court of Probate has exclusive original jurisdiction of special proceedings to recover legacies and distributive shares, yet, if the executor has so assented to a pecuniary legacy as to amount to an express or implied promise to pay the legacy, it must be recovered by a suit in the Superior Court. The cases of Hunt v. Snead, 64 N. C. Bep. 170 and Heilig v. Foard, Ibid 710, cited and approved.

Summary

This was a civil action brought in the Superior Court of Bow an County, for the recovery of a pecuniary legacy of $5,000 bequeated to the plaintiffs by Samuel Kerr, the testator of the defendant. In their complaint the plaintiffs alleged that the defendants, as executors of the testator, had assented to the legacy and had in their hands sufficient assets wherewith to pay it. The defendants filed an answer to the complaint, in which they denied that they had assented to the said legacy. At the Fall Term, 1870, of the Court, his Honor, Henry, J., presiding, the defendants moved to dismiss the suit for want of jurisdiction, which motion was sustained by his Honor, and from the order dismissing the suit the plaintiffs appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Settle

*68 Settle, J.

The only question which is presented by the-record for determination is one of jurisdiction. In deciding this we are not to consider the answer of the defendants, for their motion to dismiss puts them in the same position as if they had demurred.

Taking then the complaint to be. true, the plaintiffs have a right to bring their action to the Superior Court, upon the ground that the legacy has been assented to, that is, provided the assent amounted to an express or an implied promise to pay the same. The assent of the executors to the legacy is distinctly alleged in the complaint, and it takes, this case out of the general rule laid down in Hunt v. Snead, 64 N. C. 170 , and Heilig v. Foard, 64 N. C. 710 , that the Probate Court has exclusive original jurisdiction of special proceedings for legacies and distributive shares.

The assent is alleged in broad terms, and if the proof shall show that it amounted to an express or implied promise to-pay the legacy, it became a debt to be recovered like any other debt in the Superior Court. There was error in dismissing the action.

Let this be certified, &c.

Per. Curiam. Judgment reversed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 6 cases

View all citing references →

State Highest Courts6

Relies on it most ⓘ

Clark v. Homes128 S.E. 20 (N.C. 1925)
McBryde v. Patterson73 N.C. 478 (1875)
Hodge v. Hodge72 N.C. 616 (1875)
Bidwell v. King71 N.C. 287 (1874)
Hendrick v. Mayfield74 N.C. 626 (1876)
Herring v. Outlaw70 N.C. 333 (1874)

Most recent

Clark v. Homes128 S.E. 20 (N.C. 1925)
Hendrick v. Mayfield74 N.C. 626 (1876)
McBryde v. Patterson73 N.C. 478 (1875)
Hodge v. Hodge72 N.C. 616 (1875)
Bidwell v. King71 N.C. 287 (1874)
Herring v. Outlaw70 N.C. 333 (1874)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

Depth	Case	Cited by
	Heilig v. Foard, 64 N.C. 710 (1870)	15

`/`	Focus the search box
`j` `k`	Next / previous result
`Enter`	Open the selected result
`x`	Add / remove the selected result from the download list
`n` `p`	Next / previous search term in a case
`c`	Copy the citation of the current case
`+` `−`	Larger / smaller reading text
`?`	Show this list