Miller v. . Barnes
Supreme Court of North Carolina
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.
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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…
1Opinion of the CourtSettle, 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,…
2Cases cited1 opinion
- Heilig v. . FoardSupreme Court of North Carolina · 1870
3Cited by8 opinions
- Clark v. . HomesSupreme Court of North Carolina · 1925
- Clark v. Carolina Homes, Inc.Supreme Court of North Carolina · 1925
- McBryde v. . PattersonSupreme Court of North Carolina · 1875
- Hodge v. . HodgeSupreme Court of North Carolina · 1875
- Bidwell v. . KingSupreme Court of North Carolina · 1874
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