Hutson v. . Sawyer
Supreme Court of North Carolina
Assignment of Error— Wills — Probate—Devisavit vel non— Parties. This was an issue devísavü vel non, tried before Avery, J., at Spring Term, 1887, of Tyrrell Superior Court.
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Assignment of Error— Wills — Probate—Devisavit vel non— Parties. This was an issue devísavü vel non, tried before Avery, J., at Spring Term, 1887, of Tyrrell Superior Court. On the trial the propounders offered certain testimony, insisting that it was competent and proper to prove the affirmative of the issue; the caveators objected to its competency and sufficiency, the Court sustained the objection, and thereupon the propounders excepted, submitted “to judgment of non-suit, and appealed.”
1Opinion of the CourtMerrimon, J.
The proceeding is not like an ordinary action or special proceeding to which, regularly, there are parties plaintiff and defendant, nor is the purpose of it to litigate a cause of action which the plaintiff may abandon or withdraw from the Court by suffering a judgment of non-suit or otherwise. It is a proceeding in rem, to which, strict! y, there are no parties. The Court, in the way prescribed by statute, takes jurisdiction of the paper writing or script propounded for probate as the will of the alleged testator. The jurisdiction is in rem, and the chief purpose is not to settle and…
2Cases cited2 opinions
- Thornton v. . BradySupreme Court of North Carolina · 1888
- Syme v. . BroughtonSupreme Court of North Carolina · 1881
3Cited by22 opinions
- Will on DardisWisconsin Supreme Court · 1908
- In Re HintonSupreme Court of North Carolina · 1920
- Brissie v. CraigSupreme Court of North Carolina · 1950
- In Re WestfeldtSupreme Court of North Carolina · 1924
- In Re Will of CharlesSupreme Court of North Carolina · 1965
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