Gardner v. . Anderson

Supreme Court of North Carolina

Gardner v. . Anderson

79 N.C. 24

DecidedJune 5, 1878

StatusPublished

This text of 79 N.C. 24 (Gardner v. . Anderson) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gardner v. . Anderson, 79 N.C. 24 (N.C. 1878).

Pincite

Opinion

*26 Readb, J.

It may be that an action may be maintained for a breach of the agreement to pay $600 for forbearing to resist the probate of the will, but the idea of incorporating the agreement into the will as a part of it, is novel and absurd. Nor had the Probate Court jurisdiction to hear and determine a complaint for that cause. The Probate Court •ought therefore to have dismissed that'part of the complaint, and proceeded to consider the claim for the legacy of which it had jurisdiction. But instead' of that, it proceeded to give judgment for the legacy and for the $600 besides.

The record does not state what issues were sent to the Superior Court in term time, but we suppose it was the question of jurisdiction of the Probate Court. Whatever it was, it ought to have been passed upon and then sent back to the Probate Court with instruction to proceed to decree as to the legacy"; but instead of that His Honor proceeded to de-decree as to the legacy. This was error.

Error.

Per Curiam. Judgment reversed.

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*26 Readb, J.

It may be that an action may be maintained for a breach of the agreement to pay $600 for forbearing to resist the probate of the will, but the idea of incorporating the agreement into the will as a part of it, is novel and absurd. Nor had the Probate Court jurisdiction to hear and determine a complaint for that cause. The Probate Court •ought therefore to have dismissed that'part of the complaint, and proceeded to consider the claim for the legacy of which it had jurisdiction. But instead' of that, it proceeded to give judgment for the legacy and for the $600 besides.

The record does not state what issues were sent to the Superior Court in term time, but we suppose it was the question of jurisdiction of the Probate Court. Whatever it was, it ought to have been passed upon and then sent back to the Probate Court with instruction to proceed to decree as to the legacy"; but instead of that His Honor proceeded to de-decree as to the legacy. This was error.

Error.

Per Curiam. Judgment reversed.

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Bluebook (online)

79 N.C. 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-anderson-nc-1878.