In Re Will of Chatman

45 S.E.2d 356, 228 N.C. 246, 1947 N.C. LEXIS 315

Opinion

Staoy, 0. J.

The record indicates: (1) apparent due probate of will of Margaret Chatman in Sumter County, South.Carolina, (2) certified and authenticated copy or exemplification of such will and of the proceedings had in connection with the probate thereof, produced or exhibited before the'Clerk of the Superior Court of New Hanover County, and (3) by him, allowed, filed and recorded in the same manner as if the original will had been produced and probated here in common form. G. S., 31-27; Coble v. Coble, 227 N. C., 547, 42 S. E. (2d), 898.

Then appears a caveat to the recordation of the exemplification of the will and the proceedings had in connection with its probate, the caveators alleging fraud in the procurement, both of the will and of its probate, and specifically averring want of jurisdiction in tbe South Carolina court to entertain the application for the probate of the will.

It is clear from what was said in McEwan v. Brown, 176 N. C., 249, 97 S. E., 20, that the motion to dismiss the caveat was properly overruled in so far as it affects the real estate situate in New Hanover County. We are inclined to sustain the denial of the motion to dismiss as it affects the personal property in New Hanover County also, in view of the challenge to the jurisdiction of the South Carolina court to probate the will. 11 Am. Jur., 484; Anno. 13 A. L. R., 498.

The whole subject is discussed, with full citation of authorities, in McEwan v. Brown, supra; and little can be added to what was then written. There the demurrer to the complaint, treated in the nature of a caveat, was sustained as to the personalty and overruled as to the realty, but no challenge to the jurisdiction of the domiciliary probate court was made in that case. 13 A. L. R., 502.

The motion to dismiss the proceeding for want of'jurisdiction was properly denied.

Affirmed.