Opinion · Supreme Court of North Carolina
Granbery v. . Mhoon
12 N.C. 456
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1828-06-05
- Topic
- general
Henderson, Judge. It is not controverted, that an executor derives all his powers from the will. But whether there is a will, and who is the executor thereof, are matters of ecclesiastical cognizance, and consequently, the decision of the Ecclesiastical Courts on the subject is conclusive. They adjudicate, that this is the will of A, and that B is the executor thereof; and when in other Courts, it is necessary that B should sustain the character of executor, that, adjudication is conclusive. The will is therefore improper evidence of that fact; for that adjudication is the only evidence competent to prove it.
Citator
UpLaw has not yet analyzed Granbery v. . Mhoon. The absence of a flag is not a finding that it is good law.
- Cited by
- 1 opinion
1. A judgment of the county court deciding who is executor of will, is conclusive upon all other courts, and cannot be examined, although it be erroneous.
2. Therefore a copy of the will need not be attached to the letters testamentary, or produced, when they are given in evidence.
3. Slaves of an infantfemepass to her husband,jure marito, although they were hired out by her guardian before the marriage, and the husband died during the term.
No copy of the will was annexed to the letters, neither was one offered in evidence.
It was objected by the defendant that a copy of the will was a necessary part of the plaintiff's title, and that the negroes in question did not, of course, vest in him if Frazier had title, solely because he had proved the will and qualified as executor. His Honor reserved the question and the plaintiff went on with his case, when it turned out that the slaves in dispute were the property of one Lucy Granbery, a minor, and were on 1 January, 1820, hired out by her guardian for one year. In April, 1820, Lucy Granbery intermarried with the plaintiff's testator, who died in the month of August following, leaving his wife surviving. The negroes never were in the actual (457) possession of the plaintiff's testator, but continued in that of the persons who had hired them from the guardian of the wife in January previous.
The defendant Mhoon intermarried with the widow of the plaintiff's testator.Page 305
His Honor instructed the jury that upon these facts the negroes never vested in the plaintiff's testator, and that the defendants were entitled to a verdict, which being returned accordingly, the plaintiff appealed.
The county court in this State, to which has been transferred the probate of wills, stands in the place of the ecclesiastical court of England, and what has been said in regard to the latter applies to the former.
As to the other point in this case, it falls completely withinWhitakerv. Whitaker, ante, 310. The plaintiff is therefore entitled to a new trial. The defendant is not entitled to a nonsuit, for the evidence was properly received.
PER CURIAM. Judgment reversed.Approved: Navigation Co. v. Green,14 N.C. 434;Pettijohn v. Beasley,15 N.C. 512;Miller v. Bingham,36 N.C. 423;London v. R. R.,88 N.C. 584;Pendleton v. Dalton,92 N.C. 185.
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