Harvey v. . Smith

— This cause coming on to be heard upon the transcript of the record from the Superior Court of Chowan, and being argued by counsel on both sides, it is considered by the Court that the sentence of the said Superior Court, whereby the petition of the petitioners and the proceedings thereon are dismissed altogether, is erroneous and ought to be reversed and the same is reversed accordingly; and the Court proceeding to render such sentence and judgment as in law ought to have been rendered by the said Superior Court, doth adjudge, sentence *Page 195 and decree, and it is adjudged, sentenced and decreed accordingly, that the said petition, so far as it seeks to propound, or to repropound the said last will of Eliza Harvey as a will disposing of lands from her heirs at law, the defendants, be dismissed with costs to the said defendants, in the County and Superior Courts, because the said Eliza was, at the time of the pretended execution of said alleged will a feme covert, and therefore by law incapable of making a devise of lands; and that the said petition so far as it seeks to propound or repropound the said alleged last will, as a will or testament of the said Eliza, made with the permission of her husband, is so uncertain, defective and informal, that this Court cannot see what of right ought to be done therein, and therefore the same, and the proceedings thereon, are dismissed as informal, defective and uncertain, and without prejudice to the right of the petitioners to propound or repropound the same as the testament aforesaid of the said Eliza, before any proper court in due and right form. And it is adjudged, that the parties pay their costs in this Court respectively.