In Re the Last Will & Testament of Wood

JoimsoN, J. The respondents insist that, in the absence of a prior ruling by the Clerk of the Superior Court, Judge Bone was without jurisdictional power to hear and determine their demurrer and motion. The contention is untenable. True, the Clerk had exclusive original jurisdiction of the proceeding; that is, nothing else appearing, it was within his sole province in the first instance to determine whether the decedent Wood died testate or intestate and, if he died testate, whether the script in dispute is his will. Brissie v. Craig, 232 N.C. 701, 62 S.E. 2d 330; G.S. 2-16 (14), 28-1, and 31-12 to 31-31.1. And this is so, notwithstanding the script is alleged to have been lost, the rule being that the jurisdiction of the Clerk to take proof of a will is not affected by its loss or destruction before probate. Anderson v. Atkinson, 234 N.C. 271, 66 S.E. 2d 886; In re Hedgepeth’s Will, 150 N.C. 245, 63 S.E. 1025. However, when the respondents filed answer denying the petitioner’s averment that the script offered for probate is the last will and testament of the decedent, such denial raised an issue of devisavit vel non and necessitated transfer of the cause to the civil issue docket for trial by jury. In re Ellis’ Will, 235 N.C. 27, 69 S.E. 2d 25, and cases cited; G.S. 1-273. This being so, jurisdiction to determine the whole matter in controversy, as well as the issue of devisavit vel non, passed to the Superior Court in term. G.S. 1-276; Wright v. Ball, 200 N.C. 620, 158 S.E. 192; Faison v. Williams, 121 N.C. 152, 28 S.E. 188. See also In re Will of Hine, 228 N.C. 405, 45 S.E. 2d 526. Necessarily, then, Judge Bone had full jurisdictional power and authority to hear and determine in the first instance the respondents’ demurrer and motion to strike. In re Ellis’ Will, supra; Collins v. Collins, 125 N.C. 98, 34 S.E. 195. *137 Next, tbe respondents challenge tbe sufficiency of tbe petition to state a cause of action for tbe probate in splemn form of tbe alleged will. A perusal of tbe petition discloses allegations of these ultimate facts: tbe death of tbe testator, that be made and left a last will and testament, tbe terms of the instrument and existence of property passing under it, formal requisites of execution, testamentary capacity of tbe testator, lack of revocation or destruction animo revocandi by tbe testator, loss or destruction by some person other than tbe testator and that tbe instrument cannot be found after diligent search and inquiry, and tbe names and addresses of tbe persons interested in tbe alleged will, including known heirs at law and next of kin of tbe decedent. These allegations suffice to sustain tbe petition and overthrow tbe demurrer. In re Hedgepeth’s Will, supra. See also McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971; In re Will of Wall, 223 N.C. 591, 27 S.E. 2d 728. As to the respondents’ motion to strike portions of tbe petition, tbe rule is that tbe denial of a motion to strike will not be disturbed when appellant is not prejudiced thereby. Ledford v. Transportation Co., 237 N.C. 317, 74 S.E. 2d 653, and eases cited. Here our examination of tbe petition leaves tbe impression that no barm in law will come to tbe respondents from a reading in tbe presence of tbe jury of tbe portions of tbe petition sought to be stricken. Tbe respondents also point to tbe failure of tbe record to show (1) service of process on some of tbe interested persons and (2) appointment of guardian ad litem for those under disability, and urge that for these reasons tbe cause is not properly constituted. Be this as it may, tbe defects shown are not fatal and do not warrant quashal of tbe proceeding. Tbe court below may, and no doubt will, see that these defects are remedied before tbe cause goes to trial. Tbe judgment below is Affirmed.