Cain v. . Nicholson

*412 Eaircloth, J. (After stating the facts as above.) It has been frequently decided that the evidence in writing should accompany the report, so that the appellant may have the findings of the Neferee reviewed, or that he may file exceptions before the Court if they have not been taken before the Referee. Mitchell v. Walker, 2 Ire. Eq., 621; Faucett v. Mangum, 5 Ire. Eq., 53; Green v. Castlebury, 70 N. C., 20. On the argument in this Court the defendant raises the question of jurisdiction, and says this proceeding should commence before the Probate Court where legacies and distributive shares are recoverable. This would be so if nothing more was intended, but the main purpose of this action ■ is to have the defendant declared a trustee of said land, which cannot be done before the Clerk, and the secondary purpose is the account as a necessary incident to the determination of the first question, and the Judge having jurisdiction over the main question may retain the case and give full relief. Oliver v. Wiley, 75 N. C. 320. We therefore refuse the motion made in this Court and sustain the ruling of Ilis Honor on the exception, and as the ease goes back, we will suggest, whether or not the heirs-at law and devisees of defendant’s testator are necessary parties. No error. Pee, Curiam. Judgment affirmed.