Daniel v. . Bellamy

Merrimon, J:, after stating the case. We are of opinion that both the court of probate and superior court misapprehended the proper course that ought to have been pursued in the former court, where the defendants moved to dismiss the action for want of jurisdiction. It seems, that pending this action, the probate of the will of the testator'of the defendants was “revoked and annulled ” by the court of probate, and the defendants desired to avail themselves of the action of the court in that res *81 pect. In order to do this, they ought to have made a motion for leave to amend their answer and plead, that pending the action the probate of the supposed will had been revoked and they discharged accordingly, and such other matters as they might have the right to set forth in the answer. If the court had allowed this amendment, as ordinarily it ought to do, the plaintiffs ought- in such'case to have been allowed to demur, or reply to the amended answer, if 'they had-so desired. Then, if issues of law or/act, or both, had been raised by the amended pleadings, the same should have been transferred or taken by appeal to the superior court for trial at- the next succeeding term thereof as directed by The Code, § 116. Rowland v. Thompson, 64 N. C., 714; King v. Kinsey, 71 N. C., 407; Wood v Skinner, 79 N. C, 92. The court of probate erred in supposing that because the probate of the will had been revoked in that court, it could take judicial notice of and act upon such revocation in the absence of any pleading on the part of the defendants, setting it up as a defence. The revocation of the probate of the will was done in a proceeding in no way connected with-this action, however much it might affect it when properly pleaded. The court must not only have knowledge of a defence a party might make, but it must have knowledge of it well pleaded. The defendants, in order to avail themselves of the revocation, could only do so by properly pleading it, just as they would any other defence they might have the right to make. It might be that the plaintiffs would deny the revocation of the will, or its validity. They might desire to demur or reply to the amended answer. This'they could, not do, upon a mere'suggestion of a defence upon the part of the defendants', of which the court happened to have personal knowledge, obtained through another action or proceeding in the same court. The plaintiffs might desire and have the right to raise-issues of fact *82 that the court of probate could not try, because' the statute, (The Code, §116,) provides that such questions shall be, tried in the superior court. And questions of law should be presented in an orderly way, so that either party might appeal from the decision of them to the superior court. No question of jurisdiction appeared upon the face of the pleadings, and the defendants could not raise it by mere suggestions, but. only by an amended answer. So much of the judgment of the superior court as reversed the judgment of the court of probate was correct, but 'so much of it as directed that court to proceed to take and state an account of the administration of the defendants was erroneous. The order ought to have directed such account to be taken, unless the court should, upon application of defendants, for proper cause shown, allow them to amend their answer and set up the alleged revocation of the probate of the will, &c., and the judgment of the superior court must be so modified. Let this opinion be certified to the superior court to the end its judgment may be modified in conformity thereto, and the case thence remanded to the court of probate. It is .so ordered. Error. Modified.