
    Burrow, et al. vs. Ragland.
    A court of chancery has no jurisdiction to set aside the probate of a- will.
    Burrow and Bell filed this bill in the chancery court at ■ Huntingdon against Ragland.
    The bill charges that Bell died intestate in the county of Madison, leaving an estate in lands, slaves, stock, &c.; that he had two daughters by his first wife, who intermarried with complainants; that his second wife was Rebecca, by whom he had no children, and who survived him; that upon the death of Bell, complainants agreed with Rebecca that she should retain the land, slaves, and so much of the stock during her life, and at her death it should belong to complainants; that in pursuance of this agreement, a memorandum was made by the parties concerned; that at an advanced age she became unable, by reason of mental imbecility, to make a legal will, and that whilst in this situation she was prevailed upon by a combination of several persons, and amongst others by defendant, to make a pretended will, by which complainants were defrauded of the whole of her estate; ■ and that this pretended will was without the knowledge of complainants admitted to probate.
    The bill prays that the court may determine whether said paper writing, thus admitted to probate by the county court, be the will of said Rebecca Bell, and if it be not, that it be declared void, and that the agreement of the parties be carried into effect, or complainants be declared the distributees of the estate.
    There was a demurrer filed to this bill, which came on for argument before Chancellor McCampbell, at the February term, 1846.
    He dismissed the bill on the ground of want of jurisdiction in a court of chancery to act on the subject matter therein set forth.
    The complainants appealed.
    
      Totten, for complainants.
    The bill presents the following points: — 1. That- the paper on which the defendant relies for title in the suit at law, was so made by mistake in drafting it, as not to contain the real intention of the parties to it; and the bill prays that the same may be cancelled. — Helm vs. Wright, 4 Hum. R. 72.
    2. That the pretended will, whereof said Ragland professes to be the executor, is null and void, for fraud and imposition, and want of disposing mind of the deceased at the making thereof.
    3. That, under these circumstances, said Ragland is prosecuting a suit at law against said Burrow for the negroes named in the will — under circumstances most unconscien-cious and unjust — and the bill prays an injunction; and that an issue devisavit vel non be ordered, to test the validity of said will; that in the mean time an injunction be ordered on the suit at law; and, finally, that the suit at law be dismissed, and the injunction made perpetual.
    The objection is, that the court of equity has no power to order such issue devisavit vel non, and therefore the Chancellor dismissed that portion of the bill on demurrer, and dissolved the injunction; and the cases of Gibson vs. Lane, 9 Yerg. Rep. 475, and Howell vs. Whitchurch, 4 Hay. Rep. 49, are cited. ,
    But we insist, that the whole case is a proper one for relief in equity—
    1. The issue of devisavit vel non cannot be tried either in the county court or chancery court, but in the circuit court only. — Act of 1836.
    2. The chancery court has power to order such issue; and further to order, that, on the trial, the parties themselves, including the legatees, may be examined — a right of the greatest importance in the present case. — 2 Story’s Equity, 671-673; ibid, 696; 2 Smith’s Chan. Prac. 76, margin; ibid, 78, (parties witnesses.)
    3. The county court would have no power to grant an injunction on the suit at law, pending the contest of the will. This would be of the greatest inconvenience, and, indeed, defeat the object of the bill. It would effect the greatest injustice, incident to a denial of jurisdiction in equity. This alone should be sufficient ground to confer the jurisdiction.— Nichol vs. Trustees, &c., 1 J. C. R. 166.
    4. The court has jurisdiction of the champerty, the injunction, and the alleged mistake; and, in connexion therewith, we insist that said will was obtained by fraud practiced upon an imbecile mind, and therefore no will, and said Ragland no executor. The court having jurisdiction of the subject matter, and having jurisdiction of the case for one purpose, will take jurisdiction of the whole case, and not of a part of it only. A different practice would require a citation and proceeding in the county court, an issue and trial in the circuit court, and in the mean time a bill in equity — thus invoking, at the same time, the action of three courts, for the same remedy — a practice most ruinous and oppressive. And yet, the chancery court, by its mode of proceeding, has ample power to determine all these questions. — 1 Story’s Eq. 86-88; 2 J. Cas. 424; 10 J. R. 587-596; 17 J. R. 384, in King vs. Baldwin.
    5. This bill does not conflict with the jurisdiction conceded to the county court, in Gibson vs. Lane, 9 Yer. That case was widely different from this — there was no other ground of equity jurisdiction, no champerty, no mistake, no injunction forming the basis of equity jurisdiction.. Nor was the question of exclusive jurisdiction made in that case. It was not admitted to be exclusive in the case of Howell vs. Whit-church.
    6. It is the practice in Virginia to file bills to set aside probates. — 7 Com. Abrid. 417.
    It is hoped, therefore, that the bill will be sustained.
    
      McLellan, for defendant.
    This is a bill to set aside a will and declare it void. This cannot be done in a court of chancery. The act of the Legislature of 1836 directs the mode of proceeding in cases of contested wills — see 9 Yer. 475.
    There are other authorities which show that a court of chancery has no jurisdiction to decide upon the validity of a will of personalty, even the case of an alleged fraud — 1 Chitty’s Practice, 817.
    Even if fraud in obtaining a will of personal estate be charged in a bill, that will not be sufficient ground to impeach the probate or validity of it in a court of chancery.— Story’s Eq. Plead. 607.
   Turley, J.

delivered the opinion of the court.

The principal and only important question presented for consideration in this case, is, whether a will of personalty, which has been proven in common form by the executor in the county court, can be declared null and void and set aside by a decree of a court of chancery, upon the alleged ground that it had been obtained by fraud and imposition, and was not therefore a good and valid will; and we are of the opinion that it cannot; that a court of chancery has no jurisdiction of such a question.

Mr. Williams, in his treatise on executors, page 157, says: “It appears to have been a subject of much controversy, whether the probate of wills was originally a matter of exclusive ecclesiastical jurisdiction; but whatever may have been the case in earlier times, it is certain that, at this day, the ecclesiastical court is the only court in -which, except by special prescription, the validity of wills of personalty can be established or disputed. Equity, indeed, considers an executor as trustee for the legatees in respect to the legacies, and in certain cases as trustee for the next of kin, of the undisposed surplus; and as all trusts are the peculiar objects of equitable cognizance, courts of equity will compel the executor to perform this, his testamentary trust, with propriety. Hence, although in these courts, as well as in courts of law, the seal of the ecclesiastical court is conclusive evidence of the factum of a will of personal property, an equitable jurisdiction has arisen of construing the will, in order to enforce a proper performance of the trust of the executor. The courts of equity are sometimes called courts of construction, in contradistinction' to the spiritual, which, although they are also courts of construction, are the only courts of probate.”

The same author, at page 188, of same work, says — “A testament may be proven in two ways; either in common form or by form of law; which latter mode is also called the solemn form, and sometimes proving per testes. A will is proved in common form, when the executor presents it before the Judge, and in absence and without citing the parties interested, produces witnesses to prove the same, who, testifying by their oaths that the testament exhibited is the true, whole, and last will and testament of the deceased, the Judge thereupon, and sometimes with less proof, doth annex his probate and seal thereto.” But, at page 192, the same author' says — “Where a will is to be proven in solemn form, it is requisite that such persons as have interest (that is, the widow and next of kin, to whose administration of his goods ought to be committed, if he died intestate) should be cited to be present at the probation and approbation of the testament, in whose presence the will is to be exhibited to the Judge and petition to be made, by the party who prefers the will, and enacted for the receiving, swearing and examination of witnesses upon the same, and the publishing and confirming thereof; and in case the proof be sufficient, the Judge by his sentence or decree pronounces for the validity of the testament. The difference (continues the author) between the common form and solemn form with respect to citing parties interested, works this diversity of effect, viz: that the executor of a will proved in common form may at any time within thirty years be compelled by a person having interest to prove it per testes in solemn form.”

There being no ecclesiastical courts in North Carolina, the probate of wills, in an early day, was given to the county courts; and when this State was erected out of a portion of the territory of North Carolina, this jurisdiction, for the same reason, was continued in the county courts, which, to this day, have exclusive jurisdiction of the probate of wills and testaments. It is true, that if a controversy arises as to the execution, it is sent to the circuit court for trial; but this in no way ousts the jurisdiction of the county courts — the will must still be presented there for probate, and if established upon an issue devisavitvel non in the circuit court, must be returned for registration and letters testamentary; and a court of chancery in Tennessee has no greater jurisdiction over the subject than has the court of chancery in England.

In the case under consideration, the executor has proved the will in common form in the county court of Madison. The design and object, of the bill is to force the executor to prove it in solemn form in chancery court. This cannot be done for want of jurisdiction in that court; but to have this done, the complainants must cite the executor to appear before the county court for that purpose, which being done, the parties are entitled to their issue upon the will, and to a trial in the circuit court. The effect of this citation is to set aside the probate in common form, and the parties are placed in the same position they would have been had the executor chosen to prove the will in solemn form in the first instance, where the interested persons cited might have had an issue and trial in the circuit court if they had desired. The executor having chosen to prove the will in common form, the complainants, if they wish it proved in solemn form, must proceed against him by citation in the county court; from whence the case will be removed for trial, under statutory provision, to the circuit court.

We have not deemed it necessary to discuss the other propositions asserted, as giving a court of chancery jurisdiction of a particular case, because we are clear that they can upon no principle whatever aid this proceeding.

Let the decree of the Chancellor be affirmed.  