Opinion
(July Term, 1816.)
An application to set aside the probate of a will on the ground of irregularity must be made to the court where the will was finally tried, and not to the court where it was first offered for probate.
We think a statement of this case will free it from difficulty.
Park's will is exhibited in Randolph County Court for probate; is carried from thence by way of appeal to the Superior Court; from that court is removed for trial to Rowan County, where it is tried by a jury, who find in favor of the will, and the same is directed to be recorded by the clerk of that court, and a copy directed to Randolph for recorded in that county. The petitioners charge that the probate was irregular, and petition Randolph County Court to set it aside, and order probate de novo. If the probate was irregular, application must be made to the court which erred, or to one of controlling power. The court of Randolph has committed no blunder which stands in the way, as by the appeal to the Superior Court a new trial was produced. It has no control over Rowan Superior Court; and, therefore, if it should direct the probate to be set aside and award a rehearing, it would be vain and nugatory. We think, therefore, the petition must be
Dismissed.
NOTE. — See Hodges v. Jasper, 12 N.C. 459.
Overruled: Sawyer v. Dozier, 27 N.C. 104.
(417)