Opinion
(June Term, 1878.)
Practice — Creditor's Bill — Superior and Probate Courts — Concurrent Jurisdiction.
1. Where an action in the nature of a creditor's bill was brought by the plaintiff (a creditor of defendant's testatrix) to the Superior Court at term time, under sec. 6, ch. 241, Laws 1876-7, and after the institution of the action the defendant commenced a special proceeding in the Probate Court for a sale of the land of his testatrix for assets, It was held, that the Superior Court had acquired jurisdiction of the matter, and that the defendant should be restrained from further proceedings in the Probate Court.
2. Under Bat. Rev., ch. 45, sec. 73 and Laws 1876-7, ch. 240, sec. 6, there is not a conflict of jurisdiction between the Probate and Superior Courts in regard to the settlement of estates, but the jurisdiction is concurrent.
3. When there are Courts of equal and concurrent jurisdiction, that Court possesses the case in which jurisdiction first attaches.
ACTION in the nature of a Creditor's Bill brought by a creditor of the estate of defendant's testatrix and heard, upon a motion (43) by plaintiff for an injunction to restrain proceedings in a special proceeding brought by the defendant in the Probate Court for a sale of his testatrix's real estate to make assets, at Spring Term, 1878, of WAKE, before Seymour, J.
His Honor decided that the action was prematurely brought by plaintiff, and denied the motion for the injunction, and the plaintiff appealed.
Messrs. E. G. Haywood, Merrimon, Fuller Ashe, J. B. Batchelor and A. W. Tourgee, for plaintiff.
Messrs. D. G. Fowle, Gilliam Gatling, Battle Mordecai, R. C. Badger and A. W. Haywood, for defendant.
BYNUM and RODMAN, JJ., dissenting.
This is an action by the plaintiff as a creditor of defendant's testatrix, and in behalf of all other such creditors, brought to the Superior Court at term time praying for the necessary accounts, sale of lands, and for the payment of the assets to the said creditors according to their several amounts and rights, etc. After this action was in progress and defendants had entered their appearance, the defendant executor filed his petition in the Probate Court for the sale of the real estate of his testatrix for assets, and thereupon and upon notice the plaintiff moved for an order restraining further proceedings in the Probate Court, which was refused by His Honor. This we think was error.
The plaintiff is proceeding under the act of 1876-'77, ch. 241, sec. 6, which provides: "That in addition to the remedy by special proceeding as now provided by law, actions against executors, administrators, collectors and guardians may be brought originally to the Superior Court at term time, and in all such cases it shall be competent to the Court in which said actions shall be pending to order an account to be (44) taken by such person or persons as said Court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief as the nature of the case may require."
Sec. 7. "That all laws and clauses of laws coming in conflict with the provisions of this act be and the same are hereby repealed."
The defendant claims the right to administer the estate in the Probate Court alone by special proceeding under the act, Bat. Rev., ch. 45, sec. 73. These acts, in our view, do not present an instance of a conflict, but of concurrent jurisdiction. The latter act instituted a new mode of settling the estates of deceased persons and was a necessary consequence of that excellent provision of our law requiring creditors to be paid pro rata.
The former act (1876-'77) does not necessarily change the mode of administering the estate materially, but only permits it to be done in another Court. "The rule is, where there are Courts of equal and concurrent jurisdiction, the Court possesses the case in which jurisdiction first attaches." Childs v. Martin, 69 N.C. 126, where an inconvenience of a different rule is forcibly put by PEARSON, C. J. The wisdom of giving different Courts concurrent jurisdiction over the estates of deceased persons is not for our consideration. It is our duty to declare the law as we find it written.
There is error in the interlocutory order appealed from.