#### IN RE SCARBOROUGH WILL.

(Filed October 31, 1905).

Wills — Production for Probate — Proceedings for Contempt —Power of Court — Practice.

1. Wliere the clerk of the court of G. county issued a notice to the respondent who had the will of the deceased in. his possession to exhibit the same for probate, it was the duty of the respondent to obey the summons and he could have raised in his answer the question of whether the will should be probated in G. or L. county.

2. An order of the clerk the court of G. county which adjudged the respondent guilty of contempt and that he be committed to jail, until such will was produced, was properly reversed on appeal where it appears that the respondent cannot comply with the condition upon which he might be discharged, because the clerk of L. county now has custody of the will and has refused to surrender it to the respondent.

3. Upon appeal from an order of the clerk adjudging the respondent in contempt, there was no error in the judge allowing additional affidavits, to be filed on the hearing before him.

4. In a proceeding to attach the respondent for contempt in not producing for probate a will, the question whether the will should be probated in G. or L. county is not presented and cannot be passed upon.

This was a rule against B. F. Scarborough to appear and show cause why he should not be attached for contempt in not producing the will of Sam W. Scarborough for probate before the clerk of the Superior Court of Guilford County, heard by Judge Geo. W. Ward, by consent, at the August Term, 1905, of the Superior Court of Guilfobd County, on appeal from an order of said clerk adjudging the respondent in contempt. From the judgment discharging the respondent, the petitioners, A. E. and Clyde Scarborough, executors under said will, appealed.

*424 Scales, Taylor & Scales for tbe petitioners.

John A. Barringer and W. P. Bynum, Jr., for tbe respondent.

Claris, C. J.

S. W. Scarborough died 22 May, ,1905, in Lenoir County. Tbe clerk of tbe Superior Court of Guil-ford County, being of opinion that tbe deceased bad bis legal domicile in tbe county of Guilford at tbe time of bis death, on 21 May, appointed collectors of bis estate, and issued by virtue of section 2154 of Tbe Code to tbe respondent in Lenoir County, who bad tbe will of tbe deceased in bis possession, notice to exhibit tbe same for probate in Guilford County. The notice was served on tbe respondent 29 May. Thereafter on the same day, tbe respondent consulted counsel in Kinston, Lenoir County, and tbe clerk of tbe Superior Court of said county, and under their advice delivered the will to tbe clerk of tbe Superior Court of Lenoir County, by whom, later, it was probated. Tbe clerk of tbe Superior Court of Guilford County thereupon issued notice to tbe respondent to appear at bis office in Greensboro, on 26 .Tune, and show cause why be should not be attached for contempt. Tbe respondent appeared and filed bis answer setting forth tbe affidavit of counsel that be bad advised tbe respondent that tbe will should be probated in Lenoir County, and tbe affidavit of tbe clerk of tbe Superior Court of Lenoir that on 25 May, he advised tbe respondent that tbe will should be probated in Lenoir; that on 29 May tbe respondent left the will in bis office for probate, and that on 1 June the witnesses appeared, whereupon tbe said will was duly probated and recorded and is now on file in bis office as part of tbe records thereof; that on 29 or 30 May tbe respondent came to bis office and requested him to surrender said will that be might comply with tbe order of tbe clerk of Guilford Superior Court, but being of opinion that tbe will should be probated in Lenoir, he .declined to surrender it to the respondent.

*425In tbe respondent’s answer be avers that be was guided by tbe advice of counsel and of the clerk of Lenoir Superior Court; that be intended no contempt; that be is unable to produce the will because tbe clerk of Lenoir Superior Court refused to deliver tbe same to him; and be also filed many affidavits tending to show that tbe testator died domiciled in Lenoir County. Thereupon the clerk of tbe Superior Court of Guilford adjudged tbe respondent guilty of contempt and ordered that be be committed to jail, without bail, until such will was produced. IJpon appeal the judgment was reversed, and tbe respondent was discharged.

When tbe notice from tbe clerk of Guilford Superior Court was served upon the respondent, it was bis duty to obey the summons, and on appearing before tbe clerk of Guilford Superior Court be should have set up his evidence to show, if be could, that tbe will should be probated in Lenoir County, and if that were held against him be could have appealed to tbe judge, and thence to this court. Had tbe respondent been held for contempt and punished for such disobedience, tbe judgment would have been sustained if the disobedience was wilful and not an honest mistake, Code, section 648 (4), as tbe clerk seems to have adjudged, for be imposed no sentence for such contempt, but directed that tbe respondent be imprisoned unless be produced the will in fifteen days, and to remain imprisoned until be does.

As it sufficiently appears that tbe respondent cannot do this, that the clerk of Lenoir Superior Court has custody of tbe will (Code, section 2154), and has refused to surrender it to tbe respondent who applied for the same, that be might obey the process issued to him from Guilford, this amounts to an order of perpetual imprisonment, since it is out of the respondent’s power to comply with tbe condition upon which be might be discharged. His Honor therefore properly discharged tbe respondent.

Nor was there error in tbe judge allowing additional affi*426davits to be filed on tbe bearing before bim. In re Deaton, 105 N. C., 62, it is beld that “on appeal from tbe Superior Court, tbe findings of fact by tbe judge are conclusive and tbis court can only review tbe law applicable to sucb state of facts, but upon appeal from a court below tbe Superior Court to that court, it is tbe duty of tbe Superior Court judge to review tbe facts as well as tbe law, and in bis discretion be can bear additional testimony orally or by affidavits.” Tbis case bas been cited and approved: Finlayson v. Accident Co., 109 N. C., 199; King v. Railroad, 112 N. C., 321; In re Gorham, 129 N. C., 490; Turner v. Machine Co., 133 N. C., 385.

Tbe question wbetber tbe will should properly be probated in Guilford or Lenoir County is not presented and cannot 'be passed upon in tbis proceeding. Wbetber the clerk of Guilford was right or wrong in assuming jurisdiction, it was tbe duty of tbe respondent to obey tbe notice served upon bim before be bad delivered tbe will to' tbe clerk of Lenoir, and be could have raised the issue in bis answer to that summons. He should not have decided it himself. It is equally true that as tbe respondent bas it not, in his power now to produce tbe will, be cannot be imprisoned till be does, irrespective of tbe inquiry wbetber tbe will should be probated in Guilford or Lenoir.

No Error.