#### Odom, et al. v. Thompson, et al.

From Bertie.

When on a petition for a re-probate of a paper writing-, purporting 10 be a will, the Court below ordered are-probate, and the defendants appealed, this Court refused to dismiss the appeal.

When a petition for re-probate sets forth that those interested in con» testing the first probate, were at the time under disabilities, and that the pretended testator had not capacity to execute a will; these allegations not being denied in the answer, a re-probate will be awarded.

This was a petition setting’ forth that the Defendants, in the year 1803, had exhibited for probate to the county Court of Bertie, a paper writing, purporting to be the last will and testament of one Noah Hinton, and in the absence of all who were interested in opposing the proceeding, the paper writing was admitted to probate as a will. It was further alleged, that no notice was given to the parties interested, and had there been, they were under disabilities, being femes covert and infants, and therefore were not capable of opposing it. The. petition also charged that the paper was signed by the said Noah Hinton, when he was utterly incapable of executing a will. The petition prayed a revocation of the former probate, and that probate anew might be ordered. These statements were not denied in the answer of the Defendants. Upon hearing the petition and answer, the Court below ordered that the probate of the will of Noah Hinton, deceased, be revoked, and that the Defendants proceed to re-prove the same in the county Court of Bertie, in solemn form, from which order the Defendants appealed.

Gaston and Hogg, for the petitioners,

contended that, in the present stage of the proceedings, the appeal by the Defendants was premature, for there was no final *25.¡¡v.gnr.'hi, order, or decree in the ease, and moved to dismiss tlie, appeal.

Seem'd’. and Mordecai, replied, that ibis was a suit in-stiiub'fi l;i set aside Ihe jmjgmcnt in a former one, and tin* only question in this suit was, whet,¡mu* the former judgment of probate should be opened, and consequently úse only judgment would be, Jmi ihe probat? should or should not be opened. When suds a judgment was pronounced. thus suit would be ended, and therefore, the appeal' was properly taken upon the decision of this question by tho Corf*, be’ow, ibr ths:i, tips petition ceased to pend.

Taylor, Chief-Justice.

There are two allegations in the peí ilion, which if true, render ii essential to justice that the will should be re-proved; these are that the petitioner:;, \v!;o are heirs at law, and next of kin to the testator. were either infants or under coverture when the will was proved, and that no notice was given to theta. The other is that die will and the several codicils annexed, were signed and executed by thetestaiorwhen he was utterly incapable of making a will. These statements must, upon the face of the proceedings, bo taken as true, since the Defendants have made no answer to thorn ; and although they might not be informed as io the state of the testators* mind when tho will was made, cinco they arc not tho persons who offered it for probate, yet some answer should have been made to the charge j and if they knew nothing about it, they should have answered so. For these reasons alone, without enquiring into the other questions made, 1 think there ought to be a re-probate.

Hall, Judge.

This case seems to bopeculiarly situated. — If the question whether this petition contains matter sufficient to authorise the Court to say, there shall be a rehearing of the probate of the will, is not considered by this Court at this stage of the proceedings, it is difficult to say *26that any other '-pportunity will be afforded. Suppose it should be sent bark to be finally settled by rehearing the l)1,0^a^e the will : if that question should terminate fa-vourably for the 1 defendants,i/iet/ would have no ind uceinent to take the opinion of this Court on the merits of the petition. If the question should be otherwise decided, and the paper writing should be found not to be a will, this Court yvouhl hesitate long before it would undertake to jSct that finding aside, although they might have thought in the first instance that the prayer of the petition for a rehearing of the probate of the will ought not to he granted ; for that reason, I think the merits .of the petition should be now decided on.

Henderson, Judge. — Concurred.