Moss v. Vincent, 5 N.C. 414, 2 Car. L. Rep. 414 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 414, 2 Car. L. Rep. 414

Moss and Wife v. Vincent.

This was a petition filed in the County Court of Nash to set aside the probate of the will of Joshua Vincent, on the ground of the will having been made by fraud and circumvention; and that the petitioners were not made parties to the probate, although they would have been entitled to a distributive share of the estate.

To this petition there was a demurrer for want of an affidavit.

Taylor, C. J:

Upon the question of practice presented in this case, the Court are all of opinion, that an affidavit verifying the facts on which it is sought to set aside the probate of a will, is indispensable. A probate is an act of a court of justice, and a consequent degree of solemnity is attached to it forthwith. Property is held under it, and many important affairs of the estate transacted by the executor, on its authority. The Court therefore cannot sustain a petition, founded on a mere suggestion or assertion that it was fraudulently or irregularly obtained.

Petition dismissed.