No circumstances of surprize, accidentar fratid, appear to have intervened in this case, to prevent the party from having a full hearing in the County Court, upon the points, which form the ground of the application to the Court ef Equity ; Of these points, tho County Court, up- *11«11 petition, have equal and concurrent jurisdiction with the Court of Equity. The bill is, therefore, dismissed with costs.
Holding v. Holding, 5 N.C. 9, 1 Mur. 9 (1804)
Dec. 1804
·
Supreme Court of North Carolina
5 N.C. 9, 1 Mur. 9
December Term, 1804
Samuel Holding, Ex’r, &c. and others, vs. Frederic Holding.
In Equity. — Samuel Holding, sen. the testator, on the 9th day of May, 1797, made and published his last will and testament, and therein, amongst other things, devised a tract of land to the defendant, and other tracts to the complainants, Arthur and John Holding, liis sons; and directed that the several parcels of land thereby given to his three sons, Frederic, Arthur and John Holding, should be valued by good men, as woodland unimproved, and that the valuation so made, should be kept by them, until after the death of his wife. He further directed, that after the death of his wife, his executors should sell, at twelve months’ credit, all his personal estate not before given away, and distribute the money in the following manner, that is to say : Pay the legacies named in the will; and after consulting the appraised value of the lands thereby given to his said three sons, pay unto him or them, as the case might be, such sum or sums of money, so as to make each lot of equal value.
The testator, some time after the execution of the will, *10with an intention of passing to the said Frederic ¡mme-di-ately, ail the interest and benefit which he intended him to J take under the will, and having, in the interim, advanced considerable sums of money to him, by deed, in consideration of affection and twenty shillings, conveyed the land mentioned in the will, and ten acres more, to Frederic, in fee-simple, « as a portion of testator’s estate.”
The bill charges, that the said conveyance was, at the time bf its execution, understood and intended to be in full and complete satisfaction .of all benefit intended to the said Frederic by the will; and that it was understood by the parties, that the said Frederic was to relinquish all further claim on his father’s estate by the will or otherwise.
The testator died, his will was proved ; the widow died, and the executor sold the personal property bequeathed to hér, as directed by the will. The present defendant, some years afterwards, preferred a petition to the County Court of Wake, praying a decree for the deficiency in value between the land devised and conveyed to him as aforesaid, and that devised to each of his brothers, and had a decree to that amount. The complainants prayed for, and obtained, an injunction.
'Mr. L. Henderson, for the defendant,
moved to dismiss the bill, on two grounds; 1st, that it prayed for a re-hearing of a cause decided by a competent jurisdiction, from which an appeal lay, either to the Superior Court of Law, or the Court of Equity ; 3dly, that it injoined a judgment rendered by a Court as competent to hear and decide the merits of the cause, as the Court of Equity, without shewing any circumstance of fraud} surprize or accident.