We are of opinion that the probate qf a will in the usual form may be set aside after the term has expired at which the will was proved, and that a second probate may be ordered by the same court. As to the length of time at which this may bo done, that must depend upon the particular circumstances of the case. The court will look to all circumstances which can aid its discretion in ordering a second probate.
Dickenson v. Stewart's Executor, 5 N.C. 99, 1 Mur. 99 (1805)
Dec. 1805
·
Supreme Court of North Carolina
5 N.C. 99, 1 Mur. 99
Dickenson and others vs. Stewart’s Executor.
-From Newbern.
This was a petition to the county court of Pitt, to set aside the probate of a paper writing which had been proved in said court as the- last will and testament of James Stewart deceased, and to contest the said will upon an is. sue to be made up under the direction of the court. The * petitioners were the heirs at law and next of kin of the said Stewart. Joel Dickenson, one of the petitioners, rcsid-ed in the town of Greensville where the court was held, and on the first day of the term was informed by John Spier executor, that he would have the said will proved "on that day, which was accordingly done, and the court continued sit for four days afterwards. Dickenson neither caveated *100the probate nor during the term made any application to the court upon the subject. William H. Williams, the other petitioner, resided in Fayetteville and had no previous 110-tice of the said probate, but was informed of it shortly af-terwards. The will was proved at November term 1802, and February term 1804, the petitioners filed their petition to-se(; a8}(]e the probate of.thesaid will and to require the Ex-to exhibit the said will for probate again in the said court. The case was taken to the Superior Court of Law for Newbern District, and by that court was sent to the court of conference upon the question “ whether the probate of a will in the usual form, can be set aside after the term has expired at which it was proved, and a second probate ordered by the same court; and if so, at what length of time it may be done.
*99The prebate of a will may set aside after the term cx« ph-es at Vas an,d probate be *100look to all stances of toaiditsdis-cretum in second
The case was argued by Gaston for the petitioners, and by Karris for the defendant.