Blake v. Respass, 77 N.C. 193, is conclusive authority that Courts of Probate have no power to provide for the payment of the debts of the lunatic, contracted prior to the launcy, that is, assuming that the debts have been establish against the lunatic. But in this *Page 426 case the guardian denies the existence of the debt, or that the (571) lunatic owes the plaintiffs anything, but avers that they, the plaintiffs, are indebted to him. The question of debt or no debt is not a proper one for the determination of the Court of Probate in respect to a lunatic more than in respect to a sane person. It is only where the debt is admitted or established that the jurisdiction of the Court of Probate arises to make provisions for its payment upon the application of the creditor. This principle applies as well to the alleged debt of $224.65 contracted since, as to that of $416.41 contracted prior to the lunacy, both being denied by the guardian.
After the plaintiffs have established their debts in the proper Court, if the lunatic is in debt to them, it remains for their consideration whether they can then obtain the relief they are now demanding. Inre Latham, 39 N.C. 231, is the leading case upon the subject in this State. There, the debts were admitted and the application was made to the Court by the committee of the lunatic for the sale of his real and personal estate for the payment of his debts, and for the purpose of maintaining him and his family. Speaking for the Court, DANIEL, J., said: "All the lunatic's estate has been converted into money, and only the sum of $942.14 is now within reach of the Court. We think that fund must be retained by the committee, not to pay his balance, or the debts of any of the creditors, but for the purpose of maintaining the lunatic and his wife and infant children. That the Court must reserve a sufficient maintenance for the lunatic before making an order for payment of debts or allowing the committee sums already applied by him for that purpose, is clear from the nature of the jurisdiction in lunacy, as well as from the decisions. In Ex Parte Hastings, 14 Ves. 182, LORD ELDON said, he could not pay a lunatic's debts and leave him destitute, but must reserve a sufficient maintenance for (572) him; and in Tally v. Tally, 22 N.C. 385, that is cited with approbation by the Court."
As the Court of Probate had no jurisdiction to provide for the payment of the debt contracted prior to the lunacy, but the Superior Court only, the appeal of the plaintiffs from the order of the Court striking that claim from the complaint, can not be sustained. If the defendant had appealed from the refusal of the Judge to dismiss the action for defect of jurisdiction in the Probate Court, we would have felt disposed to sustain the appeal as the case is now presented to us. As it is however we will not dismiss but affirm the judgment of the Court, remanding the case as to the claim of $224.65, to be proceeded in as the plaintiffs may be advised in the Probate Court. They may see their advantage in dismissing the present proceeding and resorting to their *Page 427 action in the Superior Court, where all the relief can be obtained to which the merits of their case may entitle them, for by Laws 1876-'77, ch. 241, sec. 6, in addition to the jurisdiction over lunatics and their estates inherent in the Courts of Equity, concurrent jurisdiction with the Courts of Probate is conferred upon the Superior Courts.
Affirmed.
Cited: Adams v. Thomas, 81 N.C. 296; S. c., 83 N.C. 521; McLean v.Breece, 113 N.C. 392.