The only question which is presented by the (68) record for determination is one of jurisdiction. In deciding this we are not to consider the answer of the defendants, for their motion to dismiss puts them in the same position as if they had demurred. *Page 53
Taking then the complaint to be true, the plaintiffs have a right to bring their action to the Superior Court, upon the ground that the legacy has been assented to, that is, provided the assent amounted to an express or an implied promise to pay the same. The assent of the executors to the legacy is distinctly alleged in the complaint, and it takes this case out of the general rule laid down in Hunt v. Snead, 64 N.C. 170, and Heilig v.Foard, 64 N.C. 710, that the Probate Court has exclusive original jurisdiction of special proceedings for legacies and distributive shares.
The assent is alleged in broad terms, and if the proof shall show that it amounted to an express or implied promise to pay the legacy, it became a debt to be recovered like any other debt in the Superior Court. There was error in dismissing the action.
Let this be certified, etc.
Per curiam.
Judgment reversed.
Cited: Bidwell v. King, 71 N.C. 287; Hodge v. Hodge, 72 N.C. 617;Hendricks v. Mayfield, 74 N.C. 632; Clark v. Holmes, 189 N.C. 711.
(69)