I deem it necessary to cite only a few authorities, additional to those cited by the Circuit Judge.
In the case of Ex parte Landrum, 69 S.C. 136,48 S.E. 47 (cited with approval in The Mobley Co. v. McLucas,99 S.C. 99, 82 S.E. 986), it was held that a proceeding in the probate Court, to fix the fees of attorneys representing the executor, and to determine out of what fund payment should be made, was a proceeding in chancery, and this Court had jurisdiction to review the finding of the Circuit Court, on appeal from the probate Court.
In that case the Court said: "In an action at common law, the only judgments that could be rendered were: 1. For the recovery of specific real property. 2. For the recovery of specific personal property. 3. For money.
In the case under consideration, the respondents not only seek to recover judgment for the amount of their fees, but likewise to have determined out of what fund they are to be paid. This renders it necessary to invoke the aid of the Court, in the exercise of its chancery powers. The facts are, therefore, reviewable by this Court."
Before the Constitution of 1895 was adopted, the Court of probate had exclusive original jurisdiction of all matters testamentary and of administration. Ex parte White,33 S.C. 442, 12 S.E. 5. *Page 158
Section 15, art. V. of the Constitution of 1895, however, provides that "they" (the Courts of Common Pleas) "shall have jurisdiction in all civil cases," which words are not to be found in the Constitution of 1868, thus showing that its jurisdiction as to matters testamentary and of administration, is concurrent with that of the probate Court. The objection interposed by the appellant was, therefore, "not jurisdictional in its nature, but was merely dependent upon the well settled principle, based upon comity, that the Court which first acquires jurisdiction of the cause, shall be allowed to proceed to final judgment." Epperson v. Jackson, 83 S.C. 157,65 S.E. 217.