The sole assignment of error on this appeal is based upon exception by respondents to the ruling of the trial court in allowing motion of petitioners, made at the close of respondents’ evidence, for judgment as of nonsuit.
Considering the pleadings, shown in the record on this appeal, stripped of extraneous matter appropriate in a special proceeding to sell real estate for partition among tenants in common, G.S. 46-1, et seq, it is seen that this is a proceeding instituted 'by the administrator of the estate of Yerlian Nunn, deceased, to sell certain real estate owned by her to make assets to pay debts of her estate. G.S. 28-81 and G.S. 28-86.
The statute, G.S. 28-81, as amended by 1955 Session Laws, Chapter 302, Section 1, effective 24 March, 1955, provides that “When it is alleged and shown that the personal estate of a decedent is insufficient to pay all of his debts including the charges of administration, it shall not be necessary that the personal property of such decedent be first exhausted, and the executor, administrator or collector may, at any time after the grant of letters, apply to the Superior Court of the counity where the land or some pant thereof be situated by petition to sell the real property for the payment of the debts of such decedent.”
And G.S. 28-86 prescribes that the petition shall contain, among other things, “the names, ages, and residences, if known, of the de-visees and heirs at law of the decedent.”
It is also provided in G.S. 28-87 that the heirs and devisees of the decedent are necessary parties to the proceeding.
In the light of these statutory provisions, it appears in instant case (1) that the petition lists all the heirs at law and distributees of Ver-lian Nunn, deceased; (2) that all parties agree that it is necessary to sell the real estate to make assets to pay debts; (3) that respondents, in their further answer, aver that among the debts of the estate is a sum due to them for services rendered to decedent; (4) that the petitioners deny that the estate is so indebted to respondents; and *366(5) that the Clerk has ordered sale oí the real estate, and the proceeds of sale not to be disbursed to the prejudice of respondents in their claim.
Thus it appears that the battleground on which the parties pitch this contest is around tire validity of the claim of respondents made in their further answer. And it is a well established presumption that the regularity of the proceeding by an executor or administrator to sell lands to make assets to pay debts due by the estate, will be presumed in the absence of evidence to the contrary. Wadford v. Davis, 192 N.C. 484, 135 S.E. 353; see also Odom v. Palmer, 209 N.C. 93, 182 S.E. 741; Caffey v. Osborne, 210 N.C. 252, 186 S.E. 364; Toms v. Brown, 213 N.C. 295, 195 S.E. 781; Graham v. Floyd, 214 N.C. 77, 197 S.E. 873.
A prima facie presumption of rightful jurisdiction arises from the fact that a court of general jurisdiction has acted in the matter. Henderson Co. v. Johnson, 230 N.C. 723, 55 S.E. 2d, 502, and cases cited.
Now then, in respect to the issue thus raised, when the evidence offered by respondents on the trial below as hereinabove briefly related, is considered in the light most favorable to respondents giving to them the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as is done in passing upon motion for judgment as of nonsuit, G.S. 1-183, under applicable principles of law, the Court is of opinion and holds that a case is made for determination -by a jury. See Landreth v. Morris, 214 N.C. 619, 200 S.E. 378, and cases cited. Indeed, paraphrasing the Landreth case, supra, the evidence does not justify the application of the presumption that the services were rendered gratuitously as a matter of law,— ibut rather the issue should be submitted to the jury. Furthermore the presumption that services rendered by a child to his parent are gratuitous does not apply to the relationship between a mother-in-law and son-in-law.
For reasons stated the judgment as of nonsuit is
Reversed.