#### JOHN McNORTON & AL. JOHN A. ROBESON.

A petition to set aside the probate of a will, on the ground of the want of citation of the next of kin, will not be granted for that cause alone, but merits must be shewn, and it must appear that the former proceedings resulted wrongfully, and that the interests of the petitioners, if under disability themselves, were not duly defended by those who undertook to defend them.

A petition to set aside the probate of a will, on the ground of newly discovered testimony, on points to which evidence was given at the probale of the will, will not be granted, unless such testimony not only repels the adversary’s charge, but also destroys his proofs, by shewing that the former verdict was obtained by surprize and perjury.

The case of *Peagram*v. *King,*2 Hawks. 295, cited and approved.

Appeal from the Superior Court of Law of Bladen County, at the Fall Term, 1845, his Honor Judge Caldwell presiding.

This is an application to set aside the probate of an unattested script, as a will of John Kea deceased, disposing of his personal estate. It is made by three of his neices, who are the children of a sister of the party deceased, who died before him. Their names, were Lydia, Elizabeth, and Sarah King, and they and their husbands bring this suit. The allegation states, that the paper was propounded in 1833, and that it was contested by *257some of the rest of kin of the deceased and an issue was made up of *devisavit vel non,*which was tried in the County Court, and an appeal in the Superior Court, and that thereon sentence was pronounced for the paper in 1833, and the executors named in it obtained letters testamentary thereon. The allegation farther states, that at that time, the parties, Lydia, Elizabeth and Sarah were respectively under the age of 21, and “were never legally cited to witness the probate of the said paper writing, nor were they in any proper manner made parties to the said contest, and that since the said paper was established they have intermarried with the other petitioners, the said Sarah being, at the time of her marriage, under the age of 21; and they submit, therefore, that they are in no way bound by the said proceedings.” The allegation further states: that these parties have been informed and believe, that the script was néither in law nor in fact the will o.f the deceased, but was a forgery : that within six months before instituting this suit they had learned, and believe they would be able to prove, that shortly after the death of John Kea, John A. Robeson, (in whose hand writing the will is, and who is one of the executors and the father of a lad to whom one half of the estate is given by the paper) and William Jones (who is the father of another lad, to whom the other half of the estate is given) held a secret meeting in a room of the said Jones, in which one Hamilton Davis and one Benjamin Davis were accustomed to sleep, and that they were ordered by Robeson and Jones to leave the room, which they accordingly did, but not until they were enabled to discover, that the said Robeson was engaged in framing some instrument of writing, though they could not tell what, but discovered that the said parties, Robeson and Jones, were anxious to conceal it: that these parties expect to prove by a number of witnesses, whose knowledge of the matter has recently come to their ears, that the signature to the paper *258is not in the band writing of John Kea. The allegation also states'other matters which the parties say they were at the bringing of this suit able to prove, which it is not material to mention, as no evidence is given respecting them. There is no affidavit in support of the allegation, except that of MeNorton, the husband of the party Lydia,, who swears that he believes the several matters set forth in the allegation to be true.

John A. Robeson, the surviving executor,put in a counter allegation, in which he states, that the will was executed by John Kea, and that upon the trial of the issue, the fact was fully proved by himself and others, and that many witnesses were examined to the hand writing of' the said Kea ; and that all the next of kin of John Kea were parties to the issue, including the three neices, Lydia. Elizabeth, and Sarah King, who appeared and were made parties in the County Court by their father and guardian, Solomon King and that the cause was-prosecuted both in the County and Superior Courts, with earnestness and vigor on both sides, and without collusion in any respect between the parties or either of them on the opposite sides. In support of the allegation on that point', Robeson exhibits a transcript of the appointment of Solomon King to be the regular guardian of his two younger daughters, Elizabeth and Sarah, by the' County Court in February 1832;- and also the transcript of the record of the Court, in which it appears, that the will was-propounded by the legatees named in it and was “contested by Lydia King, Elizabeth King, and Sarah King,, by their guardian Solomon King, and by Kinchen Kea,’» and by others ; and' that Solomon King prayed the appeal and entered into the bond for its prosecution.

Upon the hearing in the Superior Court, the Court refused to call in the probate- and dismissed the allegation,, and. tbe cause was brought here by appeal..

*259
      *Strange,*for the plaintiff.

*W, H. Haywood,*for the defendant.

Ruffin, C. J.

The cause wholly fails, so far as it is sought to have a retrial of the issue on newly discovered evidence. The testimony of the Messrs. Davis is entirely inconclusive ; and, besides, it is fully explained and repelled by other persons, who were in the room with Robeson and Jones at the time to which they refer. Some witnesses have been examined as to the handwriting of the signature to the will, who give the opinion, that it was not that of Kea, the party deceased, and some express doubts of it. But evidence of that kind will not suffice; for, it is only further evidence to the same point, which was in contest on the trial, and of the same character with that then given. The rule is correctly and forcibly laid down for such cases in *Peagram*v. *King, 2*Hawks. 295, that it is not sufficient, that the newly discovered evidence goes to repel the adversary’s charge, but it must destroy his proofs ; and that is explained in the same case when it subsequently came up, *2 Hawks. 605, to*mean, that it must show the former verdict was-obtained by surprize and perjury. Indeed, the argument here put the appellant’s case entirely upon the ground, that these persons were infants at the trial and were not parties to that proceeding. But it is a mistake to say,, they were not parties. The record shows they were ; and they appeared by their *father;*and it is certain that he prosecuted the case on their behalf *bona fide,*and the present allegation contains no suggestion to the contrary. The argument proceeds on the technical ground, that there is no citation on file for them, nor order of record; appointing a guardian *ad litem,*and therefore that they were not “in any proper manner” made parties. However that might be a ground for a writ of error in a proceeding according to the course of the common law, it *260cannot be listened to as the foundation of an application of the kind now before us. That must rest upon merits ; and it cannot be granted, unless it be shown, that the former proceeding resulted wrong and that the interest of these persons was not duly defended by those who undertook if If this were the sole ground for impeaching the former trial, to which these persons were, at all events, nominal parties, and of which they do not pretend they had not personal knowledge at the time, it may be well asked, why they delayed this application for more than seven years — for a longer period, it is to be observed, than would bar a writ of error. But, in truth, if this were a writ of error, this would not be a reason for reversing a judgment. In probate causes there is, p:operly, no plaintiff nor defendant, but all persons are actors: and it has never been the course in this State *to*have a previous order appointing *txprochein ami*to prosecute a suit of any kind for an infant. The Court has a control over persons, who undertake to sue for an infant; and if he be an improper person, or brings an improper suit, the Court will remove him and appoint another to carry on the suit, and make the first pay the costs improperly incurred. But it is not error, even if the appearance of an infant defendant be entered by guardian, before obtaining a rule of the Court for it, but only a misdemeanor in the attorney. 1 Cromp. 158, 2 Sellons Pr. 135, 141. The appearance must, indeed, be entered, as being by guardian, or *prochein ami,*and not by attorney; but, though it be regular to have a rule for the purpose, the rule does not form a part of the record, technically speaking, as it is ultimately enrolled. When the infant appears to act in the cause by *proekein ami*or guardian, it is sufficient; for it must be supposed that hs was duly appointed and approved by the Court, or he would havo been, otherwise, removed.

*261Viewing the case in any light, therefore, we can see no reason to disturb the probate, and the sentence of the Superior Court must be affirmed.

Per Curiam. Judgment affirmed.