#### In the Matter of THE LAST WILL AND TESTAMENT OF BENJAMIN FRANKLIN WOOD.

(Filed 14 April, 1954.)

1. Wills §17%—

While the clerk has exclusive original jurisdiction for the probate of a .will in common form even though the script is alleged to have been lost, since his jurisdiction to take proof of a will is not affected by its loss or destruction before probate; when answer is filed denying- the averment that the script offered for probate is the last will and testament of the decedent, such denial raises the issue of *devisavit vel non,*conferring jurisdiction on the Superior Court in term to determine the entire matter in controversy, G.S. 1-273, G.S. 1-276.

2. Wills § 19—

Allegations to the effect that the decedent had testamentary capacity, had left a last will and testament which had been lost or destroyed by *135some person other than testator, and alleging the terms of the instrument, the existence of property passing under it, and formal requisites of execution, the known heirs and next of kin, and persons interested in the will, together with allegations that testator did not revoke or destroy the instrument, are sufficient to state a cause of action for the probate of the instrument in solemn form.

3. Appeal and Error § 40f—

Refusal of a motion to strike portions of a pleading will not he disturbed on appeal when appellant fails to show he was prejudiced thereby.

4. Infants § 13: Process § 13—

Failure to show service of process on some of the interested parties and failure to show appointment of guardian *ad litem*for those parties under disability are not fatal defects warranting quashal of the proceeding.

Appeal by respondents from *Bone, J.,*Resident Judge and Judge bold-ing tbe courts of tbe Second Judicial District, at Chambers in Nashville, 21 December, 1953. From Nash.

Proceeding for the probate in solemn form of an alleged lost will.

David B. Wood, one of tbe parties who would benefit by the alleged will ifprobated, filed petition with tbe Clerk of tbe Superior Court of Nash County, alleging that Benjamin Franklin Wood, late of that county, died on or about 20 February, 1951, leaving a last will and testament by which be disposed of an estate in lands and personal property of tbe aggregate value of approximately half a million dollars. A copy of tbe alleged will is set out in tbe petition, with further allegations that it “was not revoked or destroyed by tbe . . . testator during bis lifetime, but that tbe same has, subsequent to tbe death of Benjamin Franklin Wood, been lost, or destroyed by some person other than tbe testator, and cannot now be found, although diligent search and inquiry has been made.”

The petitioner prays that the paper writing be admitted to probate in solemn form *per testes,*and that letters testamentary be issued to tbe executor named therein.

Thereafter, citations were issued from time to time and served upon numerous interested parties named in tbe petition, heirs at law and next of kin of the decedent, citing them “to see tbe proceedings relative to tbe establishment and probate” in solemn form of tbe alleged will.

Kirby S. Parrish and others, heirs at law and next of kin of tbe decedent, herein referred to as respondents, filed a motion, before tbe clerk, to strike certain portions of tbe petition. On tbe same day tbe respondents also filed answer, before tbe clerk, denying tbe material allegations of tbe petition.

Thereafter, tbe respondents applied to tbe Superior Court to quash tbe petition and dismiss tbe proceedings, calling their application a demurrer, and alleging as grounds therefor that (1) “tbe court has no jurisdiction *136to bear and determine the matters and things in controversy''in this proceeding” and (2) that the petition does not state facts sufficient to constitute a cause of action.

At the December Term, 1953, of Nash Superior Court, the cause came on for hearing before Judge Bone on the respondents’ demurrer and motion to strike. By consent the cause was continued to he heard in Nashville on 21 December, 1953, at which time and place the hearing was had, after which Judge Bone entered judgment overruling the demurrer and denying the motion to strike.

From the judgment so entered, the respondents appeal.

*Davenport & Davenport fox respondents, appellants.*

*Charles P. Green, John F. Matthews, and Cooley & May for petitioner, appellee.*

JoimsoN, J.

The respondents insist that, in the absence of a prior ruling by the Clerk of the Superior Court, Judge Bone was without jurisdictional power to hear and determine their demurrer and motion. The contention is untenable. True, the Clerk had exclusive original jurisdiction of the proceeding; that is, nothing else appearing, it was within his sole province in the first instance to determine whether the decedent Wood died testate or intestate and, if he died testate, whether the script in dispute is his will. *Brissie v. Craig,*232 N.C. 701, 62 S.E. 2d 330; G.S. 2-16 (14), 28-1, and 31-12 to 31-31.1. And this is so, notwithstanding the script is alleged to have been lost, the rule being that the jurisdiction of the Clerk to take proof of a will is not affected by its loss or destruction before probate. *Anderson v. Atkinson,*234 N.C. 271, 66 S.E. 2d 886; *In re Hedgepeth’s Will,*150 N.C. 245, 63 S.E. 1025.

However, when the respondents filed answer denying the petitioner’s averment that the script offered for probate is the last will and testament of the decedent, such denial raised an issue of *devisavit vel non*and necessitated transfer of the cause to the civil issue docket for trial by jury. *In re Ellis’ Will,*235 N.C. 27, 69 S.E. 2d 25, and cases cited; G.S. 1-273. This being so, jurisdiction to determine the whole matter in controversy, as well as the issue of *devisavit vel non,*passed to the Superior Court in term. G.S. 1-276; *Wright v. Ball,*200 N.C. 620, 158 S.E. 192; *Faison v. Williams,*121 N.C. 152, 28 S.E. 188. See also *In re Will of Hine,*228 N.C. 405, 45 S.E. 2d 526.

Necessarily, then, Judge Bone had full jurisdictional power and authority to hear and determine in the first instance the respondents’ demurrer and motion to strike. *In re Ellis’ Will, supra; Collins v. Collins,*125 N.C. 98, 34 S.E. 195.

*137Next, tbe respondents challenge tbe sufficiency of tbe petition to state a cause of action for tbe probate in splemn form of tbe alleged will. A perusal of tbe petition discloses allegations of these ultimate facts: tbe death of tbe testator, that be made and left a last will and testament, tbe terms of the instrument and existence of property passing under it, formal requisites of execution, testamentary capacity of tbe testator, lack of revocation or destruction *animo revocandi*by tbe testator, loss or destruction by some person other than tbe testator and that tbe instrument cannot be found after diligent search and inquiry, and tbe names and addresses of tbe persons interested in tbe alleged will, including known heirs at law and next of kin of tbe decedent. These allegations suffice to sustain tbe petition and overthrow tbe demurrer. *In re Hedgepeth’s Will, supra.*See also *McCormick v. Jernigan,*110 N.C. 406, 14 S.E. 971; *In re Will of Wall,*223 N.C. 591, 27 S.E. 2d 728.

As to the respondents’ motion to strike portions of tbe petition, tbe rule is that tbe denial of a motion to strike will not be disturbed when appellant is not prejudiced thereby. *Ledford v. Transportation Co.,*237 N.C. 317, 74 S.E. 2d 653, and eases cited. Here our examination of tbe petition leaves tbe impression that no barm in law will come to tbe respondents from a reading in tbe presence of tbe jury of tbe portions of tbe petition sought to be stricken.

Tbe respondents also point to tbe failure of tbe record to show (1) service of process on some of tbe interested persons and (2) appointment of guardian *ad litem*for those under disability, and urge that for these reasons tbe cause is not properly constituted. Be this as it may, tbe defects shown are not fatal and do not warrant quashal of tbe proceeding. Tbe court below may, and no doubt will, see that these defects are remedied before tbe cause goes to trial.

Tbe judgment below is

Affirmed.