The claim of the plaintiffs is founded upon a complaint alleging that Andrew Atkinson devised the 35 acres to them by a last will, which has never been admitted to probate.
It appears, therefore, that the complaint undertakes to present to the court for determination this crucial issue: Did Andrew Atkinson leave a will devising the 35 acres to the plaintiffs?
Under the controlling statutes, the Clerk of the Superior Court has exclusive original jurisdiction to take proofs of wills of persons dying domiciled within his county. G.S. §§ 2-16, 28-1, 28-2, and 31-12 to 31-27, inclusive; Brissie v. Craig, supra; McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971. The jurisdiction of the clerk to take proof of a particular will is not affected by its loss or destruction before probate. Fawcett v. Fawcett, 191 N.C. 679, 132 S.E. 796; Ricks v. Wilson, 154 N.C. 282, 70 S.E. 476; In re Hedgepeth's Will, 150 N.C. 245, 63 S.E. 1025; McCormick v. Jernigan, supra.
The complaint is also subject to the second objection raised by defendants. The demurrer admits the facts pleaded in the complaint, but it does not admit the legal conclusion set out therein that such facts operated to vest title to the 35 acres in the plaintiffs. Since the complaint rests the claim of the plaintiffs to the 35 acres upon the unprobated will of Andrew Atkinson, it does not state facts sufficient to constitute a cause of action. A will is wholly ineffectual as an instrument of title until it is admitted to probate in the proper court. Brissie v. Craig, supra; Cartwright v. Jones, 215 N.C. 108, 1 S.E.2d 359.
The contention of plaintiffs that the complaint states a cause of action against defendants as heirs of the deceased, Andrew Atkinson, for the specific performance of a contract by the deceased to devise the 35 acres to plaintiffs is untenable. There is no language in the complaint indicating that the action was brought for any such purpose. Indeed, that pleading negatives any right on the part of the plaintiffs to maintain an action for specific performance or its equivalent. See: 58 C.J., Specific Performance, sections 308, 309. Such an action can not lie until there has been a breach of contract. 58 C.J., Specific Performance, sections 6, 494. According to the complaint, Andrew Atkinson did not breach the understanding with plaintiffs. The converse is true. He fully performed it by devising the 35 acres to them.
For the reasons given, the judgment overruling the demurrer is reversed.