¶1 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.
¶2 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?
¶3 This being true, the complaint discloses upon its face that the court has no jurisdiction of the subject matter of the action; for under the law of North Carolina the issue of whether an unprobated script is, or is not, a man’s last will cannot be properly brought before the superior court for determination in an ordinary civil action. Brissie v. Craig, 232 N.C. 701; 62 S.E. 2d 330.
¶4 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, *273 inclusive; Brissie v. Craig, supra; McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971. Tbe jurisdiction of tbe 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, 150 N.C. 245, 63 S.E. 1025; McCormick v. Jernigan, supra.
¶5 Tbe complaint is also subject to tbe second objection raised by defendants. Tbe demurrer admits tbe facts pleaded in tbe complaint, but it does not admit tbe legal conclusion set out therein tbat sucb facts operated to vest title to tbe 35 acres in tbe plaintiffs. Since tbe complaint rests tbe claim of tbe plaintiffs to tbe 35 acres upon tbe 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 tbe proper court. Brissie v. Craig, supra; Cartwright v. Jones, 215 N.C. 108, 1 S.E. 2d 359.
¶6 Tbe contention of plaintiffs tbat tbe complaint states a cause of action against defendants as heirs of tbe deceased, Andrew Atkinson, for tbe specific performance of a contract by tbe deceased to devise tbe 35 acres to plaintiffs is untenable. There is no language in tbe complaint indicating tbat tbe action was brought for any sucb purpose. Indeed, tbat pleading negatives any right on tbe part of tbe plaintiffs to maintain an action for specific performance or its equivalent. See: 58 O.J., Specific Performance, sections 308, 309. Sucb an action cannot lie until there has been a breach of contract. 58 C. J., Specific Performance, sections 6, 494. According to tbe complaint, Andrew Atkinson did not breach tbe understanding with plaintiffs. Tbe converse is true. He fully performed it by devising tbe 35 acres to them.
¶7 For tbe reasons given, tbe judgment overruling tbe demurrer is
¶8 Reversed.