Charles' Will, In re, s. 400

• Decision Date: 15 January 1965
• Docket Number: Nos. 400,401,s. 400
• Citation: 139 S.E.2d 588,263 N.C. 411
• Court: North Carolina Supreme Court
• Parties: In the Matter of the WILL of Faith N. CHARLES.

Page 588

139 S.E.2d 588

263 N.C. 411

In the Matter of the WILL of Faith N. CHARLES.

Nos. 400, 401.

Supreme Court of North Carolina.

Jan. 15, 1965.

Ralph E. Goodale, Hinton G. Hudson, Jr., Winston-Salem, for appellant First Union Nat. Bank, guardian of Terry Douglas Charles.

Elledge & Mast, by David P. Mast, Jr., Winston-Salem, for appellee Elizabeth T. Long.

HIGGINS, Justice.

The attorneys and judges in two separate proceedings have attempted to determine which of three scripts, or what combination of them, is the last will of Faith N. Charles. The Clerk of Superior Court as ex officio Judge of Probate has jurisdiction to take proof of wills and issue letters testamentary or of administration thereon. As Judge of Probate he has the sole power in the first instance to determine whether a decedent died testate or intestate and whether a script offered for probate is his will. Walters v. Baptist Children's Home of North Carolina, 251 N.C. 369, 111 S.E.2d 707; Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330; Hutson v. Sawyer, 104 N.C. 1, 10 S.E. 85.

When a paper writing purporting to be a will is presented to the Judge of Probate he takes proof with respect to its execution. If found in order the script is admitted to probate in common form as a will. Thus far the proceeding is ex parte. It stands as the testator's will, and his only will, until challenged and reversed in a proper proceeding before a competent tribunal. The challenge must be by caveat and be heard in the Superior Court. In Re Will of Ellis, 235, N.C. 27, 69 S.E.2d 25; Wells v. Odum, 205 N.C. 110, 170 S.E. 145. The attack must be direct and by caveat. A collateral attack is not permitted. In Re Will of Cooper, 196 N.C. 418, 145 S.E. 782. Offering another will for probate in another proceeding is a collateral and not a direct attack. In Re Will of Puett, 229 N.C. 8, 47 S.E.2d 488. Any interested person may challenge the will and contest its validity by filing a caveat setting forth the grounds of the challenge. Upon the filing of the caveat the proceeding is transferred to the civil issue docket for trial before a jury. Upon this transfer, notice is given to all interested persons of the challenge, giving them an opportunity to enter and participate in the proceedings to the end that the court may determine whether the decedent left a will and, if so, whether any of the scripts before the court is the will. The 'proceeding [is] in rem in which the court pronounces its judgment as to whether * * * the res, i. e., the script itself, is the will of the deceased. In re Hinton's Will, 180 N.C. 206, 104 S.E. 341.' Brissie v. Craig, supra. The will is the res. The last will may consist of one or more written instruments. In a caveat proceeding any interested person may present to the court any script which is material to the issue whether there is a will, and if so, what is it? In Re Will of Marks, 259 N.C. 326, 130 S.E.2d 673, 675; In Re Will of Covington, 252 N.C. 546, 114 S.E.2d 257; In Re Will of Hine, 228 N.C. 405, 45 S.E.2d 526.

When a caveat is filed the Superior Court acquires jurisdiction of the whole matter in controversy. Morris v. Morris 245 N.C. 30, 95 S.E.2d 110; In Re Will of Wood, 240 N.C. 134, 81 S.E.2d 127; In Re Will of Morrow, 234 N.C. 365, 67 S.E.2d 279; In Re Will of Brock, 229 N.C. 482, 50 S.E.2d 555; Wright v. Ball, 200 N.C. 620, 158 S.E. 192; Faison v. Williams, 121 N.C. 152, 28 S.E. 188. Any other script purporting to be the decedent's will should be offered and its validity determined in the caveat proceeding. In Re Will of Belvin, 261 N.C. 275, 134 S.E.2d 225; In Re Will of Puett, 229 N.C. 8, 47 S.E.2d 488.

In the light of the foregoing rules and authorities, the conclusion follows that the court committed error in refusing the appellant's petition to intervene in the caveat proceeding and to assert that Faith N. Charles on October 1, 1962, executed a valid will leaving all her property to Terry Douglas Charles; and further, that the script dated November 15, 1962, and made a part of the original caveat, was not a valid will for the reasons assigned in the petition. In Re Will of Belvin, supra. The court should have allowed the petition and permitted the appellant to present to the jury the script dated October 1, 1962, together with evidence relating to its validity as a will; and likewise should have permitted it to offer evidence relating to the invalidity of the script dated November 15, 1962. In Re Will of Marks, supra. However, the appellant did not except to the denial of its petition and did not appear further in the caveat proceedings. It did not attempt to offer evidence nor to except to the judgment.

Although the verdict and...