In re Hine's Will
| Decision Date | 19 December 1947 |
| Docket Number | 740. |
| Citation | 45 S.E.2d 526,228 N.C. 405 |
| Parties | In re HINE'S WILL. |
| Court | North Carolina Supreme Court |
Appeal by Samuel R. Reid and Margie M. Reid beneficiaries under the first purported codicil, and caveators to the second purported codicil to the purported last will and testament of John S. Hine, deceased, from judgment of Clement, Resident J., of Superior Court for 11th Judicial District, rendered in chambers at Winston Salem, N C., upon an appeal from an order entered by the Clerk of Superior Court of Forsyth County on 29 May, 1947.
These facts appear to form the basis on which the matters in controversy on this appeal rest:
John S. Hine, of Forsyth County, North Carolina, having died DeVoe C. Clinard, who is named as a beneficiary in the purported will and second codicil and as an executor in the will, filed application on 23 February, 1946, for the probate in common form of three instruments of writing as follows:
1. A purported will of John S. Hine, dated 9 November, 1935, and identified in the record as Exhibit 317.
2. A purported codicil to the will of John S. Hine, dated 29 March, 1944, and identified in the record as Exhibit 318.
3. A purported codicil to the will of John S. Hine dated 2 September, 1944, and identified in the record as Exhibit 319.
Upon these applications, and the testimony of all of the subscribing witnesses to each of the three instruments of writing, the Assistant Clerk of Superior Court of Forsyth County found as a fact that Exhibits 317, 318 and 319 comprise the last will and testament of said John S. Hine deceased, and, thereupon, so adjudged, and admitted same to probate in common form, and ordered same, together with the order of probate, to be registered in the Record of Wills in the Clerk's office.
Thereafter, on 18 February, 1947, Samuel R. Reid, who is named as an executor in the original will and as a beneficiary in the first codicil, Exhibit 318, and Margie M. Reid, who is named a beneficiary in the first codicil, Exhibit 318, filed in the office of the Clerk of Superior Court a caveat to the second codicil, Exhibit 319, and filed the statutory bond. Thereupon, on the same day the Assistant Clerk of Superior Court entered an order, in which, after reciting (1) the probate of the will in common form and the issuance of letters testamentary to DeVoe C. Clinard, the executor named in one of the codicils, and (2) the filing of caveat as above stated, and (3) the transfer of the cause to the Superior Court for trial, DeVoe C. Clinard, the executor, was directed to suspend all further proceedings as required by law. The record shows that this order was served on Clinard by the sheriff on 21 February, 1947. And on 18 February, 1947 citations were issued to all persons interested under all three instruments of writing, and they were duly served.
Thereafter, on 9 April, 1947, DeVoe C. Clinard and Lettie Mabel McCuiston Clinard filed a motion and petition addressed to the Clerk of Superior Court praying that the entire probate proceedings before the Clerk, as hereinabove set out, be stricken out and expunged from the record, and that the will, Exhibit 317, and the second codicil, Exhibit 319, be probated in common form and re-recorded as such nunc pro tunc. The ground assigned for the motion is that the second codicil, Exhibit 319, purports to revoke the first codicil, Exhibit 318.
Pending the hearing on this motion, and on 14 April, 1947, DeVoe C. Clinard and Lettie Mabel McCuiston Clinard, filed an answer to the caveat which had been filed by Samuel R. Reid and Margie M. Reid to the second codicil, as hereinabove recited, and pray (1) that, if not already done by the Clerk of Superior Court, the court order that the probate heretofore made in common form be set aside in its entirety and that the original will, and the true codicil, the second one, be probated in common form nunc pro tunc, so that the record may speak the truth, and (2) that the paper writing referred to as Exhibit B, that is the first codicil, Exhibit 318, be eliminated as a part of the said will, and (3) that the jury pass upon the issue as to the paper writings legally before the court, that is, the original will and the second codicil, so as to establish same as the will of John S. Hine in solemn form upon an issue of devisavit vel non.
Thereafter, on 12 May, 1947, Samuel R. Reid and Margie M. Reid appeared specially before Clerk of Superior Court and moved to dismiss the Clinard petition for want of jurisdiction in the Clerk to entertain the petition or to enter an order granting the relief demanded.
Thereafter, on 29 May, 1947, the Clerk of Superior Court, upon hearing the petition of the Clinards filed 9 April, 1947, finding as a fact 'that said probate was erroneously and improvidently ordered by this court and that the same should be set aside in its entirety and that the true and correct will and codicil of said John S. Hine should be probated in common form, nunc pro tunc,' ordered that the order and probate of the will of John S. Hine, made on 9 March, 1947, 'be and the same is hereby set aside, and that the entire record thereof be and the same is hereby stricken from the record in its entirety for the reason that the same was erroneously and improvidently done by this court, and it is so ordered.' And, thereupon, the Clerk proceeded to probate in common form anew the purported will, Exhibit 317, and the purported codicil, Exhibit 319, as and comprising the last will and testament of John S. Hine, deceased.
Thereafter, on 5 June, 1947, Samuel R. Reid and Margie M. Reid gave notice of appeal and appealed from the order of the Clerk of the Judge upon grounds assigned and set out in detail in their appeal.
When the appeal came on to be heard, the Judge found facts substantially as hereinabove set out, and, further, that the second codicil, Exhibit 319, appearing in the record revokes and is inconsistent with the first codicil, Exhibit 318, and that for that reason the first codicil should not have been admitted to probate upon the original application for probate in common form, and concludes as a matter of law (1) that the Clerk of Superior Court of Forsyth County had jurisdiction to entertain the Clinard petition and to enter the order of 29 May, 1947, from which the appeal was taken; (2) that there was no defect of parties to the proceeding upon the petition; (3) that the order of the Clerk should be affirmed in all respects; and (4) that each and all of the objections and exceptions taken by Samuel R. Reid and Margie M. Reid to the action and non action of the Clerk as set out in their appeal are overruled. And thereupon the Judge entered judgment affirming the order of the Clerk and dismissing the appeal of Samuel R. Reid and Margie M. Reid, and remanding the cause of the Clerk for proceedings in conformity with this judgment.
Samuel R. Reid and Margie M. Reid appealed therefrom to the Supreme Court and assign error.
Dallace McLennan and Ratcliff, Vaughn, Hudson & Ferrell, all of Winston-Salem, for appellants.
Deal & Hutchins, of Winston-Salem, for appellees.
This is the question presented by appellant for decision on this appeal After a paper writing purporting to be the will, and two other paper...
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