Inasmuch as a court has only the jurisdiction committed to it by law, an objection based on the want of jurisdiction over the subject matter of an action may be raised at any time during the progress of the аction.
McCune v. Manufacturing Co.,
In order for a court to have jurisdiction of the subject matter of an action, the particular issue involved must be properly brought before it for determinаtion in the particular proceeding.
Helton v. Hubbs,
*704 Tbis being true, the Superior Court had no jurisdiction of the subject matter of this action; for under the law of North Carolina the issue-of whether a paper writing is, or is not, а man’s last will cannot be-properly brought before the Superior Court for determination in an ordinary civil action.
The statutes of this State confer upon the Clerk of the Superior Court: exclusive аnd original jurisdiction of proceedings for the probate of wills. G.S. 2-16, 28-1, and 31-12 to 31-27, inclusive;
McCormick v. Jernigan,
Under our procedure, the issue of whether a writing is, or is not, a decedent’s will can be properly brought before the Suрerior Court for decision in a will contest only. McIntosh: North Carolina Practice and Procedure in Civil Cases, section 916. Such a contest is neither a civil action nor a special proceeding in a strict or technical sense. It is a proceeding
in rem
in which the court pronounces its judgment as to-whether or not the
res, i.e.,
the script itself, is the will of the deceased.
In re Hinton,
An instrument of a testamentary character is wholly ineffectual until it is admitted to probate by a competent tribunal.
Cartwright v.
Jones,
The plaintiffs are mistaken, for the judiciary does not hold its probate powers by so tenuous a thread. Candor compels the confession, however, *705 tbat the misapprehension of the plaintiffs is understandable. Judges, like other men, have nothing except words in which to phrase their ideas, and the limitations of language produce much perplexity in the lexicon of the law. This observation finds ready illustration in the differing and sometimes inexact meanings given to identical terms in decisions concerned with fhe probate of wills. See: 2 Page on Wills (Lifetime Edition), section 561.
In its true sense, the probate or proof of a will is the judicial process by which a court of competent jurisdiction in a duly constituted proceeding tests the validity of the instrument before the court, and ascertains whether or not it is thе last will of the deceased.
Hutson v. Sawyer, supra; Re Veazey,
80 N. J. Eq. 866,
Ordinarily a proceeding for the probate of a will is bеgun by a person who claims under the paper and instinctively makes the allegation that the script is the last will of the decedent. There is no reason in logic, however, why the proceeding should nоt be initiated by a person who claims against the instrument and makes the counter allegation that it is not the last will of the deceased. See:
Redmond v. Collins,
Happily law and logic are compatible in this resрect in North Carolina, for under the procedures prescribed any person having a legitimate end to be served by so doing may bring a proceeding for the probate of an alleged will without rеgard to whether he is interested for or against it.
Gr.S. 31-13 provides that “if no executor apply to have the will proved within sixty days after the death of the testator, any devisee or legatee named in the will, or any other person interested in the estate, may make such application, upon ten days notice thereof to the executor.” Properly interpreted, this statute empowers any person interested in the estate of a decedent to make application to have a script purporting to be the will of such decedent “proved,”
i.e.,
tested in respect to its vаlidity as a testamentary instrument. It is obvious that the statutory clause “any . . . person interested in the estate” includes a person who will share in the estate under the law governing intestacy in case a scriрt which purports to be the will of the deceased is adjudged invalid as a testamentary document.
In re Hardy,
*706 There is no incongruity in permitting a court to pass on the validity of an instrument of a testamentary nature upon the application of a person interested in its rejection.
G-.S. 31-32 provides, in substance, that any person entitled under an alleged will, or interested in the estate оf the supposed testator, may appear before the Clerk of the Superior Court and enter a caveat to the probate of the alleged will at the time of the application for its probate, or at any time within seven years after its probate in common form. This statute permits a person in interest to file a caveat to an alleged will, which has been offered fоr probate, and to contest the validity of such alleged will before it has been admitted to probate. In re Little, supra; 57 Am. Jur., Wills, section 762.
These things being true, the probate powers of the judiciary afford a complete remedy to a person interested against an alleged will in instances where those interested for the alleged will do not propound it for probate. He make invoke such remedy by the simple exрedient of simultaneously applying to the Clerk of the Superior Court having jurisdiction to have the script probated or proved, i.e., tested, and filing a caveat asking that it be declared invalid as a tеstamentary instrument.
Since the probate powers of the judiciary as defined by statute furnished an ample remedy, there was no occasion for the plaintiffs to ask the Superior Court to pass upon the validity of the disputed document as an incident to its equitable jurisdiction to cancel clouds and quiet titles.
A court of equity has no jurisdiction to declare what is, or is not, a man’s last will.
Blue v. Patterson,
"When all is said, the entire controversy between the pаrties hinges on this single issue: Is the disputed document the last will of the deceased ?
Under the statutes governing probate matters, the Superior Court, as a mere court of law and equity, has no jurisdiction to determine such an issue in an ordinary civil action. The plaintiffs could not confer upon the Superior Court the power denied to it by legislative act by asking the court to pass upon the validity of the allеged will as an incident to its equitable jurisdiction to remove clouds and quiet titles. The underlying reasons are plain. If the Superior Court sitting as a mere court of law and equity cannot entertain direct jurisdictiоn to establish or invalidate an alleged will in an ordinary civil action, it can possess
*707
no jurisdiction to do so as an incident to its jurisdiction over other matters. Such a course would lead to grave complications; for it would destroy the uniformity of procedures for the probate and contest of wills, and otherwise conflict with the legal system established hy the State.
McDaniel v. Pattison,
We deem it not altogether beside the mark to comment upon the all too frequent unconcern of litigants for the procedures established hy law for the determination of juridical disputes. Rules of procedure are indispеnsable to the orderly and practical functioning of any system of law. The office assigned to them is a simple one. They may be likened unto a ship, for they are fashioned by lawmakers to carry lеgal controversies into judicial ports for decision. The most foolhardy of mariners does not dare to sail physical seas without chart and compass to steer his course. Yet every day litigаnts blithesomely embark upon the most boisterous of legal oceans without due heed for the charts and compasses afforded by judicial decision and statutory law. The inevitable results. Courts are compelled to expend much of their energy in rescuing litigants needlessly shipwrecked on procedural reefs, and in consequence have little time left to fulfill their true mission, that is, to administer “right and justicе ... by due course of law . . . without . . . sale, denial, or delay.” North Carolina Constitution, Article I, Section 35.
As the Superior Court had no jurisdiction of the subject matter of the action, the judgment is vacated, the demurrer ore tenus is sustained, and the action is dismissed.
Action dismissed.