41 S.E.2d 90 | N.C. | 1947
Motion to amend caveat so as to include other paper writings which purport to be prior wills of Stella Neal, deceased, to the end that the entire issue of devisavit vel non may be determined in one proceeding.
On 13 November, 1944, four paper writings, without subscribing witnesses, purporting to be dated respectively, 1 May, 1940, marked Exhibit "D," 4 January, 1943, marked Exhibit "C," 10 April, 1943, marked Exhibit "B," 12 June, 1943, marked Exhibit "A," each purporting to be the last will and testament of Stella Neal, deceased, was offered for probate in the office of the clerk, Franklin Superior Court, and the clerk being of opinion that the last paper writing in point of time, Exhibit "A," constituted the last will and testament of the deceased and revoked all prior wills, admitted the same to probate, and declined to admit the three prior instruments to probate. From this ruling the propounders excepted and gave notice of appeal to the judge of the Superior Court, but no further action seems to have been taken on this appeal.
Thereafter, on 24 February, 1945, a caveat was filed to the paper writing, marked Exhibit "A" and admitted to probate as the last will and testament of Stella Neal, deceased.
At the April Term, 1946, Franklin Superior Court, the caveators asked to amend their caveat so as to include the paper writings, marked Exhibits "B," "C" and "D," to the end "that the question of testacy or intestacy of the said Stella Neal, deceased, may be determined in this proceeding or action."
On the hearing of the motion, the cause was remanded to the clerk with instructions that Exhibits "B," "C" and "D" be admitted to probate, and the caveators were allowed to amend their caveat as prayed.
From this ruling the propounders, Watch Tower Bible and Tract Society and Mary Jane Hinton, appealed, assigning errors. The order of the Superior Court must be vacated for two reasons: First, the correctness of the clerk's action in refusing to probate Exhibits "B," "C" and "D" was not before the court as the propounders had either abandoned their appeal or were not pressing it: and, second, no one is now propounding any of the three paper writings *138 marked Exhibits "B," "C" and "D" as the last will and testament of the deceased.
Nor are the caveators asking that they be probated as "wills." In reWill of Westfeldt,
Moreover, the paper writing last in point of time, marked Exhibit "A," has been admitted to probate in common form as the last will and testament of the deceased. It is provided by G.S.,
Error and remanded. *139