47 S.E.2d 488 | N.C. | 1948
This was a proceeding to probate a paper-writing propounded by Lelia Wilson as a later will of Minnie Stowe Puett, alleged to have been executed subsequent to one theretofore probated as the last will and testament of the decedent, heard below on appeal from orders of the Clerk of the Superior Court of Gaston County.
The procedural steps by which this matter has come to this Court for decision may be stated in chronological order as follows: Minnie Stowe Puett (widow of W. B. Puett) having died, on 29 May, 1945, a paper-writing purporting to be her last will and testament was duly admitted to probate in the manner prescribed by the statute. By this will the testatrix devised the bulk of her considerable estate in trust to the American Trust Company, Trustee, for the charitable purposes therein fully set out. The will was dated 12 May, 1944.
On 2 May, 1947, Lelia Wilson offered for probate as the last will and testament of Mrs. Puett the following paper-writing: "Feb. 23, 1945. I will and bequeath everything I have to Lelia Wilson. (Signed) Minnie Stowe Puett. Mrs. W. B. Puett." On 7 July, 1947, after hearing the evidence, the Clerk found that this paper was entirely in the handwriting of Mrs. Puett, and "that the said will was found in a book belonging to the said Minnie Stowe Puett, and which said book was handed or given to Lelia Wilson by Minnie Stowe Puett, and the said will was found in said book by Lelia Wilson after the death of Minnie Stowe Puett." Thereupon the Clerk adjudged that the said paper-writing was the last will and testament of Minnie Stowe Puett, and further declared that the purported last will and testament of decedent probated 29 May, 1945, was "null and void." The American Trust Company, Executor and Trustee, excepted to this order and appealed to the Superior Court in term. *10
On 21 November, 1947, George W. Stowe and others, representatives of the beneficiaries under the will probated 29 May, 1945, filed a petition before the Clerk that the proceeding be reopened, and that the Clerk's order of 7 July, 1947, admitting the alleged second will to probate, be revoked, for that the order was improvidently entered, and without notice to petitioners, and further that the probate of the will of 29 May, 1945, not having been vacated on appeal or declared void by competent tribunal was conclusive as to the validity of said will. The executor, after notice, joined in the petition and prayed that the order referred to be set aside. On 29 November, 1947, the Clerk entered order allowing the petition, and revoking the order of 7 July, 1947. Lelia Wilson excepted and appealed to the Superior Court.
At December Term, 1947, of Gaston Superior Court Judge Pless rendered judgment as follows:
"The court hereby affirms said order of the Clerk dated November 29th, (1947), but in doing so is of the opinion that this order does not preclude the appellant Lelia Wilson from seeking the probate by her at proper proceedings before the Clerk and after notice to all parties, heirs and legatees, and an opportunity to each of them to be heard.
"To the extent that the order of the Clerk dated July 7, 1947, to which the American Trust Company, Executor and Trustee, noted exception dated July 12, 1947, is in conflict with the ruling in the paragraph above, the said order of July 7th is reversed."
From this judgment Lelia Wilson appealed, and from so much of the judgment as expressed the court's opinion "that this order does not preclude the appellant Lelia Wilson from seeking the probate of the paper-writing sought to be propounded by her in proper proceedings before the Clerk," the American Trust Company, Executor, and George W. Stowe and others appealed.
APPEAL OF LEILA WILSON.
The testamentary disposition of property is governed by statute. In order that a paper-writing, so designed, may effectuate this purpose it must have been executed and proven in strict compliance with the statutory requirements. G.S.,
But the conclusive effect of probate and record thus declared does not deprive probate courts of the power, in proper instances and on motion and due notice, to set aside proof of a will in common form, "where it is clearly made to appear that their adjudications and orders have been improvidently granted, or the court has been imposed upon or misled." In reMeadows,
However, in the case at bar, there is no allegation that the probate of the will of Mrs. Puett on 29 May, 1945, was otherwise than in strict accord with the statute, nor is there suggestion that the court was imposed upon or misled. Hence the validity of the will may be attacked only by direct proceeding in the nature of a caveat. G.S.,
It follows that the will of Mrs. Puett probated 29 May, 1945, may not be declared null and void on motion before the Clerk. May this be done *12 solely upon proffered proof of a later will? We think not. The decisions of this Court on the subject support this view.
In In re Cooper,
In In re Smith,
In the recent case of In re Hine,
We think the authorities cited support the view that where a will has been duly probated, the record affords conclusive evidence of its validity, until vacated by appeal, or declared void by a court of competent jurisdiction in a proceeding instituted for that purpose, and that the offer of proof of a will alleged to have been subsequently executed, without more, is not a direct but a collateral attack on the validity of the will. It is only by a caveat or proceeding in that nature that the validity of a properly probated will, and one without "inherent or fatal defect appearing on its face" (Edwards v. White,
The contention that the procedure the appellant Lelia Wilson has here pursued is authorized by G.S., 28-31, cannot be sustained. That section appears in the chapter in the General Statutes on Administration, and is primarily directed to the settlement of estates, specifically empowering the Clerk to revoke letters of administration or testamentary upon proof of a will, and does not purport to outline the procedure in the probate of a will, or determine its effect. See Shober v. Wheeler,
It is also contended that, since the appeal of the American Trust Company, Executor, from the Clerk's order of 7 July, 1947, was pending in the Superior Court at the time the Clerk undertook to enter the subsequent order of 29 November, 1947, the Clerk was functus officio and without power to make the order, citing In re Hine,
Since we think the court below ruled correctly on both appeals from the Clerk which he considered, it is unnecessary to determine the question whether, as contended by the appellees on this appeal, the evidence and findings of the Clerk were insufficient to support the probate in common form of the paper-writing dated 23 February, 1945, as a holographic will. G.S.,
After careful consideration of all the questions presented by the appeal of Lelia Wilson, we conclude that the judgment below in the respects of which she complains, should be upheld.
APPEAL OF AMERICAN TRUST COMPANY, EXECUTOR, AND GEORGE W. STOWE AND OTHERS.
The appeal of these appellants is based upon their exception to the incorporation in the judgment of Judge Pless of his opinion that his ruling against Lelia Wilson on her appeal from the Clerk's order of 29 November, 1947, "does not preclude the appellant Lelia Wilson from seeking the probate of the paper-writing sought to be propounded by her at (by) proper proceedings before the Clerk."
Doubtless Judge Pless, by including this clause in his judgment, merely desired to express the opinion that Lelia Wilson was not precluded by his judgment from hereafter attempting to set up in proper proceedings the paper-writing under which she claims. But the language used is susceptible of the interpretation, which might be regarded as *15 binding by other judges, that the procedure she had undertaken to pursue was proper, and that a collateral attack on the probated will was authorized. For that reason we think the judgment should be modified by striking therefrom the expression of opinion to which exception was noted.
On appeal of Lelia Wilson: Affirmed.
On appeal of American Trust Company, Executor, and George W. Stowe and others: Reversed.