Wells v. . Odum

Jul 12, 1933

Versions:

*111 Stacy, 0. J.

Is tbe probate of a will in common form competent as evidence of its validity on an issue of devisavit vel non, raised by a caveat filed to said will? The answer is, No. Dickens v. Bonnewell, 168 S. E. (Va.), 610.

Tbe paper-writing in question was offered for probate in common form without citation to those in interest “to see proceedings.” Benjamin v. Teel, 33 N. C., 49; Redmond v. Collins, 15 N. C., 430. This is permissible under our practice, C. S., 4139, et seq., and when thus probated in common form, even though the proceeding be ex parte? such record and probate is made conclusive as evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal, C. S., 4145, and is not thereafter subject to collateral attack. In re Will of Rowland, 202 N. C., 373, 162 S. E., 897.

But a caveat is a direct attack upon the will. The proceeding in common form before the clerk is ex parte, and, therefore, not binding upon the caveators, as they were not parties. In re Will of Chisman, 175 N. C., 420, 95 S. E., 769; Mills v. Mills, 195 N. C., 595, 143 S. E., 130.

If it should be held that the order of the clerk adjudging the will to be fully proved in common form is “conclusive in evidence of the validity of the will” (C. S., 4145) on the issue of devisavit vel non, raised by a caveat filed thereto, then the requirement that the propounders shall, upon such issue, prove the will per testes in solemn form (In re Will of Chisman, supra), would seem to be wholly unnecessary, and no caveat filed after probate in common form could ever be sustained. In re Will of Rowland, supra.

Hence, for the error in admitting the probate in common form as competent evidence on the issue of devisavit vel non, raised by a caveat filed to the will in question, the caveators are entitled to a new trial, •and it is so ordered.

New trial.