In Re Will of McLelland

Stacy, C. J. Neither tbe will of W. D. McLelland nor tbe caveat filed thereto is in tbe record. Hence, we are not advised as to what interest, if any, bis “beirs at law” have in tbe subject-matter of tbe proceeding. Tbe “case” apparently proceeded on tbe assumption that tbe rights of tbe parties were settled by tbe consent judgment, but tbe order of tbe clerk, provided for therein, went beyond tbe terms of tbe consent judgment, and thereafter tbe will of H. A. McLelland, brother of W. D. McLelland, was introduced into tbe record, together with other matters. Family settlements are to be commended (Tise v. Sicks, 191 N. C., 609, 132 S. E., 560), and much is permitted to be done by consent of tbe parties, but it is a little unusual for an issue of devisavit vel non, raised by a caveat to one will, to end with tbe construction of another, and all without pleadings, or chart or compass, by which tbe court may be guided. It is not stipulated in tbe consent judgment that exceptions may be filed to tbe report of tbe commissioners, nor does it contain any description of tbe lands sought to be divided. In tbe interest of a fair determination of tbe rights of tbe parties, it would seem that everything done subsequent to tbe entry of tbe consent judgment should be stricken out as unauthorized, and tbe parties allowed to proceed in some regular way to have their rights adjusted. Error and remanded.