Mills v. . Mills

Beo&deN, J. Are the heirs at law of a testatrix, uncited in accordance with C. S., 4159, and not otherwise cognizant of a caveat in which the will is upheld by the verdict of a jury, estopped to file a second caveat to the will within the statutory period, as against an innocent purchaser for value? It appears from the judgment and the agreed statement of facts that the will of testatrix was probated in common form in January, 1924. The distinction between probate in common and solemn form is clearly expressed by Ruffin, C. J., in Redmond v. Collins, 15 N. C., 430: “To enable the propounder to bind others a decree is taken out by him authorizing him to summon all persons, ‘to see proceedings/ not to become parties, but to witness what is going on, and take sides if they think proper. If the propounder does not choose to adopt that course, he may at once take his decree; which in relation to this subject is called proving *598 the will in common form. If be take out a decree and summon .those in interest against him, 'to see proceedings’ they are concluded, whether they appear and put in an allegation against the will or not, and as against those summoned this is called probate in solemn form.” Again In re Will of Chisman, 175 N. C., 420, the Court held: “The probate of a will in common form is an ex parte proceeding, and no one interested is before the clerk except the propounders and witnesses. When an issue of devisavit vel non is raised by caveat, it is tried in the Superior Court in term by' a jury. Upon such trial the propounder carries the burden of proof to establish the formal execution of the will. This he must do by proving the will per testéis in solemn form.” Under all the authorities a probate in common form is not subject to collateral attack, but is binding and conclusive until set aside by a direct proceeding. C. S., 4145. Until the enactment of C. S., 4158, there was no statute of limitations in this State prescribing the time within which a caveat could be filed. The caveat in the case at bar was duly filed to the will of testatrix by a relative. It does not appear from the agreed statement of facts who this relative was. However, when the caveat was filed it appeared that citation was issued to the three executors of the will, who are also legatees thereunder, and that no citation or notice whatsoever was given to the heirs at law of the testatrix. C. S., 4159, requires that citation shall issue to all devisees, legatees, “or other persons in interest within the State” and publication shall be made “for nonresidents.” The provisions of this statute were not complied with. The plaintiffs, however, insist that the heirs at law of testatrix are estopped by the verdict of the jury and the judgment thereon establishing the validity of the will. In Redmond v. Collins, supra, it is declared: “But as every judicatory having any pretentions to administer a code of law so as to make it practically a just system, having respect to the rights of persons in the thing, these tribunals do not hold those bound by the sentence who had notice of the pendency of the proceedings on which it was pronounced.” To the same effect is the declaration of Pearson, J., in Ethridge v. Corprew, 48 N. C., 14: “As a matter of common justice, no one should be deprived of his rights without an opportunity of being heard. Hence, no order, sentence or decree, made ex parte, is conclusive; and all persons affected by it are entitled, 'of common right,’ to have it set aside.” These principles are recognized In re Beauchamp, 146 N. C., 254, in the following language: “While the next of kin and heirs at law have the right to require probate in solemn form, this right may be forfeited, either by acquiescence or unreasonable delay after notice of the probate.” In re Will of Witherington, 186 N. C., 152. *599 Under the authorities the next of kin may be barred: (1) By failure to assert their rights upon knowledge of the suit contesting the will, irrespective of whether they were cited or summoned to see proceedings. Redmond v. Collins, 15 N. C., 430; In re Dupree’s Will, 163 N. C., 256; In re Bateman’s Will, 168 N. C., 234. (2) By being made a party to an action to construe a will and allot dower to a widow upon her dissent. In re Will of Lloyd, 161 N. C., 557. (3) By statute of limitations, C. S., 4158. (4) By citation duly issued and served. C. S., 4159. It is obvious from the judgment and agreed statement of facts that the heirs at law of testatrix under the authorities. were not made parties to the caveat proceedings by citation, nor does it appear that they were cognizant of the proceedings or charged with knowledge that the devisees in the will had taken possession of the property thereunder. Under these circumstances they are not estopped to file a- second caveat. However, the filing of a second caveat cannot affect the rights of the defendant. The probate in common form is binding and conclusive until set aside by a direct proceeding. The caveat was not sustained. Hence the probate in common form is effective and the purchaser has the right to rely upon it. Therefore the purchaser is an innocent purchaser for value and the deed tendered will convey a good and indefeasible title to the property. Affirmed.