In Re the Last Will & Testament of Campbell

Clarkson, J. The question for us is caveator’s present contention: “That the purported granting clause of said paper-writing in the second paragraph of the second article is void for indefiniteness, and there is nothing provided to guide, check or control an unbridled discretion of the trustees.” All other assignments of error are deemed abandoned. Rules of Practice in the Supreme Court, 28. 185 N. C., p. 798. This contention of caveator we cannot consider. The only issue is devisavii vel non. Mary Crutchfield filed a caveat to the will of P. B. Campbell — this was a proceeding in rem to determine the testacy or intestacy, of the deceased. In re Westfeldt, 188 N. C., p. 705. The only issue: “Is the paper-writing offered in evidence and every part thereof, the last will and testament of P. B. Campbell, deceased ?” 40 Cyc., p. 1231, states it thus: “In proceedings to probate a will, the only proper and necessary matters for consideration and determina *570 tion are tbe testamentary capacity of tbe testator, tbe due execution of tbe will in accordance with tbe statutory requirements, and tbe presence or absence of fraud, mistake, or undue influence; matters of interpretation and construction, as well as tbe validity of particular bequests and devises, are not involved and are without tbe power of tbe court to consider and determine, unless express authority to determine such questions is given by statute.” In Wood v. Sawyer, 61 N. C., p. 268, Reade, J., said“Tbe uniform practice, when a paper-writing is offered for probate as a will, has been to prove tbe execution of tbe paper and obtain an order that it be recorded, without consideration of its contents, except so far as to see that it purports to be a will. And where tbe validity of tbe will is questioned, and it is submitted to a jury, tbe jury is restricted to tbe same inquiries. Where there is no objection, tbe court passes upon tbe validity of tbe paper, and where there is objection, tbe jury passes upon it; and, in either case, tbe proceeding is in rem. Tbe probate passes upon tbe rights of no one under tbe will, but only establishes ft as a will, leaving tbe rights of parties to be ascertained thereafter.” H. G. Connor, J., In re Murray, 141 N. C., 591, says: “We cannot perceive how the construction of the will was presented or could have been passed upon in this proceeding. The courts of probate have no other jurisdiction than to inquire into the execution of the will. The fact that an executor is appointed is sufficient to entitle the will to be admitted to probate, if properly executed. We are not favored with any authorities tending to sustain this exception. The supplementary brief filed by the caveators cited a number of authorities which it is insisted tend to show that the trust undertaken to be set up and the charity established by the will is void. These are interesting questions, but in no proper sense now before the court.” In Phifer v. Mullis, 167 N. C., 410, the late lamented Geo. H. Brown, J., said: “The paper was proved in common form before the clerk as a will. The effect of the caveat is to require the paper-writing to be proved again in solemn form in term-time and before a jury of the Superior Court, and no other issues are raised or is appropriate in such proceeding except that of devisavit vel non." See In re Harrison, 183 N. C., 457; In re Southerland, 188 N. C., 325. The question presented by caveator as to the construction of the clause in the will cannot be determined on this record. For the reasons given, the judgment below is Affirmed.