In Re the Last Will & Testament of Roediger

Connor, J. The judgment in this proceeding is supported by tbe facts set out in tbe agreed statement of facts submitted to tbe court by tbe propounder and by tbe caveator, supplemented by tbe facts found by tbe court, witb tbeir consent. If tbe paper writing wbicb was propounded for probate as tbe last will and testament of Herman R. Roediger, deceased, was written during bis lifetime, and signed by bim, and was subscribed in bis presence by two witnesses, at least, no one of wbom was interested in tbe devise and bequest of bis estate, in accordance witb tbe provisions of C. S., 4131, tben said paper writing is tbe last will and testament of tbe said Herman R. Roediger, deceased, and should be probated in tbis proceeding as sucb, unless sucb last will and testament was subsequent to its due execution revoked by tbe testator, in accordance witb tbe provisions of C. S., 4133. On all tbe facts set out in tbe judgment, tbe said last will and testament was not revoked by tbe testator by its cancellation or obliteration, in whole or in part, as provided by tbe statute. Tbe interlineations and annotations made by tbe testator after bis execution of tbe said last will and testament, and appearing therein at tbe time it was offered for probate, do not affect its validity, and were properly eliminated by tbe court in its judgment. See In re Love, 186 N. C., 714, 120 S. E., 479, and authorities cited in tbe opinion in support of tbe decision in that case. A paper writing duly executed as a last will and testament is not revoked in whole or in part by cancellation or obliteration, unless tbe testator defaced or obliterated said paper writing, or some material clause or words therein, witb intent thereby to revoke tbe same, in whole or in part. A defacement or obliteration, although made by tbe testator, is not alone sufficient to show tbe revocation of a last will and testament duly executed by tbe testator. Tbe judgment in tbis proceeding, however, cannot be affirmed, for errors appear on tbe record, which, although not assigned on tbis appeal as grounds for tbe reversal of tbe judgment, require tbe consideration of tbis Court. These errors preclude tbis Court from affirming tbe judgment. • C. S., 1412. Wilson v. Lumber Co., 131 N. C., 163, 42 S. E., 565; Thornton v. Brady, 100 N. C., 39, 5 S. E., 910. Manifestly, tbis Court cannot affirm a judgment when it appears from an inspection of tbe record that there were errors in tbe trial in tbe Superior Court, wbicb show that tbe judgment is void. I. Tbe children of Herman R. Roediger, deceased, who are interested in bis estate, and therefore entitled under C. S., 4158, to file a caveat to tbe probate in common form of a paper writing propounded as bis *476 last will and testament, are all infants. They have no general or testamentary guardian. Eor that reason they must appear in this proceeding by a next friend, C. S., 450, appointed by the clerk of the Superior Court of Guilford County, as provided by Rule 16 of the Rules of Practice in the Superior Courts of this State. 200 N. C., 842. This rule is as follows: “In all cases where it is proposed that infants shall sue by their next friend, the court shall appoint such next friend, upon the written application of a reputable, disinterested person closely connected with such infant.; but if such person will not apply, then upon the like application of some reputable citizen; and the court shall make such appointment only after due inquiry as to the fitness of the person to be appointed.” The appointment in the instant case of Security National Bank of Greensboro, N. C., a corporation, as next friend of the infant children of the deceased, was not authorized by the rule. Only a person, whose fitness has first been ascertained by the court, is eligible for appointment by the court as next friend. The rule does not contemplate or authorize the appointment of a corporation, whether organized under the laws of this State or under the laws of another state, or of the United States, as next friend. There was error in the appointment of a corporation as next friend of the infant children of Herman R. Roediger, deceased, in this proceeding. II. When a caveat to the probate in common form of a paper writing propounded as the last will and testament of a deceased person has been filed as provided by O. S., 4158, and the proceeding which was begun before the clerk of the Superior Court having jurisdiction, has been transferred to the Superior Court for trial of the issue raised by the caveat at term time, as provided by C. S., 4159, the issue must be tried by a jury and not by the judge. A trial by jury cannot be waived by the propounder and the caveator. Nor can they submit to the court an agreed statement of facts, or consent that the judge may hear the evidence and find the facts determinative of the issue. The propounder and the caveator are not parties to the proceeding in the sense that they can by consent relieve the judge of his duty to submit the issue involved in the proceeding to a jury. In the instant case, it was error for the judge to render judgment on the facts agreed upon by the propounder and the caveator, and supplemented by the facts found by him, with their consent. The proceeding was in rem, and could not be controlled by the propounder and the caveator, even with the consent and approval of the judge. In that respect it is distinguishable from a civil action. Eor the errors appearing on the record, the proceeding is remanded to the Superior Court of Guilford County, in order that a next friend of *477 tbe infant caveators may be appointed by tbe court in compliance witb Rule 16, Rules of Practice in tbe Superior Courts, and for tbe trial by a jury of tbe issue raised by tbe caveat, and of sucb other relevant issues as tbe judge may in bis discretion submit to tbe jury. We deem it proper to say tbat tbe record in tbis appeal shows tbat tbe proceeding was conducted in tbe Superior Court in good faith, and tbat tbe errors in tbe record which preclude this Court from affirming tbe judgment were manifestly inadvertent on tbe part of tbe clerk, tbe judge, and counsel for tbe propounder and tbe caveator. We cannot, however, affirm tbe judgment, because tbe judgment is not supported by tbe verdict of a jury, and tbe infant caveators do not appear in tbe proceeding by a next friend duly appointed in compliance witb tbe rule prescribed by tbis Court, pursuant to its statutory authority. C. S., 1421. Error and remanded.