In Re the Will of Neal

Schenck, J. The order of the Superior Court must be vacated for two reasons: First, the correctness of the clerk’s action in refusing to probate Exhibits “B,” “0” and “D” was not before the court, as the propounders had either abandoned their appeal or were not pressing it; and, second, no one is now propounding any of the three paper writings *138 marked Exhibits “B,” “0” and “D” as the last will and testament of the deceased. Nor are the caveators asking that they be probated as "wills.” In re Will of Westfeldt, 188 N. C., 702, 125 S. E., 531. In the caveat it is alleged that each of said paper writings is “inconsistent with the paper writing” presented to the clerk, marked Exhibit “A,” and probated as the last will and testament of the deceased; and, further, that each paper writing is “inconsistent with all the other paper writings.” In re Will of Wolfe, 185 N. C., 563, 117 S. E., 804. The real purpose of the caveators is “to set them up and knock them down.” Sufficient unto the day are the problems thereof. Up to now no one is sponsoring their probation as wills. Why try an anticipatory cause of action which may never arise ? Hathaway v. Hathaway, 91 N. C., 139; In re Bailey, 180 N. C., 30, 103 S. E., 896. Moreover, the paper writing last in point of time, marked Exhibit “A,” has been admitted to probate in common form as the last will and testament of the deceased. It is provided by G. S., 31-19, that “Such record and probate is conclusive in evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal.” Holt v. Ziglar, 163 N. C., 390, 79 S. E., 805. Of course, the order of the clerk adjudging the paper writing, marked Exhibit “A,” to be fully proved in common form is not “conclusive in evidence of the validity of the will,” under this section, on the issue of devisavit vel non, raised by the caveat filed thereto. Wells v. Odum, 205 N. C., 110, 170 S. E., 145. But as between the probated instrument and the prior purported wills, the former stands until “declared void by a competent tribunal.” Mills v. Mills, 195 N. C., 595, 143 S. E., 130. Until so set aside, it is presumed to be the will of the testatrix. In re Will of Cooper, 196 N. C., 418, 145 S. E., 782. Error and remanded.