In Re Will of Parham

ClaRK, C. J. Upon examination of the probate made 17 March, 1902, we think the clerk and the judge below were correct in their adjudication that “due proof of the execution of both said letters was taken 17 March, 1903, and that the same were admitted to the record as parts of the will of said testatrix.” It is therefore unnecessary to discuss the first exception as to whether they could have been admitted to probate nunc pro tunc. "When the will and two letters were produced before the clerk on 17 March, 1903, he took proofs of the execution of the will and separate proofs of the two codicils and adjudged, that they constituted the will and recorded all three together in the book of wills, and the lands were divided on petition of the parties, Luther taking the house according to the second codicil and an equal number of the acres of land, though section 6 of the will proper gave the house to Locket and Luther jointly. At the death of Locket Parham, 26 January, 1918, his wife claimed her life estate under the codicil, he having no children. Luther claimed that the letters were no part of the will and had not been probated as such and that the land became his, while Locket’s wife contended that the letters had been probated and recorded and treated and acted upon as parts of the will, and she began this proceeding because of Luther’s contention that the probate did not refer to the codicil. We think that her prayer that the clerk should “amend the probate and make it refer to the codicil” was unnecessary, but the judgment rendered was proper “on the 'facts proven or admitted.” Elliott v. Brady, 172 N. C., 830. The clerk’s adjudication 17 March, 1903, says “Will.” He adjudicates that the execution thereof is duly proved by the oath and examination of W. B. Shaw and J. T. Harris (witnesses to the will proper) and J. A. Kelly, J. E. Burroughs and L. W. Burroughs (witnesses to *111 the codicils). Tbis was a sufficient recognition of the codicils and a probate thereof. In re Will of Deyton, 177 N. C., 495. And they were then recorded by the clerk with the will. The words “duly proven” carry with them a legal presumption that everything was properly done. Lumber Co. v. Branch, 158 N. C., 255. The clerk’s adjudication of 28 January, 1919, that they were part of the will was saying no more than had been said on 17 March, 1903. It is not necessary therefore to discuss the jurisdiction of the clerk to amend the probate or to probate the codicils nunc pro tunc. "We do not think the exception that the second codicil revoked the first requires discussion. The second codicil, written several months after the first, was a request to “let the will stand” as modified by the first codicil, for she makes no reference to the first letter or codicil except that she modifies it in the second letter by giving the whole of the house to Luther Parham, which indicates the extent to which she wished to modify her previous disposition of her property. It was not open to the respondent to caveat the codicils, if duly proven in 1903, for he has not only filed no caveat to the will or the codicils, but more than seven years have elapsed since they were probated. Rev., 3155; In re Dupree’s Will, 163 N. C., 256. The word “will” in the clerk’s probate includes codicils. Rev., 2831, sec. 9. It is there- referable to the word when used in a statute, but it therefore applies to legal proceedings and in all cases where a contrary intent does not appear. We concur in the judgment of his Honor that the letters set out in the record have been duly probated and recorded as codicils to the last will and testament of Missouri A. Parham, and that “by virtue of the codicil dated 29 April, 1902, the said Rosa E. Parham is the owner of the tract of land described as the share of Locket Parham in the lauds of Missouri Parham for the term of her natural life, and to the rents arising therefrom since the death of Locket Parham.” Affirmed.