In Re Will of Meadows

Hoke, J. It is tbe approved practice in this jurisdiction that courts having power to admit wills to probate may, in proper instances and on motion and due notice made in apt time, set aside the proof of a will in common form had before them and recall letters of administration or other orders made in such proceedings, or modify same, where it is clearly made to appear that their adjudications and orders have been improvidently granted, or the court has been imposed upon or misled as to the essential and true conditions existent in a given case. The principle is referred to and to some extent considered in the recent case of In re Johnson, 182 N. C., 522-524, the Court citing for the position Edwards v. Edwards, 25 N. C., 82. It is also noted in that case that on such a motion and inquiry a jury trial is not allowed as of right, but-the matters in dispute are properly dealt with as questions of fact by the court before which the action is pending, or to which it may be carried by appeal, citing In re Battle, 158 N. C., 388; Taylor v. Carrow, 156 N. C., 6; Edwards v. Cobb, 95 N. C., 5. True, the court in such a case may, if it so desires, impanel a jury on the essential and pertinent questions presented, but like the disposition of feigned issues, in the old equity practice, the verdict is not necessarily controlling, but is to be regarded only as an aid to correct conclusion by the court, which may accept and act on or disregard it as it may deem best and right, the responsibility and ultimate decision of all pertinent matters being with the court. 2d Beach Modern Equity, sec. 666. In the present case the clerk, after fully considering the petition and the affidavits offered in its support, has rejected' the application, finding that the allegations are not supported by the evidence. On appeal, the court, without considering the evidence on the principal questions, has dismissed the petition, being of opinion that the petitioner is estopped by having entered into an arbitration agreement touching certain disputed matters involved in the inquiry, but we do not concur in this view. This alleged arbitration entered into on 25 January, the day after the will was admitted to probate, seems to concern chiefly certain personal property, the title to which was in dispute between the petitioner and Mrs. Stratton, a granddaughter of the testator, and as to which both are claiming, not under the will, but against it, and it does not sufficiently appear that either the agreement or the award should necessarily and as a conclusion of law operate as an estoppel in the matter. Apart from *102 this, a perusal of the record will disclose that the intestate died on 21 January. The will was admitted to probate on 24 January, and the arbitration agreement was entered into on 25 January, the next day, and both the allegations and the evidence ¡offered by the petitioner are broad enough to include and apply to both the probate of the will, the qualification, and the agreement to arbitrate, and we are of opinion that this must be heard and considered by the appellate court. We were cited by counsel for the appellee to a number of decisions of this Court to the effect that where a widow or other who has offered a will for probate and qualified as executrix thereunder and entered on the duties of her office, or knowingly taken property thereunder, may not afterwards be allowed to resign or to further dispute or question the validity of the will or the disposition of property made thereunder. See McIntire v. Proctor, 145 N. C., 288; Tripp v. Nobles, 136 N. C., 104; Syme v. Badger, 92 N. C., 712; Mendenhall v. Mendenhall, 53 N. C., 287. But in those cases it appears that the parties affected were clothed throughout in their right mind and in reasonable apprehension of what they were doing. In none of them was the question presented as it appears in this record, where there is a direct application to recall the letters issued to the petitioner and set aside her qualification, on allegations with supporting evidence that she was at the time mentally and physically disqualified from attending to the business in hand or having any intelligent concept of what she was about. See In re Shuford's Will, 164 N.C., 132, and cases cited. We are, of course, making no comment on the truth or probability of petitioner’s statement one way or the other. That is entirely a matter for the appellate court who may be called on to review the action of the clerk. But we are of opinion, as stated, that the evidence offered must be considered and the matter determined thereon as the right and justice of the case may require. This will be certified that the judgment dismissing the petition be set aside and the cause further heard on the competent evidence offered. Reversed.