In re the Will of Morrow

ValbNtiNe, J. In the court below the grounds upon which caveators relied were nonexecution, mental incapacity and undue influence. In order for propounder to be successful in this proceeding, he must prove that the paper writing propounded as a will was written in the testator’s lifetime, signed by him, or by some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, or the paper writing is ineffectual as a last will and testament and is not sufficient in law to give or convey any estate in real or personal property. Gr.S. 31-3. The answer “No” upon the first issue is determinative of this controversy. Therefore, the only question presented by this appeal is the validity of the verdict. This requires a discussion of the procedure necessary to establish the testamentary value of a document. Such a proceeding is usually initiated by the filing of a caveat, which is a proceeding in rem having as its only purpose the function of ascertaining whether the paper writing purported to be a will is in fact the last will and testament of the person for whom it is propounded. This initial pleading may be so drawn as to challenge all or any part of the will and issues must be submitted accordingly. McDonald v. McLendon, 173 N.C. 172, 91 S.E. 1017. In the instant case, the entire will was challenged and the court properly submitted the issues devisavit vel non, which drew into question the alleged will in toio. This constituted a demand that the alleged will be produced and probated in open court in term time, so that the parties interested, either under the paper writing or as heirs at law, could have an opportunity to attack it for the causes and upon the grounds set forth in the caveat. In such litigation the attack is upon the paper writing itself and a strict application of the law involved is necessary. The status of such a paper writing when drawn into question by a caveat must be determined by a jury’s verdict. In re Will of Chisman, 175 N.C. 420, 95 S.E. 769; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897. Neither the caveators nor the propounders can waive a jury trial nor submit the case upon an agreed statement of facts for determination by the court. The judge cannot upon an agreed statement of facts which is supplemented by his own findings upon evidence establish the validity of a will in solemn form without the intervention of a jury. A jury’s verdict is absolutely indispensable upon the issues “will or no will.” In re Will of Hine, 228 N.C. 405, 45 S.E. 2d 526; In re Will of Roediger, 209 N.C. 470, 184 S.E. 74. So exacting are the requirements of the law that neither the propounder nor the caveators can submit to a nonsuit, nor can a nonsuit be entered for any reason. In re Will of Brock, 229 N.C. 482, 50 S.E. 2d 555; In re Will of Hine, supra; In re Hinton, 180 N.C. 206, 104 S.E. 341; In re [369] Westfeldt, 188 N.C. 702, 125 S.E. 531; In re Will of Redding, 216 N.C. 497, 5 S.E. 2d 544. Tbe main complaint appearing in appellant’s brief and urged by Him •on this appeal revolves around the contention that the “court should have charged the jury to answer the first issue ‘Yes’ upon the evidence.” He contends that “the evidence of the formal execution of the paper writing-on July 22, 1948, is so overwhelming as to leave no question of doubt about it and there is no evidence tovthe contrary.” This argument overlooks the most important aspect of the case, that is, that the validity of the paper writing in question rests, in the first instance, upon its due execution as provided by law, and that the weight and credibility of the evidence offered for the purpose of showing due execution is for the jury to decide under appropriate instructions from the court. In re Fuller, 189 N.C. 509, 127 S.E. 549. It further fails to take into consideration the fact that the propounder has the burden of proving the formal execution of the will and that he must do so by the greater weight of the evidence. He must prove the paper writing per testes in solemn form. In re Hedgepeth, 150 N.C. 245, 63 S.E. 1025; In re Will of Rowland, supra; In re Will of Chisman, supra. The propounder failed to carry this burden. In what particulars he failed is not a matter for us to decide. It is exclusively the province of the jury to weigh the evidence and determine its credibility and sufficiency. In so doing, it has found that propounder’s evidence does not possess the probative quality necessary to warrant an affirmative answer to the first issue. Its verdict resolves the issue of due execution against the propounder and no reason appears on the record why this verdict should not stand. We have examined the entire record, including the charge of the court, and find no reversible error. The judgment of the lower court is upheld. No error. The motion of caveators to dismiss the appeal is denied.