In re the Will of Burton

Denny, E.J. The appellant assigns as error finding of fact No. 1, to the effect that all parties in interest hereto have been “properly notified and are properly before this court.” It appears the order entered in the Superior Court at the 2 August Session 1965 of Davie County included the following: “That the parties in this cause be notified of this order, and further, that the following persons who may be interested under the will tendered by the said Berrie Lee Bailey, viz: Richard Bailey, Franklin Bailey and Larry Bailey, be notified of the said order and that the matter be placed at the head of the calendar for trial at the next session of the Superior Court of Davie County * * * to determine whether or not the motion to set aside the verdict and judgment heretofore entered in this matter should be allowed.” When the matter came on for hearing at the October Session 1965 of the Superior Court of Davie County, Berrie Lee Bailey, Franklin Bailey, Richard Bailey and Larry Bailey were represented by counsel, and P. 0. Hargett, the executor under the probated will of Blanche C. Burton dated 21 March 1959, was represented by [732] counsel. The witnesses tendered by the movants were examined and cross-examined by the counsel for the respective parties, and the purported will dated 17 September 1959 was introduced in evidence. This hearing involved only the setting aside of the verdict and judgment entered at the April Session 1964 of the Superior Court of Davie County. In re Will of Cox, 254 N.C. 90, 118 S.E. 2d 17. At the time the motion was made to set aside the verdict and judgment entered at the April Session 1964, probating the will dated 21 March 1959 in solemn form, no one had any interest in this cause except the executor, P. 0. Hargett, and his wife, Vivian J. Hargett, and the movants. There is no contention that Vivian J. Hargett did not know of the pending motion. Moreover, her husband, P. O. Har-gett, who is executor under the probated will, which the movants seek to caveat, was represented by counsel at the hearing in August 1965 and at the hearing in October 1965 when the verdict and judgment probating the will in solemn form were set aside. Under our decisions “ * * (T) he grounds upon which a decree probating a will may be set aside, except in so far as they may be affected by statute, or the nature of the case, are in general the same as those available against other judgments. * * * “ ‘The proceedings for relief must be taken in the court in which the will was probated * * *. The procedure employed in this class of cases follows the rules governing judgments generally in similar cases, except as it may be affected by some special statutory provision, both as to the nature of the application and the time within which it should be made. * * * (N)or should the application be made by filing a caveat, but is ordinarily by motion or its equivalent rather than by petition, though as to this matter necessary showing may be proper. * * *’ ” In re Will of Cox, supra. In Cleve v. Adams, 222 N.C. 211, 22 S.E. 2d 567, this Court said: “The motion made in the original action to set aside the judgment * * *. presented questions of fact and not issues of fact. It was for the judge to hear the evidence, find the facts and render judgment thereon. Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311, and cases cited.” In our opinion this assignment of error is without merit and is overruled. The appellant also assigns as error finding of fact No. 6, as follows: “6. That the moving parties herein, and especially Berrie Lee Bailey, had no notice of the existence of a paper writing under which they might claim any rights in the estate of the said Blanche C. Burton, deceased, that they had no interest in the prior proceedings before his Honor, Judge Armstrong, and [733] that they moved with reasonable diligence following notice of the said existence of the said paper writing. That they knew of the proceedings but they would have had no interest in the estate of the said Blanche C. Burton, deceased, except by virtue of the paper writing herein referred to. That they were not parties to the said proceedings and took no part in its conduct.” The appellant contends there is no evidence upon which to base the foregoing finding of fact. We do not concur in this contention. The evidence tends to show that the paper writing dated 17 September 1959 is in the handwriting of Blanche C. Burton, that it was sealed in an envelope by her and delivered to Clarence Bailey some time before her death, with instructions to keep it and not open it until after she passed away; that Clarence Bailey, after his aunt’s death, delivered the envelope and its contents to C. W. Bland, Sr., the caveator of the first purported will. Clarence Bailey had conveyed all his right, title and interest in Blanche C. Burton’s estate to C. W. Bland, Sr. Bland, after reading the paper writing dated 17 September 1959, asked permission to show it to his lawyer; he was permitted to do so, and his lawyer placed it among the papers in his file in the caveat proceedings, and the beneficiaries under the second purported will never knew the contents of said paper writing until after the pending caveat proceedings had been concluded and judgment entered. In the caveat proceeding filed by C. W. Bland, Sr., these movants had no interest whatever, they were not interested parties within the meaning of our probate laws. They became interested parties only after the paper writing dated 17 September 1959 was discovered and its contents became known to them. This assignment of error is overruled. When a will is probated in solemn form it cannot be caveated a second time unless or until the verdict and judgment probating the will in solemn form is set aside upon a motion in the original cause, In re Will of Cox, supra, thereupon the will, if it was first probated in common form, still stands as the last will and testament until declared void in a direct proceeding in the nature of a caveat. G.S. 31-32; In re Will of Puett, 229 N.C. 8, 47 S.E. 2d 488, and cited cases. G.S. 31-5.1 provides in pertinent part as follows: “A written will, or any part thereof, may be revoked only (1) By a subsequent written will or codicil or other revocationary writing executed in the manner provided herein for the execution of written wills. * * *” The appellant assigns as error and contends that the court below erred in ruling “that the said paper writing (the one dated 17 September 1959) is in form sufficient to constitute the last will and testament of Blanche C. Burton.” [734] We do not deem it necessary to consider this assignment of error except to say that we express no opinion upon the merits of this controversy. The validity or invalidity of the will dated 17 September 1959 should be determined in a caveat proceeding in the Superior Court. G.S. 31-32; Brissie v. Craig, 232 N.C. 701, 62 S.E. 2d 330; In re Will of Ellis, 235 N.C. 27, 69 S.E. 2d 25; Wells v. Odum, 205 N.C. 110, 170 S.E. 145; Etheridge v. Corprew, 48 N.C. 14. It is said in Wiggins, North Carolina Wills, etc., Probate, sec. 113, p. 335, et seq: “A troublesome question which arises out of holding that a will previously admitted to probate must be set aside before the second will can be admitted to probate concerns the procedure to be followed once the first will is set aside. In North Carolina the clerk of the superior court is vested with exclusive original jurisdiction over the probate of wills. The superior court cannot, except upon the issue of devisavit vel non duly raised by a caveat, decide whether the instrument offered for probate is the last will of the deceased. If the first will is set aside, it is because there is a finding that the second instrument revoked the first, expressly or by implication. Is such a finding sufficient to constitute probate of the second will, i.e., can the caveators as a part of the probate proceeding offer to probate the second will, or must the second instrument first be offered for probate in the office of the clerk of the superior court? While it has generally been held that a will must first be offered for probate in the office of the clerk of the superior court, since he has exclusive original jurisdiction over the probate of wills, there is authority to the effect that a second will can be offered for probate in solemn form as a part of the caveat proceeding of the first will. Also, it has been held that the superior court could take jurisdiction over the probate of a second will where the caveators, prior to the first will’s being set aside, informed the clerk of the superior court of the existence of a will and requested that it be admitted to probate.” Citing In re Marks’ Will, 259 N.C. 326, 130 S.E. 2d 673; In re Belvin’s Will, 261 N.C. 275, 134 S.E. 2d 225. In the case of In re Will of Charles, 263 N.C. 411, 139 S.E. 2d 588, Higgins, J., speaking for the Court, said: “When a caveat is filed the Superior Court acquires jurisdiction of the whole matter in controversy. (Citations omitted.) Any other script purporting to be the decedent’s will should be offered and its validity determined in the caveat proceeding. In re Will of Belvin, 261 N.C. 275, 134 S.E. 2d 225; In re Will of Puett, 229 N.C. 8, 47 S.E. 2d 488.” [735] The court below having ordered the caveat theretofore filed by Berrie Lee Bailey transferred to the civil issue docket for trial, the judgment entered below is Affirmed. Moore, J., not sitting.