In Re Charles'will

139 S.E.2d 588 (1965)

263 N.C. 411

In the Matter of the WILL of Faith N. CHARLES.

Nos. 400, 401.

Supreme Court of North Carolina.

January 15, 1965.

*591 Ralph E. Goodale, Hinton G. Hudson, Jr., Winston-Salem, for appellant First Union Nat. Bank, guardian of Terry Douglas Charles.

Elledge & Mast, by David P. Mast, Jr., Winston-Salem, for appellee Elizabeth T. Long.

HIGGINS, Justice.

The attorneys and judges in two separate proceedings have attempted to determine which of three scripts, or what combination of them, is the last will of Faith N. Charles. The Clerk of Superior Court as ex officio Judge of Probate has jurisdiction to take proof of wills and issue letters testamentary or of administration thereon. As Judge of Probate he has the sole power in the first instance to determine whether a decedent died testate or intestate and whether a script offered for probate is his will. Walters v. Baptist Children's Home of North Carolina, 251 N.C. 369, 111 S.E.2d 707; Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330; Hutson v. Sawyer, 104 N.C. 1, 10 S.E. 85.

When a paper writing purporting to be a will is presented to the Judge of Probate he takes proof with respect to its execution. If found in order the script is admitted to probate in common form as a will. Thus far the proceeding is ex parte. It stands as the testator's will, and his only will, until challenged and reversed in a proper proceeding before a competent tribunal. The challenge must be by caveat and be heard in the Superior Court. 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. The attack must be direct and by caveat. A collateral attack is not permitted. In Re Will of Cooper, 196 N.C. 418, 145 S.E. 782. Offering another will for probate in another proceeding is a collateral and not a direct attack. In Re Will of Puett, 229 N.C. 8, 47 S.E.2d 488. Any interested person may challenge the will and contest its validity by filing a caveat setting forth the grounds of the challenge. Upon the filing of the caveat the proceeding is transferred to the civil issue docket for trial before a jury. Upon this transfer, notice is given to all interested persons of the challenge, giving them an opportunity to enter and participate in the proceedings to the end that the court may determine whether the decedent left a will and, if so, whether any of the scripts before the court is the will. The "proceeding [is] in rem in which the court pronounces its judgment as to whether * * * the res, i. e., the script itself, is the will of the deceased. In re Hinton's Will, 180 N.C. 206, 104 S.E. 341." Brissie v. Craig, supra. The will is the res. The last will may consist of one or more written instruments. In a caveat proceeding any interested person may present to the court any script which is material to the issue whether there is a will, and if so, what is it? In Re Will of Marks, 259 N.C. 326, 130 S.E.2d 673, 675; In Re Will of Covington, 252 N.C. 546, 114 S.E.2d 257; In Re Will of Hine, 228 N.C. 405, 45 S.E.2d 526.

When a caveat is filed the Superior Court acquires jurisdiction of the whole matter in controversy. Morris v. Morris, *592 245 N.C. 30, 95 S.E.2d 110; In Re Will of Wood, 240 N.C. 134, 81 S.E.2d 127; In Re Will of Morrow, 234 N.C. 365, 67 S.E.2d 279; In Re Will of Brock, 229 N.C. 482, 50 S.E.2d 555; Wright v. Ball, 200 N.C. 620, 158 S.E. 192; Faison v. Williams, 121 N.C. 152, 28 S.E. 188. 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.

In the light of the foregoing rules and authorities, the conclusion follows that the court committed error in refusing the appellant's petition to intervene in the caveat proceeding and to assert that Faith N. Charles on October 1, 1962, executed a valid will leaving all her property to Terry Douglas Charles; and further, that the script dated November 15, 1962, and made a part of the original caveat, was not a valid will for the reasons assigned in the petition. In Re Will of Belvin, supra. The court should have allowed the petition and permitted the appellant to present to the jury the script dated October 1, 1962, together with evidence relating to its validity as a will; and likewise should have permitted it to offer evidence relating to the invalidity of the script dated November 15, 1962. In Re Will of Marks, supra. However, the appellant did not except to the denial of its petition and did not appear further in the caveat proceedings. It did not attempt to offer evidence nor to except to the judgment.

Although the verdict and judgment were entered in term on September 23, 1963, without objection or exception, or notice of appeal, the present guardian of Terry Douglas Charles, appellant herein, filed a motion on March 23, 1964, to set aside the verdict and judgment "as void or erroneous because the court excluded from consideration over the objection of the movant, of the will dated October 1, 1962." We must say the record fails to show such objection or exception. If exception had been taken and preserved, an assignment of error based thereon would be good.

At the April Session, 1964, on caveator's motion, Judge McConnell entered judgment on the pleadings, sustaining propounder's plea of res judicata by reason of the judgment and verdict and held that they constituted a valid defense to the appellant's motion. The appellant took timely exception to that order.

Judge McConnell committed error in holding the judgment entered by Johnston, J., is res judicata with respect to establishing the validity of the script dated 11-15-62 as the last will of Faith N. Charles. It is true the jury so found, but the court did not so adjudge. The court only adjudged that the paper writing dated January 7, 1959, was not her will. Beneficiaries under that script did not appeal. The judgment is res judicata as to them and eliminates Exhibit No. 3662. Exhibit No. 3966 was adjudged to be the will in the probate court order of September 25, 1963. It then became subject to caveat.

The procedures followed in the probate court and in the Superior Court upon caveator's motions induced the appellant to believe that Exhibit 3966 was not offered for probate in the caveat proceeding but was offered solely for the purpose of showing the revocation of the script dated January 7, 1959. Appellant, at the time of its petition to intervene was denied, had been led to believe that its remedy was to challenge Exhibit 3966 at the time of, or after its probate in common form then pending in the probate court in which the script had been filed since January 2, 1963.

The probate in common form order was entered on September 25, 1963. The appellant has three years in which to file a caveat. This long discussion is designed to disclose sound legal reason why the appellee may not now go back before the Superior Court and move for and obtain a judgment that the script dated November 15, 1962, was probated in solemn form by reason of the jury's finding on Issue No. 4.

The judgment sustaining the plea of res judicata or that the appellant has lost its right to proceed as indicated is

Reversed.