In Re the Will of Belvin , 261 N.C. 275 ( 1964 )

134 S.E.2d 225 (1964) 261 N.C. 275

In the Matter of the WILL of Lee D. BELVIN, Deceased.

No. 668.

Supreme Court of North Carolina.

January 31, 1964.

Charles B. Nye and Winders & Mitchell, by R. Roy Mitchell, Jr., Durham, for caveator appellants.

Everett, Everett & Everett by Katherine R. Everett, Hofler, Mount & White, by L. H. Mount, Durham, and McLendon, Brim, Holderness & Brooks, by L. P. McLendon, Sr., Greensboro, for respondent appellees.

RODMAN, Justice.

The right to contest the validity of a writing offered for probate or probated in common form is by statute, G.S. § 31-32, limited to "any person entitled under such will, or interested in the estate."

Appellees maintain this language excludes all who would benefit by a prior testamentary disposition unless they were (1) heirs of the deceased, or (2) named as beneficiaries in the writing they seek to nullify. The court accepted appellees' interpretation of the statute. This, we think, unduly restricts the phrase "interested in the estate." If caveators can establish their allegations of undue influence and lack of mental capacity, the writing which has been probated in common form is not the will of deceased, but proof of that fact alone does not establish their right to take a part of the estate. To establish their interest in the estate they allege they are beneficiaries under the will of deceased made at a time when he possessed mental capacity. If the facts be as caveators allege, they are interested in the estate of Lee D. Belvin. In re Thompson, 178 N.C. 540, 101 S.E. 107; Parsons v. Leak, 204 N.C. 86, 167 S.E. 563; In re Arbuckle's Estate, 98 Cal. App. 2d 562, 220 P.2d 950, 23 A.L.R. 2d 372; Challiner v. Smith, 396 Ill. 106, 71 N.E.2d 324; In re Ash's Estate, 351 Pa. 317, 41 A.2d 620; Werner v. Frederick, 68 App.D.C. 158, 94 F.2d 627; Re Plaut, 27 Cal. 2d 424, 164 P.2d 765, 162 A.L.R. 837; In re Parker's Estate, 268 Mich. 79, 255 N.W. 318; Kennedy v. Walcott, 118 Ohio St. 442, 161 N.E. 336; Ruth v. Krone, 10 Cal. 770, 103 P. 960; Smith v. Chaney, 93 Me. 214, 44 A. 897; Annotations 88 A.L.R. 1158 et seq.; 57 Am.Jur. 552; 95 C.J.S. Wills § 329, p. 176.

The court not only held caveators did not have such interest in the estate as permitted them to test the validity of the writing dated in 1962, but assigned as an additional reason for dismissing the proceeding the fact that the Superior Court did not have original jurisdiction to probate a will.

Caveators do not controvert the court's statement that original jurisdiction of proceedings to probate a will is vested in the clerk. G.S. § 28-1. Their position is they complied with the requirement of the statute. They not only informed the clerk they wanted to probate as Mr. Belvin's will a paper writing dated in 1939, but furnished the clerk with a copy of that will. They ask that all interested parties be given notice. They ask that that paper be adjudged a will. Hence what they sought was to have that instrument probated in solemn form.

Prior to the adoption of the present Constitution, the courts of pleas and quarter sessions were given original jurisdiction of probate proceedings. R.C., c. 119, s. 13. When a caveat was filed, that court submitted the necessary issues to a jury. R.C., c. 119, s. 15. Now, when a caveat is filed and bond given, the clerk does not take testimony. He submits no issue to the jury, but immediately transfers the cause to the Superior Court in term. G.S. § 31-33. The Superior Court submits to a jury issues necessary to determine the validity of the instrument asserted to be the will of deceased.

The court erred in concluding the Superior Court did not have jurisdiction to determine the question transmitted to that court by the clerk as he was required to do by G.S. § 31-33. In re Will of Wood, 240 N.C. 134, 81 S.E.2d 127; Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110; In re Will of Marks, 259 N.C. 326, 130 S.E.2d 673; Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576; Re Kalskop's, Will, 229 Wis. 356, 281 N.W. 646, 282 N.W. 587, 119 A.L.R. 1094.

Reversed.