Burchett v. Mason , 233 N.C. 306 ( 1951 )

63 S.E.2d 634 (1951) 233 N.C. 306

BURCHETT et al.
v.
MASON et al.

No. 162.

Supreme Court of North Carolina.

March 7, 1951.

Banzet & Banzet, Warrenton, J. C. Cooper, Jr., Henderson, and William W. Taylor, Jr., Warrenton, for petitioners, appellants.

Perry & Kittrell, Blackburn & Blackburn and A. A. Bunn, all of Henderson, for respondents, appellees.

STACY, Chief Justice.

The present proceeding can be sustained only upon the holding that the will of Spottswood Mason is void for vagueness and uncertainty in the description of the different properties therein attempted to be devised. Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723, and cases cited. Of course, a nullity may be upset by direct or collateral attack, ignored, disregarded, or treated as ineffectual, anywhere at any time. Ex nihilo nihil fit is one maxim that admits of no exceptions. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283.

The paper writing in question was probated in common form as the will of the deceased soon after his death in 1922. It is not now, after the lapse of 27 years, subject to caveat or collateral attack. G.S. § 31-32; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897. If it fall, it must fall of its own infirmity.

The trial court was correct in holding that the will as probated is controlled by the principles announced in Caudle v. Caudle, 159 N.C. 53, 74 S.E. 631; also in Hodges v. Stewart, supra; and that the petitioners are estopped to question its validity by reason of their participation in the proceeding to sell the timber in 1949. In re Will of Averett, 206 N.C. 234, 173 S.E. 621; In re Will of Lloyd, 161 N.C. 557, 77 S.E. 955; Rand v. Gillette, 199 N.C. 462, 154 S.E. 746; Southern Distributing Co. v. Carraway, 196 N.C. 58, 144 S.E. 535. Having so held, however, the proceeding should have been dismissed rather than remanded to the Clerk, who has no authority to construe the will. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330. Nor is the will presently before us for construction. It will be time enough for us to speak, if need be, after the trial court has expressed its opinion. Fuquay v. Fuquay, 232 N.C. 692, 62 S.E.2d 83. The petitioners qua heirs have no interest in the matter. Only as devisees are they entitled to be heard.

The will itself provides the modus operandi for division of the property among the respective devisees. The dominate intent of the testator was to leave his real estate—"my tract of land" as he described it and he had only one tract— to the objects of his bounty for the periods specified and in the respective amounts designated. The fact that some adjustment is required in the exact acreage to be apportioned to each of the first remaindermen presents no insuperable barrier such as to render the devise inoperative and void. Freeman's Heirs at Law v. Ramsey, 189 N.C. 790, 128 S.E. 404; Blanton v. Boney, 175 N.C. 211, 95 S.E. 361; Wright v. Harris, 116 N.C. 462, 21 S.E. 914; Harvey v. Harvey, 72 N.C. 570; Grubb v. Foust, 99 N.C. 286, 6 S.E. 103; Jones v. Robinson, 78 N.C. 396; Annotation 157 A.L.R. 1129, loc. cit. 1135. There is no question of the validity of the devise to the first taker.

Proceeding dismissed.