Matter of Will of Calhoun , 47 N.C. App. 472 ( 1980 )

267 S.E.2d 385 (1980)

In the Matter of the WILL of John R. CALHOUN, Deceased.

No. 8012SC184.

Court of Appeals of North Carolina.

July 1, 1980.

A. Maxwell Ruppe, Fayetteville, for caveator-appellant.

Pope, Reid, Lewis & Deese by Marland C. Reid, Fayetteville, for propounder-appellees.

ERWIN, Judge.

The record on appeal presents one issue for our determination: whether the trial court erred in dismissing the caveat of Oxford Orphanage on the ground that it had no standing pursuant to G.S. 31-32. We find no error in the judgment entered and affirm the trial court.

G.S. 31-32 provides in pertinent part:

"§ 31-32. When and by whom caveat filed.—At the time of application for probate of any will, and the probate thereof in common form, or at any time within three years thereafter, any person entitled under such will, or interested in the estate, may appear in person or by attorney before the clerk of the superior court and enter a caveat to the probate of such will: Provided, that if any person entitled to file a caveat be within the age of 18 years, or insane, or imprisoned, then such person may file a caveat within three years after the removal of such disability."

The caveator concedes that it is not directly entitled to take under the Last Will and Testament or the codicil to the will of John R. Calhoun, but is one of the potential ultimate beneficiaries under the 1975 Last Will and Testament of Lena Calhoun, wife of John Calhoun. The only way that caveator can be successful and receive any benefits from the estate of Lena Calhoun, the following must occur: (1) A court and jury must find that the 26 January 1979 codicil to the Last Will and Testament of John Calhoun is in fact not a codicil to the said Last Will and Testament. (2) Lena Calhoun actually took the estate of her husband in fee simple by reason of his Last Will and Testament dated 1 June 1978, which would only occur if the codicil was found to be invalid. (3) A court and jury must find that the 1 June 1978 Last Will and Testament was in fact not Lena Calhoun's Last Will and Testament. (4) The Last Will and Testament of Lena Calhoun dated 28 April 1975 was in fact her Last Will and Testament. If all of these issues were found in the caveator's favor, it would take under Mrs. Calhoun's 1975 Last Will and Testament.

Our research reveals that a case similar in facts to the one before us has not been decided by our Supreme Court. Caveator calls our attention to In re Will of Belvin, 261 N.C. 275, 276, 134 S.E.2d 225 (1964), wherein our Supreme Court held:

"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." (Citations omitted.)

This Court held in In re Ashley, 23 N.C. App. 176, 208 S.E.2d 398, cert. denied, 286 N.C. 335, 210 S.E.2d 56 (1974), that under G.S. 31-32 which permits the contest of wills by persons interested or claiming to be interested in decedent's estate, the general rule is that a contestant must have some pecuniary or beneficial interest in the estate that is detrimentally affected by the will. Applying this rule, we must conclude that caveator does not come within the meaning of G.S. 31-32 as a person who has standing to caveat Mr. Calhoun's will. Caveator is not the purchaser and holder of land from the testator as was the case in In re Thompson, 178 N.C. 540, 101 S.E. 107 (1919). The caveator is a stranger to Mr. Calhoun's estate without any interest therein as contemplated by G.S. 31-32.

The judgment is affirmed.

Affirmed.

ARNOLD and HILL, JJ., concur.