Casstevens v. Wagoner , 99 N.C. App. 337 ( 1990 )

392 S.E.2d 776 (1990) 99 N.C. App. 337

Hughie CASSTEVENS, Nellie Wiles Talley, Lola Wiles Buelin, Wesley Gene Wiles and Rufus Lee Wiles, Plaintiffs-Appellants,
v.
Nellie S. WAGONER and Harvey L. Wagoner, Defendants-Appellees.

No. 8923SC1280.

Court of Appeals of North Carolina.

July 3, 1990.

Franklin Smith, Elkin, for plaintiffs-appellants.

Shore, Hudspeth and Harding by N. Lawrence Hudspeth, III, Yadkinville, for defendants-appellees.

WELLS, Judge.

A single issue, which we raise ex mero motu, is dispositive of this appeal, namely, whether the trial court had subject matter jurisdiction over this action. We determine that it did not, and we therefore vacate the judgment entered.

It is well established that a caveat is a proceeding in rem to attack the validity of a will. In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555 (1948); see also Wiggins, North Carolina Wills (2d ed.), § 124. The right to contest a will by caveat is conferred by statute, is in derogation of the ancient common law right to dispose of property by will at death, and thus the statutory provisions setting forth the procedures to be followed in caveat proceedings must be strictly construed. In re Will of Winborne, 231 N.C. 463, 57 S.E.2d 795 (1950). "No caveat is properly constituted until the statutory requirements are met." Id. An attack upon a will offered for probate must be direct and by duly initiated caveat; a collateral attack on the will's validity is not permitted. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965). Absent properly instituted caveat proceedings, the superior court has no jurisdiction to pass upon the validity of a will as an incident of its civil jurisdiction to determine questions concerning title to realty. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950).

The procedures for perfecting jurisdiction in caveat proceedings are set forth at G.S. § 31-32, et seq; see also In re Will of Hester, 84 N.C.App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987). A caveat must be initiated by appropriate filing with the clerk of superior court. N.C.Gen.Stat. § 31-32. Upon the due posting of the statutory bond, "the clerk shall transfer the cause to the superior court for trial." Id. § 31-33 (Emphasis added). Although it is often stated that, "[w]hen a caveat is filed the Superior Court acquires jurisdiction of the whole matter in controversy," In re Will of Charles, supra (and cases cited therein), such a pronouncement does not alter the affirmative statutory requirement that caveat proceedings can only be instituted by due filing of the cause before the clerk of superior court. In re Will of Winborne, supra. When a purported caveat is fatally defective from its inception, the superior court acquires no jurisdiction over the cause. See Matter of Lamb's Will, 303 N.C. 452, 279 S.E.2d 781 (1981).

The record is devoid of any indication that plaintiffs filed an appropriate caveat before the clerk of superior court or that the cause was duly transferred to the superior court in compliance with G.S. § 31-32 and G.S. § 31-33. Instead, it is obvious that plaintiffs attempted to initiate these purported caveat proceedings directly in the superior court as part of their attack on the validity of the 1979 deed. The trial court thus had no subject matter jurisdiction to determine the question of the will's validity. Moreover, it is equally clear that any standing these plaintiffs might have to challenge the validity of the 1979 deed is predicated on their purported status as heirs of the decedent, having a legally cognizable interest in the alleged intestate estate. See Kelly v. Kelly, 241 N.C. 146, 84 S.E.2d 809 (1954); see also Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448 (1950). Under the terms of the 1971 will, however, plaintiffs would take nothing, and consequently they would have no legal interest in the decedent's estate and no standing to challenge the validity of the deed. Id. It is therefore inescapable that this action is in every respect an impermissible collateral attack on the validity of the 1971 will, incident to an attack on the validity of the 1979 deed. Brissie v. Craig, supra.

For the reasons stated, the judgment of the trial court must be vacated and this case remanded to the Yadkin County Superior Court for entry of an order dismissing plaintiffs' action.

Vacated and remanded.

PARKER and DUNCAN, JJ., concur.