In Re the Last Will & Testament & First Codicil of Ashley , 23 N.C. App. 176 ( 1974 )

208 S.E.2d 398 (1974) 23 N.C. App. 176

In the Matter of the Last WILL and Testament and First Codicil of Sallie B. ASHLEY.

No. 7421SC710.

Court of Appeals of North Carolina.

October 2, 1974. Certiorari Denied December 3, 1974.

Hudson, Petree, Stockton, Stockton & Robinson by J. Robert Elster and Robert J. Lawing, Winston-Salem, for propounders appellees.

White & Crumpler by James G. White and Michael J. Lewis, Winston-Salem, for caveators appellants.

No counsel on appeal for North Carolina Baptist Homes, Inc.

Certiorari Denied by Supreme Court December 3, 1974.

HEDRICK, Judge.

The caveators contend the trial court erred in dismissing them as parties to this proceeding.

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

"§ 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 . . .." (Emphasis added.)

As can be seen from this statute, the only persons with standing to caveat a Will are persons either (1) "entitled under such will" or (2) "interested in the estate". None of the appellants are named in the Will or Codicil, and they do not contend that they are "entitled" under the Will or Codicil. The crucial question, therefore, is whether they are persons "interested in the estate".

"Under statutes which permit the contest of wills by persons interested or claiming to be interested in the decedent's estate, the general rule is that a contestant must have some pecuniary or beneficial interest in the estate of the decedent that is detrimentally affected by the will." 57 Am.Jur., Wills, § 798, p. 541 (footnotes omitted). In Page on Wills, we find the following:

"An ``interested person' or an ``aggrieved person' is one who has a direct pecuniary interest in the estate of the alleged testator which will be defeated or impaired if the instrument in question is held to be a valid will." 3 Page on Wills, § 26.52, p. 118 (footnotes omitted).

It is well settled that North Carolina follows this generally accepted definition of a person "interested in the estate". See In re Thompson, 178 N.C. 540, 101 S.E. 107 (1919).

In the present case, the caveators filed a "broadside" caveat before the Clerk as to both the Will and Codicil and the cause was transferred to the superior court for trial. The position taken by the caveators at that time did allege a pecuniary interest as required by the statute, in that if the Will and Codicil were both invalidated, they would share in the estate as intestate heirs. Prior to trial, however, this position was destroyed by the caveators' own stipulation that they did not contest the validity of the Will, which meant that even if they successfully invalidated the Codicil they still would receive no pecuniary benefit from the estate. By that time, North Carolina Baptist Homes, Inc., had responded in the superior court. It adopted the caveators' position with regard to the Codicil, but it likewise agreed that there was no contest as to the Will. Because of the appearance of North Carolina Baptist Homes, Inc., and the position taken by it, this cause will still have to be submitted to the jury on the issue of devisavit vel non.

A caveat is an in rem proceeding. The "parties" are not parties in the usual sense but are limited classes of persons specified by the statute who are given a right to participate in the determination of probate of testamentary script. It was for the trial judge to determine what persons fit the statutory description, and it was determined that the appellants did not. See In re Will of Belvin, 261 N.C. 275, 134 S.E.2d 225 (1964); In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555 (1948).

Just because a person files a caveat, he is not thereby vested with permanent standing to participate in the proceedings. The order appealed from is

Affirmed.

BRITT and BALEY, JJ., concur.