In the Matter of Will of Parker , 76 N.C. App. 594 ( 1985 )

Judge PHILLIPS

concurring in the result.

Though I agree with the result reached by the majority I do not agree with some of the things said in getting there. That G.S. 31-34 applies to caveators who institute actions that contest wills could not be clearer in my opinion. It forthrightly states that when “any action is instituted to contest a will” that the Clerk will require the same prosecution bond that is required in other civil actions, which is $200, of course, except for paupers and governmental agencies. G.S. 1-109. An action to contest a will is certainly instituted when a caveat is filed to a will that is being probated in common form before the Clerk of Superior Court. “A proceeding to contest a will is begun by filing a caveat or objection to probate with the Clerk of the Superior Court, . . .” Brissie v. Craig, 232 N.C. 701, 704, 62 S.E. 2d 330, 333 (1950). Before a caveat is filed such a probate is an informal, ex parte proceeding for the Clerk to determine; after the caveat is filed and the statutory bond is given the probate is a full-blown contested lawsuit under the control of the trial court. G.S. 31-33. Under the hybrid procedure that governs the litigation of will cases, who technically or theoretically is the plaintiff or has the burden of proof, as discussed in the majority opinion, has nothing to do with the problem, in my view. G.S. 31-34 requires a prosecution bond of whoever institutes an action to contest a will, and since this action was instituted by the caveator she is subject to the statute and requiring her to furnish the usual $200 cost bond was authorized. Which is not to say that G.S. 31-34 does not also apply to propounders in appropriate cases, for I think it does, but that question is not before us since the propounder did not institute this action.