In Re the Estate of Davis

176 S.E.2d 825 (1970) 277 N.C. 134

In the Matter of the ESTATE of Nancy S. DAVIS, Deceased.

No. 29.

Supreme Court of North Carolina.

October 14, 1970.

Van Winkle, Buck, Wall, Starnes & Hyde, by Herbert L. Hyde and Larry McDevitt, Asheville, for appellant Northwestern Bank, Executors of Nancy Smith Davis.

Shuford, Frue & Sluder, Asheville, for appellant Dr. Mark A. Griffin.

Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, and McElwee & Hall, North Wilkesboro, by Welch Jordan and Edward L. Murrelle, Greensboro, for appellees.

LAKE, Justice.

Upon this appeal, we do not reach and we express no opinion upon any of the following questions:

(1) Is the Iredell will the last will and testament of Nancy S. Davis?

(2) If so, does it incorporate by reference the trust agreement executed by Dr. James W. Davis, and the amendments thereto?

(3) What is the effect of the Iredell will?

(4) Is the Buncombe will the last will and testament of Nancy S. Davis?

(5) What is its effect?

(6) Was Nancy S. Davis, at the time of her death, domiciled in or a resident of Iredell County?

(7) Was Nancy S. Davis, at the time of her death, domiciled in or a resident of Buncombe County?

The sole question for our determination at this time is, Did the Clerk of the Superior Court of Buncombe County have, on 17 July 1969, jurisdiction to order the Buncombe will admitted to probate and to issue letters testamentary to the Northwestern Bank?

A document having been admitted to probate as the last will and testament of a decedent, the subsequent offer to the same or another court of another document for probate as a later and, therefore, the last will and testament of the decedent is a collateral attack upon the probate of the first document. In Re Will of Puett, 229 N.C. 8, 47 S.E.2d 488; Wiggins, Wills & Administration of Estates in North Carolina, § 113. "It is well settled that a judgment or decree admitting a will to probate, when made by a court having jurisdiction thereof, may be attacked only in such direct proceedings as are authorized by statute, and that it is not open to attack or impeachment in a collateral proceeding." Edwards v. White, 180 N.C. 55, 103 S.E. 901. Accord: Tyer v. J. B. Blades Lumber Co., 188 N.C. 274, 124 S. E. 306; Starnes v. Thompson, 173 N.C. 466, 92 S.E. 259; Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20; Fann v. North Carolina R. R. Co., 155 N.C. 136, 71 S.E. 81. Conversely, if the record of the probate proceeding shows affirmatively, upon its face, that the court had no jurisdiction to enter the order of probate and issue the letters testamentary, its order so doing is void and may be attacked collaterally. Jones v. Warren, 274 N.C. 166, 161 S.E.2d 467; Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110.

A clerk of the Superior Court has jurisdiction to probate a will only in accordance with the applicable statute. Jones v. Warren, supra; In Re Will of Puett, supra. However, a showing, by evidence outside the record of the probate proceeding, of irregularities in the proceeding and of errors by the clerk in his findings of fact, or in his failure to follow the probate procedure prescribed by statute, will not subject the order of probate and the issuance of letters testamentary to collateral attack. Edwards v. White, supra, 180 N.C. at p. 57, 103 S.E. 901; Starnes v. Thompson, supra, 173 N.C. at p. 470, 92 S.E. 259; Fann v. North Carolina R. R. Co., supra. It is only when the record of the probate proceeding shows affirmatively, on its face, that the clerk has no jurisdiction to enter his order that the order can be attacked in another proceeding in another court. Mere failure of the record of the probate proceeding to show jurisdiction in the clerk is not sufficient to subject his order to collateral attack since, in the silence of the record, it is presumed that the jurisdictional facts were present and found. Edwards v. White, supra; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240; Starnes v. Thompson, supra, 173 N.C. at p. 468, 92 S.E. 259. "Every court, where the subject matter is within its jurisdiction, is presumed to have done all that is necessary to give force and effect to its proceedings, unless there is something on the face of the proceedings to show the contrary." Marshall v. Fisher, 46 N.C. 111. In the Marshall case, the minute of the probate entered by the clerk was: "The will of Roger Bratcher, proved by Henry Sykes. Executor Thomas Bratcher qualified; ordered, that letters issue." This Court said, "This entry is very informal, but we think it is sufficient, by the aid of the rule omnia praesumuntur rite esse acta, to show that the will was duly proven."

G.S. § 28-1 provides:

"The clerk of the superior court of each county has jurisdiction, within his county, to take proof of wills and to grant letters testamentary * * * in the following cases:

"(1) Where the decedent at, or immediately previous to, his death was domiciled in the county of such clerk, in whatever place such death may have happened.

"(2) Where the decedent at his death had places of residence in more than one county, the clerk of any such county has jurisdiction. * * *"

Obviously, it is possible that Nancy S. Davis, at death, could have been domiciled in Iredell County and also had a place of residence in Buncombe County or vice versa, in which event her will might have been lawfully probated in either county, nothing else appearing. Provision is made for such a situation in G.S. § 28-2 which provides, "The clerk who first gains and exercises jurisdiction under this chapter thereby acquires sole and exclusive jurisdiction over the decedent's estate."

It is not questioned that Nancy S. Davis, at the time of her death, was domiciled in and resided in the State of North Carolina. That being true, it is well settled that her domicile or residence, at the time of her death, in the county of the clerk who undertakes to admit a document to probate as her will, and to issue letters testamentary, is essential to the jurisdiction of that clerk so to do. In Re Estate of Cullinan, 259 N.C. 626, 131 S.E.2d 316; Reynolds v. Lloyd Cotton Mills, supra; Johnson v. Corpenning, 39 N.C. 216; Collins v. Turner, 4 N.C. 541. Thus, if, at the time of her death, Nancy S. Davis was not domiciled in or a resident of Iredell County, the orders of the clerk of that county, admitting the Iredell will to probate and issuing letters to the administrator c. t. a. were void and should be vacated by a court competent to do so. Conversely, if, at her death, Nancy S. Davis was either domiciled in or had a place of residence in Iredell County, the clerk of that county had authority, upon proper application and proof, to admit a document to probate as her will and, through the exercise of such authority by the admission of the documents to probate, his jurisdiction over the estate became exclusive. The subsequent discovery and presentation for probate of another document, executed later, as the last will of the decedent, would not deprive the Clerk of Iredell County of the exclusive jurisdiction previously so acquired.

The question for decision upon this appeal, therefore, narrows to this: Which court is now the proper court to determine whether Nancy S. Davis, at the time of her death, was domiciled in or had a place of residence in Iredell County? The above mentioned presumption compels the conclusion that the Clerk of the Superior Court of Iredell County is the only court which can now determine this question, unless it affirmatively appears upon the face of the record of the probate proceeding before him that he did not have jurisdiction to probate the Iredell will as the will of Nancy S. Davis.

The record before us does not contain all of the evidence introduced before the Clerk of the Superior Court of Buncombe County at the hearing of the motion to vacate the order probating the Buncombe will. The order of the Clerk of the Superior Court of Buncombe County denying that motion recites that the movant presented "certain documentary evidence" and that the Northwestern Bank, in opposition to the motion, presented "certain documentary evidence and the testimony of numerous witnesses."

In his order denying the motion, the Clerk found as a fact:

"3. On the 21st day of August, 1969, the Clerk of the Superior Court of Iredell County issued Letters of Administration, c. t. a. d. b. n., to North Carolina National Bank as Administrator, c. t. a. d. b. n., of Nancy Smith Davis, and although no certified copies of the Order of Probate were introduced into evidence, the undersigned finds that on the 8th day of July, 1969, Clerk of the Superior Court of Iredell County admitted to probate a paper writing without subscribing witnesses purporting to be the Last Will and Testament of Nancy S. Davis."

In this order the Clerk made no other finding of fact with reference to the record of the probate proceeding in Iredell. The evidence before him not being set out in full in the record before us, we presume that the above quoted finding of fact was supported by evidence admitted properly, or without objection. The parties, throughout this proceeding, have treated the finding above quoted as correct.

If we assume, as seems reasonable, that the "documentary evidence" offered before the Clerk of the Superior Court of Buncombe County by the North Carolina National Bank, Administrator, c. t. a., in support of its motion, included the exhibits attached to its motion, such evidence included the Iredell will, the order of probate thereof in Iredell County and the letters of administration, c. t. a., issued by Iredell County, which documents, so far as appears from the record before us, constituted the entire record of the probate proceeding in Iredell County.

It does not appear on the face of these papers that Nancy S. Davis was not domiciled in or a resident of Iredell County at the time of her death. On the contrary, the Iredell will contains the heading "North Carolina Iredell County," and its introductory paragraph states, "I, Nancy Smith Davis, of the aforesaid county and State * * * do make and declare this my Last Will and Testament." The document probated as the will of Mrs. Davis is part of the record of the probate proceeding. Marshall v. Fisher, supra. In Reynolds v. Lloyd Cotton Mills, supra, the record contained the application for letters which recited that "James Scism, late of said county of Lincoln is dead, intestate, etc." This Court said: "We must take this to mean that he was domiciled in Lincoln county, and thus construed, it shows the proper domicile. The language used was not very apt, but is sufficient by fair construction to show domicile at least prima facie. * * * It results, therefore, that the direct proceeding to recall the letters was the proper one." See also, Wiggins, op. cit., supra, § 114. The Iredell order of probate, itself, states nothing as to the residence or domicile of Nancy S. Davis. The letters of administration, c. t. a., issued by the Clerk of the Superior Court of Iredell County, referred to Nancy S. Davis as "late of said County." Thus, there is nothing whatever upon the face of the record of the probate proceeding in Iredell County to suggest that the Clerk of the Superior Court of that county did not have jurisdiction because of the residence or domicile of the decedent.

The appellants contend that a fatal defect appears on the face of the probate proceeding in Iredell County in that the order of probate recites that the document probated was exhibited for probate by "Dr. J. S. Holbrook, Chairman Board, James W. Davis Foundation, one of the executors therein named," whereas the document probated names as executor only the decedent's husband, Dr. James W. Davis. G.S. § 31-12 provides that an executor named in a will may, at any time after the death of the testator, apply to the clerk having jurisdiction to have the document admitted to probate. G.S. § 31-13 provides that if no executor so applies within sixty days after the death of the testator, any devisee or legatee named in the will, or any other person interested in the estate, may make such application upon ten days' notice to the executor. In the motion to vacate the probate order issued by the Superior Court of Buncombe County, it is alleged that Dr. James W. Davis died on 31 May 1955. Nothing in the record before us controverts this allegation. Northwestern Bank, in its brief, states the death of Dr. Davis on that date is a matter of public record in Iredell County. Where the only executor named in the will has died before the testator, G.S. § 31-13 does not require another person "interested in the estate" to wait sixty days before applying to the clerk for the probate of the will.

It does not affirmatively appear upon the order of probate issued by the Clerk of the Superior Court of Iredell County that Dr. J. S. Holbrook was not a person interested in the will. It is obvious from G.S. § 31-13 that this classification includes persons who are neither devisees nor legatees. It is broad enough to include even a person whose interest in the estate is in opposition to the will. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330. The designation of the person who exhibited the document for probate as "one of the executors therein named," though inaccurate, is not an affirmative showing that he was not a "person interested in the estate" and, therefore, does not show affirmatively that the document was presented for probate by a person not authorized by the statute to do so.

Finally, the appellants contend that the document probated in Iredell County was, itself, invalid as a will and, therefore, the order admitting it to probate is void on its face. The Iredell will devised and bequeathed all of the testatrix' property to her husband, Dr. James W. Davis, and then provided that if he should predecease the testatrix all of the property "shall go to the James W. Davis Trust Fund * * * under the terms and conditions of this trust fund." The appellants contend that Dr. Davis having predeceased the testatrix, the only dispositive provision in the will is the gift to the James W. Davis Trust Fund, which the appellants contend cannot take effect because that trust fund was created by an instrument not in the handwriting of the testatrix and so incapable of being incorporated by reference into the document probated as a holograph will. As above stated, we do not reach upon this appeal the question of whether the Iredell will incorporates by reference the trust agreement as amended. The fact that a devise and bequest of all of the property of the testatrix has lapsed, due to the death of the devisee-legatee, and that a gift over cannot be given effect (assuming, without deciding, that this is true in this instance), does not make the document and the order admitting it to probate void upon the face thereof.

Consequently, the order of the Clerk of the Superior Court of Iredell County admitting the Iredell will to probate and his issuance of letters of administration, c. t. a., cannot be attacked collaterally but may be attacked only in a proceeding brought for that purpose before the Clerk of the Superior Court of Iredell County. By the entry of his order admitting the Iredell will to probate, he acquired full and exclusive jurisdiction not merely over the carrying out of that document but over the estate of Nancy S. Davis. G.S. § 28-2. This jurisdiction continues until vacated by a direct attack thereon.

The appellants, if so advised, may file their motion with the Clerk of the Superior Court of Iredell County to vacate his order admitting the Iredell will to probate on the ground that he was without such jurisdiction to enter such order because Nancy Smith Davis was, at the time of her death, domiciled in and a resident of Buncombe County only or by reason of any other circumstance which, in the opinion of the appellants, prevented the Clerk of the Superior Court of Iredell County from having jurisdiction to enter his order admitting the Iredell will to probate. When jurisdictional requirements for probate are shown to be lacking, the clerk may revoke his order admitting the document to probate. Ravenel v. Shipman, 271 N.C. 193, 155 S.E.2d 484.

If the appellants succeed in this endeavor, the way is then clear for them (or those relying upon the Iredell will) to offer for probate in Buncombe County the document they assert to be the last will and testament of Nancy Smith Davis. If the appellants fail in such attack upon the jurisdiction of the Clerk of the Superior Court of Iredell County they may, if so advised, file, within the time allowed therefor, a caveat to the Iredell will upon the ground that it was revoked by the Buncombe will or upon any other ground which they deem applicable, and, if successful therein, then file the Buncombe will for probate in Iredell County.

The judgment of the Court of Appeals is affirmed.

Affirmed.

HIGGINS and HUSKINS, JJ., took no part in the consideration or decision of this case.