In Re Will of Spinks

173 S.E.2d 1 (1970) 7 N.C. App. 417

In re WILL of A. S. SPINKS, Deceased.

No. 7019SC126.

Court of Appeals of North Carolina.

April 1, 1970. Certiorari Denied May 12, 1970.

Respondent Lonnie A. Spinks appealed to the Court of Appeals.

Miller, Beck & O'Briant, by G. E. Miller, Asheboro, for respondent appellant.

Hoyle, Hoyle & Boone by T. C. Hoyle, Jr., and Harry Rockwell, Greensboro, for movants appellees.

MALLARD, Chief Judge.

Randolph County is in the Nineteenth Judicial District. District courts are to be established in Randolph County on the first Monday in December 1970; therefore, the provisions of G.S. § 7A-241, relating to the jurisdiction of the clerks of the superior court, and of G.S. § 7A-251, relating to appeals from the clerk of the superior court to the judge of the superior court, are not applicable in this case. G.S. § 7A-252.

Under the pertinent provisions of Chapter 28 of the General Statutes, which are applicable in this case, the authority to probate a will is vested in the clerk of the superior court; and in the exercise of his probate jurisdiction, the clerk is an independent tribunal of original jurisdiction. In re Will of Hine's, 228 N.C. 405, 45 S.E.2d 526 (1947).

Upon appeal from action taken by the clerk of the superior court, in the exercise of his probate jurisdiction, the jurisdiction of the superior court is derivative, and the provisions of G.S. § 1-276 are not applicable. In the case of In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967), the Supreme Court said:

"To say that the Superior Court has jurisdiction to hear a probate matter only upon an appeal from a final judgment entered below does not mean that the judge can review the record only to ascertain if there have been errors of law. He also reviews any findings of fact which the appellant has properly challenged by specific exceptions."

In this case, on the appeal by the movants from the order of the clerk of the superior court to the judge of the superior court, there were no specific exceptions taken to a failure to find facts or to the findings of fact that "the movants opened their evidence by offering the will for the purpose of showing that the same was not in the handwriting of the testator" and that "more than three years have elapsed since the order of probate was entered." The burden of proof on a motion to vacate a probate is on the movants to establish sufficient grounds to set aside the probate. In this case the clerk did not find that the probate was improvidently granted or that the court had been imposed upon or that some inherent or fatal defect appeared upon the face of the instrument and did not find sufficient facts to vacate the probate. The evidence, if any other than the will, before the clerk does not appear in this record. Since there was no proper challenge to the findings of fact that were made by the clerk or the failure of the clerk to make findings, the judge of the superior court in this case was limited in his review of the record to a determination of whether there were errors of law therein. In re Estate of Lowther, supra; In re Sams, 236 N.C. 228, 72 S.E.2d 421 (1952). The appeal in this case carried to the judge the question of whether the findings of fact by the clerk sustained the order denying the motion to set aside and vacate the probate. In the absence of other findings of fact, we think that the facts found by the clerk do sustain the order denying the motion to vacate.

It is settled law that the clerk of the superior court has the power to set aside a probate of a will in common form in a proper case. In re Will of Smith, 218 N.C. 161, 10 S.E.2d 676 (1940); In re Meadows, 185 N.C. 99, 116 S.E. 257 (1923). In Meadows the Court stated that this power could be exercised by the clerk where it is clearly made to appear that the adjudication and orders have been improvidently granted or that the court was imposed upon or misled as to the essential and true conditions existent in a given case. However, this power of the clerk does not extend to the setting aside of the probate of a will in common form upon grounds which should be raised by caveat. In re Will of Hine's, supra. The question therefore arises in this case as to whether, under the factual situation presented here, the motion to vacate the probate is the proper procedure.

In the case before us the entire instrument is in handwriting. Movants deny that it is in the handwriting of A. S. Spinks. In February 1956 when the instrument was probated as the last will and testament of A. S. Spinks, and properly recorded, the Clerk of the Superior Court of Randolph County had the instrument before him and examined three witnesses as to its validity, all as required by the statute, G.S. § 31-18.2. Movants now seek to have the probate set aside by motion in the cause upon a consideration of the instrument and the affidavit of one of the movants, Alvesta Spinks Glover, who also was the only one of the movants who verified the motion in the cause. This affidavit, considered by the judge, could not have been considered by the clerk because it was not sworn to until 25 September 1969, and the hearing before the clerk was held in September 1968. The instrument admitted to probate in the case before us, when considered as of the death of A. S. Spinks, and prior to the death of Maggie Spinks, and when the surplusage therein is disregarded, appears to be in the form of a holographic will as required by G.S. § 31-3.4. In re Cole's Will, 171 N.C. 74, 87 S.E. 962 (1916).

It is settled law that where the clerk of the superior court probates a will in common form and records it properly, the record and probate are conclusive as to the validity of the will until vacated on appeal or declared void by a competent tribunal. Yount v. Yount, 258 N.C. 236, 128 S.E.2d 613 (1962); In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948); In re Will of Hine's, supra; G.S. § 31-19. In the case before us the statutory procedure for the probate of the will in common form by the clerk of the superior court in 1956 is not challenged. Neither is there a challenge to the validity of the actual recording of this probate. However, the validity of the will itself is challenged by the allegation that it is not in the handwriting of the testator.

The filing of a caveat is the customary and statutory procedure for an attack upon the testamentary value of a paper-writing which has been admitted by the clerk of superior court to probate in common form. G.S. § 31-32. See In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965). The purpose of a caveat is to determine whether the paperwriting purporting to be a will is in fact the last will and testament of the person for whom it is propounded. In re Will of Morrow, 234 N.C. 365, 67 S.E.2d 279 (1951).

In the case of In re Will of Puett, supra, the clerk, in 1945, admitted a paperwriting to probate as the will of the decedent. In 1947 a subsequent paperwriting was offered as the will of the decedent. The clerk adjudged that the 1947 paperwriting was the last will and testament of the decedent and declared that the instrument probated as the will in 1945 was "null and void." Thereafter, upon motion made to vacate the probate of 1947, the clerk entered an order revoking the 1947 probate. This latter order was appealed. The Court there said that "(i)t is only by a caveat or proceeding in that nature that the validity of a properly probated will, and one without ``inherent or fatal defect appearing on its face' (Edwards v. White, 180 N.C. 55, 103 S.E. 901), may be brought in question. To hold otherwise would be productive of confusion and uncertainty. McClure v. Spivey, 123 N.C. 678, 31 S.E. 857." (Emphasis Added.)

We do not agree with the movants' contention that the factual situation in the case of In re Will of Smith, supra, is on all fours with the case before us. In Smith, the motion was to set aside a codicil or supplemental will of the decedent. The validity of the original will was not attacked. There was no controversy as to the facts. The purported holographic codicil or supplemental will was partially in handwriting and partially typewritten. The Supreme Court, in holding that the purported holographic codicil or supplemental will was improvidently admitted to probate in common form, said:

"An examination of the instrument leads us to the conclusion that it was not in form sufficient to be entitled to probate as a holographic will. The words written by J. F. Smith on the typewritten statement of his assets in 1932 are insufficient of themselves to constitute a valid will. The reference to property as ``willed to my wife' apparently related to his will dated October 10, 1921. The animus testandi does not appear."

The Smith will contained an inherent or fatal defect appearing on its face. It is common knowledge that typewritten words are not the "handwriting of a person whose will it purports to be." In the case before us the entire instrument is in handwriting, and we cannot say that there is an inherent or fatal defect appearing on the face of the instrument or the probate record. We think that the lack of controversy as to the factual situation and the fact that in Smith portions of the instrument were typewritten distinguish the Smith case from the case before us.

In the case of In re Johnson, 182 N.C. 522, 109 S.E. 373 (1921), there was a petition to set aside the probate of the will for fraud. In the petition it was alleged that the probate had been procured by fraudulent and perjured testimony. It was held that the motion was properly filed and heard by the clerk of superior court upon affidavits. The clerk found that no fraud had been perpetrated and that the paperwriting was the last will and testament of the decedent. Upon appeal the judge of superior court entered a judgment fully confirming the clerk. During the same month that the petition to set aside the probate was filed, the petitioner also filed a caveat proceeding which was tried by a jury. The judgment and order of the clerk, and upon appeal, of the judge of the superior court, are compatible with the answers of the jury to the issues submitted to them. The petitioner in the motion, who was the caveator in the caveat proceeding, appealed from the ruling of the court on the motion to vacate as well as the caveat proceeding.

In Johnson, the Supreme Court affirmed the judgment of the superior court judge in the motion to vacate the probate and found no error in the jury trial on the caveat proceeding.

Johnson is distinguishable from the case before us in that in Johnson, there was both a motion to vacate the probate heard by the clerk, and upon appeal by the judge, and a caveat proceeding in which the question of devisavit vel non, as well as the question of the statute of limitations, was decided by the jury. In the case before us, there has been no caveat filed, and the questions of devisavit vel non and the statute of limitations have not been decided by the jury as they were in Johnson.

For the reasons stated, on this record, the order of the Clerk of the Superior Court of Randolph County denying the motion to vacate the probate is held to be correct, and the judgment of the Superior Court entered herein is

Reversed.

MORRIS and VAUGHN, JJ., concur.