#### In re Will of FRANK ELLIS.

(Filed 1 February, 1952.)

1. Wills § 16—

The probate of a will in common form is *ew parte,*and while conclusive until set aside in a proper proceeding, it is subject to caveat at the time of probate or at any time within seven years thereafter by any person entitled under the will or interested in the estate, G.S. 31-32, or the will may be probated *per testes*without probate in common form.

*282. Wills § 17—

The clerk may probate a will in solemn form without a verdict of the jury where all interested parties are cited to appear or they come in voluntarily, provided such parties raise no issue of fact; but where issues of law and of fact, or issues of fact are raised by any party denying the validity of the will, the issue of *devisavit vel non*is raised and must be tried by a jury, and in such instance trial by jury may not be waived by any of the parties nor may nonsuit or a directed verdict be entered. G-.S. 1-273.

8. Same—

The clerk refused to probate the paper writing in question in common form because of the testimony of one of the subscribing witnesses that he did not sign same in the presence of testator. No appeal was taken by propounder. Thereafter the widow filed a petition for probate in solemn form, and citation to interested parties was duly issued and served. Upon like testimony the clerk refused to admit the paper writing to probate in solemn form. *Held:*The parties are not bound by the findings of the clerk, since an issue of fact was raised by the parties which must be determined by the jury upon the issue of *devisavit vel non.*

4. Wills § 24—

Testimony of a subscribing witness that he did not sign the paper writing in the presence of testator is not conclusive, but the contrary may be shown by other testimony.

Appeal by petitioner from *Stevens, J.,*May Term, 1951, of Durham.

Tbe facts pertinent to tbis appeal are as follows:

1. Frank Ellis died on 20 November, 1948, leaving a paper writing purporting to be bis last will and testament, witnessed by Robert F. Adcock and Lonnie Maynard. Tbis paper was presented to tbe clerk of tbe Superior Court of Durham County for probate in common form, but tbe witness Maynard testified tbat be did not sign tbe paper writing in tbe presence of tbe testator, whereupon tbe clerk refused to probate tbe paper. No appeal was taken by tbe propounder.

2. Thereafter, on 17 January, 1949, Mrs. Mary Ellis, widow of tbe testator and one of tbe chief beneficiaries under bis purported will, filed a petition before tbe clerk of tbe Superior Court for probate of tbe instrument in solemn form, and prayed tbat citation be issued to all interested parties to come in and contest tbe probate of said paper writing if they so desired. Tbe devisees and legatees named in tbe purported will are Mary Ellis, Lera Ellis Williams, Dora Ellis Adcock, Beadie Ellis, Otbo J. Ellis, and Levi J.JEllis.

3. On 19 February, 1949, tbe clerk held a bearing on tbe petition. Tbe citation “to come and see proceedings,” bad been duly issued and served on tbe interested parties, and tbe respondents Levi Ellis, Lera Ellis Williams, and Dora Ellis Adcock bad theretofore filed an answer to tbe citation denying tbat tbe paper offered for probate is tbe last will and testa*29ment of Frank Ellis, deceased. Tbe evidence taken before tbe clerk discloses tbat Garland E. Adcock prepared tbe purported will at tbe request of Frank Ellis, on 25 June, 1948, in tbe borne of tbe testator. Others present at tbe time tbe will was prepared were Eobert F. Adcock, Mrs. Mary Ellis, wife of Frank Ellis, and Lonnie Maynard. According to tbe testimony of Garland E. Adcock, Mrs. Mary Ellis and Eobert F. Adcock, after tbe will was prepared, Frank Ellis signed it and requested Lonnie Maynard and Eobert F. Adcock to sign it as witnesses; tbat eacb of tbem saw Lonnie Maynard and Eobert F. Adcock sign tbe will as witnesses in tbe presence of Frank Ellis. Maynard, however, testified tbat be signed it but not in tbe presence of tbe testator. Whereupon, tbe clerk entered an order declining to admit tbe paper writing to probate in solemn form. Tbe petitioner excepted to tbe order and tbe clerk certified a transcript of tbe proceedings before him to tbe Superior Court and transferred tbe cause to tbe civil issue docket for trial.

4. When tbe cause came on for bearing in tbe Superior Court, tbe respondents made a motion to remand to tbe clerk with instructions to appoint an administrator of tbe estate, on tbe ground tbat tbe bearing before tbe clerk, constituted a final trial upon tbe merits and tbat tbe ruling of tbe clerk declining to admit tbe paper writing to probate was conclusive on tbe propounders upon tbe issue of *devisavit vel non,*as to all matters save possible errors of law committed by tbe clerk. His Honor granted tbe motion and entered judgment accordingly. Tbe petitioner appeals and assigns error.

*Fuller, Reade, Umstead ■& Fuller and A. H. Graham, Jr., for petitioner, appellant.*

*Rohinson 0. Everett, Kathrine R. Everett, Jas. R. Patton, and R. 0. Everett for respondents, appellees.*

DeNnt, J.

Tbe determinative question presented on tbis appeal is whether tbe interested parties in a proceeding before a clerk of tbe Superior Court to probate a will in solemn form are bound by tbe findings of tbe clerk where an issue of fact is raised by tbe parties. Tbe answer must be in tbe negative.

Tbe appellees contend tbat if tbe propounders originally bad a right to trial by jury, it was restricted to a caveat after probate in common form, or to an appeal from tbe order rejecting tbe probate in common form; but in any event tbe propounders bad a right to waive a trial by jury, which they did by petitioning tbe clerk to issue citations to tbe interested parties, to bear tbe evidence and probate tbe will in solemn form in a recognized “come and see proceeding,” citing *Redmond v. Collins,*15 N.C. 430; *Etheridge v. Corprew,*48 N.C. 14; *Randolph v. Hughes,*89 N.C. 428; *Collins v. Collins,*125 N.C. 98, 34 S.E. 195; *In re*
      *30
      *Will of Rowland,*202 N.C. 373, 162 S.E. 897; Mordecai’s Law Lectures, Vol. II, 2nd Ed., page 1213.

We do not construe these decisions as controlling on the question before us, nor the comments of Mr. Mordecai, cited by the appellees, as supporting their contention.

In the case of *Redmond v. Collins, supra,*the will was offered for probate in common form. A caveat to its probate was filed at the time the order of probate was entered. Thereupon an issue of *devisavil vel non*was made up, and the jury found that the paper tendered for probate was not the last will and testament of the deceased party. Whereupon the court pronounced against the paper as a will and granted letters of administration to Redmond, the caveator. The propounders did not appeal. Later a petition was filed by the children of one of the beneficiaries under the will, the beneficiary having died, in an attempt to have the will admitted to probate on the ground of alleged fraud in connection with the original proceeding. The court held that the propounders in the first instance kept back none of the proper proofs and the paper writing should have been pronounced a good will, the error was one of the tribunal and not of the parties. However, since no appeal was taken from the judgment by the executors, not resulting from bad faith, but from a misapprehension of their duty and of their personal liability for costs, the parties were bound by the judgment. The appellees, herein, contend the following statements in the opinion by *Ruffin, C. J.,*support their position: “To enable the propounder to bind others a decree is taken out by him authorizing him to summon all persons, *‘to*see proceedings,’ not to become parties, but to witness what is going on, and take sides if they think proper. If the propounder does not choose to adopt that course, he may at once take his decree; which in relation to this subject is called proving the will in common form. If he take out a decree and summon those in interest against him, ‘to see proceedings,’ they are concluded, whether they appear and put in an allegation against the will or not, and as against those summoned this is called probate in solemn form.

“But besides these methods, there is another, by which persons may be heard and concluded. If the propounder will not take out a decree ‘to see proceedings,’ a person in interest is not bound to wait the result of that proceeding, and then prefer an allegation to call in the decree made on it, and asserting his own rights; but he may at once ‘intervene’ by a counter allegation, because the proceeding is *in rem*and all shall be heard. Upon which intervention each of the persons are of course bound by the sentence as before.”

In view of the facts before the Court in the above case, we do not think there is anything in the opinion from which it may be inferred that the court intended to hold that in a proceeding before a clerk of the Superior *31■Court to probate a will in solemn form, the clerk has the power to preclude the submission of the issue of *devisavit vel non*to a jury where issues of fact are raised in the hearing before him.

In *Etheridge v. Corprew, supra,*the purported will of John "Wheatly was probated in common form. Many years later a petition was filed praying for an order to have the script re-propounded to the end that the petitioners might show that the same was not the last will and testament of Wheatly. The Court held that the petitioners had the right “to call for a probate in solemn form, so as to have the validity of the will passed upon by a jury — a test to which it has not before been subjected.” And *Pearson, J.,*speaking for the Court, said: “The exigence of the estates of deceased persons, sometimes requires that probate of wills should be taken before there is time to serve notice upon the next of kin, because of a present necessity that someone should represent the deceased, take charge of the estate, collect debts, pay creditors, &c., for this reason a probate ‘in common form,’ that is, without citation to the next of kin, or others who may be interested, is allowed. This probate is valid until it is set aside, and cannot be impeached collaterally . . . But such probate is not conclusive. To have that effect the probate must be in ‘solemn formthat is, after citation, *per testes;*or under our statute, in case of a *caveat, by verdict of a jury.*If the executor wishes to conclude the matter, he may, after probate in ‘common form,’ proceed to have citations issued and propound the will in ‘solemn form.’ Or the next of kin are entitled, of common right, to have such probate set aside, so as to give them an opportunity of contesting its validity, and having a probate *per testes,*or by the verdict of a jury.”

In the case of *Collins v. Collins, supra,*a paper writing purporting to be the last will and testament of J. T. Collins was exhibited to the clerk for probate by the widow and heirs at law of the deceased, except J. K. Collins and W. G. Collins, who, without entering a formal caveat, objected to the probate and recording of the instrument. The clerk made inquiry by taking evidence of witnesses, examined and cross-examined by the two objecting heirs. The clerk declined to admit the paper writing to probate. The propounders appealed to the Superior Court and the ■clerk certified his acts and entered the cause on the civil issue docket. When the cause came on for hearing, the objectors took the same position which the appellees have taken in the instant case. “The objecting parties at the trial, . . . insisted that there was nothing for a jury to try — that ■a question of law only ivas presented by the appeal, and that that depended upon the evidence and ruling before and by the clerk. His Honor held otherwise, and proceeded with the jury to try the issue,” of *devisavit vel non.*Hpon appeal to this Court the procedure adopted by the court below was approved and the judgment affirmed.

*32Likewise, the eases of *Randolph v. Hughes, supra,*and *In re Will of Rowland, supra,*are not decisive of the question presented for determination on this appeal.

Moreover, we find a correct statement of the law with respect to the two forms of probate in solemn form, in Mordecai’s Law Lectures, Vol. II, 2nd Ed., page 1211: “(1) Where the next of kin and other interested persons are cited to appear and ‘see proceedings,’ — or they come in voluntarily to ‘see proceedings’ — and a judgment is entered for or against the will, but there is no verdict of a jury because no issue is raised by the parties; (2) Where a person, entitled so to do, intervenes and enters a caveat — denies the validity of the will — and thereby raises an issue of *devisavit vel non,*upon which issue a verdict is taken, and judgment entered in accordance with the verdict.”

The probate of a will in common form, being an *ex parte*proceeding on application of the propounder, may be eaveated at the time of application for probate or at any time within seven years thereafter by “any person entitled under such will, or interested in the estate.” G.S. 31-32. On the other hand, a probate in solemn form is in the nature of a decree pronounced in open court where all interested parties have been duly cited and is irrevocable.

A clerk of the Superior Court may probate a will in solemn form, without the verdict of a jury, that is *per testes,*where interested parties are cited to appear and “see proceedings,” or they come in voluntarily to “see proceedings,” and such parties raise no issue of fact. But, where an interested party intervenes in such proceeding and objects to the probate of the will, denying its validity, whether he files a formal caveat or not, it will raise the issue of *devisavit vel non,*which issue must be tried by a jury. Such procedure is required by G.S. 1-273, which reads as follows: “If issues of law and of fact, or of fact only, are raised before the clerk, he shall transfer the case to the civil issue docket for trial of the issues at the next ensuing term of the superior court.” *Brittain v. Mull,*91 N.C. 498; *Collins v. Collins, supra; In re Little,*187 N.C. 177, 121 S.E. 453; *In re Will of Brown,*194 N.C. 583, 140 S.E. 192; *Brissie v. Craig,*232 N.C. 701, 62 S.E. 2d 330.

The propounder, intervener, objector, or caveator, may not waive a trial by jury on the issue of *devisavit vel non.*Such cause must proceed to judgment, and a motion for judgment as of nonsuit, or for a directed verdict, will not be allowed. *In re Will of Roediger,*209 N.C. 470, 184 S.E. 74; *In re Will of Redding,*216 N.C. 497, 5 S.E. 2d 544; *In re Will of Hine,*228 N.C. 405, 45 S.E. 2d 526; *In re Will of Morrow,*234 N.C. 365, 67 S.E. 2d 279.

Moreover, it is said in *In re Will of Kelly,*206 N.C. 551, 174 S.E. 453: “The law makes two subscribing witnesses to a will indispensable to its *33formal execution. But its validity does not depend solely upon tbe testimony of tbe subscribing witnesses. If tbeir memory fail, so tbat tbey forget tbe attestation, or tbey be so wanting in integrity as wilfully to deny it, tbe will ought not to be lost, but its due execution and attestation should be found on other credible evidence. And so tbe law provides.” *Bell v. Clark,*31 N.C. 239; *In re Will of Deyton, 177*N.C. 494, 99 S.E. 424; *In re Will of Redding, supra.*“Tbe law seems to be settled in this State tbat parties are not bound or concluded by tbe testimony of one of tbe subscribing witnesses, but may show tbe very truth of tbe matter by other testimony.” *In re Will of Deyton, supra.*

Tbe judgment entered in tbe court below is

Beversed.