Brissie v. Craig

Annotate this Case

62 S.E.2d 330 (1950)

232 N.C. 701

BRISSIE et al. v. CRAIG et al.

No. 535.

Supreme Court of North Carolina.

November 29, 1950.

*332 Ralph V. Kidd, Warren C. Stack, and John James, all of Charlotte, for the plaintiffs-appellees.

Ray Rankin and Henry E. Fisher, Charlotte, for the defendants-appellants.

ERVIN, Justice.

Inasmuch as a court has only the jurisdiction committed to it by law, an objection based on the want of jurisdiction over the subject matter of an action may be raised at any time during the progress of the action. McCune v. Rhodes-Rhyne Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219. As a consequence, the defendants had the right to demur to the complaint in the Supreme Court on the ground that it affirmatively shows upon its face that the Superior Court had no jurisdiction of the subject matter of the action. G.S. §§ 1-127, 1-134; City of Raleigh v. Hatcher, 220 N.C. 613, 18 S.E.2d 207.

In order for a court to have jurisdiction of the subject matter of an action, the particular issue involved must be properly brought before it for determination in the particular proceeding. Helton v. Hubbs, 278 Ky. 621, 129 S.W.2d 116. See, also, in this connection: Williams v. Williams, 188 N.C. 728, 125 S.E. 482.

This being true, the Superior Court had no jurisdiction of the subject matter of this action; for under the law of North Carolina the issue of whether a paper writing is, or is not, a man's last will can not be properly brought before the Superior Court for determination in an ordinary civil action.

The statutes of this State confer upon the Clerk of the Superior Court exclusive and original jurisdiction of proceedings for the probate of wills. G.S. §§ 2-16, 28-1, and 31-12 to 31-27, inclusive; McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971. By this it is meant that the Clerk of the Superior Court has the sole power in the first instance to determine whether a decedent died testate or intestate, and if he died testate, whether the script in dispute is his will. Hutson v. Sawyer, 104 N.C. 1, 10 S.E. 85.

Under our procedure, the issue of whether a writing is, or is not, a decedent's will can be properly brought before the Superior Court for decision in a will contest only. McIntosh, North Carolina Practice and Procedure in Civil Cases, section 916. Such a contest is neither a civil action nor a special proceeding in a strict or technical sense. It is a proceeding in rem in which the court pronounces its judgment *333 as to whether or not the res, i. e., the script itself, is the will of the deceased. In re Hinton's Will, 180 N.C. 206, 104. S.E. 341; Sawyer v. Dozier's Heirs, 27 N.C. 97. A proceeding to contest a will is begun by filing a caveat or objection to probate with the Clerk of the Superior Court, who thereupon transfers the proceeding to the civil issue docket of the Superior Court to the end that the issue of devisavit vel non may be tried in term by a jury. G.S. § 31-32 to 31-37, inclusive; In re Will of Roediger, 209 N.C. 470, 184 S.E. 74; In re Little's Will, 187 N.C. 177, 121 S.E. 453; In re Will of Chisman, 175 N.C. 420, 95 S.E. 769; McIntosh, North Carolina Practice and Procedure in Civil cases, section 916.

An instrument of a testamentary character is wholly ineffectual until it is admitted to probate by a competent tribunal. Cartwright v. Jones, 215 N.C. 108, 1 S.E.2d 359. Notwithstanding the vindication of their claim is dependent solely upon the lawful establishment of the paper writing in dispute as the valid will of the deceased, the defendants take no steps to offer the script for probate before the only tribunal having jurisdiction of the matter, i. e., the Clerk of the Superior Court of Mecklenburg County. Their neglect in this respect provokes this civil action by the plaintiffs, who entertain the notion that the defendants have paralyzed the probate powers of the judiciary by failing to ask the Clerk of the Superior Court to adjudge that the paper is the will of the decedent.

The plaintiffs are mistaken, for the judiciary does not hold its probate powers by so tenuous a thread. Candor compels the confession, however, that the misapprehension of the plaintiffs is understandable. Judges, like other men, have nothing except words in which to phrase their ideas, and the limitations of language produce much perplexity in the lexicon of the law. This observation finds ready illustration in the differing and sometimes inexact meanings given to identical terms in decisions concerned with the probate of wills. See: 2 Page on Wills (Lifetime Edition) section 561.

In its true sense, the probate or proof of a will is the judicial process by which a court of competent jurisdiction in a duly constituted proceeding tests the validity of the instrument before the court, and ascertains whether or not it is the last will of the deceased. Hutson v. Sawyer, supra; In re Veazey's Will, 80 N.J.Eq. 466, 85 A. 176, Ann.Cas.1914A, 980; Winters v. American Trust Co., 158 Tenn. 479, 14 S.E.2d 740. Thus the probating or proving of wills involves the rejection of void scripts as well as the establishment of valid ones.

Ordinarily a proceeding for the probate of a will is begun by a person, who claims under the paper and instinctively makes the allegation that the script is the last will of the decedent. There is no reason in logic, however, why the proceeding should not be initiated by a person who claims against the instrument and makes the counter allegation that it is not the last will of the deceased. See: Redmond v. Collins, 15 N.C. 430.

Happily law and logic are compatible in this respect in North Carolina, for under the procedures prescribed any person having a legitimate end to be served by so doing may bring a proceeding for the probate of an alleged will without regard to whether he is interested for or against it.

G.S. § 31-13 provides that "If no executor apply to have the will proved 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 thereof to the executor. " Properly interpreted, this statute empowers any person interested in the estate of a decedent to make application to have a script purporting to be the will of such decedent "proved," i. e., tested in respect to its validity as a testamentary instrument. It is obvious that the statutory clause "any * * * person interested in the estate" includes a person who will share in the estate under the law governing intestacy in case a script which purports to be the will of the deceased is adjudged invalid as a testamentary document. In re Hardy, 216 N.Y. 132, 110 N.E. 257; In re Yung's Estate, 216 App.Div. 595, 216 N.Y.S. 112. Hence, the statute permits a person interested in the estate of a supposed testator *334 to present an alleged will for probate merely for the purpose of obtaining an adjudication of its invalidity. In re Tankelowitz' Will, 162 Misc. 474, 294 N.Y.S. 754; In re Seppala's Will, 149 Misc. 479, 267 N.Y.S. 776; In re Bogstrand's Estate, 149 Misc. 356, 267 N.Y.S. 396; In re Tracy's Estate, 143 Misc. 800, 258 N.Y.S. 657.

There is no incongruity in permitting a court to pass on the validity of an instrument of a testamentary nature upon the application of a person interested in its rejection.

G.S. § 31-32 provides, in substance, that any person entitled under an alleged will, or interested in the estate of the supposed testator, may appear before the Clerk of the Superior Court and enter a caveat to the probate of the alleged will at the time of the application for its probate, or at any time within seven years after its probate in common form. This statute permits a person in interest to file a caveat to an alleged will, which has been offered for probate, and to contest the validity of such alleged will before it has been admitted to probate. In re Little's Will, supra; 57 Am.jur., Wills, section 762.

These things being true, the probate powers of the judiciary afford a complete remedy to a person interested against an alleged will in instances where those interested for the alleged will do not propound it for probate. He may invoke such remedy by the simple expedient of simultaneously applying to the Clerk of the Superior Court having jurisdiction to have the script probated or proved, i. e., tested, and filing a caveat asking that it be declared invalid as a testamentary instrument.

Since the probate powers of the judiciary as defined by statute furnished an ample remedy, there was no occasion for the plaintiffs to ask the Superior Court to pass upon the validity of the disputed document as an incident to its equitable jurisdiction to cancel clouds and quiet titles.

A court of equity has no jurisdiction to declare what is, or is not, a man's last will. Blue v. Patterson, 21 N.C. 457. In consequence, such court has no power to entertain a will contest, O'Brien v. Bonfield, 220 111. 219, 77 N.E. 167; Wheeler v. Wheeler, 134 I11. 522, 25 N.E. 588, 10 L.R.A. 613; or to determine whether a paper shall be admitted to probate. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Coulter v. Peterson, 218 Iowa 512, 255 N.W. 684; Bradley v. Bradley, 117 Md. 515, 83 A. 446; Anderson v. Anderson, 112 N.Y. 104, 19 N.E. 427, 2 L.R.A. 175; Nicklin v. Downey, 101 W.Va. 320, 132 S.E. 735.

When all is said, the entire controversy between the parties hinges on this single issue: Is the disputed document the last will of the deceased?

Under the statutes governing probate matters, the Superior Court, as a mere court of law and equity, has no jurisdiction to determine such an issue in an ordinary civil action. The plaintiffs could not confer upon the Superior Court the power denied to it by legislative act by asking the court to pass upon the validity of the alleged will as an incident to its equitable jurisdiction to remove clouds and quiet titles. The underlying reasons are plain. If the Superior Court sitting as a mere court of law and equity can not entertain direct jurisdiction to establish or invalidate an alleged will in an ordinary civil action, it can possess no jurisdiction to do so as an incident to its jurisdiction over other matters. Such a course would lead to grave complications; for it would destroy the uniformity of procedures for the probate and contest of wills, and otherwise conflict with the legal system established by the State. McDaniel v. Pattison, 98 Cal. 86, 27 P. 651, 32 P. 805, and Milner v. Sims, Tex. Civ.App., 171 S.W. 784.

We deem it not altogether beside the mark to comment upon the all too frequent unconcern of litigants for the procedures established by law for the determination of juridical disputes. Rules of procedure are indispensable to the orderly and practical functioning of any system of law. The office assigned to them is a simple one. They may be likened unto a ship, for they are fashioned by lawmakers to carry legal controversies into judicial ports for decision. The most foolhardy of mariners does not dare to sail physical seas without chart and *335 compass to steer his course. Yet every day litigants blithesomely embark upon the most boisterous of legal oceans without due heed for the charts and compasses afforded by judicial decision and statutory law. The inevitable results. Courts are compelled to expend much of their energy in rescuing litigants needlessly shipwrecked on procedural reefs, and in consequence have little time left to fulfill their true mission, that is, to administer "right and justice * * * by due course of law * * * without sale, denial, or delay. " North Carolina Constitution, Article I, Section 35.

As the Superior Court had no jurisdiction of the subject matter of the action, the judgment is vacated, the demurrer ore tenus is sustained, and the action is dismissed.

Action dismissed.

JOHNSON, J., took no part in the consideration or decision of this case.