In Re Marks'willAnnotate this Case
130 S.E.2d 673 (1963)
259 N.C. 326
In The Matter of the WILL of Minnie Morgan MARKS, Deceased.
Supreme Court of North Carolina.
May 1, 1963.
*675 Blakeney, Alexander & Machen by Ernest W. Machen, Jr., Charlotte, for movant-appellants.
Clayton & London by O. W. Clayton and David H. Henderson, Charlotte, for respondents-appellees.
The right to make testamentary disposition of property is conferred by statute. In re Will of Roberts, 251 N.C. 708, 112 S.E.2d 505; Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 352.
A writing declared by its author to be his will is ineffectual to pass title to property prior to probate in conformity with the laws of the state where the property is located. Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110; Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330; Paul v. Davenport, supra; Cartwright v. Jones, 215 N.C. 108, 1 S.E.2d 359; In re Thomas, 111 N.C. 409, 411, 16 S.E. 226.
The word "probate" when used in reference to a document purporting to be a will means "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." Brissie v. Craig, supra; Stevens' Executors v. Smart's Executors, 4 N.C. 83; United States v. Hiawassee Lumber Co., 238 U.S. 553, 35 S. Ct. 851, 59 L. Ed. 1453.
Each of the instruments claimed by the parties to be Mrs. Marks' will names an executor. Each purports to be witnessed, the writing dated in January by two witnesses, the other dated in February by three witnesses. It is the duty of a person named as executor to apply to the court having jurisdiction to have the writing probated. G.S. § 31-12.
To pass title to property in North Carolina an attested will must be witnessed by at least two competent witnesses. G.S. § 31-3.3. Such a will may be probated on the testimony of two of the attesting witnesses, but if the testimony of only one attesting witness is available, then upon the testimony of such witness with proof of the handwriting of at least one of the attesting witnesses who is dead or whose *676 testimony is otherwise unavailable, and proof of the handwriting of the testator, unless he signed by his mark, and proof of such other circumstances as will satisfy the clerk of the Superior Court as to the genuineness and due execution of the will. G.S. § 31-18.1(2). The testimony of a witness is unavailable "when the witness is dead, out of the State, not to be found within the State, insane or otherwise incompetent, physically unable to testify or refuses to testify." G.S. § 31-18.1(3) (c). A written will may be revoked by a subsequent written will executed in the manner provided for the execution of written wills. G.S. § 31-5.1(1).
It is the duty of the clerk taking probate of a will to embody the substance of the testimony of witnesses in his certificate of probate to be recorded with the will. G.S. § 31-17. Compliance with this statute is essential to a valid probate. Railway Co. v. Glendon & G. Mining & Manufacturing Co., 113 N.C. 241, 18 S.E. 208; In re Thomas, supra.
The Legislature has provided different rules for the probate of wills dependent upon the testator's domicile and the situs of property disposed of. The will of a resident of this state should be probated in the county of his domicile. G.S. § 28-1(1). When a resident of this state dies outside the state and his will is probated in another state, a duly certified copy of the will so probated may be offered for original probate in this state and its validity as a testamentary disposition of property established in the same manner as if the original had been offered for probate here. G.S. § 31-22. When the will of a nonresident dying outside the state disposes of property in the state, the will may be offered for original probate before the clerk of the county in which the property is situated. G.S. § 28-1(3). Instead of offering such will for original probate in this state, the interested parties may have it probated in the state in which the testator was domiciled. When probated according to the laws of that state, an exemplified copy of the will and the probate proceedings may be brought to this state and probated here. Such a will, unless probated in accordance with the laws of this state, is not sufficient to dispose of real property in this state. G.S. § 31-27. It has no efficacy for any purpose in this state until probated here, but when probated here on the exemplified copy, it suffices to pass title to personalty and the right to enforce claims which testator could assert against citizens or properties in this state, even though not executed or proven as required by the laws of this state. McEwan v. Brown, 176 N.C. 249, 97 S.E. 20. This is true because personalty as a general rule has its situs at the domicile of the owner, and a will valid in the state of his domicile transfers the title thereto irrespective of the physical location of the personal assets. Warlick v. H. P. Reynolds & Co., 151 N.C. 606, 66 S.E. 657; Jones v. Layne, 144 N.C. 600, 57 S.E. 372, 11 L.R.A.,N.S., 361; Hornthal v. Burwell, 109 N.C. 10, 13 S.E. 721, 13 L.R.A. 740; Grant v. Reese, 94 N.C. 720; Moye v. May, 43 N.C. 131; Williamson's Adm'r. v. Smart, 1 N.C. 355; 6 Bowe-Parker: Page on Wills, sec. 60.11; 11 Am.Jur. 476.
The probate court in South Carolina did not expressly find that Mrs. Marks was a resident of that state at the time of her death. We may presume that court acted upon the assumption that she was a resident of that state, thereby authorizing the probate court of South Carolina to take jurisdiction. Henson v. Wolfe, 130 S.C. 273, 125 S.E. 293.
Domicile is, however, a question of fact. Different courts may reach different conclusions with respect to this factual question. An express adjudication by the probate court of South Carolina in a proceeding to probate in common form a paper as Mrs. Marks' will that she was a resident of that state would not be binding on the courts of this state. If that question *677 be raised on an offer to probate in North Carolina, our court, on evidence presented to it, might reach a different factual conclusion without invading constitutional rights. Riley v. New York Trust Co., 315 U.S. 343, 62 S. Ct. 608, 86 L. Ed. 885; Burbank v. Ernst, 232 U.S. 162, 34 S. Ct. 299, 58 L. Ed. 551; Tilt v. Kelsey, 207 U.S. 43, 28 S. Ct. 1, 52 L. Ed. 95. Nor would comity compel us to accept a finding so made.
Only one witness testified in the probate proceeding in South Carolina. No explanation is made for not taking the testimony of the other witnesses. The proof made in South Carolina would not suffice to permit the will to original probate in North Carolina. G.S. § 31-18.1.
When a writing purporting to be a will has been duly probated and thereby determined to be the last will of the deceased, such as the January paper writing, it is effective as of the moment of testator's death. G.S. § 31-41. The date appearing on the instrument then becomes immaterial. Manifestly, testator cannot dispose of his property later than the moment immediately preceding his death.
Courts, when called upon to determine whether it is necessary to caveat a writing theretofore admitted to probate in order to establish a later writing as a will, have reached different conclusions. See Re Bronson, 185 Wash. 536, 55 P.2d 1075, 107 A.L.R. 238, and Re Elliott, 22 Wash. 2d 334, 156 A.2d 427, 157 A.L.R. 1335, decided by the Supreme Court of Washington, and the annotations to those cases.
This court has consistently adhered to the rule that the proper way to challenge the validity of a probate in common form is by caveat. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488; Walters v. Baptist Children's Home, 251 N.C. 369, 111 S.E.2d 707; Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448.
The probate in South Carolina of the February writing did not pass title to property in North Carolina, nor did it give anyone authority to act in this state until probated here. Because it could not be probated here until the judgment establishing the writing dated in January as Mrs. Marks' will had been set aside, it follows that it was necessary for the South Carolina executors to caveat the previously probated will. In re Will of Puett, supra; Conzet v. Hibben, 272 Ill. 508, 112 N.E. 305, Ann.Cas.1918A, 1197. They could, as a part of the caveat proceeding, offer to probate in solemn form the writing dated in February 1961. In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526. In such a proceeding interested parties would have the right to challenge the assertion of the South Carolina executors that Mrs. Marks was domiciled in South Carolina at her death.
The February writing in specific language revokes "all previous wills or instruments of a testamentary nature heretofore by me made." To establish the revocation of a will by a subsequent writing it is necessary to prove the revocation in the manner required to establish the validity of the paper writing originally offered for probate. G.S. § 31-5.1(1). Notwithstanding the probate in South Carolina, it would be competent, on the caveat, for interested parties to show the writing of February 1961 was not in fact Mrs. Marks' will. In re Will of Chatman, 228 N.C. 246, 45 S.E.2d 356; Rice v. Jones, 4 Call 89 (Va.); Kerr v. Devisees of Moon, 9 Wheat. 565, 6 L. Ed. 161; Allaire v. Allaire, 37 N.J.L. 312; Evansville Ice & Cold-Storage Co. v. Winsor, 148 Ind. 682, 48 N.E. 592.
The January writing was probated by the assistant clerk. She had plenary authority to act. G.S. § 2-10. The order admitting the February writing to probate made a few days after the assistant clerk had acted was made by the clerk himself. He was apparently inadvertent to the fact *678 that his assistant had previously probated the January writing. When his attention was called to the prior probate, he properly vacated his order of April probating the February writing.