(Post, p. 487.) Citing: Larus v. Bank of Commerce Trust Co., 149 Tenn. 126, 147-8; Collins v. Collins, 125 N.C. 98; 34 S.E. 195. 5. WILL. Contest. Proceedings in Circuit Court. Non-suit by proponents.
Chisholm v. Hall, ante, 374; S. v. Powell, 254 N.C. 231, 118 S.E.2d 617; S. v. Martin, 191 N.C. 401, 132 S.E. 14. But the mere fact that immaterial evidence is received is not of itself sufficient to warrant a new trial. As said by Faircloth, C.J., in Collins v. Collins, 125 N.C. 98: "The admission of irrelevant testimony will not authorize a new trial unless it appears that the objecting party was prejudiced thereby." Ray v. Membership Corp., 252 N.C. 380, 113 S.E.2d 806; Stathopoulos v. Shook, 251 N.C. 33, 110 S.E.2d 452; In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; S. v. Galloway, 188 N.C. 416, 124 S.E. 745; Deming v. Gainey, 95 N.C. 528; S. v. Manly, 95 N.C. 661.
Necessarily, then, Judge Bone had full jurisdictional power and authority to hear and determine in the first instance the respondents' demurrer and motion to strike. In re Ellis' Will, supra; Collins v. Collins, 125 N.C. 98, 34 S.E. 195. Next, the respondents challenge the sufficiency of the petition to state a cause of action for the probate in solemn form of the alleged will. A perusal of the petition discloses allegations of these ultimate facts: the death of the testator, that he made and left a last will and testament, the terms of the instrument and existence of property passing under it, formal requisites of execution, testamentary capacity of the testator, lack of revocation or destruction ammo revocandi by the testator, loss or destruction by some person other than the testator and that the instrument cannot be found after diligent search and inquiry, and the names and addresses of the persons interested in the alleged will, including known heirs at law and next of kin of the decedent.
The answer must be in the negative. The appellees contend that if the propounders originally had a right to trial by jury, it was restricted to a caveat after probate in common form, or to an appeal from the order rejecting the probate in common form; but in any extent the propounders had a right to waive a trial by jury, which they did by petitioning the clerk to issue citations to the interested parties, to hear the evidence and probate the 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 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.
Since a proceeding to probate a will in common form is in rem, it has been held — as far as we know without exception in this jurisdiction — that when the issue of devisavit vel non has been raised, the proceeding is not subject to nonsuit at the instance of the propounders or other parties concerned. In re Will of Evans, 223 N.C. 206, 25 S.E.2d 556; In re Westfeldt, 188 N.C. 702, 705, 125 S.E. 531; Collins v. Collins, 125 N.C. 98, 34 S.E. 195. Whether the disregard of this rule results in a void, or merely irregular, judgment we need not inquire, since in either case the proceeding would not be irrevocably retired from the docket against a party or privy whose right to move was still subsisting. And the Court would not be justified in taking jurisdiction of the rights of parties under a will the validity and testamentary character of which was being tested in another jurisdiction.
It is further provided by statute, C. S., 4158 et seq., that at the time of the application for probate of any will, and the probate thereof in common form, or at any time within seven years thereafter, with certain additional features in favor of persons under disability, any person entitled under such will, or interested in the estate, may appear in person or by attorney before the clerk of the Superior Court and enter a caveat to the probate of such will. In re Little, 187 N.C. 177, 121 S.E. 453. It is immaterial whether those appearing and protesting call themselves interveners, objectors, or caveators. Collins v. Collins, 125 N.C. 98, 34 S.E. 195; Randolph v. Hughes, 89 N.C. 428; Edwards v. Edwards, 25 N.C. 82; Redmond v. Collins, supra; Dickenson v. Stewart, 5 N.C. 99. If in reality they are opposed to the probate of the will, they thereby place themselves in opposition to the propounders, and are entitled to the benefit of the statutes dealing with caveats. In re Little, supra; Mills v. Mills, supra.
This has been approved in numerous cases. Collins v. Collins, 125 N.C. 98; McClure v. Spivey, 123 N.C. 678; Varner v. Johnson, 112 N.C. 570; McCormick v. Jernigan, 110 N.C. 406; Hutson v. Sawyer, 104 N.C. 1. The Court ruled, in Batchelor v. Overton, 158 N.C. 397, the opinion being delivered by Justice Hoke, that notwithstanding the requirements of the statute, it is very generally held that when a clerk of our Superior Court in the exercise of the probate powers conferred by statute, has general jurisdiction of the subject-matter of inquiry, as indicated in chapter 1, sec. 16, Revisal, and on application made has entered a decree appointing an executor or administrator, and letters are accordingly issued, such decree is controlling and may not be successfully attacked or in any way questioned but by direct proceedings instituted for the purpose.
The ruling, if erroneous, was, for the reason just stated, without any prejudice. Butts v. Screws, 95 N.C. 215; S. v. Smith, supra; Collins v. Collins, 125 N.C. 98; May v. Gentry, 20 N.C. 249; Gray v. R. R., supra. If erroneous it was rendered harmless by the verdict.
" It is held in the recent case of Powell v. Watkins, 172 N.C. 244, that in this State "The proceeding for the probate of a will is not regarded as an adversary suit inter partes, but is a proceeding in rem, in which the jurisdiction of the court, in the exercise of probate powers, is exclusive, and an adjudication of probate may not be assailed or questioned in any collateral or independent proceedings. Collins v. Collins, 125 N.C. 98, 34 S.E. 195; McClure v. Spivy, 123 N.C. 678, 31 S.E. 857; Varner v. Johnson, 112 N.C. 570, 17 S.E. 483; McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971; Hutson v. Sawyer, 104 N.C. 1, 10 S.E. 85."
In North Carolina the proceeding for probate of a will is not regarded as an adversary suit inter partes, but is a proceeding in rem, in which the jurisdiction of the court, in the exercise of probate powers, is exclusive, and an adjudication of probate may not be assailed or questioned in any collateral or independent proceedings. Collins v. Collins, 125 N.C. 98; McClure v. Spivey, 123 N.C. 678; Varner v. Johnston, 112 N.C. 570; McCormick v. Jernigan, 110 N.C. 406; Hutson v. Sawyer, 104 N.C. 1. In this State, therefore, such a proceeding comes clearly within the principle sustained and applied in the Ferrall case and others, supra, holding that a case concerning the probate of a will or an issue involved therein is not a removable cause within the meaning of the Federal legislation of the subject.