Opinion
No. 07-231.
Filed March 4, 2008.
Richmond County No. 05SP83.
Appeal by Propounder Joan K. Beane from judgment entered 23 October 2006 by Judge Susan C. Taylor in Richmond County Superior Court. Heard in the Court of Appeals 19 September 2007.
Griffin, Smith, Caldwell, Helder Helms, P.A., by R. Kenneth Helms, Jr. and James Allen Lee for Propounder-Appellant. Kitchin, Neal, Webb, Webb Futrell, P.A., by Stephan R. Futrell, for Respondents-Appellees.
Junior Warren Beane ("Decedent") died on 22 August 2002. His widow, Joan K. Beane ("Propounder"), submitted his will dated 16 November 1999 ("1999 Will") to the Clerk of Superior Court of Richmond County for probate in common form. Decedent's daughters, Becky Beane James and Pamela Beane Denson, filed a caveat to the 1999 Will, alleging Decedent lacked the competence to execute that will. The matter was transferred to Superior Court for trial by jury. After the caveat had been filed, attorneys for Propounder wrote Caveators' attorney, advising him that the original of a purported will by Decedent, dated 4 March 1997, was at the offices of Propounder's attorney. At the caveat trial, Propounder proffered the 1999 Will for consideration as Decedent's last will and testament, and it was entered into evidence. Additionally, copies of scripts dated 1991 and 1994, as well as the script dated 4 March 1997, all purporting to be wills executed by Decedent, were introduced into evidence by Caveators, and various witnesses were examined about them. Neither party proffered any of these three scripts for consideration as Decedent's last will and testament.
On 21 March 2005, the jury found the 1999 Will invalid on the ground that Decedent lacked sufficient mental capacity to make and execute that will. The issue of whether Decedent died intestate was not submitted to the jury, nor were issues regarding the validity of the other three scripts in evidence. On 22 March 2005, the trial court entered judgment upon the jury verdict and neither party appealed the judgment.
On 6 May 2005, after the time to appeal the caveat judgment had expired, Propounder filed a Petition for Probate in Solemn Form to probate the script dated 4 March 1997 ("1997 Will"). Becky B. James, Robert Warren James, Amanda James, Pamela B. Denson, Amy Denson, Brad Denson, Sharon B. Russell, Tracy Russell Parris, and Emma B. Beane ("Respondents") filed a Motion, Response and Counterclaim on 27 June 2005, and an amended motion on 8 July 2005, asking the Clerk to dismiss the petition or, in the alternative, to determine the parties' rights with respect to the 1997 Will. Propounder filed a Motion to Strike or, in the alternative, to Dismiss Respondents' Counterclaim, arguing that the proceeding for probate of a will in solemn form does not provide for counterclaims, and that if objections are raised, the Clerk must transfer the matter to the civil docket to be tried as a caveat. On 7 March 2006, an Assistant Clerk of Superior Court, Richmond County, entered an order denying Propounder's petition and granting Respondents' Motion to dismiss. Propounder appealed to the Superior Court, and on 3 October 2006, Superior Court Judge Susan C. Taylor entered judgment affirming the Clerk's dismissal of the Petition. From this judgment, Propounder appeals.
In affirming the Clerk of Court's dismissal of Propounder's petition, the trial court concluded, inter alia: "When a caveat is filed and the issue of devisavit vel non is submitted to the jury, all available scripts that are intended to be proffered and considered by the jury are required to be submitted in the caveat." On appeal, Propounder contends the trial court erred in affirming the Clerk of Court's order because North Carolina law does not require her to have submitted the 1997 Will for consideration by the jury in the 1999 Will caveat trial. We disagree.
When a script is admitted to probate in common form as a will, it stands as the testator's will, and his only will, until challenged and reversed in a proper proceeding. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965). Any interested person may challenge the will and contest its validity by filing a caveat setting forth the grounds of the challenge. Id. When a caveat is filed, the clerk of superior court transfers the matter to the civil issue docket of the superior court and the superior court acquires jurisdiction of the whole matter in controversy, including both the questions of probate and the issue of devisavitvel non. Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110 (1956). "Devisavit vel non requires a finding of whether or not the decedent made a will and, if so, whether any of the scripts before the court is that will." In re Will of Hester, 320 N.C. 738, 745, 360 S.E.2d 801, 806 (1987). "Any other script purporting to be the decedent's will should be offered and its validity determined in the caveat proceeding." In re Will of Burton, 267 N.C. 729, 734, 148 S.E.2d 862, 866 (1966) (quoting Will of Charles, 263 N.C. at 416, 139 S.E.2d at 592). "[W]here there are presented multiple scripts purporting to be decedent's last will and testament, the issue of devisavit vel non should be resolved in a single caveat proceeding in which the jury may be required to answer numerous sub-issues in order to determine the ultimate issue." In re Will of Dunn, 129 N.C. App. 321, 326, 500 S.E.2d 99, 102 (1998).
"He devises or not."
In Will of Charles, 263 N.C. 411, 139 S.E.2d 588, three scripts purported to be the decedent's last will and testament. The first script was admitted to probate in common form, and the beneficiary under the second script filed a caveat. In response to the notice of the caveat, the beneficiary under a third script sought to intervene in order to have that script considered during the caveat proceeding. The trial court denied the motion to intervene. The Supreme Court reversed, holding that it was improper to deny intervention since "[i]n a caveat proceeding any interested person may present to the court any script which is material to the issue whether there is a will, and if so, what is it? . . . Any other script purporting to be the decedent's will should be offered and its validity determined in the caveat proceeding." Id. at 415-16, 139 S.E.2d at 591-92 (citations omitted).
In Will of Hester, 320 N.C. 738, 360 S.E.2d 801, where multiple scripts were proffered as the decedent's last will and testament at a caveat trial, the Supreme Court ruled that the trial judge had the authority to bifurcate the caveat proceeding "[s]o long as all relevant scripts which ha[d] been offered for proof [were] included in the caveat proceeding[.]" Id. at 745, 360 S.E.2d at 805.
In light of the above-stated rules and authorities, we conclude that Judge Taylor's statement of the law in North Carolina is correct as a caveat action requires the parties to proffer all documents that may constitute a decedent's will; and if they fail to offer all scripts in the caveat trial, they cannot file a later action to probate them. Accordingly, as Propounder failed to proffer the 1997 Will in the 1999 Will caveat trial, she is barred from filing a subsequent action to probate that script, and the trial court did not err in affirming the Clerk of Court's judgment dismissing Propounder's action.
This Court recently affirmed this principle in Wilder v. Hill, 175 N.C. App. 769, 625 S.E.2d 572 (2006). In that case, a civil action for fraud and undue influence regarding the will of the plaintiff's stepfather was dismissed where the plaintiff did not present the script he claimed was decedent's last will at a prior cave at proceeding. The plaintiff had been named as a beneficiary of his stepfather's will, executed in 1964. The estate included a family residence, for which the plaintiff had given his stepfather money to maintain. The plaintiff's stepfather subsequently executed a will in 1998, excluding the plaintiff as a beneficiary. Upon his stepfather's death, the plaintiff prosecuted a successful caveat proceeding, challenging the 1998 will based on fraud and undue influence, and the will tendered for probate was disallowed. The plaintiff never presented the 1964 will during the caveat proceeding, however, and his stepfather's estate was distributed by intestate succession. The plaintiff then attempted to recover money damages equal to one-half the value of the family residence or all the funds advanced to his stepfather for maintenance of the property. This Court held that the plaintiff's claim to inherit lay in the alleged 1964 will, "the existence and validity of which he failed to establish during the caveat proceeding." Id. at 773, 625 S.E.2d at 575. "Where a plaintiff may gain adequate relief in a caveat proceeding . . . a direct attack by caveat [is] a complete and adequate remedy at law[.]" Id. at 772-73, 625 S.E.2d at 575 (quotation marks and citation omitted). As the plaintiff had an adequate remedy in the prior caveat proceeding, even though he chose not to pursue it, he was not allowed to seek a civil remedy in a subsequent proceeding.
Although Propounder in this case seeks to have the validity of the 1997 Will determined, and is not seeking a civil remedy based on the contents of the 1997 Will, like the plaintiff in Wilder, Propounder's claim to inherit lay in the 1997 Will, the validity of which she failed to establish during the 1999 Will caveat trial. Thus, as Propounder had an adequate remedy in the 1999 Will caveat trial, like the plaintiff in Wilder, she is not permitted to determine the validity of the 1997 Will, and thus her claim to inherit under that will, in a subsequent proceeding.
In Will of Dunn, 129 N.C. App. 321, 500 S.E.2d 99, the propounders presented scripts dated 20 September 1994 and 26 October 1994 to the clerk of superior court for probate as the last will and first codicil thereto of the deceased. A caveat was filed alleging the will and codicil were invalid because the deceased lacked testamentary capacity at the time the writings were executed, and because the writings were obtained through undue influence. The caveator also proffered a previous script dated 29 August 1994 as the deceased's last will and testament. Although questions regarding the validity of the September and October scripts were submitted to the jury, and the jury found that the two scripts had been obtained by undue influence, the validity of the August writing was not submitted to the jury. On appeal, this Court remanded to the trial court for further jury proceedings to determine whether the August writing was the last will of the deceased. The Court explained that "in a case such as this one, where there are presented multiple scripts purporting to be decedent's last will and testament, the issue of devisavit vel non should be resolved in a single caveat proceeding in which the jury may be required to answer numerous sub-issues in order to determine the ultimate issue." Id. at 326, 500 S.E.2d at 102.
Similarly, in the 1999 Will caveat, a copy of the 1997 Will was introduced into evidence and various witnesses were examined about it. Furthermore, as in Dunn, although questions regarding the validity of the 1999 Will were submitted to the jury, and the jury found that Decedent lacked sufficient mental capacity to make and execute that will, the validity of the 1997 Will was not submitted to the jury. Since multiple scripts purporting to be Decedent's will were presented, the issue of devisavit vel non should have been resolved in the 1999 Will caveat proceeding. However, unlike in Dunn, Propounder here did not proffer the 1997 Will in the 1999 Will caveat trial, nor did she appeal the Caveat Judgment in order to have the validity of the 1997 Will determined. Instead, she attempted to probate the 1997 Will in a subsequent proceeding. As the proper forum for Propounder to have had the validity of the 1997 Will determined was the 1999 Will caveat trial, the proper remedy for the lack of such determination in the 1999 Will caveat trial was an appeal from that judgment.
In Will of Burton, 267 N.C. 729, 148 S.E.2d 862, a script was probated in common form as the last will of the deceased, and a caveat to that script was filed. However, another script in the handwriting of the deceased was subsequently discovered which purported to devise the deceased's property to three beneficiaries who were not parties to the caveat proceeding. The issue of devisavit vel non was answered by a jury in favor of the propounders, and the writing was probated in solemn form as the last will and testament of the deceased. One of the beneficiaries of the newly discovered will filed a motion to set aside the verdict and judgment, and to intervene in the original caveat proceeding. After a hearing, the trial court vacated the verdict and judgment entered with respect to the originally probated will, and ordered the caveat transferred to the civil issue docket for trial.
Our Supreme Court affirmed the trial court's order because the beneficiary had no notice of the existence of the alleged subsequent will under which he might claim any rights in the estate, had no interest in the prior caveat proceeding, and moved with reasonable diligence following notice of the existence of the subsequent will in filing his motions.
Similar to Burton, in this case, Propounder sought to have the validity of the 1997 Will determined after the judgment of the 1999 Will caveat was entered. However, unlike the beneficiary in Burton, Propounder in this case was aware of the existence of the 1997 Will before the 1999 Will caveat proceeding began, but chose not to proffer it at the caveat trial. Furthermore, unlike the beneficiary in Burton who was not a party to the original caveat proceeding and was attempting to intervene in the proceeding, Propounder here was a party in the 1999 Will caveat trial and was attempting to initiate a completely new proceeding to determine the validity of the 1997 Will. Accordingly, unlike the beneficiary in Burton, Propounder was not entitled to relief after the judgment in the caveat trial was final.
We conclude the trial court correctly determined that Propounder's petition should be dismissed. Propounder's assignment of error is overruled.
Propounder further argues that the Superior Court erred in affirming the Clerk of Court's order dismissing the petition because the probate of the 1997 Will was not a compulsory counterclaim in the 1999 Will caveat trial and because the probate of the 1997 Will is not barred by waiver, estoppel, res judicata or issue preclusion/collateral estoppel. However, because we conclude that the trial court correctly affirmed the Clerk's dismissal of Propounder's petition for the reasons set forth above, we need not reach these assignments of error.
Propounder also contends the Clerk of Court lacked the authority to dismiss the Petition for Probate in Solemn Form because the Clerk was required to transfer the case to Superior Court for trial by jury when Respondents raised issues of fact in their Motion, Response to Petition, and Counterclaim. We disagree.
The Clerk has exclusive original jurisdiction to decide whether to probate a document as a will. N.C. Gen. Stat. § 31-1, et seq. (2005). Thus, the Clerk has the sole power in the first instance to determine whether a decedent died testate or intestate and whether a script offered for probate is his will. Walters v. Children's Home, 251 N.C. 369, 111 S.E.2d 707 (1959). "[T]he probating or proving of wills involves the rejection of void scripts as well as the establishment of valid ones." Brissie v. Craig, 232 N.C. 701, 705, 62 S.E.2d 330, 333 (1950).
A Clerk may probate a will in solemn form, without the verdict of a jury, where interested parties are cited to appear and "see proceedings," or where they come in voluntarily to "see proceedings," and such parties raise no issue of fact. In re Ellis' Will, 235 N.C. 27, 32, 69 S.E.2d 25, 28 (1952). However, "[i]f 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." Id. (quotation marks and citation omitted).
When a case is transferred to the civil issue docket for trial before a jury, the superior court acquires jurisdiction of the whole matter in controversy. Morris, 245 N.C. 30, 95 S.E.2d 110. Where interested parties raise only issues of law before the Clerk, the Clerk is not required to transfer the case to the civil issue docket and he retains jurisdiction over the matter.
In their Motion, Response to Petition, and Counterclaim, Respondents first moved for dismissal of Propounder's petition for the following reasons: (1) insufficiency of process and insufficient service of process, pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(4) and (b)(5); (2) the issue of devisavit vel non was presented and decided in a previously filed caveat; (3) failure to state a claim upon which relief can be granted, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6); and (4) failure to raise the validity of the 1997 Will as a compulsory counterclaim, pursuant to N.C. Gen. Stat. § 1A-1, Rule 13(a). Thus, Respondents initially sought to dismiss Propounder's petition solely on legal bases. "In the alternative, and only in the event that the Petition [was] not dismissed for the above-stated reasons," Respondents raised issues of fact.
Accordingly, as only issues of law were raised by Respondents in initially challenging Propounder's petition, the Clerk had jurisdiction over these legal matters and was not required to immediately transfer the case to the civil issue docket. The Clerk dismissed the petition because the issue of devisavit vel non was presented and decided in a previously filed caveat. Thus, the Clerk had the authority to hear the legal arguments presented and to dismiss the petition based on those legal arguments. Propounder's assignment of error challenging the Clerk's authority is without merit and is overruled.
The Clerk and Judge Taylor further concluded that the petition should be dismissed for Propounder's failure to raise the validity of the 1997 Will as a compulsory counterclaim in the caveat proceeding for the 1999 Will. For the reasons stated in this opinion, it is unnecessary for us to address the correctness of this determination.
For the forgoing reasons, the judgment of the trial court is
Affirmed.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).