" This language of the statute has been given effect by numerous decisions of this Court. In re Hine, 228 N.C. 405, 45 S.E.2d 526; In re Neal, 227 N.C. 136, 41 S.E.2d 90; In re Smith, 218 N.C. 161, 10 S.E.2d 676; Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66; Wells v. Odum, 205 N.C. 110, 170 S.E. 145; Crowell v. Bradsher, 203 N.C. 492, 166 S.E. 331; In re Rowland, 202 N.C. 373, 162 S.E. 897. The will thus probated and recorded may not be collaterally attacked. Edwards v. White, 180 N.C. 55, 103 S.E. 901; Wells v. Odum, 205 N.C. 110, 170 S.E. 145; In re Rowland, 202 N.C. 373, 162 S.E. 897. It constitutes a muniment of title.

The Court held that the validity of the will in the first proceeding could be attacked only by a direct proceeding in the nature of a caveat. The Court, quoting from In Re Rowland, 202 N.C. 373, 162 S.E. 897, 898, (1932) said "`It is immaterial whether those appearing and protesting call themselves intervenors, objectors, or caveators' if they place themselves in opposition to the propounders. By a caveat legal rights are put in stake.

When a caveat to the probate of a paper writing propounded as the last will and testament of a deceased person is filed with the clerk of the Superior Court having jurisdiction in conformity with the provisions of the statute now codified as G.S. 31-32, and the resultant proceeding is transferred by such clerk to the trial docket of the Superior Court for trial of the issues of fact raised by the caveat at term in conformity to the requirements of the statute now embodied in G.S. 31-33, the issues of fact must be tried by a jury. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330; In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526; In re Will of Roediger, 209 N.C. 470, 184 S.E. 74; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897; In re Will of Brown, 194 N.C. 583, 140 S.E. 192; In re Will of Chisman, 175 N.C. 420, 95 S.E. 769. The founders of our legal system intended that the right of trial by jury, whether constitutional or statutory in origin, should be a vital force rather than an empty form in the administration of justice.

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.

The status of such a paper writing when drawn into question by a caveat must be determined by a jury's verdict. In re Will of Chisman, 175 N.C. 420, 95 S.E. 769; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897. Neither the caveators nor the propounders can waive a jury trial nor submit the case upon an agreed statement of facts for determination by the court.

The paper writing in question was probated in common form as the will of the deceased soon after his death in 1922. It is not now, after the lapse of 27 years, subject to caveat or collateral attack. G.S. 31-32; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897. If it fall, it must fall of its own infirmity. The trial court was correct in holding that the will as probated is controlled by the principles announced in Caudle v. Caudle, 159 N.C. 53, 74 S.E. 631; also in Hodges v. Stewart, supra; and that the petitioners are estopped to question its validity by reason of their participation in the proceeding to sell the timber in 1949.

To be sure, the plaintiffs offered the record of such paper writing in evidence "for the purpose of attack," and undertake to avoid its legal effect as a testamentary conveyance of the rights of their ancestor to the defendants by asserting that its execution was induced by fraud or undue influence perpetrated on their ancestor by the defendants and their fellow conspirator, Clifton G. Holt. But the law does not permit the plaintiffs to assail the probated paper writing in this collateral fashion. Under the statute now codified as G.S. 31-19, the order of the Clerk admitting the paper writing to probate constitutes conclusive evidence that the paper writing is the valid will of the decedent until it is declared void by a competent tribunal on an issue of devisavit vel non in a caveat proceeding. Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66; Wells v. Odum, 205 N.C. 110, 170 S.E. 145; Crowell v. Bradsher, 203 N.C. 492, 166 S.E. 731; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897; Moore v. Moore, 198 N.C. 510, 152 S.E. 391; In re Will of Cooper, 196 N.C. 418, 145 S.E. 782; Mills v. Mills, 195 N.C. 595, 143 S.E. 130; Bank v. Dustowe, 188 N.C. 777, 125 S.E. 546; Edwards v. White, 180 N.C. 55, 103 S.E. 901; Starnes v. Thompson, 173 N.C. 466, 92 S.E. 259; Holt v. Ziglar, 163 N.C. 390, 79 S.E. 805; McClure v. Spivey, 123 N.C. 678, 31 S.E. 857. This being true, the plaintiffs have no standing to maintain these suits until the probated paper writing is declared invalid as a testamentary instrument by a competent tribunal in a caveat proceeding; for such paper writing wills all rights existing in A. F. Holt, Sr., at the time of his death to the defendants, with the result that nothing descends to the heirs or next of kin. Varner v. Johnston, 112 N.C. 570, 17 S.E. 483; Kashouty v. Deep, 126 F.2d 233; Anglin v. Hooper, 153 Ga. 734, 113 S.E. 195; Murray v. McGuire, 129 Ga. 269, 58 S.E. 841; Reed v. Reed, 225 Iowa 773, 281 N.W. 444; Altfather v. Bloom, 218 Mich. 582, 18

In the Wells case, as here, the paper writing in question was offered for probate in common form without citation to those in interest "to see proceedings," Benjamin v. Teel, 33 N.C. 49, — a permissible practice under G.S. 31-12, formerly C.S. 4139, et seq., — and when thus probated in common form, even though the proceeding be ex parte, such record and probate is, by statute G.S. 31-19, made "conclusive in evidence of the validity of the will until it is vacated on appeal or declared void by a competent tribunal," and, under decisions of this Court, is not thereafter subject to collateral attack. In re Will of Rowland, 202 N.C. 373, 162 S.E. 897. Also in the Wells case, it is further declared that "a caveat is a direct attack upon the will" and that "the proceeding in common form before the Clerk is ex parte, and, therefore, not binding upon the caveators, as they were not parties," citing In re Will of Chisman, 175 N.C. 420, 95 S.E. 769, and Mills v. Mills, 195 N.C. 595, 143 S.E. 130. And the Court continued by saying: "If it should be held that the order of the Clerk adjudging the will to be fully proved in common form as `conclusive in evidence of the validity of the will' (C.S. 4145, now G.S. 31-19) on the issue of devisavit vel non, raised by a caveat filed thereto, then the requirement that the propounders shall, upon such issue, prove the will per testes in solemn form (In re Will of Chisman, supra) would seem to be wholly unnecessary, and no caveat filed after probate in common form could ever be sustained," citing In re Will of Rowland, supra.

G.S., 31-19, formerly C. S., 4145. See also In re Will of Rowland, 202 N.C. 373, 162 S.E. 897, and the authorities there assembled. But at the time of application for probate of any will, and the probate thereof in common form, or at any time within seven years thereafter, 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.

When the issue of devisavit vel non is raised, the propounder may, prima facie at least, carry the burden resting upon him by producing the will and proving its formal execution per testes in solemn form. In re Hedgepeth, 150 N.C. 245, 63 S.E. 1025; In re Rowland, 202 N.C. 373, 375, 162 S.E. 897. The order in which the evidence is taken is largely within the discretion of the court, and the caveators could not by their voluntary admission deprive the court of that discretion and, so to speak, take charge of proceedings. 68 C.J., Wills, sec. 882 (2). For a like reason, although the propounders may have exceeded the necessities of a prima facie case in introducing competent evidence on the issue of mental capacity, caveators were not deprived of any substantial right or prejudiced thereby.