Lash ex rel. Wilson v. Lash , 107 N.C. App. 755 ( 1992 )

WELLS, Judge.

Although this case is before us on partial summary judgment, it is our opinion that plaintiff has a substantial right to have all her viable claims for relief tried simultaneously before the same judge and jury. We hold that plaintiff’s appeal is properly before us and therefore consider the appeal on its merits. Hoke v. E.F. Hutton and Co., 91 N.C. App. 159, 370 S.E.2d 857 (1988).

The essence of plaintiff’s fifth claim for relief is that due to the fraudulent procuring or offering of Alfred Lash’s purported will by defendant, plaintiff was required to incur the cost of a caveat proceeding, including attorneys’ fees.

It is the settled law of this State that the validity of a propounded will may only be challenged directly in a caveat proceeding pursuant to statute. A collateral attack is not permitted. See N.C. Gen. Stat. § 31-32 (1971); In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965); In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948). See also In re Will of Hester, 320 N.C. 738, 360 S.E.2d 801, cert. denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

The general rule governing award of attorneys’ fees and court costs is set forth in N.C. Gen. Stat. § 6-21:

Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:

(2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, that in any caveat proceeding under this subdivision, the court shall allow attorneys’ fees for the attorneys of the caveators only if it finds that the proceeding has substantial merit.

The word “costs” as the same appears and is used in this section shall be construed to include reasonable attorneys’ fees in such amounts as the court shall in its discretion determine and allow[.]

The ability of the courts to award such costs is statutorily conferred. Case law in this State has consistently held that the decision to award costs in caveat proceedings is addressed to the sound discretion of the courts. Dyer v. State, 331 N.C. 374, 416 S.E.2d 1 (1992); In re Ridge, 302 N.C. 375, 275 S.E.2d 424 (1981). It is a matter of the court’s discretion whether to award fees and the amount of such fees. See Trust Co. v. Dodson, 260 N.C. 22, 131 S.E.2d 875 (1963).

The materials before the trial court clearly showed that plaintiff successfully attacked the validity of the purported will propounded by defendant in a caveat proceeding. Now, however, plaintiff seeks to recover, in a separate action, the necessary costs incurred in maintaining such an action. The question of which party bears court costs, including attorneys’ fees, is properly resolved in the caveat proceeding itself. Our cases have held that the expense of litigating a caveat is not a lawful claim against another party; rather, such “expense is a cost of court taxable ‘against either party, or apportioned among the parties, in the discretion of the court.’ ” See In re Estate of Ward, 97 N.C. App. 660, 389 S.E.2d 441 (1990); N.C. Gen. Stat. § 6-21. Therefore, plaintiff’s claim for recovery of attorneys’ fees and other court costs could only be adjudicated in the caveat proceeding.

In view of the settled law of wills and estates in this jurisdiction dealing with caveats and assessment of court costs in such proceedings, it would be inconsistent and illogical to recognize and allow an independent action in tort for damages related to expenses incurred in a caveat proceeding. Therefore, we affirm the trial court’s order granting partial summary judgment in favor of defendant.

Affirmed.

Judges ORR and GREENE concur.