McClure v. . Spivey , 123 N.C. 678 ( 1898 )

The plaintiffs introduced grants from the State taking title to the land out of the State, and also subsequent and successive conveyances connecting their title with the grants. The defendants offered no evidence. His Honor told the jury that if they believed the evidence they should find the first issue, "Are the plaintiffs the owners of the land described in the complaint?" in favor of the plaintiffs, and there was no error in that instruction.

In the plaintiffs' chain of title the will of A. W. Spivey was (680) introduced as evidence. The defendants objected to the same on the ground that it had not been proved according to the requirements of The Code. One of the subscribing witnesses, after the will was attested, removed from the State, and a witness to his signature and handwriting proved the same; but there was no proof of the handwriting of the testator except the testimony of the other living witness to the will, and that was the objection raised by the defendants. there is no force in the objection. Section 2149 of The Code requires that the clerk of the Superior Court shall take, in writing, the proofs and examinations of the witnesses touching the executions of wills, and that the substance of the same shall be embodied, in case the will is admitted to probate, in his certificate of the probate, and that the clerk record the same with the will. The proofs and examination must be filed in his office. Section 2150 of The Code reads: "Such record and probate are conclusive in evidence of the validity of the will until it is vacated on appeal or declared void by a competent tribunal." The probate of the will by the clerk of the Superior Court is therefore a judicial act, and his certificate is conclusive of the question adjudicated until it is vacated or declared void by a competent tribunal in a proceeding instituted for that purpose. If the probate of a will could be vacated in a collateral manner, as is sought to be done in this case, because of some failure of the clerk to examine the witnesses thereto in the strictest matters of the law, or to have proved by them some matter of detail required by statute — thus rendering all that might have been done in the administration of the estate void and of no effect — interminable confusion would result, and the office of executor or administrator would be so embarrassing and so full of pecuniary risk to those officers that the settlement (681) of estates of deceased persons (probably the most important of human transactions) could hardly be had. But the matter has been decided by this Court. In Mayo v. Jones, 78 N.C. 402, it is said, "there is, however, a difference in the formal probate of a deed for registration and the formal probate of a will. A deed is proved by witnesses or acknowledged by the grantor for registration, for preservation, and for notice as a substitute for livery of seizin. But the formal proof of a will amounts to more than that. . . . When the probate judge takes probate of a will in common form where there are no parties present to look after their interests, and he has the interests of all in his hands, it is just and proper that he should satisfy himself not only of the formal execution of the will, but of the capacity of the testator, because the law attaches great solemnity to his action and makes his record of probate conclusive as to all the world until it shall be vacated by a competent tribunal. But where the parties interested come forward and make an issue and go before a jury to try the validity of a will, it takes precisely the same form and is governed by the same rules as the trial of the validity of a deed or any other instrument. Most of the confusion and conflict of decisions upon the question has grown out of the fact that the distinction between probate in common form and the trial of an issue devisavit vel non before a jury has not been observed."

The defendant set up a counterclaim against the plaintiff in these words: "That the defendant recover from the plaintiffs the sum of $25 as forfeiture for buying his land under pretended titles, one-half to the use of Clay County, the other half to the use of this defendant for suing for the same." It is amusing to notice the intense earnestness (682) with which the defendant G. B. Cardon presses this matter of the counterclaim in the brief filed by himself. He insists, notwithstanding that the plaintiffs made out their case and were entitled to the possession of the land, that, because the plaintiffs did not reply to the counterclaim, therefore the defendants were entitled to judgment on account of the counterclaim; and he cites us to section 1333 of The Code (Rev. Code, ch. 43, sec. 7; 32 Henry VIII, ch. 9, secs. 2 and 4) as the foundation of his counterclaim. It is only necessary to say that that section of The Code is inoperative, as it was repealed by section 177 of The Code, Acts 1874-75, ch. 256, sec. 1.

There was no error, and the judgment is

Affirmed.