{ "id": 8238156, "name": "IN THE MATTER OF THE WILL OF HECTOR CORNELIUS McFAYDEN", "name_abbreviation": "In re the Will of McFayden", "decision_date": "2006-10-03", "docket_number": "No. COA04-1585-2", "first_page": "595", "last_page": "604", "citations": [ { "type": "official", "cite": "179 N.C. App. 595" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "613 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633052 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/613/0688-01" ] }, { "cite": "27 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1943, "pin_cites": [ { "page": "730" }, { "page": "731" } ], "opinion_index": 0 }, { "cite": "223 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614070 ], "weight": 3, "year": 1943, "pin_cites": [ { "page": "593" }, { "page": "595-96" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0591-01" ] }, { "cite": "366 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "89 N.C. 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Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "430 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "923" } ], "opinion_index": 0 }, { "cite": "334 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531703 ], "year": 1993, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0140-01" ] }, { "cite": "501 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "348 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659850 ], "year": 1998, "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0537-01" ] }, { "cite": "464 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "120 N.C. 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App.", "case_ids": [ 8550195 ], "year": 1980, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0472-01" ] }, { "cite": "359 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798082, 3795365, 3797350, 3794823, 3804744, 3796621, 3795799 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0632-01", "/nc/359/0632-04", "/nc/359/0632-03", "/nc/359/0632-07", "/nc/359/0632-06", "/nc/359/0632-02", "/nc/359/0632-05" ] }, { "cite": "607 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. 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Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523925 ], "year": 1986, "pin_cites": [ { "page": "378", "parenthetical": "quoting Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0370-01" ] }, { "cite": "346 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775585, 4775853, 4771860, 4771992, 4775065 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0333-01", "/nc/317/0333-05", "/nc/317/0333-03", "/nc/317/0333-02", "/nc/317/0333-04" ] }, { "cite": "340 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "758-59" }, { "page": "758" }, { "page": "758" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523105 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "682-83" }, { "page": "682" }, { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0678-01" ] }, { "cite": "347 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "851-52" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359475 ], "year": 1986, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0606-01" ] }, { "cite": "357 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729071 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0337-01" ] }, { "cite": "351 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "807" }, { "page": "807" }, { "page": "807-08" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8523569 ], "year": 1991, "pin_cites": [ { "page": "786-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0783-01" ] }, { "cite": "420 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527586 ], "year": 1992, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0356-01" ] }, { "cite": "579 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. 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Burney (\u201ccaveators\u201d), appeal from the trial court\u2019s judgments entered 28 May 2004 that ordered trifurcation of the jury trial of the caveat proceeding and granted directed verdict in favor of Mickey Jackson (\u201cpropounder\u201d).\nOn 8 August 2003, Hector Cornelius McFayden (\u201ctestator\u201d) died of natural causes at the age of seventy-six. Caveators are testator\u2019s neighbors and propounder is testator\u2019s cousin. Mary Sherrill (\u201calignor\u201d) is testator\u2019s sister and aligns with caveators. Patricia Hall Nunalee and June Hall Ransbotham (\u201cintervenors\u201d) are testator\u2019s cousins and argue for affirmation of the trial court\u2019s directed verdict.\nTwo wills are contested here: one, executed on 30 January 1995 (\u201c1995 will\u201d) devises all of testator\u2019s property to propounder; and the other executed on 15 February 2002 (\u201c2002 will\u201d) devises all of testator\u2019s property to caveators. Propounder admitted the original 1995 will to probate. The evidence shows that only a copy of the 2002 will could be found.\nCaveators initiated the present action to set aside testator\u2019s 1995 will. In the caveat, caveators contend that the 1995 will is not testator\u2019s last will and testament, and that testator duly executed his last will and testament on 15 February 2002 in the law offices of MacRae, Perry, Williford, MacRae & Hollers, L.L.P. Caveators argue that the drafting attorney instructed testator to place his original 2002 will in a safe deposit box and to destroy the 1995 will. Upon testator\u2019s death and after a diligent search, the original 2002 will could not be found. Caveators filed an application for Probate of Lost Will on 19 March 2004.\nPropounder answered the caveat and filed motions to dismiss the caveat proceeding pursuant to North Carolina Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(c). Propounder argued that caveators lacked standing to file the caveat. On 25 March 2004, the trial court denied propounder\u2019s motions.\nOn 12 April 2004, propounder filed a motion to trifurcate the caveat proceeding for separate trials. The trial court granted pro-pounder\u2019s motion, and ordered that the jury trial be presented in three phases as follows:\nPhase I: Is the paper-writing, dated January 30, 1995, the Last Will of Hector Cornelius McFayden?\nPhase II: Did Hector Cornelius McFayden destroy the original of the paper-writing, dated February 15, 2002?\nPhase III: Issue One: Is the paper-writing, dated February 15, 2002, the Last Will of Hector Cornelius McFayden? Issue Two: Did Hector Cornelius McFayden lack sufficient mental capacity to make and execute a Will at the time the paper-writing, dated February 15, 2002, was executed? Issue Three: Was the execution of the paper-writing, dated February 15, 2002, procured by undue influence?\nThe trial court conducted Phase I of the caveat proceeding on 12 April 2004, during which the jury found that the 1995 will was testator\u2019s last will and testament. During Phase II, at the conclusion of caveators\u2019 evidence, propounder moved for directed verdict on the grounds that caveators failed to present sufficient evidence to go to the jury on Phase II. The trial court granted propounder\u2019s motion, and caveators moved the trial court to stop the trial, release the jury, and certify its directed verdict on the issue in Phase II for immediate appeal to this Court. On 28 May 2004, the Honorable Gregory A. Weeks entered an order that caveators did not present sufficient evidence on the issue of whether testator destroyed the original 2002 will with the intention of revoking it, and that testator revoked the 2002 will by destroying the original 2002 will with the intention of revoking it. Caveators appealed from the trial court\u2019s judgments on 24 June 2004, and propounder filed a notice of appeal on 1 July 2004, appealing the denial of his motions to dismiss.\nIt is well established in our state\u2019s caselaw that a denial of a party\u2019s motion to dismiss made pursuant to Rule 12(b)(6) is not reviewable on appeal following a final judgment on the merits of the case. See Pierce v. Reichard, 163 N.C. App. 294, 297, 593 S.E.2d 787, 789 (2004); Shadow Grp., LLC v. Heather Hills Home Owners Ass\u2019n, 156 N.C. App. 197, 199, 579 S.E.2d 285, 286 (2003); Berrier v. Thrift, 107 N.C. App. 356, 359, 420 S.E.2d 206, 208 (1992); Shingledecker v. Shingledecker, 103 N.C. App. 783, 786-87, 407 S.E.2d 589, 591 (1991); Drain v. United Services Life Ins. Co., 85 N.C. App. 174, 176, 354 S.E.2d 269, 271 (1987); Duke University v. Stainback, 84 N.C. App. 75, 77, 351 S.E.2d 806, 807, aff\u2019d, 320 N.C. 337, 357 S.E.2d 690 (1987); In re Baby Boy Shamp, 82 N.C. App. 606, 612, 347 S.E.2d 848, 851-52 (1986); Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 682-83, 340 S.E.2d 755, 758-59, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). In Concrete Service Corp., this Court stated that \u201c \u2018[i]t is an almost universal rule that a verdict will cure defects in the pleadings unless the substantial rights of the adverse party have been prejudiced.\u2019 \u201d 79 N.C. App. at 682, 340 S.E.2d at 758 (quoting 5 Am. Jur. 2d Appeal & Error \u00a7 795 (1962)).\nSimilarly, the denial of a motion for summary judgment also is not reviewable on an appeal from a final judgment on the merits. Indiana Lumbermen\u2019s Mutual Ins. Co. v. Champion, 80 N.C. App. 370, 378, 343 S.E.2d 15, 20 (1986) (quoting Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)); see also, Duke University, 84 N.C. App. at 77, 351 S.E.2d at 807. When matters outside the parties\u2019 pleadings are presented to and considered by the trial court for a party\u2019s motion for judgment on the pleadings, the motion will be treated as a motion for summary judgment. N.C. Gen. Stat. \u00a7 1A-1, Rule 12(c). Given the similar nature of motions for judgment on a pleading and for summary judgment, we hold that the denial of a motion for judgment on the pleadings also is not reviewable on appeal following the rendering of a final judgment on the merits. See Duke University, 84 N.C. App. at 77, 351 S.E.2d at 807-08.\nIn Concrete Service Corp., this Court noted that although the denial of a Rule 12(b)(6) motion may not be reviewable on appeal of a final judgment, this holding does not apply to cases in which the trial court has denied a motion based on jurisdictional grounds. 79 N.C. App. at 682, 340 S.E.2d at 758. The question of subject matter jurisdiction may be raised at any time, and while the denial of a motion to dismiss pursuant to Rule 12(b)(1) is interlocutory, an appeal of the denial is no longer interlocutory once there has been a final judgment on the merits of the case. Lemmerman v. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986); Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982). Thus, propounder\u2019s cross-appeal on the denial of his motion to dismiss for a lack of subject matter jurisdiction is no longer interlocutory, and may be brought before this Court, provided that his appeal of the denial is timely.\nIn the instant case, propounder\u2019s motions to dismiss the caveators\u2019 action pursuant to Rules 12(b)(1), 12(b)(6), and 12(c) were denied on 25 March 2004. The denial of the motions was not a final judgment as to all parties and issues, and was not certified for immediate appeal pursuant to Rule 54. Thus, an appeal based upon the denial of the motions would have been interlocutory.\nThe case went to trial, and a final judgment was entered on 28 May 2004 granting directed verdict in favor of propounder. Caveators filed their notice of appeal on 24 June 2004. Based upon Rule 3(c) of our appellate rules, propounder filed notice of cross-appeal on 1 July 2004, appealing the prior denial of his Rule 12(b)(1), 12(b)(6), and 12(c) motions, as the 28 May 2004 judgment was a final judgment as to all parties and issues, and his appeal was no longer interlocutory.\nIn order to preserve the issue in his appeal, propounder preserved his appeal by assigning error to and presenting arguments that the trial court erred in denying his motions to dismiss based on caveators\u2019 lack of standing to bring a Caveat. Therefore, pro-pounder\u2019s appeal of the denial of the Rule 12(b)(1) motion was timely, properly preserved and argued in his brief, and thus is properly before this Court.\nPropounder\u2019s motion to dismiss for lack of subject matter jurisdiction argues that Caveators lack standing to bring the Caveat. \u201cIf a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim.\u201d Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16, disc. review denied, 359 N.C. 632, 613 S.E.2d 688 (2005). North Carolina General Statutes, section 31-32 provides that\nAt the time of application for probate of any will, and the probate thereof in common form, or at any time within three 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[.]\nN.C..Gen. Stat. \u00a7 31-32 (2003). Our caselaw has held that a person \u201cinterested in the estate\u201d \u201cmust have some pecuniary or beneficial interest in the estate that is detrimentally affected by the will.\u201d In re Calhoun, 47 N.C. App. 472, 475, 267 S.E.2d 385, 386 (1980). In the Caveat filed 7 October 2003, caveators presented evidence that testator executed a will on 15 February 2002, in which they were listed as devisees. However, caveators were not included as devisees in testator\u2019s 1995 will, which was admitted to probate as testator\u2019s last will and testament. As caveators presented sufficient evidence to demonstrate that they would be affected detrimentally by the probate of testator\u2019s 1995 will, when there was evidence that testator executed a subsequent will in 2002, we hold caveators had standing to initiate the Caveat pursuant to North Carolina General Statutes, section 31-32. Therefore, there was not a lack of subject matter jurisdiction, and propounder\u2019s motion to dismiss for a lack of subject matter jurisdiction was properly denied.\nOn appeal, caveators present three issues: (1) whether the trial court erred in granting propounder\u2019s motion to trifurcate; (2) whether the trial court erred in granting propounder\u2019s directed verdict; and (3) whether the trial court erred by not allowing testimony regarding testator\u2019s mental capacity.\nThe scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal. N.C. R. App. R 10 (2006). Exceptions in the record not set out in appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned. N.C. R. App. P. 28(b)(6) (2006). Caveators failed to cite authority supporting their third argument. For this reason, caveators\u2019 third argument is not properly before us.\nThe first issue is whether the trial court erred in granting propounder\u2019s motion to trifurcate and sever the issues as presented to the jury.\nThe trial court trifurcated the proceedings into separate phases. In the first phase, the jury decided that the first will, executed in 1995, was a valid will. Subsequently, the later will, executed in 2002 was tried before the same jury in the second phase of the trial.\nPursuant to the provisions of Rule 42(b) of the North Carolina Rules of Civil Procedure, it was with the trial court\u2019s discretion to trifurcate the proceedings. N.C. Gen. Stat. \u00a7 1A-1, Rule 42(b) (2005). This decision is reviewed under an abuse of discretion standard. Roberts v. Young, 120 N.C. App. 720, 725, 464 S.E.2d 78, 82 (1995). In this case, it is clear that the issues concerning the validity of the 1995 will and the revocation of the 2002 will were separate, distinct and compartmentalized. Therefore, the trial court did not abuse its discretion in severing these trials.\nThe decision to try the issues pertaining to the 1995 will prior to the 2002 will also was within the sound discretion of the trial court. An abuse of discretion occurs only when the trial court\u2019s ruling is \u201cmanifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.\u201d Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). In this case, the trial court eventually would have to decide the validity of both the 1995 and the 2002 wills. The resolution of the validity of one will would not be determinative of the validity of the other. This being the case, it was not manifestly unreasonable to try the 1995 will first.\nThe submission of the issue to the jury as to the 1995 will referring to the last will and testament of the deceased was not error. The only issue to be decided by the jury was the validity of the 1995 will. Nothing else was submitted to the jury during the first phase of the trial. Had the jury subsequently found that the 2002 will was a valid will, then that determination would have operated as a matter of law to revoke the 1995 will, rendering the jury verdict in the first phase of the trial moot. Accordingly, we hold that the trial court did not abuse its discretion, and this assignment of error is overruled.\nThe second issue on appeal is whether the trial court erred in granting propounder\u2019s directed verdict because caveators failed to present sufficient evidence to rebut the presumption of revocation of testator\u2019s 2002 will.\n\u201cA motion for directed verdict under N.C.G.S. \u00a7 1A-1, Rule 50 [(2005)], presents the question whether as a matter of law the evidence is sufficient to entitle the nonmovant to have a jury decide the issue.\u201d In re Will of Jarvis, 334 N.C. 140, 143, 430 S.E.2d 922, 923 (1993). In ruling on such a motion the trial court must consider the evidence in the light most favorable to the nonmovant, resolving all conflicts in the evidence in their favor and giving them the benefit of all favorable inferences that reasonably may be deduced from the evidence. Id. \u201cIf the evidence is sufficient to support each element of the nonmovant\u2019s case, the motion for directed verdict should be denied.\u201d Id. \u201cThe credibility of the testimony is [a question] for the jury, not the court, and a genuine issue of fact must be tried by a jury unless this right is waived.\u201d Id.\nPursuant to North Carolina General Statutes, section 31-5.1 (2005),\n[a] written will, or any part thereof, may be revoked only (1) [b]y a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills, or (2) [b]y being burnt, tom, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in the presence and by his direction.\nN.C. Gen. Stat. \u00a7 31-5.1 (2005). In North Carolina, \u201c[i]t is well established that when a will last seen in the testator\u2019s possession cannot be found at death a rebuttable presumption arises that the will was revoked!.]\u201d In re Will of Jolly, 89 N.C. App. 576, 577, 366 S.E.2d 600, 601 (1988). In order to revoke a will by destroying it, the destructive act must be done with the intent to revoke the will. Id. (citing In re Will of Wall, 223 N.C. 591, 27 S.E.2d 728 (1943)). \u201cThe presumption, however, that the testator destroyed the paper with the intent to revoke it as his will is not one of law but of fact, and may be rebutted by evidence of facts and circumstances showing that its loss or destruction was not or could not have been due to the act of the\u2019testator or that of any other person by his direction and consent.\u201d In re Will of Wall, 223 N.C. at 593, 27 S.E.2d at 730. \u201c[A]s soon as the circumstances attendant upon the disappearance of the paper are made to appear, the presumption loses its potency and the issue becomes one for the jury.\u201d In re Will of Wall, 223 N.C. at 595-96, 27 S.E.2d at 731. Thus, it is critical to determine whether caveators presented any competent evidence either that testator did not destroy the will or did not intend to revoke it.\nHere, caveators offered four witnesses regarding the 2002 will to rebut the presumption that testator revoked the 2002 will and that testator did not intend to revoke the 2002 will. First, James C. McRae, Jr. (\u201cMcRae\u201d), testator\u2019s attorney, testified that he gave the original and a copy of the 2002 will to testator in an envelope on the day testator executed the 2002 will. McRae testified that testator never mentioned any subsequent desire to change his will. Second, Mary Sherrill Winks (\u201cWinks\u201d), testator\u2019s niece, testified that propounder had access to testator\u2019s house after testator\u2019s death. Third, Glenn Lane (\u201cLane\u201d), testator\u2019s friend, testified that testator told him that he had made a new will in 2002, and that the 2002 will \u201cwould be a big surprise.\u201d Finally, propounder testified that he had gone to testator\u2019s house on 12 August 2003 with McRae to find the original 2002 will. Propounder testified that on the day after testator went to the hospital, propounder obtained keys to testator\u2019s home from Lane, applied his own lock to the home, and went through the house to secure the firearms, although he denied going to testator\u2019s home to look for papers. In contrast, Lane testified that propounder had told him that he needed to get some papers from the home, and was not able to find the papers in the brown envelope. Furthermore, Lane testified that propounder stated that he would need to have his wife return to testator\u2019s house to locate the brown envelope. Lane stated that he saw propounder coming out of testator\u2019s house at around 7:00 a.m. the morning after he obtained testator\u2019s house keys. There also is evidence that someone moved testator\u2019s 1995 will after his death.\nThis evidence is sufficient to establish facts and circumstances that show testator did not intend to lose or destroy the 2002 will. In viewing the evidence in the light most favorable to caveators, caveators presented evidence of facts and circumstances that the loss or destruction of the 2002 will was not or could not have been due to the act of the testator or that of any other person by his direction and consent. The four witnesses\u2019 testimony provided circumstances attendant upon the disappearance of the 2002 will, and their testimony presented facts and circumstances sufficient to allow the issue to become one for the jury. Thus, caveators presented a genuine issue of fact to be presented to the jury. Accordingly, we affirm in part and reverse and remand in part.\nAffirmed in part; Reversed in part and Remanded.\nJudges HUDSON and STEELMAN concur.\n. As stated previously, propounder\u2019s appeal of the denial of his motions pursuant to Rules 12(b)(6) and 12(c) are not reviewable on an appeal of a final judgment, therefore we address only the denial of motion pursuant to Rule 12(b)(1).\n. The purported 2002 will contains the following language, \u201cI do hereby revoke all former wills made by me and do hereby make, publish and declare this to be my Last Will and Testament.\u201d", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Anderson, Johnson, Lawrence, Butter & Bock, L.L.P., by Steven C. Lawrence for caveators-appellants.", "McCoy, Weaver, Wiggins & Cleveland, PLLC, by Jim Wade Goodman for intervenors-appellees.", "Ward and Smith, PA., by George K. Freeman, Jr. and Alexander C. Dale for propounder-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF THE WILL OF HECTOR CORNELIUS McFAYDEN\nNo. COA04-1585-2\n(Filed 3 October 2006)\n1. Appeal and Error\u2014 appealability \u2014 cross-appeals\u2014final judgment on merits \u2014 timeliness\nPropounder\u2019s cross-appeal of the denial of his motion to dismiss based on lack of subject matter jurisdiction was no longer an appeal from an interlocutory order once there was a final judgment on the merits of the case. Based upon N.C. R. App. P. 3, pro-pounder\u2019s filing of a notice of cross-appeal on 1 July 2004 appealing the prior denial of N.C.G.S. \u00a7 1A-1, Rules 12(b)(1), 12(b)(6), and 12(c) motions meant his appeal was no longer an appeal from an interlocutory order because the 28 May 2004 judgment was a final judgment as to all parties and issues. Further, propounder\u2019s appeal of the denial of an N.C.G.S. \u00a7 1A-1, Rule 12(b)(1) motion to dismiss based on caveators\u2019 lack of standing to bring a caveat was timely, properly preserved, and argued in his brief.\n2. Wills\u2014 caveat proceeding \u2014 subject matter jurisdiction\u2014 standing\nThe trial court did not err in a will caveat proceeding by denying propounder\u2019s motion to dismiss based on lack of subject matter jurisdiction, because caveators had standing to initiate the caveat pursuant to N.C.G.S. \u00a7 31-32 since: (1) caveators presented evidence that testator executed a will on 15 February 2002 in which they were listed as devisees, and that they were not included as devisees in testator\u2019s 1995 will which was admitted to probate as testator\u2019s last will and testament; and (2) caveators thus presented sufficient evidence to demonstrate that they would be affected detrimentally by the probate of testator\u2019s 1995 will.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority\nCaveators\u2019 third argument in a will caveat proceeding is dismissed because caveators failed to cite authority supporting this argument as required by N.C. R. App. P. 28(b)(6).\n4. Wills\u2014 caveat proceeding \u2014 motion to trifurcate and sever issues \u2014 abuse of discretion standard\nThe trial court did not abuse its discretion in a will caveat proceeding by granting propounder\u2019s motion to trifurcate and sever the issues as presented to the jury, because: (1) the issues concerning the validity of a 1995 will and the revocation of a 2002 will were separate, distinct, and compartmentalized; (2) the resolution of the validity of one will would not be determinative of the validity of the other, and thus, it was not manifestly unreasonable to try the 1995 will first; and (3) the submission of the 1995 will referring to the last will and testament of the deceased was not error when the only issue decided by the jury was the validity of the 1995 will, and had the jury subsequently found that the 2002 will was valid, then the determination would have operated as a matter of law to revoke the 1995 will.\n5. Wills\u2014 caveat proceeding \u2014 directed verdict\nThe trial court erred in a will caveat proceeding by granting propounder\u2019s motion for directed verdict under N.C.G.S. \u00a7 1A-1, Rule 50, because: (1) caveators offered four witnesses regarding a 2002 will to rebut the presumption that testator revoked the 2002 will and to show that testator did not intend to revoke the 2002 will; (2) there was evidence that someone moved testator\u2019s 1995 will after his death; and (3) the evidence was sufficient to establish facts and circumstances that show testator did not intend to lose or destroy the 2002 will due to his own actions or by any other person by his direction and consent.\nAppeal by caveators, Simon A. Burney and wife, Mary J. Burney and Mary Elizabeth Sherill, aligned with caveators, from an order and judgments entered 28 May 2004 by Judge Gregory A. Weeks in Cumberland County Superior Court. Appeal by propounder of the Last Will and Testament, Mickey Jackson, from an order entered 25 March 2004 by Judge Knox V. Jenkins, Jr. Appeals heard in the Court of Appeals 18 August 2005. Opinion filed 1 August 2006. Petition for rehearing granted in part 3 October 2006, reconsidering issue one of propounder-appellee\u2019s petition without the filing of additional briefs and without oral argument. The following opinion supersedes and replaces the opinion filed 1 August 2006.\nAnderson, Johnson, Lawrence, Butter & Bock, L.L.P., by Steven C. Lawrence for caveators-appellants.\nMcCoy, Weaver, Wiggins & Cleveland, PLLC, by Jim Wade Goodman for intervenors-appellees.\nWard and Smith, PA., by George K. Freeman, Jr. and Alexander C. Dale for propounder-appellee." }, "file_name": "0595-01", "first_page_order": 627, "last_page_order": 636 }