#### In the Matter of the Last Will and Testament of P. B. CAMPBELL.

(Filed 7 April, 1926.)

Wills — Caveat—Issues—Devisavit Vel Non — Interpretation.

A caveat to a will does not present the determination as to the sufficiency of any clause of the paper-writing, or whether a trust therein imposed is sufficiently definite, but only whether it was or was not the will of the testator, or whether it was witnessed or probated as the statute requires, etc.

Appeal by caveator from Webb, J., at February Term, 1926, of Foesyth.

Affirmed.

Mary Crutchfield, sister of P. B. Campbell, filed a caveat to his will alleging want of mental-capacity, undue influence and interested parties who witnessed the will. The record shows :

“Monday, 8 February, 1926, the caveator moved the court to be allowed to amend her pleadings, as appears in the written amendment. The court in its discretion allows the amendment, and the defendants except:

- AMENDMENT TO CAVEAT.

(d) That the purported granting clause of said paper-writing in the second paragraph of the second article is void for indefiniteness, in that there is nothing provided to guide, check or control an unbridled discretion of the trustees. Waltee E. Bhock, Attorney for Caveator.

*568Mr. Brock — I shall abandon the claim of undue influence and mental capacity. The only two grounds that I think we can ask to he heard on with any degree of success are the allegations of interested parties who witnessed the instrument, and of the last amendment which I have offered.

Issue and Yeediot.

1. Is the paper-writing offered in evidence, and every part thereof, the last will and testament of P. B. Campbell, deceased? Answer: Yes.

JUDGMENT.

This cause coming on to be heard and being heard before his Honor, James L. Webb, judge presiding, and a jury, at the February Term, 1926, of the Superior Court of Forsyth County, on the caveat filed by Mary Crutchfield in the above entitled action, and it appearing to the court that the issue was submitted to the jury and answered as indicated. It is, therefore, ordered and adjudged that the said will referred to in the said caveat is the valid will of P. B. Campbell, deceased; that the said caveat he dismissed and the caveator taxed with the cost. JAS. p, Webb, Judge Presiding.

Entries on Appeal.

The court: The issue was submitted to the jury which was answered ‘Yes,’ and the caveator excepted. Judgment — exception. The caveator appeals to the Supreme Court. Notice of appeal given in open court, and further notice waived. Appeal bond fixed at $50.00. The caveator permitted to file prayer asking the court to hold as a matter of law that the will invalid on account of the witnesses thereto being interested in the property willed and furthermore that the will is void for uncertainty, and asking the court to direct a verdict accordingly. This prayer was refused by the court and exception. It is agreed that the record and the evidence in this case shall constitute the case on appeal to the Supreme Court.

Case on Appeal.

This was a caveat tried at February Term, 1926, of the Superior Court of Forsyth County, before Honorable Jas. L. Webb, judge presiding and a jury.

The propounder offers in evidence the will. Objection by the caveator is overruled. The propounder rests.

At the close of the propounder’s evidence the counsel for the caveator moved the court to direct a verdict that the will was invalid for uncertainty. Motion overruled, and caveator excepts.

*569Judge’s Chaege.

The court charged the jury as follows:

Gentlemen of the jury: A caveat was filed to the will of P. B. Campbell, and in that caveat they alleged that he had not sufficient mental capacity to make a will, and another reason that there was undue influence used in procuring the making of the will. The caveator before the court, abandons these two suggestions.

The will has been introduced and the witnesses to the will, and the witnesses to the will who have been introduced testified that they signed the will that has been introduced at the request of the maker of the will, Campbell, signed it in his presence and in the presence of each other, and at his request, and testified that he was a man capable of making a will, knew what he was about, and of sufficient mental capacity to make it. So the court charges you if you believe all this evidence, you will answer this issue 'Yes,’ 'Is the paper-writing offered in evidence, and' every part thereof, the last will and testament of P. B. Campbell, deceased?’ If you believe it, you will answer that 'Yes,’ under the instructions of the court.”

The caveator assigned the following errors:

(1) The court erred in overruling the caveator’s motion for a directed verdict.

(2) To the charge of the court below commencing with ''the will has been introduced,” etc.

The caveator assigned error and duly appealed to the Supreme Court.

Walter E. Broclc and Richmond Bucher for caveator.

Manly, Hendren & Womble for propounders.

Clarkson, J.

The question for us is caveator’s present contention: “That the purported granting clause of said paper-writing in the second paragraph of the second article is void for indefiniteness, and there is nothing provided to guide, check or control an unbridled discretion of the trustees.” All other assignments of error are deemed abandoned. Rules of Practice in the Supreme Court, 28. 185 N. C., p. 798. This contention of caveator we cannot consider. The only issue is devisavii vel non.

Mary Crutchfield filed a caveat to the will of P. B. Campbell — this was a proceeding in rem to determine the testacy or intestacy, of the deceased. In re Westfeldt, 188 N. C., p. 705. The only issue: “Is the paper-writing offered in evidence and every part thereof, the last will and testament of P. B. Campbell, deceased ?”

40 Cyc., p. 1231, states it thus: “In proceedings to probate a will, the only proper and necessary matters for consideration and determina*570tion are tbe testamentary capacity of tbe testator, tbe due execution of tbe will in accordance with tbe statutory requirements, and tbe presence or absence of fraud, mistake, or undue influence; matters of interpretation and construction, as well as tbe validity of particular bequests and devises, are not involved and are without tbe power of tbe court to consider and determine, unless express authority to determine such questions is given by statute.”

In Wood v. Sawyer, 61 N. C., p. 268, Reade, J., said“Tbe uniform practice, when a paper-writing is offered for probate as a will, has been to prove tbe execution of tbe paper and obtain an order that it be recorded, without consideration of its contents, except so far as to see that it purports to be a will. And where tbe validity of tbe will is questioned, and it is submitted to a jury, tbe jury is restricted to tbe same inquiries. Where there is no objection, tbe court passes upon tbe validity of tbe paper, and where there is objection, tbe jury passes upon it; and, in either case, tbe proceeding is in rem. Tbe probate passes upon tbe rights of no one under tbe will, but only establishes ft as a will, leaving tbe rights of parties to be ascertained thereafter.”

H. G. Connor, J., In re Murray, 141 N. C., 591, says: “We cannot perceive how the construction of the will was presented or could have been passed upon in this proceeding. The courts of probate have no other jurisdiction than to inquire into the execution of the will. The fact that an executor is appointed is sufficient to entitle the will to be admitted to probate, if properly executed. We are not favored with any authorities tending to sustain this exception. The supplementary brief filed by the caveators cited a number of authorities which it is insisted tend to show that the trust undertaken to be set up and the charity established by the will is void. These are interesting questions, but in no proper sense now before the court.”

In Phifer v. Mullis, 167 N. C., 410, the late lamented Geo. H. Brown, J., said: “The paper was proved in common form before the clerk as a will. The effect of the caveat is to require the paper-writing to be proved again in solemn form in term-time and before a jury of the Superior Court, and no other issues are raised or is appropriate in such proceeding except that of devisavit vel non." See In re Harrison, 183 N. C., 457; In re Southerland, 188 N. C., 325.

The question presented by caveator as to the construction of the clause in the will cannot be determined on this record.

For the reasons given, the judgment below is

Affirmed.