{ "id": 8622051, "name": "In the Matter of the Will of STELLA NEAL", "name_abbreviation": "In re the Will of Neal", "decision_date": "1947-01-31", "docket_number": "", "first_page": "136", "last_page": "138", "citations": [ { "type": "official", "cite": "227 N.C. 136" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "145 S. E., 782", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627295 ], "opinion_index": 0, "case_paths": [ "/nc/196/0418-01" ] }, { "cite": "143 S. E., 130", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630797 ], "opinion_index": 0, "case_paths": [ "/nc/195/0595-01" ] }, { "cite": "170 S. E., 145", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N. C., 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627021 ], "opinion_index": 0, "case_paths": [ "/nc/205/0110-01" ] }, { "cite": "79 S. E., 805", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "163 N. C., 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271991 ], "opinion_index": 0, "case_paths": [ "/nc/163/0390-01" ] }, { "cite": "103 S. E., 896", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "180 N. C., 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652590 ], "opinion_index": 0, "case_paths": [ "/nc/180/0030-01" ] }, { "cite": "91 N. C., 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686723 ], "opinion_index": 0, "case_paths": [ "/nc/91/0139-01" ] }, { "cite": "117 S. E., 804", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N. C., 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656863 ], "opinion_index": 0, "case_paths": [ "/nc/185/0563-01" ] }, { "cite": "125 S. E., 531", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "188 N. C., 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654791 ], "opinion_index": 0, "case_paths": [ "/nc/188/0702-01" ] } ], "analysis": { "cardinality": 308, "char_count": 5253, "ocr_confidence": 0.441, "pagerank": { "raw": 5.921454832095468e-08, "percentile": 0.36988681579505217 }, "sha256": "656f5698787ebe632804c68c4b6236264480f8f0c49b429e2539a8f26a0b426b", "simhash": "1:278b0cb97a605a02", "word_count": 927 }, "last_updated": "2023-07-14T16:20:04.384970+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In the Matter of the Will of STELLA NEAL." ], "opinions": [ { "text": "Schenck, J.\nThe order of the Superior Court must be vacated for two reasons: First, the correctness of the clerk\u2019s action in refusing to probate Exhibits \u201cB,\u201d \u201c0\u201d and \u201cD\u201d was not before the court, as the propounders had either abandoned their appeal or were not pressing it; and, second, no one is now propounding any of the three paper writings marked Exhibits \u201cB,\u201d \u201c0\u201d and \u201cD\u201d as the last will and testament of the deceased.\nNor are the caveators asking that they be probated as \"wills.\u201d In re Will of Westfeldt, 188 N. C., 702, 125 S. E., 531. In the caveat it is alleged that each of said paper writings is \u201cinconsistent with the paper writing\u201d presented to the clerk, marked Exhibit \u201cA,\u201d and probated as the last will and testament of the deceased; and, further, that each paper writing is \u201cinconsistent with all the other paper writings.\u201d In re Will of Wolfe, 185 N. C., 563, 117 S. E., 804. The real purpose of the caveators is \u201cto set them up and knock them down.\u201d Sufficient unto the day are the problems thereof. Up to now no one is sponsoring their probation as wills. Why try an anticipatory cause of action which may never arise? Hathaway v. Hathaway, 91 N. C., 139; In re Bailey, 180 N. C., 30, 103 S. E., 896.\nMoreover, the paper writing last in point of time, marked Exhibit \u201cA,\u201d has been admitted to probate in common form as the last will and testament of the deceased. It is provided by G. S., 31-19, that \u201cSuch record and probate is conclusive in evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal.\u201d Holt v. Ziglar, 163 N. C., 390, 79 S. E., 805. Of course, the order of the clerk adjudging the paper writing, marked Exhibit \u201cA,\u201d to be fully proved in common form is not \u201cconclusive in evidence of the validity of the will,\u201d under this section, on the issue of devisavit vel non, raised by the caveat filed thereto. Wells v. Odum, 205 N. C., 110, 170 S. E., 145. But as between the probated instrument and the prior purported wills, the former stands until \u201cdeclared void by a competent tribunal.\u201d Mills v. Mills, 195 N. C., 595, 143 S. E., 130. Until so set aside, it is presumed to be the will of the testatrix. In re Will of Cooper, 196 N. C., 418, 145 S. E., 782.\nError and remanded.", "type": "majority", "author": "Schenck, J." } ], "attorneys": [ "John F. Matthews and Charles P. Green for propounders, appellants.", "F. C. Bulluck and Malone \u2022& Malone for caveators, appellees." ], "corrections": "", "head_matter": "In the Matter of the Will of STELLA NEAL.\n(Filed 31 January, 1947.)\n1. Wills \u00a7 15\u2014\nA paper writing admitted to probate in common form as the last will and testament of the deceased stands until declared void by a competent tribunal and, until so set aside, stands as against unprobated paper writings previously executed by deceased. 6. S., 31-19.\n2. Wills \u00a7 17\u2014\nWhere propounders offer for probate separate and inconsistent paper writings successive^ executed by deceased, and the clerk admits the one executed last in -point of time as constituting the last will and testament of deceased revoking all prior wills, and propounders do not prosecute an appeal from the clerk\u2019s refusal to admit the prior instruments to probate, upon caveat to the paper writing probated, caveators are not entitled to an order that the prior paper writings be admitted to probate for the purpose of attacking all of the paper writings in the one action.\nAppeal by propounders from Harris, J., at April Term, 1946, of FRANKLIN.\nMotion to amend caveat so as to include other paper writings which purport to be prior wills of Stella Neal, deceased, to the end that the entire issue of devisavit vel non may be determined in one proceeding.\nOn 13 November, 1944, four paper writings, without subscribing witnesses, purporting to be dated respectively, 1 May, 1940, marked Exhibit \u201cD,\u201d 4 January, 1943, marked Exhibit \u201cC,\u201d 10 April, 1943, marked Exhibit \u201cB,\u201d 12 June, 1943, marked Exhibit \u201cA,\u201d each purporting to be the last will and testament of Stella Neal, deceased, was offered for probate in the office of the clerk, Franklin Superior Court, and the clerk being of opinion that the last paper writing in point of time, Exhibit \u201cA,\u201d constituted the last will and testament of the deceased and revoked all prior wills, admitted the same to probate, and declined to admit the three prior instruments to probate. From this ruling the propounders excepted and gave notice of appeal to the judge of the Superior Court, but no further action seems to have been taken on this appeal.\nThereafter, on 24 February, 1945, a caveat was filed to the paper writing, marked Exhibit \u201cA\u201d and admitted to probate as the last will and testament of Stella Neal, deceased.\nAt the April Term, 1946, Franklin Superior Court, the caveators asked to amend their caveat so as to include the paper writings, marked Exhibits \u201cB,\u201d \u201cC\u201d and \u201cD,\u201d to the end \u201cthat the question of testacy or intestacy of the said Stella Neal, deceased, may be determined in this proceeding or action.\u201d\nOn the hearing of the motion, the cause was remanded to the clerk with instructions that Exhibits \u201cB,\u201d \u201cC\u201d and \u201cD\u201d be admitted to probate, and the caveators were allowed to amend their caveat as prayed.\nFrom this ruling the propounders, \u2019Watch Tower Bible and Tract Society and Mary Jane Hinton, appealed, assigning errors.\nJohn F. Matthews and Charles P. Green for propounders, appellants.\nF. C. Bulluck and Malone \u2022& Malone for caveators, appellees." }, "file_name": "0136-01", "first_page_order": 184, "last_page_order": 186 }