Benjamin v. Teel

33 N.C. 49

Opinion

Ruffin, C. J.

Persons, to whom notice to see proceeding is given, are bound by them, and are, in the view of the Court of probate, parties to the proceedings, as far as there can be said to be parties in such a controversy. It is true, they may not be actors in the cause, and therefore not liable to costs. But, unless they do something to preclude them, they may become active at any time before the sentence is pronounced ; for, until that is done, any party in interest is entitled to be heard for or against the script. The usual manner of effecting that with us has not been by a new and distinct allegation for or a* gainst the will; but by becoming a party to the issue, made up under the direction of the Court, according to the Statute. For, if such allegation were made, it would not entitle that person to an issue to be tried separately, as that might lead to opposite verdicts on the same matter ; but the course is merely to state on the record such matter as shows on which side the person becomes an actor, so as to show distinctly whether he may in the result be entitled to or liable for the costs. The proceeding being in rem, any person may intervene to protect his interest while the thing continues sub judice.

Per Curiam. Orders affirmed with costs.