Seawell, J.
In this jurisdiction the right to contest a will by caveat is given by statute; and the procedure to be followed is outlined in the statute conferring the right, G.S. 31-32, 31-33,
et seep
It is not a civil action, as classified in the Code of Civil Procedure, but a special proceeding
in rein
leading to the establishment of the will as a testamentary act under the issue
devisavil vel non. In re Haygood's Will,
101 N. C. 574, 578, 8 S. E. 222;
In re Will of Westfeldt,
188 N. C. 702, 125 S. E. 521;
Bailey v. McLain,
215 N. C. 150, 1 S. E. (2) 372;
S. v. Me Glynn,
20 Cal. 233;
Ex parte Re Elliott,
22 Wash. (2) 334, 156 P. (2) 427; 157 A. L. R. 1335, anno. 57 A. L. R. 262, 57 A. M. Jur. 757. Often this issue is subdivided, according to the angle or nature of the attack, into ancillary issues, the most common of which are those relating to undue influence and testamentary capacity; but every caveat to a will leads to the simple inquiry we have mentioned,
devisavil vel non,
and the rules of procedure are framed with reference to that feature.
Under G.S. 31-32,
supra,
the right conferred and the time in which it may be exercised, is expressed as follows :
“31-32. When and By whom Caveat filed.—At the time of application for probate of any will, and to the probate thereof in common form, or at any time within seven years thereafter, any person entitled under such will or interested in the estate may appeal in person or by attorney to the Clerk of the Superior Court and enter a caveat to the probate of such will, etc.”
It will thus appear caveat to a will may be filed only by persons
“entitled under such will or interested in the estate.”
And section 31-33, directing the issue of citations, “to all devisees, legatees, or other parties in interest,” does not enlarge the definition of
interest
given in the preceding section.
It is to be noted that the persons so interested are not cited as parties to the proceeding but merely as interested persons to view proceedings and participate if they elect to do so, although no doubt the court, when properly and timely advised, would cause citation to issue to anyone
designated by statute as interested but who has been omitted. See
Mills v. Mills,
195 N. C. 595, 143 S. E. 130.
In this proceeding the Clerk of the Superior Court issued citation to all the heirs of I. M. L. Brock, the testator, and all the beneficiaries under the will. The question raised is whether Benjamin W. Brock (who was neither heir nor devisee of the testator but holds certain deeds from I. M. L. Brock and other deeds from Emma Ruth Brock, devisee), and Carrie Mae Brock (an heir at law of Mrs. Emma Ruth who died pending the proceeding), have such interest as to make it obligatory on the part of the court to order citation to issue to them as “necessary parties” to the final determination of the proceeding. These two are the persons whom the caveators seek to have made “parties.” Neither of them, as will presently appear, have an interest in Contesting the will.
Here we must interpose some discussion of rules of procedure peculiar to the subject under review,—the probate of the will in solemn form.
The rules peculiar to this procedure arise, as we have said, from the legally accepted theory that the proceeding is
in
rem—perhaps more strictly so regarded than any other proceeding with which the courts deal. This concept has given rise not only to exclusive designations or nomenclatures given to persons concerned with the proceeding, but also terms which are peculiar to their relation to the investigation. In this respect the whole proceeding stands apart from ordinary civil actions. The
in rem
nature of the proceeding dominates the investigation, and in many important respects the parties litigant have little of the usual control over the course of trial on the issue. Once propounded for probate in solemn form the proceeding must go on until the issue
devisavit vel non
is appropriately answered; and no nonsuit can be taken by the propound-ers or by the caveators.
In re Will of Westfeldt, supra.
It is the peculiar relation of the contesting parties to the proceeding which demands attention here. The fact is that they are not parties, or indeed cited as parties according to the rules pertaining to ordinary adversary actions arraying those interested as parties plaintiff and defendant, whatever the significance or necessity for the citation may have as a matter of notice.
Bailey v. McLain, supra.
I ustice Holmes
said, “The life of the law has not been logic; it has been experience.” This subject, set apart in the minds of men, lay, professional and curial, under the influence of a recognized solemnity, has had an insulated development, and it is not strange that there may be found at some points disagreement between rules so evolved and those applied in ordinary adversary actions.
The effort is made in appellants brief to similarize this sort of special proceeding with the rules applied in ordinary controversies or adversary civil actions, and both statutes and precedents pertaining to the latter
are cited as controlling; and, indeed, we find in 57 Am. Jur., 760, 763, a suggestion that in those jurisdictions where the right to contest the will is given to any person interested, there is some approach to the procedural requirements in the latter class of controversy. If the differences between the proceedings were at all points in form, and never in substance, this view might prevail; but we are confronted with distinctions which go to the substance rather than the form. We feel sure that if there is any further
rapprochement,
in our jurisdiction, it must be at the hands of the Legislature, not the courts.
Perhaps, however, in the particular case a closer look at the status of the persons the caveators seek to have made parties will render the discussion less abstract.
The caveators base their motion upon the fact that there are on the records of Onslow County eight deeds by I. M. L. Brock to his wife, Emma Ruth Brock, conveying various parcels of land, executed July 12, 1941, some months before the will became effective through the death of the testator on November 19 of the same year; that Emma Ruth Brock, devisee under the will, at some date which does not appear from the record, executed six deeds to Benjamin W. Brock, conveying various parcels of land therein described. The caveators claim in their brief that Benjamin Brock has now in his possession at least 75 per cent of all the lands of which I. M. L. Brock died seized and possessed.
For the purposes of this appeal it appears from the record that the testator Brock in fact and law did not die seized and possessed of the lands conveyed to his wife by the eight deeds above mentioned, all made prior to his death.
There are three items in the will devising lands to Mrs. Emma Ruth Brock, the wife.
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Seawell, J.
In this jurisdiction the right to contest a will by caveat is given by statute; and the procedure to be followed is outlined in the statute conferring the right, G.S. 31-32, 31-33,
et seep
It is not a civil action, as classified in the Code of Civil Procedure, but a special proceeding
in rein
leading to the establishment of the will as a testamentary act under the issue
devisavil vel non. In re Haygood's Will,
101 N. C. 574, 578, 8 S. E. 222;
In re Will of Westfeldt,
188 N. C. 702, 125 S. E. 521;
Bailey v. McLain,
215 N. C. 150, 1 S. E. (2) 372;
S. v. Me Glynn,
20 Cal. 233;
Ex parte Re Elliott,
22 Wash. (2) 334, 156 P. (2) 427; 157 A. L. R. 1335, anno. 57 A. L. R. 262, 57 A. M. Jur. 757. Often this issue is subdivided, according to the angle or nature of the attack, into ancillary issues, the most common of which are those relating to undue influence and testamentary capacity; but every caveat to a will leads to the simple inquiry we have mentioned,
devisavil vel non,
and the rules of procedure are framed with reference to that feature.
Under G.S. 31-32,
supra,
the right conferred and the time in which it may be exercised, is expressed as follows :
“31-32. When and By whom Caveat filed.—At the time of application for probate of any will, and to the probate thereof in common form, or at any time within seven years thereafter, any person entitled under such will or interested in the estate may appeal in person or by attorney to the Clerk of the Superior Court and enter a caveat to the probate of such will, etc.”
It will thus appear caveat to a will may be filed only by persons
“entitled under such will or interested in the estate.”
And section 31-33, directing the issue of citations, “to all devisees, legatees, or other parties in interest,” does not enlarge the definition of
interest
given in the preceding section.
It is to be noted that the persons so interested are not cited as parties to the proceeding but merely as interested persons to view proceedings and participate if they elect to do so, although no doubt the court, when properly and timely advised, would cause citation to issue to anyone
designated by statute as interested but who has been omitted. See
Mills v. Mills,
195 N. C. 595, 143 S. E. 130.
In this proceeding the Clerk of the Superior Court issued citation to all the heirs of I. M. L. Brock, the testator, and all the beneficiaries under the will. The question raised is whether Benjamin W. Brock (who was neither heir nor devisee of the testator but holds certain deeds from I. M. L. Brock and other deeds from Emma Ruth Brock, devisee), and Carrie Mae Brock (an heir at law of Mrs. Emma Ruth who died pending the proceeding), have such interest as to make it obligatory on the part of the court to order citation to issue to them as “necessary parties” to the final determination of the proceeding. These two are the persons whom the caveators seek to have made “parties.” Neither of them, as will presently appear, have an interest in Contesting the will.
Here we must interpose some discussion of rules of procedure peculiar to the subject under review,—the probate of the will in solemn form.
The rules peculiar to this procedure arise, as we have said, from the legally accepted theory that the proceeding is
in
rem—perhaps more strictly so regarded than any other proceeding with which the courts deal. This concept has given rise not only to exclusive designations or nomenclatures given to persons concerned with the proceeding, but also terms which are peculiar to their relation to the investigation. In this respect the whole proceeding stands apart from ordinary civil actions. The
in rem
nature of the proceeding dominates the investigation, and in many important respects the parties litigant have little of the usual control over the course of trial on the issue. Once propounded for probate in solemn form the proceeding must go on until the issue
devisavit vel non
is appropriately answered; and no nonsuit can be taken by the propound-ers or by the caveators.
In re Will of Westfeldt, supra.
It is the peculiar relation of the contesting parties to the proceeding which demands attention here. The fact is that they are not parties, or indeed cited as parties according to the rules pertaining to ordinary adversary actions arraying those interested as parties plaintiff and defendant, whatever the significance or necessity for the citation may have as a matter of notice.
Bailey v. McLain, supra.
I ustice Holmes
said, “The life of the law has not been logic; it has been experience.” This subject, set apart in the minds of men, lay, professional and curial, under the influence of a recognized solemnity, has had an insulated development, and it is not strange that there may be found at some points disagreement between rules so evolved and those applied in ordinary adversary actions.
The effort is made in appellants brief to similarize this sort of special proceeding with the rules applied in ordinary controversies or adversary civil actions, and both statutes and precedents pertaining to the latter
are cited as controlling; and, indeed, we find in 57 Am. Jur., 760, 763, a suggestion that in those jurisdictions where the right to contest the will is given to any person interested, there is some approach to the procedural requirements in the latter class of controversy. If the differences between the proceedings were at all points in form, and never in substance, this view might prevail; but we are confronted with distinctions which go to the substance rather than the form. We feel sure that if there is any further
rapprochement,
in our jurisdiction, it must be at the hands of the Legislature, not the courts.
Perhaps, however, in the particular case a closer look at the status of the persons the caveators seek to have made parties will render the discussion less abstract.
The caveators base their motion upon the fact that there are on the records of Onslow County eight deeds by I. M. L. Brock to his wife, Emma Ruth Brock, conveying various parcels of land, executed July 12, 1941, some months before the will became effective through the death of the testator on November 19 of the same year; that Emma Ruth Brock, devisee under the will, at some date which does not appear from the record, executed six deeds to Benjamin W. Brock, conveying various parcels of land therein described. The caveators claim in their brief that Benjamin Brock has now in his possession at least 75 per cent of all the lands of which I. M. L. Brock died seized and possessed.
For the purposes of this appeal it appears from the record that the testator Brock in fact and law did not die seized and possessed of the lands conveyed to his wife by the eight deeds above mentioned, all made prior to his death.
There are three items in the will devising lands to Mrs. Emma Ruth Brock, the wife. There is no way apparent in the record by which the Court is able to correlate any of the conveyances mentioned with the three items of the will which convey real estate to Emma Ruth Brock, or to determine the ultimate source of title of Emma Ruth Brock’s deeds to Benjamin Brock; and the Court will not make an assumption on such an important matter. Nor is it able in this case to act upon the suggested contingency that the Brock deeds to his wife may be invalid, or invalidated.
The interest which allegedly qualifies Olivia Brock Kennington as a necessary party upon the issue
devisavit vel non
is the supposed inheritance of title from her mother to such property as might be devised to her under the will.- Olivia was not herself an heir of the testator, or a beneficiary of the will. If the will were set aside the estate of the testator would not be obligated to Mrs. Emma Ruth Brock, the mother, except as to widow’s dower, her year’s allowance, or child’s share of the personalty, all of which obligations were canceled by her death. If it stands, Olivia
could only inherit that part of the devise to the mother which had not been stripped away either by the conveyances made by the testator before his death; or by the deeds of her mother to Benjamin Brock if the deeds were made subsequent to his death and could be related to the devise. It does not affirmatively appear to the Court that she has such an interest as the statute contemplates in order to make her citation necessary.
We do not ignore the fact that appellants have made certain general claims with regard to the relation of these persons to the estate of the testator; but they have also particularized the facts upon which such claim is based. Conceding, but not deciding, that these persons may be proper parties to the proceeding, they are not necessary parties; and the trial judge, in the exercise of his discretion, was under no legal obligation to order citations to bring them in.
In their motion below, the caveators asked that a personal representative be appointed for Emma Ruth Brock, the executrix and devisee under the will, who died pending the proceeding; and in this Court, without any amendment to the motion, suggested that an administrator
d. b. n.
should be appointed for the estate of I. M. L. Brock. In this request it seems to us that counsel is inadvertent to the nature of the proceeding. The record discloses that the executrix prior to the caveat of the will had fully administered the estate of the testator and filed her final account; and the personalty of Mrs. Emma Ruth Brock certainly has nothing to do with this proceeding. Any rights which the parties now have, or may have at the termination of this proceeding with respect to these subjects, must be determined in a separate proceeding.
For the reasons above stated, the judgment of the court below is
Affirmed.