In Re the Last Will & Testament & First Codicil of Ashley, 208 S.E.2d 398 (N.C. Ct. App. 1974). · Go Syfert
In Re the Last Will & Testament & First Codicil of Ashley, 208 S.E.2d 398 (N.C. Ct. App. 1974). Cases Citing This Book View Copy Cite
19 citation events (12 in the last 25 years) across 1 distinct court.
Strongest positive: In re: Moore (ncctapp, 2022-05-03)
Top citers, strongest first. 4 distinct citers. How cited ↗
cited Cited as authority (rule) In re: Moore
N.C. Ct. App. · 2022 · confidence medium
App. 176, 181 , 208 S.E.2d 398, 401 (1974). ¶9 According to the applicable statute, any person “interested in the estate” may file a caveat within three years after the will is submitted for probate.
cited Cited as authority (rule) In re: Moore
N.C. Ct. App. · 2022 · confidence medium
App. 176, 181 , 208 S.E.2d 398, 401 (1974). ¶9 According to the applicable statute, any person “interested in the estate” may file a caveat within three years after the will is submitted for probate.
discussed Cited as authority (rule) In re the Est. of James Junior Phillips
N.C. Ct. App. · 2016 · confidence medium
Stat. § 31-32 allows any person "interested in the estate" to file such an action, which includes anyone "who has a direct pecuniary interest in the estate of the alleged testator which will be defeated or impaired if the instrument in question is held to be a valid will." In re Ashley , 23 N.C.App. at 180 , 208 S.E.2d at 401 (citation and quotation marks omitted).
cited Cited as authority (rule) In Re the Will of Mason
N.C. Ct. App. · 2005 · confidence medium
App. 176, 181 , 208 S.E.2d 398, 401 (1974).
Retrieving the full opinion text from the archive…
In the Matter Of: The Last Will and Testament and First Codicil of Sallie B. Ashley
7421SC710.
Court of Appeals of North Carolina.
Oct 2, 1974.
208 S.E.2d 398
1974 N.C. App. LEXIS 2044
Hudson, Petree, Stockton, Stockton & Robinson by J. Robert Elster and Robert J. Rawing for propounder appellees. , White and Grumpier by James G.' White and Michael J. Lewis for caveator appellants. , No counsel on appeal for North Carolina Baptist Homes, Inc.
Hedrick, Britt, Baley.
Cited by 9 opinions  |  Published
HEDRICK, Judge.

The caveators contend the trial court erred in dismissing them as parties to this proceeding.

G.S. 31-82 in pertinent part provides:

§ 31-32. When and by whom caveat filed. — At 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 . ... ” (Emphasis added.)

As can be seen from this statute, the only persons with standing to caveat a Will are persons either (1) “entitled under such will” or (2) “interested in the estate”. None of the appellants are named in the1 Will or Codicil, and they do not contend that they are “entitled” under the Will or Codicil. The crucial question, therefore, is whether they are persons “interested in the estate”.

“Under statutes which permit the contest of wills by persons interested or claiming to be interested in the decedent’s estate, the general rule is that a contestant must have some pecuniary or beneficial interest in the estate of the decedent that is detrimentally affected by the will.” 57 Am. Jur., Wills, § 798, p. 541 (footnotes omitted). In Page on Wills, we find the following:

“An ‘interested person’ or an ‘aggrieved person’ is one who has a direct pecuniary interest in the estate of the alleged testator which will be defeated or impaired if the instrument in question is held to be a valid will.” 3 Page on Wills, § 26.52, p. 118 (footnotes omitted).

[*181] It is well settled that North Carolina follows this generally-accepted definition of a person “interested in the estate”. See In re Thompson, 178 N.C. 540, 101 S.E. 107 (1919).

In the present case, the caveators filed a “broadside” caveat before the Clerk as to both the Will and Codicil and the cause' was transferred to the superior court for trial. The position taken by the caveators at that time did allege a pecuniary interest-as required by the statute, in that if the Will and Codicil were both invalidated, they would share in the estate as intestate heirs. Prior to trial, however, this position was destroyed by the caveators’ own stipulation that they did not contest the validity of the Will, which meant that even if they successfully invalidated the Codicil they still would receive no pecuniary benefit from the estate. By that time, North Carolina Baptist Homes, Inc., had responded in the superior court. It adopted the caveators’ position with regard to the Codicil, but it likewise agreed that there was.no contest as to the Will. Because of the appearance of North Carolina Baptist Homes, Inc., and the position takén by it, this cause will still have to be submitted to the jury on the issue of devismit vel non.

A caveat is an in rem proceeding. The “parties” are not parties iii the usual sense but are limited classes of persons specified by the statute who are given a right to participate in the determination of probate of testamentary script. It was for the trial judge to determine what persons fit the statutory description,, and it was determined that the appellants did not. See In re Will of Belvin, 261 N.C. 275, 134 S.E. 2d 225 (1964) ; In re Will of Brock, 229 N.C. 482, 50 S.E. 2d 555 (1948).

■. Just because a person files a caveat, he is not thereby vested with permanent standing to participate in the proceedings. The ordfer. appealed from is

Affirmed.

Judges Britt and Baley concur.