Edward Giles, Mecklenburg County, VA 1818
Please record exemplified copy of will of Lewis [sic] Lamb. Enclosed with the letter was an exemplified copy of the Virginia proceedings including decedent's will. The clerk of court placed those documents in a file, and filed them in the clerk's office. On 2 November caveators filed a caveat to decedent's will in the Superior Court, Perquimans County. At that time testator's alleged will had not been probated in North Carolina nor has it since.
In the caveat the caveators gave notice that they would seek a restraining order pendente lite prohibiting the executrix and administratrix C. On 7 November propounders filed a motion to dismiss the caveat pursuant to Rule 12 b of the Rules of Civil Procedure. By consent the matter came on for hearing before Judge Barefoot in Pasquotank County on 8 November Judge Barefoot first heard the motion of the propounders to dismiss. At that hearing the propounders offered into evidence the exemplified copy of the record of the proceedings in the Circuit Court of the City of Virginia Beach, Virginia, including decedent's will, and the file in the office of the Clerk of Superior Court of Perquimans County, North Carolina.
Both the statement of case on appeal and Judge Barefoot's order refer to a "petition" filed in the Perquimans County proceeding by the caveators seeking an order pendente lite restraining further administration of the estate pending resolution of the issues raised in the pleadings.
This petition was not made a part of the record on appeal but was allowed by Judge Barefoot in his order of 8 November By that order Judge Barefoot overruled propounders' motion to dismiss and allowed caveators' petition for a restraining order pendente lite. The propounders appealed to the Court of Appeals which affirmed Judge Barefoot's order.
The allegations by caveators in both proceedings as to the invalidity of the will, to-wit, a lack of sufficient mental or testamentary capacity to execute the will and coercion and undue influence, are essentially the same. There are additional allegations. The caveat filed in the North Carolina proceedings also alleges that the signature on the purported will is not that of the decedent and that the will was not "executed according to law and witnesses," while the caveat filed in the Virginia proceeding also alleges that the purported will "was not executed with the formalities required by law.
At the hearing on propounders' motion to dismiss the caveat proceeding in Perquimans County, Judge Barefoot had before him memoranda of law, verified pleadings, an affidavit of plaintiff caveators and the contents of the clerk's file: a record of the Virginia proceedings and an exemplified copy of a paper writing purported to be the last will of Louis Lamb. Judge Barefoot also heard arguments of counsel. The documentary evidence before Judge Barefoot is replete with contradictory allegations.
Caveators allege that decedent was a resident and domiciliary of the State of North Carolina, that the decedent had no known residence in the City of Virginia Beach, owned no real estate or estate of any kind anywhere in Virginia, and did not die in Virginia; but to the contrary was a resident and domiciliary of North Carolina and that all of his estate, including all real property and personal property, is situate in North Carolina. Propounders deny that decedent was not a resident of the City of Virginia Beach but admit that decedent owned no land in Virginia.
They neither admit nor deny caveators' allegations that all of decedent's estate is located in North Carolina but demand strict proof thereof. Decedent's will was executed in Norfolk on 9 December but recites that the testator is a resident of Hertford County.
North Carolina. Because the parties have stipulated in the record before this Court that verifications need not be printed we must assume that the Bill to Impeach Will and all other pleadings were properly verified.
- In re Lamb.
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With those conflicting allegations as background, we now move to a consideration of the issue before this Court. The issue of the jurisdiction of the Virginia Circuit Court to admit the will of Louis Dempsey Lamb to probate in that state was argued in that court. It is not before the appellate courts of this State. Because it may become an issue in future proceedings in this state, we will simply note that domicile is a question of fact.
The Circuit Court in Virginia and the superior court in Perquimans County, North Carolina if the alleged will is offered for probate there , may reach different conclusions with respect to the question of the domicile of the testator at the time of his death. An express adjudication by the Virginia Circuit Court in the probate proceeding before it that the decedent was a resident of Virginia at the time of his death would not be binding on the superior court in Perquimans County in the probate proceeding before it.
Comity does not require that the North Carolina court in which the will is offered for probate recognize the conclusion of domicile reached by the foreign court. In re Will of Marks, N. Assuming arguendo that the testator's domicile at the time of his death was in Virginia, probate of the testator's will could have been had in the first instance in North Carolina without regard to whether the Virginia proceeding was ever undertaken.
In re Will of Cullinan, N.
Mecklenburg Co., VA Yancy Wills
This apparently is in accord with the generally recognized view. See Annot. The narrow issue presented by this appeal is whether the caveat action in Perquimans County is properly brought where, as here, the clerk of court has not entered an order admitting an exemplified copy of the will to probate in common form but has simply received and filed the copy of the will. Whenever any will made by a citizen or subject of any other state or country is duly proven and allowed in such state or country according to the laws thereof, a copy or exemplification of such will and of the proceedings had in connection with the probate thereof, duly certified, and authenticated by the clerk of the court in which such will has been proved and allowed,.
Any copy of a will of a nonresident heretofore allowed, filed and recorded in this State in compliance with the foregoing shall be valid to pass title to or otherwise dispose of real estate in this State. Caveators contend that allowing, filing and recording by the clerk is nothing more than an administrative, as opposed to a judicial, function and that when the clerk accepted physical possession of the will, he "allowed" it; that when he placed it in his office in a folder or court shuck, he "filed" it; and when he assigned the file a number and put it in a metal cabinet, he "recorded" it.
The propounders, on the other hand, contend that the allowing, filing and recording is a judicial process and not a perfunctory matter to be presumed by merely filing the will in a folder. The Court of Appeals held that a caveat may be properly entered to the recordation of an exemplification or authenticated copy of a will and foreign order of probate that has been "allowed, filed and recorded" in the office of the clerk but which has not been probated.
The holding of that court on this issue was as follows:. The decision allowing the caveat does not rest upon the probate of the will in this State but upon its recordation. We hold that where a certified or authenticated copy or exemplification of a will of a nonresident together with the proceedings had in connection with its probate in another state is allowed, filed and recorded by the clerk of superior court in the same manner as if the original and not a copy had been produced, proved and allowed before such clerk, a caveat to the will may be properly entered.
Emphasis added. Brown, N.
We believe such reliance to be misplaced. As the Court of Appeals recognized, Chatman is clearly distinguishable in that, although it is not referred to in this Court's reported opinion, an examination of the record on appeal discloses that the will there was actually probated by the clerk of superior court in New Hanover County.
In Chatman, the testator's will was probated in South Carolina. A certified and authenticated copy or exemplification of the will and of the proceedings had in connection with the probate in South Carolina was produced and exhibited before the clerk of Superior Court, New Hanover County, who then probated the will. McEwan was a civil action to remove a cloud on title and did not involve a caveat.
We have reviewed the record on appeal in McEwan and find that, though not mentioned in the opinion of this Court, the Clerk of Superior Court, Beaufort County entered an order on 20 January as follows:. It appearing to the satisfaction of the Court from the exemplification of the record hereinafter mentioned, that the last will and testament of Sylvester Brown, deceased, a citizen of Norfolk County and State of Virginia, has been duly proved and allowed in the proper court of probate of said county and State, according to the laws of said State, and it further appearing that the said Sylvester Brown left property in the county of Beaufort and State of North Carolina, it is therefore ordered and adjudged that the exemplification of said will and of its probate in the proper court of Norfolk County and State of Virginia, which has been produced and exhibited here duly certified and authenticated, be allowed recorded and filed in this Court.
This Court held in McEwan that if a will is executed and probated in another state, and a certified copy has been filed in the office of the superior court in the county in North Carolina wherein the land lies and that copy is relied upon to pass title to real property here, if it appears from that copy of the will that the law of this State has not been sufficiently complied with, the heirs at law in possession may maintain an action to declare the writing a cloud upon their title.http://siva-group.eu/caribe-semana-santa.php
The beneficiary under the will may then offer it for probate in solemn form, and issues as to mental incapacity or other matters affecting the validity of the will may also be raised. Any implication in McEwan that a caveat may be offered to a foreign will that has been allowed, filed and recorded, but not offered for probate, in this State is expressly overruled.
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. In re Will of Brock N.
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This statute permits a person in interest to caveat an alleged will offered for probate and to contest the validity of such alleged will before it has been admitted to probate. Brissie v. The word "probate" means the judicial process by which a court of competent jurisdiction in a duly constituted proceeding tests the validity of the instrument before the court, and ascertains whether or not it is the last will of the deceased. Craig, N. Smart's Executors. The propounders contend that where there is no duly probated will there can be no properly constituted caveat under G.
We agree. We find the language of Rodman, J. The will of a resident of this state should be probated in the county of his domicile. This photo was not uploaded because this memorial already has 20 photos. This photo was not uploaded because you have already uploaded 5 photos to this memorial. This photo was not uploaded because this memorial already has 30 photos. This photo was not uploaded because you have already uploaded 20 photos to this memorial.