
69 S.E.2d 25 (1952)
235 N.C. 27
In re ELLIS' WILL.
No. 745.
Supreme Court of North Carolina.
February 1, 1952.
*26 Fuller, Reade, Umstead & Fuller and A. H. Graham, Jr., all of Durham, for petitioner, appellant.
Robinson O. Everett, Kathrine R. Everett, Jas. R. Patton and R. O. Everett, all of Durham, for respondents, appellees.
DENNY, Justice.
The determinative question presented on this appeal is whether the interested parties in a proceeding before a clerk of the Superior Court to probate a will in solemn form are bound by the findings of the clerk where an issue of fact is raised by the parties. The answer must be in the negative.
The appellees contend that if the propounders originally had a right to trial by jury, it was restricted to a caveat after probate in common form, or to an appeal from the order rejecting the probate in common form; but in any event, the propounders had a right to waive a trial by jury, which they did by petitioning the clerk to issue citations to the interested parties, to hear the evidence and probate the will in solemn form in a recognized "come and see proceeding," citing Redmond v. Collins, 15 N.C. 430; Etheridge v. Corprew Ex'rs, 48 N.C. 14; Randolph v. Hughes, 89 N.C. 428; Collins v. Collins, 125 N.C. 98, 34 S.E. 195; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897; Mordecai's Law Lectures, Vol. II, 2nd ed. page 1213.
We do not construe these decisions as controlling on the question before us, nor the comments of Mr. Mordecai, cited by the appellees, as supporting their contention.
In the case of Redmond v. Collins, supra, the will was offered for probate in common form. A caveat to its probate was filed at the time the order of probate was entered. Thereupon an issue of devisavit vel non was made up, and the jury found that the paper tendered for probate was not the last will and testament of the deceased party. Whereupon the court pronounced against the paper as a will and granted letters of administration to Redmond, the caveator. The propounders did not appeal. Later a petition was filed by the children of one of the beneficiaries under the will, the beneficiary having died, in an attempt to have the will admitted to probate on the ground of alleged fraud in connection with the original proceeding. The court held that the propounders in the first instance kept back none of the proper proofs and the paper writing should have been pronounced a good will, the error was one of the tribunal *27 and not of the parties. However, since no appeal was taken from the judgment by the executors, not resulting from bad faith, but from a misapprehension of their duty and of their personal liability for costs, the parties were bound by the judgment The appellees, herein, contend the following statements in the opinion by Ruffin, C. J., support their position:
"To enable the propounder to bind others a decree is taken out by him authorizing him to summon all persons, `to see proceedings,' not to become parties, but to witness what is going on, and take sides if they think proper. If the propounder does not choose to adopt that course, he may at once take his decree; which in relation to this subject is called proving the will in common form. If he take out a decree and summon those in interest against him, `to see proceedings,' they are concluded, whether they appear and put in an allegation against the will or not, and as against those summoned this is called probate in solemn form.
"But besides these methods, there is another, by which persons may be heard and concluded. If the propounder will not take out a decree `to see proceedings,' a person in interest is not bound to wait the result of that proceeding, and then prefer an allegation to call in the decree made on it, and asserting his own rights; but he may at once `intervene' by a counter allegation, because the proceeding is in rem and all shall be heard. Upon which intervention each of the persons are of course bound by the sentence as before."
In view of the facts before the Court in the above case, we do not think there is anything in the opinion from which it may be inferred that the court intended to hold that in a proceeding before a clerk of the Superior Court to probate a will in solemn form, the clerk has the power to preclude the submission of the issue of devisavit vel non to a jury where issues of fact are raised in the hearing before him.
In Etheridge v. Corprew Ex'rs, supra, the purported will of John Wheatly was probated in common form. Many years later a petition was filed praying for an order to have the script re-propounded to the end that the petitioners might show that the same was not the last will and testament of Wheatly. The Court held that the petitioners had the right "to call for a probate in solemn form, so as to have the validity of the will passed upon by a jurya test to which it has not before been subjected." And Pearson, J., speaking for the Court, said: "The exigence of the estates of deceased persons, sometimes requires that probate of wills should be taken before there is time to serve notice upon the next of kin, because of a present necessity that someone should represent the deceased, take charge of the estate, collect debts, pay creditors, &c., for this reason a probate `in common form,' that is, without citation to the next of kin, or others who may be interested, is allowed. This probate is valid until it is set aside, and cannot be impeached collaterally * * *. But such probate is not conclusive. To have that effect the probate must be in `solemn form;' that is, after citation, per testes; or under our statute, in case of a caveat, by verdict of a jury. If the executor wishes to conclude the matter, he may, after probate in `common form,' proceed to have citations issued and propound the will in `solemn form.' Or the next of kin are entitled, of common right, to have such probate set aside, so as to give them an opportunity of contesting its validity, and having a probate per testes, or by the verdict of a jury."
In the case of Collins v. Collins, supra [125 N.C. 98, 34 S.E. 195], a paper writing purporting to be the last will and testament of J. T. Collins was exhibited to the clerk for probate by the widow and heirs at law of the deceased, except J. K. Collins and W. G. Collins, who, without entering a formal caveat, objected to the probate and recording of the instrument. The clerk made inquiry by taking evidence of witnesses, examined and cross-examined by the two objecting heirs. The clerk declined to admit the paper writing to probate. The propounders appealed to the Superior Court and the clerk certified his acts and entered the cause on the civil issue docket. When the cause came on for hearing, the objectors took the same position which the appellees *28 have taken in the instant case. "The objecting parties at the trial, * * * insisted that there was nothing for a jury to try; that a question of law only was presented by the appeal, and that that depended upon the evidence and ruling before and by the clerk. His honor held otherwise, and proceeded with a jury to try the issue", of devisavit vel non. Upon appeal to this Court the procedure adopted by the court below was approved and the judgment affirmed.
Likewise, the cases of Randolph v. Hughes, supra, and In re Will of Rowland, supra, are not decisive of the question presented for determination on this appeal.
Moreover, we find a correct statement of the law with respect to the two forms of probate in solemn form, in Mordecai's Law Lectures, Vol. II, 2nd ed., page 1211: "(1) Where the next of kin and other interested persons are cited to appear and `see proceedings,'or they come in voluntarily to `see proceedings'and a judgment is entered for or against the will, but there is no verdict of a jury because no issue is raised by the parties; (2) where a person, entitled so to do, intervenes and enters a caveat denies the validity of the willand thereby raises an issue of devisavit vel non, upon which issue a verdict is taken, and judgment entered in accordance with the verdict."
The probate of a will in common form, being an ex parte proceeding on application of the propounder, may be caveated at the time of application for probate or at any time within seven years thereafter by "any person entitled under such will, or interested in the estate". G.S. § 31-32. On the other hand, a probate in solemn form is in the nature of a decree pronounced in open court where all interested parties have been duly cited and is irrevocable.
A clerk of the Superior Court may probate a will in solemn form, without the verdict of a jury, that is per testes, where interested parties are cited to appear and "see proceedings," or they come in voluntarily to "see proceedings," and such parties raise no issue of fact. But, where an interested party intervenes in such proceeding and objects to the probate of the will, denying its validity, whether he files a formal caveat or not, it will raise the issue of devisavit vel non, which issue must be tried by a jury. Such procedure is required by G.S. § 1-273 which reads as follows: "If issues of law and of fact, or of fact only, are raised before the clerk, he shall transfer the case to the civil issue docket for trial of the issues at the next ensuing term of the superior court." Brittain v. Mull, 91 N.C. 498; Collins v. Collins, supra; In re Little's Will, 187 N.C. 177, 121 S.E. 453; In re Will of Brown, 194 N.C. 583, 140 S. E. 192; Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330.
The propounder, intervener, objector, or caveator, may not waive a trial by jury on the issue of devisavit vel non. Such cause must proceed to judgment, and a motion for judgment as of nonsuit, or for a directed verdict, will not be allowed. In re Will of Roediger, 209 N.C. 470. 184 S.E. 74; In re Will of Redding, 216 N.C. 497, 5 S.E.2d 544; In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526; In re Will of Morrow, 234 N.C. 365, 67 S.E.2d 279.
Moreover, it is said in Re Will of Kelly, 206 N.C. 551, 174 S.E. 453, 454: "The law makes two subscribing witnesses to a will indispensable to its formal execution. But its validity does not depend solely upon the testimony of the subscribing witnesses. If their memory fail, so that they forget the attestation, or they be so wanting in integrity as willfully to deny it, the will ought not to be lost, but its due execution and attestation should be found on other credible evidence. And so the law provides." Bell v. Clark, 31 N.C. 239; In re Will of Deyton, 177 N.C. 494, 99 S.E. 424, 428; In re Will of Redding, supra. "The law seems to be settled in this state that parties are not to be bound or concluded by the testimony of one of the subscribing witnesses, but may show the very truth of the matter by other testimony." In re Will of Deyton, supra.
The judgment entered in the court below is reversed.
