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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF THE WILL OF SALLIE SCHENCK MASON, DECEASED
Filed: 18 January 2005
1. Wills--caveat_validity of prior will--issues not raised by pleadings of evidence
Where a caveator sought to have a 1992 will set aside and a 1996 will adjudged to be the
deceased's last will and testament, the trial court did not err by not submitting to the jury the
specific issue of the validity of the 1992 will. The caveator did not challenge the validity of the
1992 will on any basis other than its purported revocation by execution of the later will and the
jury resolved all issues pertaining to that later will.
2. Appeal and Error_preservation of issues--caveat_issues not raised at trial
Issues which were not raised at trial in a caveat proceeding were not preserved for
Appeal by Caveator from judgment entered 9 July 2003 by Judge
Charles C. Lamm, Jr., in Mecklenburg County Superior Court. Heard
in the Court of Appeals 3 November 2004.
Malcolm B. McSpadden for caveator-appellant.
Moore & Van Allen, PLLC, by Jeffrey J. Davis and McNeill Y.
Wester for petitioner-appellee.
This appeal arises from a will caveat to the last will and
testament of Sallie Schenk Mason. Caveator appeals from judgment
entered for propounders. We affirm.
Sallie Mason (deceased) died 28 December 1997. On 29 December
1997 the Bank of America N.A. (executor) propounded certain paper
writings for probate on behalf of Robert E. Mason, III, Robert E.
Mason, IV, John Bohannon Mason, Esten Mason Walker, and Esten
Bohannon Mason (propounders). These consisted of two documentsexecuted by deceased and offered as her last will and testament
executed 9 April 1992, and a codicil to the will executed 24 May
1994. In January, 1998, Lucinda Mason (caveator) propounded a
second paper writing executed 2 August 1996 and purported to be
deceased's last will and testament. On 11 February 1998 the Clerk
of Superior Court of Mecklenburg County, North Carolina, set aside
probate of the 1996 will submitted by caveator. On 28 December
2000 caveator filed a caveat to the 1992 will and the 1994 codicil
submitted by propounders, and sought to have the 1992 will set
aside and the 1996 will adjudged to be deceased's last will and
testament. The parties executed pretrial stipulations on 12 May
2003, including in relevant part stipulations that:
1. . . . Exhibit A is a Last Will and Testament
of [deceased], which was properly executed by
her, in accordance with the statutes . . . on
April 9, 1992, . . . and a First Codicil to
said Will executed on May 24, 1994. . . .
2. . . . Exhibit B is a Last Will and Testament of
[deceased], duly executed by her, in accordance
with the statutes . . . on August 2, 1996.
. . . .
6. The [c]aveator claims that the  Will and
 Codicil . . . were revoked by the
 Will. . . .
7. Propounders claim that the  Will . . .
is the proper Last Will . . . because the
 Will . . . is invalid on the grounds
that [deceased] was not competent to make a
will at the time of its execution, and that
the will was procured by undue influence and
8. Propounders of the  Will . . . have the
burden of proving the invalidity of the 
Will. . . .
9. The issues to be decided by the jury will be
A. Did [deceased] lack sufficient mental
capacity to make and execute a will at
the time that the 1996 [w]ill was
B. Was the 1996 Will procured by undue
C. Was the 1996 Will procured by duress?
(emphasis added). A jury trial was conducted on these issues
beginning 12 May 2003. On 20 May 2003 the jury returned the
1. Did [deceased] lack sufficient mental capacity
to make and execute a will at the time that
the 1996 [W]ill was executed?
2. Was the 1996 Will procured by undue influence?
3. Was the 1996 Will procured by duress?
Following return of these verdicts, the trial court on 9 July 2003
entered judgment for propounders. The court decreed that the 1996
Will propounded by Caveator Lucinda L. Mason is invalid, and the
paper writings dated April 9, 1992 and May 24, 1994, which were
submitted by the Propounders to the Clerk of Court and admitted to
probate in common form on December 29, 1997, are declared to be the
Last Will and Testament of [deceased] and the First Codicil
thereto. From this judgment caveator appeals.
Standard of Review
Caveator appeals from the entry of judgment in favor of the
propounders. A caveat is an attack upon the validity of the
instrument purporting to be a will. The will and not the property
devised is the res involved in the litigation. In re Will of Cox,
254 N.C. 90, 91, 118 S.E.2d 17, 18 (1961) (citation omitted). Acaveat is an in rem proceeding. The 'parties' are not parties in
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. In re Will of Ashley, 23 N.C.
App. 176, 181, 208 S.E.2d 398, 401 (1974).
Upon the filing of the caveat the proceeding is transferred
[to superior court]. . . for trial before a jury . . . [so] that
the court may determine whether the decedent left a will and, if
so, whether any of the scripts before the court is the will. In
re Will of Charles, 263 N.C. 411, 415, 139 S.E.2d 588, 591 (1965).
The issue of whether the decedent made a will and whether a given
document is his will, is known as devisavit vel non, translated
from the Latin as he devises or not. Bryan A. Garner, A Dictionary
of Modern Legal Usage, 272 (2nd ed. 1995). Devisavit vel non [sic]
requires a finding of whether or not the decedent made a will and,
if so, whether any of the scripts before the court is that will.
In re Will of Hester, 320 N.C. 738, 745, 360 S.E.2d 801, 806 (1987)
(citation omitted). In a multiple-script case . . . numerous
sub-issues must be answered in order to determine this ultimate
When the validity of a will is challenged,
the burden of proof is upon the propounder to
prove that the instrument in question was
executed with proper formalities required by
law. Once this has been established, the
burden shifts to the caveator to show by the
greater weight of the evidence that [the
instrument is invalid because, e.g.,] the
execution of the instrument was procured by
In re Will of Prince, 109 N.C. App. 58, 61, 425 S.E.2d 711, 713
(1993) (quoting In re Andrews, 299 N.C. 52, 54, 261 S.E.2d 198, 199
(1980)). Also, if several writings are offered as the last will
and testament of a deceased, the trial court has authority to
bifurcate the trial, or to first submit to the jury only the issues
pertaining to one of the writings. Hester, 320 N.C. at 743, 360
S.E.2d at 804. Thus, the trial court does not err by first
submitting to the jury the issue of the validity of the more
recently executed writing. In re Will of Barnes, 157 N.C. App.
144, 162, 579 S.E.2d 585, 597 (2003) (Hudson, J., concurring in
part and dissenting in part), rev'd per curiam for reasons stated
in the dissent, 358 N.C. 143, 592 S.E.2d 688-89 (2004).
 Caveator argues that the trial court committed reversible
error by not submitting to the jury the specific issue of the
validity of the 1992 will and 1994 codicil. We disagree.
In the instant case, the caveator challenged the validity of
the 1992 will on the sole basis that it had been revoked by the
testatrix's execution of the 1996 will. Indeed, the parties
stipulated that the 1992 will, 1994 codicil, and 1996 will all were
properly executed according to statutory requirements. Further,
the parties agreed pretrial that the only disputed factual issues
for trial were (1) whether testatrix had the mental capacity to
execute a will at the time when the 1996 will was executed; (2)
whether execution of the 1996 will was obtained through the
caveator's undue influence; and (3) whether execution of the 1996
will was obtained by duress. Accordingly, the trial evidencepertained to these issues, and caveator does not identify any
specific trial evidence raising other relevant issues of fact.
During the charge conferences, caveator submitted several drafts of
proposed jury instructions on the stipulated issues, and never
requested that the jury be instructed on issues pertaining to the
1992 will. The three issues were submitted to the jury, which
returned a verdict as to each one. Thus, the caveator did not
challenge the validity of the 1992 will on any basis other than its
purported revocation by execution of a later will; the jury
resolved all the issues pertaining to the 1996 will; and caveator
neither presented evidence of another basis to challenge the 1992
will, nor requested that the jury be instructed on any issues other
than those stipulated by the parties. Against this factual
backdrop, caveator argues that, notwithstanding jury resolution of
the only factual issues raised by the caveat, the trial court
nonetheless lacked authority to enter judgment in favor of the
propounders without first submitting to the jury the technical
issue of the validity of the 1992 will. Caveator's argument is
based primarily on her interpretation of the holding of In re Will
of Dunn, 129 N.C. App. 321, 500 S.E.2d 99 (1998), which caveator
claims is dispositive on the issue. We disagree.
In Dunn, three documents were presented by the parties as the
last will and testament of the decedent, all executed within a few
months of each other. Following the jury's determination that the
second and third paper writings were obtained by undue influence,
the trial court made findings of fact that decedent had properly
revoked the first will when he executed the second and third; thatdecedent had sufficient mental capacity to revoke his first will;
and that the revocation was not the product of undue influence.
However, these were issues upon which conflicting evidence had been
presented at trial. Consequently, this Court held that the trial
court erred by determining these issues of fact, instead of
submitting them to the jury:
It is the duty of the trial judge to submit
such issues to the jury as are necessary to
resolve the material controversies arising
upon the pleadings and the evidence. . . .
The trial court may not, at least where there
are any factual issues, resolve those issues
even by consent. . . . We interpret this
holding to mean that in a caveat proceeding
the parties may not waive, either by consent
or by implication, jury resolution of an issue
upon which the evidence is in conflict and
material facts are in controversy.
Dunn, 129 N.C. App. at 325-27, 500 S.E.2d at 102-03 (quoting In re
Will of Mucci, 287 N.C. 26, 35, 213 S.E.2d 207, 213 (1975)). The
holding of Dunn, that jury resolution of contested issues in a
caveat proceeding may not be waived, is consistent both with
general trial procedure and with long-standing policy
considerations regarding caveat proceedings:
[T]he intentions of testators could be
frustrated, and the grossest injustice and
fraud practiced, if the actors in an issue of
devisavit vel non . . . [had] unrestricted
control over the issue; for instance, the
propounders, by collusion with the caveators,
might . . . prove [the will's] execution
according to the forms of the law and then
defeat it by admitting the insanity of the
testator, or . . . a paper wanting in the
requisites of a good will, having for example
only one subscribing witness, might be
established by the caveators simply admitting
that it was executed according to the
requirements of the statute.
Syme v. Broughton, 85 N.C. 367, 369 (1881). However, Dunn neither
imposes a bar on stipulations in all caveat proceedings, nor
supports caveator's position that the court may never enter
judgment in a caveat proceeding, even where there is no evidentiary
conflict on an issue.
For example, summary judgment may be entered in a caveat
proceeding in factually appropriate cases. See, e.g., In re Will
of McCauley, 356 N.C. 91, 100-01, 565 S.E.2d 88, 95 (2002)
(analyzing case in which trial court granted summary judgment for
caveators under traditional summary judgment standards and
reversing only upon concluding that there were genuine issues of
material fact). Further, in appropriate circumstances, the trial
court may enter a directed verdict in a caveat proceeding. See,
e.g., In re Will of Jarvis, 334 N.C. 140, 142, 430 S.E.2d 922, 923
(1993) (holding that the trial court properly directed verdicts as
to the issues of improper execution and undue influence); Mucci,
287 N.C. at 36, 213 S.E.2d st 214 (holding that directed verdict is
proper where propounder fails to come forward with evidence of a
testamentary disposition: Rather than direct or peremptorily
instruct the jury to do what is essentially a mechanical act the
better practice is for the trial court to enter a directed verdict
pursuant to Rule 50 of the Rules of Civil Procedure.). Moreover,
both stipulations and peremptory instructions to the jury have been
upheld in caveat proceedings. See, e.g., In re Ball's Will, 225
N.C. 91, 92-93, 96, 33 S.E.2d 619, 620-22 (1945) (holding that
court's peremptory charge was supported by the record where
[caveators] formally conceded that the paper writing was dulyexecuted . . . as required by statute and at the time of its
execution the testator possessed sufficient mental capacity to make
and execute a will and [n]o part of [the evidence] . . . show[ed]
. . . fraudulent influence of the beneficiary controlling the mind
of the testator); In re Will of Campbell, 155 N.C. App. 441, 461,
573 S.E.2d 550, 564 (2002) (Both the will and the codicil were
self-proving. Caveators presented no contrary evidence to the
jury. We . . . conclude the trial court properly instructed the
jury on this issue, as competent, uncontroverted evidence of proper
execution of both documents was presented.), disc. review denied,
357 N.C. 63, 579 S.E.2d 385 (2003); In re Will of Smith, 159 N.C.
App. 651, 655-56, 583 S.E.2d 615, 619 (2003). This Court has noted
that although motions for directed verdict have not generally been
granted in caveat proceedings . . . propounders may move for
directed verdict on the issue of whether a validly executed will
exists . . . and . . . caveators may move for directed verdict at
the close of the propounders' case. . . . Smith, 159 N.C. App. at
655-56, 583 S.E.2d at 619.
Finally, the failure of the trial court to specifically
designate its judgment as a directed verdict does not preclude our
Court from interpreting it as such. See Akzona, Inc. v. Southern
Ry. Co., 314 N.C. 488, 495, 334 S.E.2d 759, 763 (1985) (Because
the trial court did not instruct the jury with respect to
negligence, trespass and strict liability, its jury charge amounted
to an implied directed verdict on those issues.); In re Estate of
Ferguson, 135 N.C. App. 102, 104, 518 S.E.2d 796, 798 (1999)
(noting that where a trial court refused to submit an issue to thejury, . . . the trial court acknowledged that its ruling
'amount[ed] to a granting of the motion for a directed verdict on
In the instant case, all disputed factual issues raised by the
pleadings and the trial evidence were resolved by the jury, and
caveator does not identify evidence raising new issues. Following
the jury's verdict, the trial court entered judgment that the 1996
will was invalid, in accord with the jury's verdicts and entered
judgment in favor of propounders on the validity of the 1992 will.
We conclude that the trial court, in effect, conducted a bifurcated
trial. First, the jury resolved the factual issues pertaining to
the validity of the 1996 will, allowing the court to enter judgment
as to the 1996 will. Thereafter, as there were no remaining issues
pertaining to the 1992 will, the judge entered what amounted to a
directed verdict for propounders on caveator's challenge to the
1992 will. We further conclude that entry of a directed verdict
for propounders was not barred by the holding of Dunn. This
assignment of error is overruled.
 The caveator also raises several issues on appeal
pertaining to the admission at trial of certain evidence. These
include her arguments that the trial court committed reversible
error by admitting: (1) testimony of medical care providers
regarding their treatment of the deceased; (2) expert opinion
testimony based in part upon hearsay evidence; (3) non-expert
opinion testimony based in part upon hearsay evidence; (4) the
videotaped deposition of Dr. Faye Sultan; (5) a letter written tothe deceased; and (6) evidence pertaining to the value of the
N.C. R. App. P. 10(b)(1) provides in pertinent part:
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
See also In re Estate of Peebles, 118 N.C. App. 296, 301, 454
S.E.2d 854, 858 (1995) ([C]aveator argues for the first time on
appeal that . . . the trial court erred in denying her motion. . .
. Because the trial court never had the opportunity to consider the
issue, it is not properly before us on appeal.) (citing N.C. R.
App. P. 10(b)(1)); In re Will of Maynard, 64 N.C. App. 211, 222,
307 S.E.2d 416, 425 (1983) ([P]ropounders did not make a timely
objection to evidence of the contract. . . . Consequently, there
was no error in allowing testimony relating to the contract. . .
In the instant case, caveator failed to object at trial to the
introduction of any of the challenged items or categories of
evidence. Consequently, she failed to preserve these issues for
appellate review. Moreover, the challenged evidence was either
properly admitted or nonprejudicial to caveator. These assignments
of error are overruled.
We have reviewed caveator's remaining assignments of error and
conclude that they do not have merit. The judgment of the trial
Affirmed. Judges HUNTER and CALABRIA concur.
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