In the matter of J. T. Collins’s will: A paper writing purporting to be tbe last will and testament of J. T. Collins was exhibited to the Clerk for probate by the widow and heirs of the deceased, except J. K. Collins and W. G. Collins, who, without entering a formal caveat, objected to the probate and recording of said instrument. The Clerk made inquiry by taking evidence of witnesses, examined and cross-examined by the two objecting heirs. The Clerk adjudged that the motion of the propounders for probate be denied. The propounders appealed to the Superior Court, and the Clerk certified his acts and doings and entered the case on the civil issue docket.
At April Term, 1899, the matter was tried by a Judge and a jury, it appearing to the Court that all parties interested in said will or in anywise to be affected thereby were then before the Court, including those objecting, and that they were also before the Clerk in his inquiry. The objecting parties at the trial, without entering any formal caveat, 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: “Is the paper writing offered for probate, or any part thereof, and if so, what part, the last will and testament of J ames T. Collins?” To which the jury responded, “Yes, every part thereof.”
We think enough appears in the record certified by the Clerk to the Superior Court to justify the Judge in ordering the will to be proved in solemn form. The issue submitted is in the usual form. Eaton’s Forms. See also Cornelius v. Brawley, 109 N. C., 542.
*104Eor some reason, J. K. Collins and W. G-. Collins omitted to enter a formal caveat at each trial, although they were present, objecting, examining and cross-examining witnesses and resisting the probate of the will. Let them call themselves “objectors” if they prefer it, [>ut they have been granted every benefit and privilege, and they accepted them, that they could have enjoyed if they had called themselves “caveators.”
This is a proceeding m rem and the statute confers jurisdiction on the Clerk and Court. There are no parties, strictly speaking, certainly none who can withdraw or take a nonsuit, and thus put the matter where it was at the start, as in actions between individuals. A nonsuit in the latter case affects no one but the litigants; in the former, creditors, legatees and distributees are interested and they are stayed until the question of testacy or intestacy is determined. The Court having jurisdiction, public policy and our statutes require that this preliminary question should be determined as soon as practicable, and require the Court to do it, regardless of objecting persons. Hutson v. Sawyer, 104 N. C., 1. A living witness to the will testified to his and the testator’s signing this script in the presence of each other. The main matter controverted was whether Dr. Siles, another witness, then dead, had signed the instrument offered for probate in the manner required by law. His signature thereto was prored and admitted to be genuine, but it was insisted that rhe evidence failed to identify that paper as the one signed by the witness Siles and the testator as his will. There was much evidence pro and. con, some witnesses testifying that they saw Siles sign in the presence of the testator and at his request, and from its size and appearance they believed the script exhibited in court w.as the same, although they could not read or write; others testifying to other facts and cir*105cumstances, and some conflicting statements were made. These matters went to the jury for their opinion, and they gave it. The admission of irrelevant testimony will not authorize a new trial unless it appears that the objecting party was prejudiced thereby. There was no serious objection made to the competency of the deposing witnesses. There were some exceptions to their statements, but they seem not well founded. There were also prayers for instructions, but the charge as given covered all that the objecting parties were entitled to, and we are unable to discover any error in the charge in other respects.
The evidence shows that this paper writing was seen in the testatoPs possession before his death, and was found among his valuable papers the next, day after his death. The possession of this instrument in due form on its face at his death is prima facie proof that it is, in fact, what it purports to be, his last will and testament, subject, of course, to rebuttal, as in other cases of a disputed fact.
Although the proceeding was somewhat novel, still the real contention was met and tried, and the judgment is sustained. We think, however, as the probate is in the verdict, and the Probate Judge and the Clerk being the same person, and in the same court, the judgment should direct the Clerk to take other necessary proceedings therein as required by law.
Affirmed.