This case was before us at a former term, 159“ N. C., 272, which is referred to for a general statement of the case.
His Honor, Judge Ooohe, in accordance with that opinion,,, upon the admitted facts and record evidence in the case, instructed the jury in accordance with our views, and a verdict was rendered accordingly.
*392The effect of tbe finding of the jury and the. decree of Judge Cooke upon the first issue is to set aside the judgment of the Superior Court of Rockingham County, November Term, 1885, in the case of Samuel A. Allen v. Margaret Ziglar and others, invalidating the will of Yalentine Allen, and leaving the caveat to said will in full force and effect (Revisal, see. 3137) until the issue thus raised is tried and a bona, fide and valid judgment is rendered.
This we think should end this case, as there is no exception arising under that first issue.
In our former opinion, 159 N. C., p. 279, we said: “The only issue raised by the pleadings in this ease is one of fraud and collusion in respect to the manner in which that will was set at naught.”
In our view of the status of this case, it is not proper that we construe this will now.
All of the issues submitted, except the first, ar'e set aside. So much of the judgment of the Superior Court as declares that “the decree entered in the suit of Samuel A. Allen, cave-ator, against Elizabeth A. Allen and others, disposed of at the November Term, 1885, of the Superior Court of Rockingham County, was obtained and entered through fraud and collusion; that the last will and testament of Yalentine Allen was properly proven and probated, according to law, before the clerk of the Superior Court and probate judge of the county of Rockingham on 6 October, 1884, and was and is recorded in Book E of the Record of Wills of said county, at pages 289 et seq., and was offered in evidence in this cause,” is affirmed.
This ends this action, but it leaves the caveat proceedings of Samuel Allen of 1885 still pending for trial in the Superior Court of Rockingham County.
The probate of the will before the clerk was in common form, but it is conclusive evidence' of the validity of the will until it is. vacated or declared void by a competent tribunal, and may be offered in evidence. Revisal, sec. 3128.
As we have held that the judgment entered in the caveat proceedings is fraudulent and void, it necessarily follows that the caveat proceedings have not terminated.
*393It is still open to Samuel Allen, the caveator, to' have the issue thus raised passed on by a jury, and all proper and necessary parties can be brought in in that proceeding. Holt v. Ziglan-, 159 N. C., p. 279.
This cause is remanded' to the Superior Court of Eocking-ham County, with instructions to enter a final judgment in accordance with this opinion. The entire cost of the action as well as costs of this appeal with be taxed against the defendants.
The judgment of the Superior Court, except as hereinbefore stated, is
Eeversed.
APPEAL BY DEPENDANT PARIES.
This is the appeal of the defendant J. P. Faries in the above cause. It is improvidently taken, and must be dismissed.
As an assignee of Samuel Allen, this defendant may be made a party to the caveat proceedings referred to in the . other opinion.
Let costs of this appeal be taxed against defendant Faries.
Appeal dismissed.