Burney v. . Holloway

Since a proceeding to probate a will in common form is in rem, it has been held- — as far as we know without exception in this jurisdiction — that when the issue of devisavit vel non has been raised, the proceeding is not subject to nonsuit at the instance of the propounders or other parties concerned. In re Will of Evans, 223 N. C., 206, 25 S. E. (2d), 556; In re Westfeldt, 188 N. C., 702, 705, 125 S. E., 531; Collins v. Collins, 125 N. C., 98, 34 S. E., 195. Whether the disregard of this rule results in a void, or merely irregular, judgment we need not inquire, since in either case the…