In Re Isley's Will , 263 N.C. 239 ( 1964 )

139 S.E.2d 243 (1964) 263 N.C. 239

In the Matter of the WILL of Mrs. Lalah Irene Perkins ISLEY.

No. 605.

Supreme Court of North Carolina.

December 16, 1964.

Roberson, Haworth & Reese, High Point, for propounder.

Smith, Moore, Smith, Schell & Hunter and James G. Exum, Jr., Greensboro, for caveator.

PER CURIAM.

Several times in the charge the judge referred to the paper writing as the "alleged will." Propounder insists this was prejudicial error and amounted to an expression of opinion that it was not in fact a valid will. We do not agree. The propounder's contention arises from a misinterpretation of the following statement from In re Broach's Will, 172 N.C. 520, 90 S.E. 681: "The formal execution (of the paper writing) having thus been formally proven, it was prima facie the will of the deceased, and the caveators were called on to put on evidence to impeach it." This means that, when in caveat proceedings there is proof of the formal execution of the paper writing in accordance with the requirements of the statute, the paper writing is to be admitted in evidence, and such proof makes it prima facie the will of deceased and will justify, but not compel, a jury verdict that it is the will of deceased; to overcome this prima facie showing caveator must produce evidence to impeach it. The real contest in the instant proceeding was on the issue of mental capacity. The court correctly placed the burden of this issue on caveator. It was for the jury to say whether the paper writing was "the will" of deceased. Until the jury verdict was in, it was "the paper writing," "the alleged will" or "purported will." There was no expression of opinion and the jury could not have been misled.

The court's explanation of the expression "natural objects of deceased's bounty" is in substantial compliance with that heretofore approved by this Court. In re Will of Franks, 231 N.C. 252, 259, 56 S.E.2d 668. The court did not abuse its discretion in overruling the motion to set aside the verdict.

No error.

BOBBITT, J., took no part in the consideration or decision of this case.