In Re the Will of Adams ( 1966 )

151 S.E.2d 59 (1966) 268 N.C. 565

In the Matter of the WILL of W. H. ADAMS, Deceased.

No. 608.

Supreme Court of North Carolina.

November 23, 1966.

McLeod & McLeod and D. K. Stewart by Max E. McLeod, Dunn, for propounders, appellants.

Robert C. Bryan, Bryan & Bryan, Dunn, Morgan, Williams & Jones, James A. Howard, and Raymond C. Dunn, Lillington, for caveators, appellees.

PER CURIAM.

Propounders' first assignment of error reads:

"1. The court allowing evidence of mental capacity and charge relating thereto.

"EXCEPTIONS #2 (R p 40); #3 (R p 41); #4 (R p 44); #5 (R p 47); #19 (R p 79); #23 (R p 94); #25 (R p 104); #26 and #27 (R p 106)."

Propounders' second assignment of error reads:

"2. The court's admission of evidence relating to purported previous paperwritings of testator and the charge thereon.

"EXCEPTIONS #1 (R p 32); #6 and #7 (R p 51); #8 (R p 54); #9 and #10 (R p 55); #11, #12, #13 (R p 57); #17 (R p 72); #18 (R p 75); #21 (R p 85); #23 (R p 94); #24 (R p 95); #29 (R p 112); #30 (R p 114)."

These two assignments of error are typical of propounders' third and fourth assignments of error, in that none of these four assignments of error show specifically what question is intended to be presented for consideration by this Court without the necessity of going beyond the assignment of error itself.

Rules 19 and 21, Rules of Practice in the Supreme Court, 254 N.C. 783, 795, 803, require that asserted error must be based on an appropriate exception, and must be properly assigned. We have repeatedly said that these rules require an assignment of error to show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. Samuel v. Evans, 264 N.C. 393, 141 S.E. 2d 627; Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634; Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829. The rules of practice in this Court are mandatory and will be enforced. Walter Corp. v. Gilliam, 260 N.C. 211, 132 S.E.2d 313; Balint v. Grayson, 256 N.C. 490, 124 S.E. 2d 364; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126. Propounders' first four assignments of error are ineffectual to bring up for review by this Court any part of the trial judge's rulings as to the admission of evidence, and the charge thereon.

"The requirements of the rules and the reasons therefor have been so often reiterated that the recurring necessity for restatement baffles our understanding." Samuel v. Evans, supra.

Propounders' fifth assignment of error is to the denial of their request for peremptory instructions as to the issues. This assignment of error is without merit, and is overruled.

Propounders' sixth assignment of error reads:

"6. The court's failure to include Burden of Proof placed on caveators on issue of mental capacity.

"EXCEPTIONS #22 (R p 90); #27 (R p 106); #28 (R p 108)."

This assignment of error is overruled, for the reason that a reading of the charge in its entirety shows that the trial judge in his charge clearly placed upon the caveators the burden of proof of showing by the greater weight of the evidence that W. H. Adams did not have sufficient mental capacity to make a will on 12 June 1962.

Propounders' last assignments of error, Nos. 7 and 8, are formal, and are overruled.

Propounders assign as error the court's signing and entry of the judgment. This assignment of error presents for review the face of the record proper. The record, in the sense here used, refers to the essential parts of the record, such as the pleadings, verdict, and judgment, and does not refer to the evidence and the charge of the court. Balint v. Grayson, supra; Lowie & Co. v. Atkins, supra; Thornton v. Brady, 100 N.C. 38, 5 S.E. 910. No error of law appears on the face of the record proper, and the verdict supports the judgment.

No Error.