In re the Last Will & Testament of Baker

Campbell, J.

At the conclusion of his charge to the jury, the presiding judge inquired if there was anything further, whereupon counsel for the propounder requested a further instruction as follows:

“ 'Members of the jury, if you should find that 0. R. Baker did in fact burn his will, which the propounder contends he did not, but that he did so because of the undue influence of his ex-wife, Mrs. Oakley, or one or more of his children, then you would answer the second issue No.’ ”

The presiding judge refused to give this further instruction. The pro-pounder thereupon excepted and assigned this as error.

There was no error in refusing to give this further instruction for two reasons. First, the request was inopportune and should have been presented to the presiding judge prior to the commencement of his charge to the jury. Second, there was no evidence to support such an instruction, and in the absence of any evidence of undue influence, it would have been error so to instruct the jury. 2 McIntosh, N.C. Practice 2d, § 1517.

The only other assignment of error brought forward in the pro-pounder’s brief is to the introductory statement in the charge to the jury, wherein the presiding judge explained to the jurors how this case had been instituted. We have reviewed the record and charge, and we find no prejudicial error.

Affirmed.

BROCK and Morris, JJ., concur.