In Re Will of Redding

Schenck, J. The proceedings to caveat a will are in rem without regard to particular persons, and must proceed to judgment, and motions as of nonsuit, or requests for direction of a verdict on the issues, will be disallowed. In re Will of Hinton, 180 N. C., 206; In re Will of Westfeldt, 188 N. C., 702. Besides, there was ample evidence to sustain the affirmative answer to the first issue. While the witness to the will, Nettie Davis, may have wavered somewhat in her testimony, still she testified, “I signed my name there as Nettie Davis. When I signed it I was at the home of Mrs. Redding. I was on the other side. I saw her sign it,” and further, that when she was sent for “he (Nixon) told me Cora was making a will and that she wanted me to sign it.” Stacy, C. J., in In re Will of Kelly, 206 N. C., 551, says: “The law makes two subscribing witnesses to a will indispensable to its formal execution. But its validity does not depend solely upon the testimony of the subscribing witnesses. If their memory fail, so that they forget the attestation, or they be so wanting in integrity as willfully to .deny it, the will ought not to be lost, but its due execution and attestation should be found on other credible evidence. And so the law provides.” *499 There was other evidence than the testimony of the witness Nettie Davis that she was present and witnessed the will. It is not contended that the other witness, Gr. W. Pugh, did not properly sign as a witness to the will. Therefore, the jury was warranted in finding that the requirements of C. S., 4131, had been met, by the witnessing in the lifetime of the testator and the subscribing in her presence by two witnesses of the will signed by her. To the court’s sustaining objection to the question propounded by the caveator to his witness, as follows: “Had he, Clifford Nixon, ever done anything specially for her (the decedent),” the caveator preserved exception. This exception cannot be held for error since the answer the witness would have made had he been permitted to reply does not appear in the record. Lumber Co. v. Childerhose, 167 N. C., 34. The court properly told the jury that the burden of proof was on the' propounder “to satisfy you from the evidence, and by its greater weight, . . . that you should answer the first issue ‘Yes.’ ” The appellant assigns as error the failure of the court to charge the jury that under the circumstances of this case the burden of proof on the second issue as to mental incapacity was on the propounder — that since the will gave all of the testatrix’ property to a stranger to her blood and cut off her kinspeople, brothers and sister, it was unreasonable and unnatural and raised a presumption of mental incapacity, and that the burden was upon the propounder to rebut this presumption. Such is not the law as enunciated by the decisions of this Court. The decisions are to the effect that unreasonableness and unnaturalness in a will are evidence of mental incapacity and should be so considered by the jury upon the issue as to mental incapacity, but not that the burden of showing testamentary capacity is placed upon, or shifted to, the pro-pounder. Mayo v. Jones, 78 N. C., 402; In re Will of Staub, 172 N. C., 138; In re Will of Brown, 200 N. C., 440. For the same reasons set forth, the assignments of error relating to the failure of the court to charge that the burden of proof was on the propounder on the third issue as to undue influence is untenable. In re Will of Broach, 172 N. C., 520. We have carefully read the record and examined each exception preserved by the appellant, and are left with the impression that clear cut questions of fact were raised by the pleadings and evidence, that these questions were fairly and impartially presented upon the issues submitted, and that while contrary answers, particularly to either the second or third issue, might have been warranted by the evidence, such answers were not impelled .thereby; that the charge was in accord with the decisions of this Court, and we, therefore, find No error.