In Re the Last Will & Testament of West

*209 Seawell, J. Tbe only exceptions taken at tbe trial are to tbe instructions given tbe jury, and tbe formal exception to tbé judgment taken to preserve them on appeal. We consider two of these exceptions: Tbe first suggesting an inadequacy in stating tbe propounders’ contentions, and tbe second relating to tbe burden of proof between tbe pro-pounders and tbe caveators. 1. Our attention is directed to tbe objection tbat in stating tbe several contentions of tbe propounders and tbe contentions upon tbé evidence relating to tbe natural objects of tbe testator’s bounty in its bearing on testamentary capacity, tbe court fully stated those of tbe caveator, and. failed to state those of tbe propounders, which were in tbe nature of an explanation and necessary to remove a prejudicial effect from tbe minds of tbe jury. The burden of tbe repeated questions on cross-examination addressed to tbe witnesses who affirmed tbe mental capacity of tbe testator seems to put as much emphasis on tbe fact tbat tbe objects of bis bounty were Negroes as it does upon tbe fact tbat tbey were strangers to tbe blood. We are not required at this time to say to what extent testamentary capacity may be impeached by infractions of, or want of conformity to traditions, customs, standards of tbe testator’s community or section, .which are supposed to strongly influence personal conduct. In cases of doubtful testamentary capacity, however, evidence of an exclusion of those who, by ties of blood, might be supposed to be tbe natural objects of tbe testator’s bounty has been accepted as bearing upon tbe question of mental capacity. In re Will of Hinton, 180 N. C., 206, 104 S. E.; 341; In re Redding’s Will, 216 N. C., 497, 5 S. E. (2d), 544. Tbe fact is tbat tbe evidence affords a tangible basis for tbe contention that Earl and Burnice Sherard were tbe natural children of tbe testator, however immoral tbe suggested relation. In view of tbe prominence given it in tbe trial, tbe fact tbat tbey were of Negro blood gives added emphasis to tbe necessity of adverting to tbe explanatory circumstances in stating tbe propounders’ contentions. It is not required by G. S., 1-180, or other statute, tbat tbe contentions of tbe litigants be stated at all, although it is found to be a convenient method of integrating and presenting to tbe jury tbe subjects for consideration; S. v. Colson, 222 N. C., 28, 21 S. E. (2d), 808; and there is no rule making it mandatory. “When, however, tbe judge states tbe contentions of one of tbe parties, be must fairly charge also as to tbe contentions of tbe adversary litigant.” S. v. Colson, supra; Messick v. Hickory, 211 N. C., 531, 535, 191 S. E., 43. Tbe contentions of tbe propounders were based on evidence relating to tbe same aspect of tbe case. Messick v. Hickory, supra. As a general rule, an exception to a statement of the contentions will not be sustained on appeal unless tbe matter was called to tbe attention *210 of the court at the time and an opportunity given to correct it. S. v. Grainger, 223 N. C., 716, 28 S. E. (2d), 828; S. v. Britt, 225 N. C., 364, 34 S. E. (2d), 408; Steele v. Coxe, 225 N. C., 726, 732, 36 S. E. (2d), 288; Vance v. Guy, 224 N. C., 607, 612, 31 S. E. (2d), 766; Mfg. Co. v. R. R., 222 N. C., 330, 23 S. E. (2d), 32. But there are so many exceptions to the rule that we may safely say that each case must be referred to the particular circumstances, to be decided upon the importance of the incident and its probable prejudicial effect. S. v. Love, 187 N. C., 32, 121 S. E., 20. We understand the delicacy of the matter handled by the court below and the danger which might attend magnification of this phase of the trial. It is our opinion, however, that the situation demanded a fuller statement of the propounders’ contention upon this phase of the evidence, and the failure to give it was error. 2. The instructions as to the burden of proof must have left the jury in doubt where to place it, either with respect to the issue at large or the several questions embraced within it. We were assured by appellees that the charge, considered contextually, relieves it from prejudicial effect. A charge, it is true, must be considered contextually, when challenged for error. S. v. French, 225 N. C., 276, 45 S. E. (2d), 157; S. v. Shook, 224 N. C., 728, 32 S. E. (2d), 329; Motor Co. v. Insurance Co., 220 N. C., 168, 16 S. E. (2d), 847; Harrison v. Insurance Co., 207 N. C., 487, 177 S. E., 423; Cab Co. v. Casualty Co., 219 N. C., 788, 15 S. E. (2d), 295. But where there are conflicting instructions it often becomes, a serious question as to the impression made on the jury when the charge is so taken. When the passages are not inter-explanatory or correctional, and, after being considered contextually are still repugnant, the court should be slow to assume that there was no prejudicial effect. Ward v. R. R., 224 N. C., 696, 32 S. E. (2d), 221; S. v. Oxendine, 224 N. C., 825, 32 S. E. (2d), 648. We think the final instructions given as to the respective burdens of the propounders and the caveators were contradictory and confusing. The probate of a will in solemn form under caveat is a proceeding in rem. Where the will is attacked for want of testamentary capacity or undue influence it is, perhaps, preferable to submit separate issues directly pertinent to these questions; McIntosh, Civil Procedure, p. 547; In re Efird’s Will, 195 N. C., 76, 141 S. E., 460; In re Rawlings’ Will, 170 N. C., 58, 86 S. E., 794; but the practice is often otherwise. In the case at bar the single issue of devisavit vel non was submitted. Upon this issue it was incumbent upon the court to resolve the inquiry into the several questions involved, so as to properly assign the burden as to each, rather than to treat the issue integrally. Regarding the proceeding as in rem, it is the established rule here that the propounders have carried their burden when the formal execu *211 tion of the will has been shown; subject, of course, to the successful attack made upon it by the caveators upon the ground of undue influence or mental incapacity. The burden of establishing these contentions by the greater weight of the evidence rests upon the caveators. Bailey v. McLain, 215 N. C., 150, 161, 1 S. E. (2d), 372; In re Fuller’s Will, 189 N. C., 509, 127 S. E., 549; In re Chisman’s Will, 175 N. C., 420, 95 S. E., 769; In re Thomas’ Will, 111 N. C., 409, 16 S. E., 226; In re Hedgpeth, 150 N. C., 245, 251, 63 S. E., 1025; In re Will of Redding, supra, p. 499; In re Will of Harris, 218 N. C., 459, 11 S. E. (2d), 310; In re Craven’s Will, 169 N. C., 561, 86 S. E., 587. There was no question as to the execution of the will raised by the petition nor did the caveators dispute it. In the instant case, as we may observe, his Honor seemed to place the burden first upon the caveators, then upon the propounders to support the affirmative or negative of the issue by preponderating evidence, without discrimination as to their respective burdens. For these reasons the propounders are entitled to a trial de novo. It is so ordered. New trial.