In re the Purported Last Will & Testament of Bethune

MARTIN, Judge.1 At the close of the evidence, the propounders moved for a directed verdict, or, in the alternative, for a peremptory instruction to the jury “that if they believe the witnesses as to the execution of the Will that they should find the Will should be probated in solemn form and is the will of the late James Bethune.” The propounders have assigned error to the trial court’s denial of this motion on the basis that they had met their burden of showing a properly executed will and that the caveators had failed to present any evidence to the contrary. We disagree. In a case such as this the trial court must consider all of the evidence in the light most favorable to the caveators, deem their evidence to be true, resolve all conflicts in their favor and give them the benefit of all reasonable inferences arising from the evidence. In re Coley, 53 N.C. App. 318, 280 S.E. 2d 770 (1981). Furthermore, a peremptory instruction in favor of the party hav [387] ing the burden of proof is proper only “when there is no conflict in the evidence and but one inference is permissible from it.” Cutts v. Casey, 278 N.C. 390, 418-419, 180 S.E. 2d 297, 312 (1971). In the case sub judice caveators presented evidence that attorney George Bumpass’ firm had prepared a will for Bethune in the 1950’s; that Bumpass had no knowledge of the will at issue; that Bumpass had known Bethune for a long time and knew that he did not get along with Burthey and that Bethune had stated that he did not want to leave any of his property to his daughters in Durham. We believe the caveators presented sufficient evidence for the jury to find that the paper writing was not the duly executed will of James Bethune. It is obvious that the jurors did not believe the propounders’ witnesses. This assignment of error is overruled. The propounders have also assigned error to the refusal of the trial court to allow Juanita Mason to testify as to her transactions with Bethune. The record on appeal shows that, at the close of the evidence and after the trial court had ruled on propounders’ motion for a directed verdict and peremptory instruction, propounders attempted to offer the testimony of Juanita Mason. The court ruled that this witness could not testify as to her transactions with Bethune. We are unable to say if the exclusion of this testimony was prejudicial, since the record does not disclose what Ms. Mason’s testimony would have been. In re Worrell, 35 N.C. App. 278, 241 S.E. 2d 343, disc. review denied, 295 N.C. 90, 244 S.E. 2d 263 (1978). Furthermore, the trial court has discretionary power to allow or disallow a party to introduce further evidence after they have rested. Maness v. Bullins, 33 N.C. App. 208, 234 S.E. 2d 465, disc. review denied, 293 N.C. 160, 236 S.E. 2d 704 (1977). We find no abuse of the trial court’s discretion. We finally note that, pursuant to the language in G.S. 8-51 (the dead man’s statute), it appears that the trial court was correct in disallowing Ms. Mason’s testimony. This statute, in pertinent part provides: “[A] party shall not be examined as a witness in his own behalf or interest . . . against the executor, administrator or survivor of a deceased person ... or a person deriving his title or interest from, through or under a deceased person . . . , concerning a personal transaction or communication between the witness [388] and the deceased person . . . .”2 Ms. Mason, as a beneficiary of the purported will, comes within the ambit of this statute. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E. 2d 524, disc. review denied, 290 N.C. 308, 225 S.E. 2d 832 (1976). In their final argument propounders contend that the trial court erred in denying their motions to set aside the verdict and for a new trial, for reasons given in their prior assignments of error. Having found no merit to these assignments of error, we shall not disturb the verdict or the judgment. Affirmed. Judges Arnold and Whichard concur. Footnotes [1] The Court’s decision in this case was made and written prior to Judge Martin’s retirement. [2] An exception to G.S. 8-51 is noted in actions to set aside a purported will on grounds which include the lack of mental capacity. In re Will of Ricks, 292 N.C. 28, 231 S.E. 2d 856 (1977). In the matter presently before this Court, mental capacity was not an issue for jury determination.