In re Hardee's Will
| Decision Date | 12 March 1924 |
| Docket Number | 92. |
| Parties | IN RE HARDEE'S WILL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Vance County; Daniels, Judge.
In the matter of the will of Mrs. Emma Hardee. Issue of devisavit vel non, raised by a caveat to the will of Mrs. Emma Hardee. From a judgment in favor of caveators, the propounder appeals. No error.
In a will contest, in which it appeared that testatrix left her entire estate to her second husband and her son by him excluding the five children of the former marriage, whose father originally owned all the property, held there was ample evidence tending to show undue influence and mental incapacity on part of testatrix.
R. S McCoin, of Henderson, and D. G. Brummitt and Royster & Royster, all of Oxford, for appellant.
Jere P Zollicoffer, Perry & Kittrell, Kittrell & Kittrell, and A. A. Bunn, all of Henderson, for appellees.
There was ample evidence to support the verdict, and the record presents but a single serious exception, or one not involving settled principles of law. Propounder assigns as error the following portion of the charge:
"The exclusion of some of the children from the benefits of the paper, and the giving of the whole estate to one child in the absence of some reasonable ground for such preference, would constitute what the law calls an unnatural will, and such facts may be considered with the other evidence in the case, as evidence upon the questions of mental capacity and of undue influence."
The vice of this instruction, according to propounder's contention, is that it undertakes to characterize the paper writing, offered for probate, as an unnatural will, when no such will is known to the law; and it is further objected that said characterization amounted to an unfavorable expression of opinion from the court. C. S. § 564. We are unable to agree with propounder's interpretation in its entirety or to conclude that this instruction, taken in connection with other portions of the charge, should be held for reversible error, even if slightly objectionable standing alone.
It is now settled law that the charge of the court must be considered and examined by us, not disconnectedly, but as a whole, or at least the whole of what was said regarding any special phase of the case or the law. The losing party will not be permitted to select detached portions of the charge even if in themselves subject to criticism, and assign...
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