In re Turnage's Will

• Decision Date: 10 April 1935
• Docket Number: 319.
• Parties: In re TURNAGE'S WILL
• Court: North Carolina Supreme Court

179 S.E. 332

208 N.C. 130

In re TURNAGE'S WILL

No. 319.

Supreme Court of North Carolina

April 10, 1935

Appeal from Superior Court, Pitt County; Parker, Judge.

Proceeding to probate the will of James Turnage, deceased, in which the issue of devisavit vel non was raised by a caveat on grounds of alleged mental incapacity and undue influence. From a judgment for the caveator, the propounders appeal.

New trial.

In will contest, evidence that testator made declaration four years after execution of will that he had let others take advantage of him and lead him to make will and that he wanted to make change in will held insufficient to support finding that will had been executed as result of undue influence.

Issue of devisavit vel non, raised by a caveat to the will of James Turnage, late of Pitt county, based upon alleged mental incapacity and undue influence.

The paper writing propounded as the last will and testament of the deceased was executed October 9, 1928. It was prepared by counsel and duly attested. The caveator, testator's only son, is given $25 in the first item in the will, "and this is to be all he is to have out of my estate." The testator died in December, 1932. About a week before his death, he was heard to say he wanted to change his will. He asked the deputy clerk of the court if he would run over to Winterville in a day or two and make a little change in his will for him. This was on Saturday preceding his death on Wednesday. On Monday intervening, the testator went to the home of Glasco Baker "and was speaking about them not having come to fix the will, and he said that his time had come and he had to go away from here and he burst out crying and he said he didn't have but one child in the world and he had cut him clear out, and he wanted him to have what he had." Mrs. Baker asked: "Mr. Turnage, why did you treat him that way?" He answered: "I let other folks take advantage of me and lead me to make the will."

Motion for nonsuit, or directed verdict, on the issue of undue influence. Overruled; exception.

The jury returned the following verdict:

"2. Was the execution of said paper writing procured by the exercise of undue influence over James Turnage? Answer Yes.

3. Did James Turnage, at the time of the execution of said paper writing by him, have sufficient mental capacity to make a will? Answer: Yes."

Judgment on the verdict, from which the propounders appeal, assigning error.

S. O. Worthington and J. B. James, both of Greenville, for appellants.

Julius Brown, of Greenville, for appellee.

STACY Chief Justice.

The issue of testamentary capacity was answered in favor of the propounders, hence the exceptions and assignments of error addressed to this issue may be disregarded. Errors cured by the verdict are not ground for reversal on appeal. Daniel v. Power Co., 201 N.C. 680, 161 S.E. 210; Rankin v. Oates, 183 N.C. 517, 112 S.E. 32.

We agree with propounders that the evidence was not such as to warrant a verdict for caveator on the issue of undue influence, and the jury should have been instructed accordingly. In re Evans' Will, 123 N.C. 113, 31 S.E. 267. The case, in this respect, rests upon the bare declaration of the testator, made...