In re Wilder's Will

• Decision Date: 22 November 1933
• Docket Number: 404.
• Citation: 171 S.E. 611,205 N.C. 431
• Parties: In re WILDER'S WILL.
• Court: North Carolina Supreme Court

171 S.E. 611

205 N.C. 431

In re WILDER'S WILL.

No. 404.

Supreme Court of North Carolina

November 22, 1933

Appeal from Superior Court, Mecklenburg County; Schenck, Judge.

Proceeding to probate the will of Sallie D. Wilder, deceased. From a verdict and judgment upholding the paper writing propounded as the last will and testament of deceased, the caveator appeals.

No error.

Instruction substantially in language as explicit and clear as request sufficiently complied with request, though not given in exact language thereof.

Issue of devisavit vel non, raised by a caveat to the will of Sallie D. Wilder, late of Mecklenburg county, based upon alleged mental incapacity and undue influence.

From a verdict and judgment upholding the paper writing propounded as the last will and testament of the deceased, the caveator appeals, assigning errors.

George W. Wilson and Claude B. Woltz, both of Charlotte, for appellant.

Stewart & Bobbitt, of Charlotte, for appellee.

STACY Chief Justice.

Two errors are assigned, one based upon the exclusion of evidence, and the other upon the court's refusal to give an instruction as prayed.

The record does not show what the answers to the interrogatories propounded to the witness would have been, hence we cannot say the exclusion of the evidence was hurtful or erroneous. Where the record shows exceptions to unanswered questions without more, the exceptions will not be considered on appeal. Miller v. Bottling Co., 204 N.C. 608, 169 S.E. 194. We cannot assume that the answers would have been favorable to the caveator. Rawls v. Lupton 193 N.C 428, 137 S.E. 175.

The burden is on appellant to show error, and he must make it appear plainly, as the presumption is against him. Frazier v. R. Co., 202 N.C. 11, 161 S.E. 689; Poindexter v. R. Co., 201 N.C. 833, 160 S.E. 767; In re Ross' Will, 182 N.C. 477, 109 S.E. 365.

The instruction requested, while not given in the exact language of the prayer, was substantially given by the court in language equally as explicit and clear. This was a sufficient compliance with the caveator's request. Michaux v Rubber Co., 190 N.C. 617, 130 S.E. 306; McIntosh Prac. & Proc., 636.

"The judge is not required to give an instruction in the very words used by counsel in the request for it, even if the instruction be a proper one. If he gives it substantially and does not, by any change of language, weaken its force, it is a sufficient...