#### HENRY A. CRENSHAW et al. v. W. C. JOHNSON et al.

Will— Caveat — Answer—Devisavit Vel Non — Evidence—Leading Questions — Discretion of Judge — Trial—Withdrawing Testimony from Consideration of Jury.

1. The issue as to whether a paper writing is the will of a decedent being raised by. the caveat filed thereto, no answer to such caveat is necessary.

*2712. Where, in the trial of an issue devisavit vel non, the examination in chief of a subscribing witness to a will was confined to the execution of the instrument, it was not proper, on cross-examination, to ask him as to statements alleged to have been made by him respecting the mental capacity of the decedent.

3. Testimony concerning statements made by a deceased witness to a will as to the mental capacity of the testator, being hearsay, is not admissible on a trial of an issue devisavit vel non.

4. It being within the discretion of the trial judge to permit leading questions on a trial, the exercise of such discretion will not be reviewed.

5. Upon the trial of an issue of devisavit vel non, after the filing of a caveat, the instrument, though it has not been probated, can be admitted as evidence.

6. Although portions of the charge of the trial judge may be misleading if detached from the other portions of the charge, yet if the whole charge is so explicit that the jury can comprehend it and not be misled by the detached portion, the error in the submission of the latter is harmless.

7. Where, in the trial of an issue as to the validity of a will, the pro-pounder was not examined by either party, and, upon comment by the counsel of the caveator as to his failure to testify, a contention arose between counsel whether the propounder, being named as executor in the will, was competent under Section 590 of T he Code, it was not error to refuse to give an instruction, requested by the counsel for the caveator, after the argument, that the executor was a competent witness.

8. If improper testimony is admitted during a trial, the trial judge may withdraw.it and all comments by counsel thereon from consideration by the jury even after argument is ended.

Issue of devistmit vel non, tried before (Jodie, J., and a jury, at January Term, 1896, of G-eaNville Superior Court. There was a verdict for the propounders, and from the judgment thereon the caveators appealed.

Messrs. Winston, Fuller & Biggs, for caveators (appellants).

Messrs. Edwards dk Royster and W. M. Person, for appellees.

*272Montgomsby, -I.:

The will of the decedent, John Johnson, was proved in common form, and upon a caveat being hied the issue joined thereby was sent up by the clerk to the next term of the Superior Court for trial. The cavea-tors assigned as reasons why the alleged will was not the will of the decedent, (1) That he was not at the time of its execution of sound mind and disposing memory; (2) That he was unduly influenced in its execution by those by whom he was surrounded and especially hy his wife, the sole devisee and legatee. The first exception of the cavea-tors was to the ruling of his Honor, that it was not necessary for the propounders to file an answer to the caveat.

No answer was necessary. The issue as to whether a paper writing is the will of the decedent is made up upon the filing of the caveat. Eaton’s Forms, p. 446

The next exception was to the reading of the paper writing in evidence; the caveators contending that the witness, Wimbish, who was also a subscribing witness to the script, had not identified the same as the paper which was really executed by the decedent. There is nothing in the exception. The vs riting was shown to the witness and he said that the same was the paper which the defendant signed as his will after it had been read over to all present, and that the witness and D. S. Osborn, now deceased, the other vs itness to the paper, signed the same in the presence of the decedent and at his request. The witness, "Wim-bish, on cross-examination by the caveators, was asked what he had said when the will was proved before the clerk as to the mental capacity of the decedent. His Honor properly refused to allow this question to be put. The witness had not been -ashed on his examination in chief a word about the mental condition of the decedent, nor on his cross-examination. .The only purpose of the question must have been to contradict the witness and he had made no statement about it one way or another.

*273Another exception was to the refusal of the court to allow Taylor, a witness for the caveators, to testify as to what Osborn, a deceased witness to the execution of the will, had told him about the mental condition of the decedent, both before and after the execution of the paper writing. His Honor’s ruling was correct. The testimony offered was nothing but hearsay evidence.

The exceptions from 11 to 27 were to the form of questions put to witnesses by the propounders to show testamentary capacity. They were leading — all of them,— but the Judge, in his discretion, allowed them to be asked and we cannot review them.

At the close of the evidence the caveators asked the court to instruct the jury as follows: 1. “ That there has not been evidence sufficient to admit the alleged will to probate, in that the evidence of E. B. Wimbish, the subscribing witness, is not sufficient to establish the due execution of the same. 2. There is no evidence in this case that the alleged will has been admitted tc probate and, this being true, the alleged will cannot be offered in evidence in this suit.” The court properly refused to give the instructions asked. As we have already said, the testimony of the witness, Wimbish, was sufficient to have the will put in evidence for the purpose of establishing its execution by the decedent. He identified the paper, saw the decedent sign it after it had been read over to him, and both himself and Osborn, the other subscribing witness, signed it in the presence of the decedent and at his request. The probate of the will before the clerk was a matter totally immaterial in its relation to the trial in the Superior Court. The result of the trial in the Superior Court was to be the overthrow of the alleged will or its probate afresh in that court. There is no merit in exceptions 30, 31, 32, 33 and 34.

*274The caveators made exception to that part of his Hon- or’s charge where he said, “was he (said Johnson) able to understand what he was about? If so, then he was of sound mind and memory within the meaning of the law; if not, he had not testamentary capacity.” This excep tion was a part of eight lines immediately connected to gether, the whole reading as follows: “Did he, the said Johnson, at the time of the execution of the script or writing in question, have sufficient mental capacity to understand the nature and character of the property disposed of? To whom he was givinghis property and how he was disposing of the property? Was he able to understand what he was about? If so, then he was of scund mind and memory within the meaning of the law; if not, then he had not testamentary capacity.” But if the detached portion of the charge, which was the subject of the exception, had stood alone, and not in conjunction with the other part which we have quoted above, it would not be error (or if error, a harmless one), for, in other parts of the charge, bis Honor expressed himself to th? jury upon the sufficiency of testamentary capacity, in words that have stood the test of our decisions — as, for instance, he told them “the law is that to be of sound and disposing mind and memory, so as to be capable of making a valid will, the deceased must at the time of executing the paper writing have had sufficient mental capacity to understand the nature and character of the property disposed of, to whom he was willing it and how he was disposing of his property.” In another place he said, if, at the time he had the capacity to know what he was doing, and was capable of understanding the nature and character of the property disposed of, to whom and in what way he was disposing of his property, then his mental capacity would be sufficient. The exception can avail nothing.

*275The court, in the long and full charge^ to the jury, among other things, said: “If the jury believe the evidence as to the formal execution of the alleged will, as explained •in these instructions, and that the testator knew the contents of the same, and if, after a consideration of all the evidence in the case, a want of testamentary capacity in the testator has not been shown, and if it has not been shown that undue influence was exerted upon the testator at the time of the execution of the alleged will, then the jury will answer the issue Yes, otherwise, No.” The defendant excepted to that instruction on the ground that it was misleading and that it placed upon the caveators the burden of proving both the want of testamentary capacity and of undue influence, and they insisted that the jury should have been instructed that, if the caveators had shown either want of testamentary capacity or undue influence, then the jury should have found for the caveators. If the charge on the whole was not so full and clear, on the point to which the exception is directed, we would have no hesitancy in ordering a new trial, for the reason set out in the exception. Rut, upon reading the whole charge, it is perfectly clear that on this point the jury could not have been misled. The language used by the Judge, when taken in connection with the balance of the charge, was so manifestly an inadvertence, that it could have produced no harm. He told them over and over again, in substance, at length, and so clearly that they could not misunderstand him, that testamentary incapacity alone would avoid the paper writing alleged to be the will, and that undue influence alone exerted by his wife or any other person would make the paper writing, not his will, but that of another.

On the argument, one of the counsel for the caveators commented upon the failure of H. A. Crenshaw, the per-*276sou named as executor in tbe will, to go upon tbe stand as a witness for tbe propounders to show that tbe decedent bad testament ary capacity. It bad been shown on tbe trial that Crenshaw was tbe brotber-in-law of tbe decedent and that be delivered to the attorney who drew tbe will a message from decedent to prepare tbe will in tbe manner in which it was drawn. Tbe attorney for tbe propounders, in bis argument to the jury, replied to that of counsel for tbe caveators, and asserted that Crenshaw was not a competent witness under Section ^90 of The Code. Neither side bad offered Crenshaw as a witness. Upon tbe conclusion of tbe argument tbe court took a recess until next morning, when, upon its being convened, tbe counsel for tbe caveators submitted in writing two instructions, which they called special, as follows: “1. IT. A. Crenshaw was a comptent witness in this case. Halliburton v. Carson, 100 N. C., 99.” “2. Counsel bad tbe right to comment on bis not going on tbe stand.”. Tbe court refused to give tbe instructions and did-not advert to tbe matter in tbe charge. There was no error in refusing these instructions. Crenshaw bad not been tendered as witness, and tbe question of bis competency as a witness, under Section 590, could not have been raised in an orderly manner unless be bad been so tendered, and bis testimony objected to. If tbe courts were compelled in tbe trial of jury causes after argument begun to stop and submit instructions whenever opposing counsel in their arguments to tbe jury differed as to questions of law not raised in an orderly way on tbe trial, there would be no end to tbe controversy.-Tbe Judge was called upon by tbe instructions prayed for to decide a quésticn of evidence that bad not arisen in tbe due course of tbe trial, to decide which one of tbe attorneys was correct in bis construction of a section of The Gode. As the counsel raised this question themselves, out *277of tbe due course of tbe trial, they were very properly allowed by tbe court to settle it among themselves.

Tbe matter wbicb gave rise to tbe 39th and last exception was this: Dr. Taylor, a witness for tbe propounders, bad testified, over tbe objection of tbe caveators, that be was very much surprised when be beard that this suit was brought, and that he never dreamed that tbe testator was of unsound mind. Tbe court in tbe charge told tbe jury that they should not consider Dr. Taylor’s testimony, neither should they consider tbe remarks of counsel passed upon such excluded testimony. Tbe caveators alleged that tbe ruling of tbe Judge was erroneous, in that after the evidence was admitted and after counsel for the propounders bad commented upon it, it was too late to withdraw it from tbe jury, because such a course could not but have bad the effect of impressing the jury to such a degree as to make it almost impossible to counteract the effect by a withdrawal of tbe evidence. This court has decided that tbe Judge has such right. Wilson v. Mfg. Co., at this term and cases there cited. Upon a review of the whole case we find no error which, in our opinion, could have influenced tbe finding of tbe jury, and the judgment is affirmed.

Affirmed.