#### In re Will of N. S. MORGAN.

(Filed 4 November, 1920.)

3. Wills — Withdrawal of Issues — Courts—Intimation of Opinion.

When a caveat to a will has been filed it is not an intimation of opinion on the evidence for the trial judge to withdraw the issues of mental capacity and undue influence from the jury and leave only the genera) issue of devisavit vel non, when there was no legal evidence to sustain the issues withdrawn.

2. Appeal and Error — Harmless Error — Evidence.

The rejection of evidence having some tendency to show cordial relations between the testatrix and her son, is at most but harmless error when this relation is not controverted, and there is plenary evidence tending to establish it as a fact.

Caveat to a will, tried on tbe general issue of devisavit vel non, before Calvert, J., and a jury, at June Term, 1920, of HuehaM.

Verdict and judgment establisbing tbe will, and tbe caveator excepted and appealed. •

Bryant, Brogden & Bryant for propounder,

Brawley & Gantt for caveator.

Per CueiaM.

There were three issues framed or tendered for submission to the jury. One as to mental capacity of tbe testatrix, a second as to undue influence, and a third, tbe general issue of devisavit vel non, tbe verdict being only on tbe last issue. It is contended for appellant that in withdrawing tbe first and second issues from tbe consideration of tbe jury, and tbe.comments of tbe court in doing so, there was adverse intimation given as to tbe character and weight of tbe evidence bearing on those questions. Tbe formal execution of tbe paper-writing as tbe last will and testament of tbe testatrix was clearly proven, and if it be conceded that tbe exception insisted on is open to appellant, it would not avail him, for on careful perusal of tbe record we are of opinion that there are no facts in evidence to uphold a finding for tbe caveator on these issues, or that would justify their submission to tbe jury. Tbe objections as to tbe rulings of tbe court on questions of evidence are without merit. Tbe fact that tbe deceased mother kept her-son’s picture in her room might, under doubtful circumstances, may have been of significance as tending to show cordial relations between tbe two, but this was clearly proven by direct testimony, and is unchallenged so far as we can discover. On tbe entire facts presented, it could in no event be allowed for reversible error. We find nothing in tbe record that would justify tbe Court in disturbing tbe results of tbe trial, and tbe judgment estab-lisbing tbe due execution of tbe will must be affirmed.

No error.'