#### In re BAILEY.

(Filed 15 September, 1920.)

1. Appeal and Error — Exceptions—Brief—Rule of Court.

Tbe court will dismiss tbe appellant’s case when sbe fails to assign error as required by Rules 19, 20, and 21, or fails to file brief by tbe time required by Rule 34.

2. Wills — Devisavit Vel Non — Evidence—Declarations—Rebuttal.

Declarations of testator, who signed by cross mark to bis alleged will, that tbe paper-writing was a forgery, and that be bad not signed it, are competent in rebuttal of tbe evidence introduced in support of its genuineness.

3. Appeal and Error — Objections and Exceptions — Letters—Contents— Records.

Where tbe contents of letters introduced on tbe trial do not appear on appeal, an exception thereto cannot be sustained on appeal.

4. Appeal and Error — Devisavit Vel Non — Instructions—Harmless Error.

Where two paper-writings, each purporting to be a will, are, by consent, passed upon together on tbe trial of devisavit vel non, and neither one sustained, an exception to tbe charge that if both were properly executed, etc., tbe later would prevail, becomes immaterial.

5. Wills — Devisavit Vel Non — Verdict Set Aside — Consent.

Tbe court will not set aside a verdict in an action devisavit vel non at tbe request ,of all tbe parties, for this would present a moot question, which tbe courts will not consider.

Appeal by propounders from Daniels, J., at October Term, 1917, of Nash.

Devisavit vel non.- William Bailey offered a paper-writing purporting to be tbe last will and testament of Ellen Bailey, dated 26 March, 1914. This was caveated by Cora Wilson, who offered a paper-writing also purporting to be the last will and testament of Ellen Bailey,' dated 10 May, 1915. This was caveated by William Bailey. The other heirs at law were made parties. By consent, the following issues were jointly submitted :

“1. Is the paper-writing bearing the date 26 March, 1914, offered by the propounder, William Bailey, the last will and testament of Ellen Bailey?

*31“2. Is tbe paper-writing bearing tbe date of 10 May, 1915, propounded by Cora "Wilson, tbe last will and testament of Ellen Bailey ?”

Tbe jury responded to eacb of these issues, “No.” Judgment accordingly.

No counsel for Cora Wilson.

Thorne & Thorne and F. S. Spruill for William Bailey.

Finch & Vaughan and J. S. Manning for the heirs at law.

Ciase, C. J.

Tbere^ were no assignments of error filed by Cora Wilson, as required by rules 19 (2) and 21, 174 N. C., 832, 833; Lee v. Baird, 146 N. C., 361, and numerous cases since. Also, there was no brief filed for her, in tbe time required by rule 34, and tbe motion by appellee to affirm tbe judgment as to her is allowed.

In tbe appeal of William Bailey, tbe first assignment of error is tbe admission of tbe declarations to tbe witness Woodruff by Ellen Bailey that tbe paper-writing of 26 March, 1914, was a forgery, and she bad never signed tbe same. It purported to be executed by making her mark, and this declaration was competent to rebut tbe evidence offered by William Bailey in its support. In re Wellborn, 165 N. C., 641; In re Shelton, 143 N. C., 220; Reel v. Reel, 8 N. C., 248.

Tbe second assignment of error that tbe court allowed Cora Wilson to introduce as evidence sundry letters of Ellen Bailey cannot be sustained, for tbe record does not disclose tbe contents of tbe letters.

Tbe third assignment of error is to tbe charge that if tbe jury find that both paper-writings were legally and properly executed by Ellen Bailey; that tbe paper-writing propounded by Cora Wilson was tbe last will and testament of Ellen Bailey, because it was of later date than that propounded by William Bailey, has no foundation, because tbe jury found that both were forgeries.

Tbe fourth assignment of error, that tbe court refused to set aside tbe verdict when requested to do so by all parties at that time, cannot be sustained. In Kenny v. R. R., 165 N. C., 104, tbe Court held that the. parties have a right before trial to settle their differences by agreement and compromise, but, after tbe return of tbe verdict, tbe court, in its discretion, may refuse, to try tbe case over again although tbe parties consent for a new trial, for courts of justice cannot be turned into moot courts.

No error.