#### In re WILL of E. C. CARRAWAY, Deceased.

(Filed 13 March, 1929.)

Appeal and Error — Review—Harmless Error.

Where the jury upon sufficient evidence has answered the issues upon the caveat to a will sufficient to establish it as the last will and testament of the testator, the answer of the judge to another issue as a matter of law that the paper-writing and each and every part thereof was the last will and testament of the testator if erroneous, will not be considered as material or prejudicial error.

Stacy, C. J., dissenting.

Appeal by caveators to will of E. 0. Carraway, tried before Grady, J., and a jury, at November Term, 1928, of LeNOIR.

No error.

E. C. Carraway, being sick with, the “flu,” on 12 October, 1918, executed in his own handwriting a paper-writing, on an attached leaf in an account book containing accounts and other writing, in words and figures as follows: “I will to Gordon B. Carraway all my property on earth personal & real estate. I appoint J. H. Mewborn as executor without bond. I am sound mintly and physically. This the 12 Oct. 1918. E. C. Carraway (Seal).”

A witness testified: “He asked me to get him his account book, and his pen and ink. He was in bed and nobody was in the room with him but me. After I gave him the book he wrote some in the book I gave him. After he had written in the book he gave it to me and told me to put it in the bureau drawer, and I put it in there. In that drawer where I put the book he kept bills and other things, papers of his and things of that kind. After I put the book in the drawer I locked it. He kept the key to the drawer. It was the drawer he kept his valuable papers in.”

E. C. Carraway died the following day, after making the will. Gordon B. Carraway was his brother. The caveat to this will was filed on 13 October, 1925.

The real estate devised by the will to Gordon B. Carraway was known as “Monticello,” the home place of the late W. W. Carraway in Lenoir County, N. C.

A witness testified: “I think probably there is 150 acres in this plantation of E. C. Oarraway’s. It was the original homestead of the family. At the time of this will it was worth $150 or $200 per acre — a valuable farm. The finest farm in the county, I think. It is in Yance Township. It is the most beautiful spot in the county. This farm is now owned by a widow, Mrs. Hattie Scarboro.”

*743Tbe issues submitted to tbe jury, and tbeir answers thereto, were as follows :

“1. Is tbe paper-writing offered for probate and each and every part thereof in tbe genuine bandwriting of E. C. Oarraway, deceased? Answer: Yes.

2. "Was tbe paper-writing found among tbe valuable papers and effects of tbe deceased? Answer: Yes.

3. At tbe time of tbe execution of said paper-writing, did E. C. Oar-raway have sufficient mental capacity to make a will? Answer: Yes.

4. Was tbe execution of said paper-writing procured by undue influence as alleged by tbe caveators? Answer: No.

5. Is tbe said paper-writing and each and every part thereof tbe last will and testament of E. 0. Oarraway? Answer:., and tbe court having instructed tbe jury that they need not answer tbe fifth issue, and tbe court, upon tbe coming in of tbe verdict having answered tbe fifth issue Yes, as a matter of law upon tbe answers of tbe jury to tbe other issues.”

Sutton & Greene for propounders.

Bouse & Bouse for caveators.

Peb OubiaM.

After carefully reading tbe entire evidence, we think it sufficient and ample on all tbe issues to have been submitted to tbe jury to establish a holograph will under tbe decisions of this Court. Tbe caveators introduced no evidence. Tbe credibility of tbe evidence was for tbe jury to determine. We can see no error in tbe charge of tbe court below on all tbe issues. Tbe jury having answered tbe first four issues in favor of propounders, it follows as a matter of course that tbe paper-writing and each and every part thereof wa.s tbe last will and testament of E. 0. Oarraway.

Upon tbe coming in of tbe verdict and tbe jury having answered tbe first four issues in favor of tbe propounders, tbe court below as a matter of law answered tbe fifth issue “Yes.” Conceding, but not deciding, that this was error, it was not material or prejudicial. On tbe whole record we find

No error.

Stacy, 0. J., dissenting.