#### In re Will of JAMES TURNAGE.

(Filed 10 April, 1935.)

1. Appeal and Error J e—

Exceptions and assignments of error relating to an issue answered in favor of appellants will be disregarded on appeal, since errors cured by tbe verdict are not ground for reversal.

3. Wills B e—

Testimony of a declaration made by testator four years after tbe execution of tbe will to tbe effect that be bad let others take advantage of bim, and lead him to make tbe will, is insufficient, standing alone, to be submitted to the jury on tbe issue of undue influence.

3. Same — Definition of “undue influence.”

Undue influence sufficient to avoid an instrument is such influence which destroys tbe free agency of tbe person executing tlie instrument and substitutes therefor tbe will of another, and although moral turpitude is not a necessary element of undue influence, where influence exerted upon tbe person executing the instrument amounts to a substitution of wills and constrains the person executing the instrument to do what he or she otherwise would not have done, it is a fraudulent influence in the eyes of the law.

Appeal by propounders from *Parker, J.,*at September Term, 1934, of Pitt.

Issue of *devisavii vel non,*raised by a caveat to the will of James Turnage, late of Pitt County, based upon alleged mental incapacity and undue influence.

The paper-writing propounded as the last will and testament of the deceased was executed 9 October, 1928. It was prepared by counsel and duly attested. The caveator, testator’s only son, is given $25 in the first item in the will, “and this is to be all he is to have out of my estate.” The testator died in December, 1932. About a week before his death, he was heard to say he wanted to change his will. He asked the deputy clerk of the court if he would run over to Winterville in a day or two and make a little change in his will for him. This was on Saturday preceding his death on Wednesday. On Monday intervening, the testator went to the home of Glaseo Baker “and was speaking about them not having come to fix the will, and he said that his time had *131come and be bad to go away from here, and be burst out crying, and be said be didn’t have but one child in tbe world and be bad cut bim clear out, and be wanted bim to have wbat be bad.” Mrs. Baker asked: “Mr. Turnage, wby did you treat bim tbat way?” He answered: “I let other folks take advantage of me and lead me to make tbe will.”

Motion for nonsuit, or directed verdict, on tbe issue of undue influence. Overruled; exception.

Tbe jury returned tbe following verdict:

“2. "Was tbe execution of said paper-writing procured by tbe exercise of undue influence over James Turnage? Answer: 'Yes.’

“3. Did James Turnage, at tbe time of tbe execution of said paper-writing by bim, have sufficient mental capacity to make a will? Answer : 'Yes.’ ”

Judgment on tbe verdict, from which tbe propounders appeal, assigning error.

*Julius Brown for caveator.*

*8. 0. Worthington and J. B. James for propounders.*

Stacy, 0. J.

Tbe issue of testamentary capacity was answered in favor of tbe propounders, hence tbe exceptions and assignments of error addressed to this issue may be disregarded. Errors cured by tbe verdict are not ground for reversal on appeal. *Daniel v. Power Co.,*201 N. C., 680, 161 S. E., 210; *Rankin v. Oates,*183 N. C., 517, 112 S. E., 32.

We agree with propounders tbat tbe evidence was not such as to warrant a verdict for caveator on tbe issue of undue influence, and tbe jury should have been instructed accordingly. *Evans’ Will case,*123 N. C., 113, 31 S. E., 267. Tbe case, in this respect, rests upon tbe bare declaration of tbe testator, made four years after tbe execution of bis will, tbat be bad let others take advantage of bim, and lead bim to make tbe will. There is nothing to show wbat “advantage” was taken of tbe testator, and for aught tbat appears, tbe will was written as be wanted it at tbe time. He expressed no desire to revoke tbe will, which be might have done, but simply tbat be wanted to make a change in it. *In re Hurdle,*190 N. C., 221, 129 S. E., 589; *In re Creecy,*190 N. C., 301, 129 S. E., 822.

To constitute “undue influence,” within tbe meaning of tbe law, there must be something operating upon tbe mind of tbe person whose act is called in judgment, of sufficient controlling effect to destroy free agency and to render tbe instrument, brought in question, not properly an expression of tbe wishes of tbe maker, but rather tbe expression of tbe will of another. “It is tbe substitution of tbe mind of tbe person exercising tbe influence for tbe mind of tbe testator, causing bim to make a will which be otherwise would not have made.”

*132In short, undue influence, which justifies the setting aside of a will, is a fraudulent influence, or such an overpowering influence as amounts to a legal wrong. *In re Mueller’s Will,*170 N. C., 28, 86 S. E., 719; *Plemmons v. Murphey,*176 N. C., 671, 97 S. E., 648; *In re Craven’s Will,*169 N. C., 561, 86 S. E., 587. It is close akin to coercion produced by importunity, or by a silent, resistless power, exercised by the strong over the weak, which could not be resisted, so that the end reached is tantamount to the effect produced by the use of fear or force. To constitute such undue influence, it is not necessary that there should exist moral turpitude, but whatever destroys free agency and constrains the person, whose act is brought in judgment, to do what is against his or her will, and what he or she otherwise would not have done, is a fraudulent influence in the eye of the law. *In re Lowe’s Will,*180 N. C., 140, 104 S. E., 143; *In re Abee’s Will,*146 N. C., 273, 59 S. E., 700.

New trial.