#### In the Matter of the Last Will and Testament of MAGGIE NIPSON LOMAX, Deceased.

(Filed 18 September, 1946.)

1. Wills § 17—

A caveat proceeding is *in rein*and many of the ordinary rules relating to order of proof and argument do not obtain.

a. Wills § *23%*a,—

Caveators by admitting' the due execution of the will and its probate in common form cannot deprive the court of its discretionary control over the order of proof or complain that propounders were permitted to open the evidence to prove the formal execution of the will *per testes*in solemn form, nor are caveators prejudiced or deprived of any substantial right if propounders exceed the necessity of a *prima faeie*case by introducing competent evidence on the issue of mental capacity.

3. Wills § *24:%*—

Where both propounders and caveators introduce evidence, the right to the opening and concluding arguments is within the discretion of the trial judge, and further, since propounders have the burden of the issue, the concluding argument is appropriately theirs.

4. Wills § *23b:*Evidence § 32—

G. S., 8-51, applies to caveat proceedings notwithstanding that they are *in rem,*with the exception that beneficiaries under the will are competent to testify as to transactions with deceased testator solely upon the issue of testamentary capacity.

5. Wills § 23c: Evidence § 32—

The prohibition against a beneficiary testifying as-to transactions with deceased testator on the question of undue influence relates solely to transactions with the deceased, and a beneficiary is competent to testify as to circumstances tending to show undue influence on the part of the propounder unrelated to any transaction which the witness had with •testator. G. S., 8-51.

*4996. Wills § 25: Appeal and Error § 39f—

Evidence of undue influence is usually of a circumstantial nature, and therefore an instruction which withdraws from the consideration of the jury competent testimony upon the issue must he held for prejudicial error, since the testimony may have substantial and material bearing upon the issue when considered with the other circumstances adduced by the testimony in the case. Further, the instruction that the jury should not consider the testimony of named witnesses upon the issue of undue influence, but might consider their testimony upon the issue of testamentary capacity *is held-*too indefinite.

Appeal by caveators from *Alley, J.,*at April Term, 1946, of Buncombe.

*Cecil C. Jackson, George F. Meadows, and W. W. Candler for caveators, appellants.*

*Carl W. Greene and Smathers & Meekins for propounders, appellees.*

Sea well, J.

This is tbe fourth time tbe present case bas been bere on appeal. It is beginning to look as if tbe shade of Maggie Nipson Lomax, whose purported will bas so long vexed tbe courts, may be as bard to down as Banquo’s ghost. She left only a small estate, valued at some $12,000.00, accumulated by thrift and frugality while chambermaid at a hotel in Asheville. Counsel for the propounders, currently the winner, admonishes us that unless the litigation is stopped somewhere, “there is not going to be anything left for anybody finally,” and adjures us “not to send the Lomax will case back.” We may as well confess a growing sympathy with that view, but we are at a loss to know how to make it a principle of decision. Even a harried Court must salve its conscience.

The three former appeals are reported as follows: *In re Will of Lomax,*224 N. C., 459, 31 S. E. (2d), 381; *In re Will of Lomax,*225 N. C., 31, 33 S. E. (2d), 63; *In re Will of Lomax,*225 N. C., 592, 35 S. E. (2d), 876.

Reference is made to the preliminary statement of the case in 224 N. C., 459, *supra,*for the constitutive facts of this case and the scope of the controversy. We add only that the caveators attacked the validity of the will on the ground of undue influence, as well as mental incapacity, and separate issues involving these questions, as well as the issue *devisavit vel non,*were submitted to the jury on the trial now under review. With this understood, we confine our attention to the incidents of trial immediately bearing on the decision.

The appellants assign as error that notwithstanding their admission at the beginning of the trial that the purported will had been properly signed and witnessed, and had been admitted to probate in common form, *500(a) the propounders bad been permitted to “go to tbe bat” with tbeir evidence first, tbus getting tbe advantage of a first impression on tbe jury; and (b) that tbeir counsel was permitted to conclude tbe argument to tbe jury.

Neither objection is meritorious. Tbe proceeding is *in rem,*and in many of its incidents beyond tbe control of tbe litigant parties and outside tbe rules pertaining to ordinary controversies respecting tbe rights of persons arrayed as parties plaintiff and parties defendant. *In re Haygood’s Will,*101 N. C., 574, 578, 8 S. E., 222; *In re Will of Westfeldt,*188 N. C., 702, 125 S. E., 531. When tbe issue of *devisavit vel non*is raised, tbe propounder may, *prima facie*at least, carry tbe burden resting upon him by producing tbe will and proving its formal execution *per testes*in solemn form. *In re Hedgepeth,*150 N. C., 245, 63 S. E., 1025; *In re Rowland,*202 N. C., 373, 375, 162 S. E., 897. Tbe order in which tbe evidence is taken is largely within tbe discretion of tbe court, and tbe caveators could not by tbeir voluntary admission deprive tbe court of that discretion and, so to speak, take charge of proceedings. 68 C. J., Wills, sec. 882 (2). For a like reason, although the propounders may have exceeded tbe necessities of a *prima facie*case in introducing competent evidence on tbe issue of mental capacity, caveators were not deprived of any substantial right or prejudiced thereby.

(b) Since both sides introduced evidence, tbe opening and conclusion was within tbe discretion of tbe trial judge. Moreover, since, as stated, tbe burden of establishing tbe will was upon tbe propounders, the conclusion of tbe argument was appropriately theirs.

We have attempted to clarify this feature of tbe trial, since a like situation may recur.

Tbe caveators- took 134 exceptions to the trial. Many of them are without merit, others marginal; and we are compelled to regard others as disclosing prejudicial error.

Tbe appellants direct our attention to a rather sweeping statement of tbe trial judge during tbe course of bis charge, tbe effect of which is to eliminate from consideration by tbe jury certain material evidence upon tbe question, of undue influence, on tbe theory that certain witnesses testifying on that issue were not competent to give testimony by reason of tbeir relation to tbe case. We quote tbe exceptive passages:

> “I call your attention again to tbe witnesses that I mentioned this morning, Maggie Nesbitt, Frank Stevens and Sadie Smith, who were offered by tbe caveators and permitted to testify about the question of tbe mental capacity of Maggie Lomax and about tbe conduct of Quick.

> “I instructed you this morning that part of tbe evidence is competent and part is not competent. Anything that any of them may have said that tended to show any undue influence on tbe part of Quick would not be competent, and it was admitted by inadvertence, tbe Court under*501standing at tbe time tbat it was offered, tbat while they were relatives, tbat they were not beneficiaries under tbe Will. Later tbe Court was advised tbat they were beneficiaries under tbe Will, and so my instruction to you is tbat you will not consider any part of tbe evidence of those three witnesses tbat tends to show any undue influence or other conduct tending to show tbat Quick bad any influence, or exerted any influence over Maggie Lomax.

> “As to B. R. Quick, who has been attacked by tbe caveators, and charged with having procured Maggie Lomax to make this Will by reason of undue influence exerted over her, it will be proper for you to consider bis testimony in denial of tbe charge, . . . Counsel for both sides were frank and candid, having called tbe Court’s attention to this inadvertence, and it was agreed by all tbat I would give this instruction tbat you would not consider tbe testimony tending to show undue influence except tbe testimony of Quick, but tbat you would consider tbe testimony of all of them tbat bears on tbe question of sufficient mental capacity of Maggie Lomax to make a Will.”

These instructions must have been very confusing to tbe jury on a vital part of tbe controversy. Tbe very general designation of tbe evidence supposed to be admitted and tbat supposed to be excluded was too indefinite as a chart and compass to lead tbe jury back through tbe maze of testimony offered to a satisfactory result.

If tbe court intended tbe jury to understand tbat beneficiaries under tbe will were, by reason of their interest, incompetent as witnesses upon tbe question of undue influence, which was doubtless bis purpose, tbe instruction was erroneous in law.

It has been frequently held tbat as between tbe propounder or an interested executor and a person who is interested in tbe result of tbe trial, tbe statute now known as G. S., 8-51, rendering an interested survivor incompetent as a witness to a personal transaction with a deceased person, applies in a contest over a will, notwithstanding tbe proceeding is *in rem. In re Will of Brown*(Byron Brown), 203 N. C., 347, 166 S. E., 72; *In re Will of Brown*(George H. Brown), 194 N. C., 583, 595, 140 S. E., 192; *In re Hinton,*180 N. C., 206, 104 S. E., 341. There is an exception when tbe evidence is directed solely towards tbe question or issue of mental condition or testamentary capacity. In tbat case, it is competent for tbe interested witness to give testimony of such transaction or conversation, solely, however, as a basis for tbe opinion formed as to tbe mental condition or capacity of tbe deceased. *McLeary v. Norment,*84 N. C., 235; *In re Will of Brown, supra; In re Will of Brown,*194 N. C., 583, *supra.*But as noted, the inhibition in its very nature can only apply to testimony as to a personal transaction with tbe deceased testator or testatrix.

*502It is only necessary to say that the witnesses excluded by this ruling of the court, several of them by name (including Sadie Smith, who was not a beneficiary under the will), had given testimony tending to show undue 'influence on the part of Quick, the propounder, not relating to any transaction which the witness had with the testatrix, but as to the conduct of the propounder and circumstances of at least some substantial bearing upon this issue.

Evidence of undue influence is usually of a circumstantial nature; *In re Will of Everett,*153 N. C., 83, 68 S. E., 924; *In re Will of Stephens,*189 N. C., 267, 126 S. E., 738; *In re Will of Hurdle,*190 N. C., 221) 129 S. E., 589; Page on Wills, sec. 811; and “must, except in extreme cases, take a very wide range.” Page, *supra,*sec. 812. Almost necessarily the proof must cover a multitude of facts or circumstances going into the pattern, in the making of which the evidence of many witnesses may have separate, but interrelated, parts, shading from light to heavy. We cannot judge of the importance of the bit of mosaic being laid at the time or the part of the pattern being woven except in connection with the whole design. So judged, we are convinced that at least some of the excluded evidence was competent, substantial and relevant to the issue.

In this exclusion there was error, and the caveators are entitled to a new trial.

Error and remanded.