
    In re Will of McD. ARLEDGE.
    (Filed 22 November, 1916.)
    1. Wills — Caveat—Admissions—Burden of Proof.
    Upon trial of devisavit vel non tbe burden of showing the affirmative of the issue is upon caveator.
    2. Instructions — Wills—Caveats—Evidence—Trials—Questions for Jury.
    The. evidence in these proceedings of devisavit vel non being conflicting upon the issue, the propounder’s requested instruction to find in favor of the validity of the will was properly refused.
    Appeal by propounder from Carter, J., at March Term, 1916,- of MeoeleNbueu, in proceedings to caveat a will.
    
      T. W. Alexander, F. I. Osborne, and Pharr & Bell for propounder.,
    
    
      J. D. Murphy, F. M. Bedd, Stewart & McBae, and Cansler & Cansler for caveators.
    
   OlaeK, C. J.

Tbis was an issue of devisavit vel non, tbe caveators alleging tbat tbe execution of tbe will bad been procured by undue and improper influence, and tbat tbe testator did not have testamentary capacity. To tbe issue, “Is tbe paper-writing offered, and every part thereof, tbe last will and testament of McD. Arledge?” tbe jury responded “No.”

When tbe case was called for trial, counsel for caveators admitted tbe formal execution of tbe will, whereupon tbe court gave them tbe affirmative in tbe trial of tbe case. In re Peterson, 136 N. C., 13. When they introduced tbeir evidence and rested, tbe court ruled tbat there was not sufficient to submit tbe case to .tbe jury on tbe second issue, and tbat be would submit it only on tbe first ground of “undue and improper influence.”

At tbe conclusion of all tbe evidence, tbe propounder asked tbe court to instruct tbe jury tbat-upon all tbe evidence, if tbe jury should believe tbe same, there was not sufficient evidence of undue influence, and to answer tbe issue in favor of tbe propounder. Tbe court refused, and this presents the chief exception.

Tbe case is an important one for more reasons than one, and tbe evidence on both sides was very prolix, a very large number of witnesses being examined. There are forty-four assignments of error, and tbe case was very fully and elaborately argued by able counsel on both sides. But as we see it, the real issue and tbe determinative factor was one of fact, and tbe jury have found tbat in favor of tbe caveators. If there was any error in tbe conduct of tbe trial by tbe learned judge, we do not think tbat it was prejudicial.

No new question of law is presented, and to go over tbe exceptions one by one would. serve no good purpose and could be of benefit to neither party. Tbe questions of law presented have each and all been often before tbe Court, and our rulings have been carefully and substantially followed by tbe learned judge, who held tbe scales even and exact in the trial.

No view tbat could be presented by either side has failed to aiipear either in tbe briefs or in tbe argument of counsel, and tbe cause has bad tbe careful attention at tbe bands of tbe Court which its importance and tbe zeal and ability with which it has been argued by counsel entitle it to receive, and our matured judgment is tbat in tbe trial there was

No error.  