
    In re Will of JOHN A. BROACH.
    (Filed 15 November, 1916.)
    1. Wills — Probate—Evidence.
    Evidence is sufficient for the probate of a paper-writing purporting to be a will which tends to show that the subscribing witnesses went to the house of the deceased with an attorney, the deceased said he wanted them to witness his will, which was lying on a table in the room, then signed it, saying it was his will, requested the witnesses to sign it, the signing by the deceased and the witnesses being in the presence of each other.
    2. Wills — Probate—Impeaching1 Evidence — Burden of Proof — Trials.'
    Where the formal execution of a paper-writing purporting to be a will has been proven, it is.prima facie the will of the deceased, devolving upon the caveators the production of impeaching evidence.
    8. Wills — Mental Capacity — Evidence—Witnesses—Opinions—Trials,
    In proceedings to caveat a will a witness may be asked of his own knowledge whether in his opinion the deceased possessed sufficient mental capacity to make the will at the time, know his property, his relatives, the claims they had upon him, and to whom he wanted to give his property.
    4. Same — Instructions—Intelligence.
    Where the court has properly charged upon mental capacity of the deceased to make a will, a further charge that it is not required that he should have had a high degree of intelligence is without error.
    5. Wills — Undue Influence — Wife.
    Undue influence sufficient to set aside a will must be more than that arising from affection and kindness, but must partake of the nature of fraud; and such will not be inferred from the fact alone that the deceased devised, his property to his wife, who was with him at the time when he executed the paper-writing, and attending him during his sickness, or the fact that hers was a strong and his a weak will.
    6. Wills — Caveat—Parties—Evidence—Presumptions.
    Where a paper-writing is sought to he set aside for undue influence of the wife of the deceased, a reguested instruction that the failure of the wife to testify was a strong circumstance tending to prove its invalidity, is properly refused, there being no parties to a devisavit vel non.
    
    7. Wills — Signature—Execution—Evidence—Bequest.
    Where there is evidence that a paper-writing has been signed by the deceased and duly attested by the witnesses, and that the deceased declared it to be his will, a reguested instruction that there was no evidence that the will was prepared at his request is properly refused.
    S. Wills — Caveat—Burden of Proof — Presumptions—Instructions.
    In proceedings to caveat a will, the burden is upon the caveator to show undue influence, if such is relied on to set aside the writing; and his prayer for instruction that if the person benefited procured the same or advised the terms of the instrument, it would raise a presumption of undue influence, and the jury should so find unless explained to their satisfaction, is properly refused.
    9. Wills — Mental Capacity — Evidence—Circumstance—Blank Space.
    A paper-writing purporting to be a will which appoints the deceased’s ,wife as executor and guardian of minor children, should there be any at the time of his death, and in another section leaves a blank space for the appointment of an executor and guardian in the event the wife predeceased him, cannot be construed as an anomaly of his appointing her as guardian for the children after her death, and a circumstance affecting the question of the deceased’s mental capacity.
    Appeal by caveators from Devin, J., at March Term, 1916, of Eich-MOND.
    
      Stevenson & Prince, Thomas & Phillips, and H. H. McLendon for caveators.
    
    
      A. B. McPhail, John P. Gameron, and Kelly & Boggan for pro-pounders.
    
   Clare, C. J.

The following issue was submitted to the jury: “Is the paper-writing propounded, and every part thereof, the last will and testament of John A. Broach, deceased?” to which the jury responded “Yes.”

The first assignment of error is that the court allowed the propounder to introduce the paper-writing as the will of John A. Broach. .The'witnesses Porter and Hinson testified that in company with A. E. Mc-Phail, a lawyer, they went to the home of John A. Broach and his wife, and Mr. Broacb, after some general conversation, said that be wanted Porter and Hinson to witness bis will. Tbe paper was lying on tbe table. Broacb got up, took tbe pen, signed tbe paper, and banded it to tbe witness Porter, wbo also signed it; both of them did this at tbe request of Broacb, wbo remarked, “This is my will.” Both of tbe witnesses signed in tbe presence of Mr. Broacb and be signed in tbeir presence. On this evidence tbe will was properly admitted in evidence. Tbe exception to this, which is tbe first assignment of error, cannot be sustained. In re Bowling, 150 N. C., 507; In re Herring’s Will, 152 N. C., 258. The formal execution having thus been formally proven, it was prima facie tbe will 'of tbe deceased, and tbe caveators were called on to put on evidence to impeach it.

Exceptions 2, 3, 4, 5, and 6 cannot be sustained. Tbe Court has repeatedly held proper tbe question propounded, “State whether or not, in your opinion, Mr. Broacb possessed sufficient mental capacity in September, 1909 (tbe date of tbe execution of tbe will), to know what property be bad, wbo bis relatives were, what claims they bad upon him, and if be bad wanted to dispose of bis property, to whom be intended to give it.” Bond v. Mfg. Co., 140 N. C., 383; In re Thorp’s Will, 150 N. C., 487, and many others.

Tbe seventh assignment of error is that tbe court charged: “Tbe requirements and test of capacity to make a will is that a man shall have mind and intelligence sufficient to know and understand what property be has, wbo are tbe natural objects of bis bounty, and bis relationship to them, and tbe manner in which be is disposing of bis property. It does not require a high degree of intelligence in order to have capacity to make a will, but be must have intelligence sufficient, as I have just stated. Tbe caveators having alleged in tbeir caveat that tbe will was procured by undue influence, and that there was want of mental capacity upon tbe part of tbe testator, that be was suffering from insanity or dementia, it becomes necessary for us to understand in tbe beginning what we mean by this term.” Tbe court further charged: “In passing upon that tbe fact that John A. Broacb bequeathed bis property to-bis wife would not by itself be evidence of undue influence, because influence obtained by affection and kindness cannot be regarded as undue influence, but tbe influence must partake of tbe nature of fraud.”

Tbe court also charged: “If upon this testimony you find that this alleged will of John A. Broacb was in writing and signed by him, and that be called upon two witnesses to attest it, and that they signed it as witnesses in bis presence, being requested to sign it as bis will, and you find'that at tbe time when be signed this alleged will be bad mental capacity to know and understand what be was doing, tbe property be owned and wished to dispose'of; knew and understood tbe relations be bore bis property and tbe persons to whom be was giving it; understood tbe nature of the act in which be was engaged and its extent and' effect; if be possessed tbe mental capacity so defined, and you find tbe facts so to be and from a review of all tbe evidence that be bad ai mental capacity sufficient to mate a will, then you will answer the issue ‘Yes.’ ” Tbe above instructions are assigned as error, but we find no error therein: In re Abee’s Will, 146 N. C., 273; Marshall v. Flinn, 49 N. C., 199; Wright v. Howe, 52 N. C., 412.

Tbe caveators also assigned as error tbe refusal of tbe court to charge as requested: “In this case tbe caveators allege and contend that said paper-writing was executed by John A. Broach on account of undue influence exercised over him by bis wife and John Ponds. It is a presumption of law that if a party to an action, or interested in tbe result of an action, has in bis or her possession, or under bis or her control, evidence or witnesses, and fails to produce said evidence or witnesses, and that if tbe evidence was produced it would be against tbe party under whose control it is, tbe court charges you that tbe failure of Mrs. Broach and John Ponds to testify in this case is a strong circumstance tending to prove that said alleged will was executed by John A. Broach on account of undue influence exercised by him, by them, or one of them.” This exception cannot be sustained. In an issue devisavit vel non there are no parties, and there is no rule of law that tbe failure of tbe parties interested in tbe will to produce witnesses whose evidence would be against them “is a strong circumstance tending to prove that said alleged will was executed by John A. Boacb on account of undue influence over him by them or one of them.” There is no evidence that undue influence was exercised over tbe testator in making this will; nor that there were witnesses under tbe control of Mrs. Broach and John Pond who would have testified against them. Nor could tbe judge have charged, as requested, that “There is no evidence that tbe will was prepared at tbe request of John A. Broach; and unless tbe jury so found they should answer tbe issue ‘No.’ ” It is sufficient that tbe will was prepared and ready for signature and that tbe testator signed it, declaring it to be bis will, and that tbe witnesses signed in bis presence at bis request.

Nor was it error for the court to refuse to charge, as requested, that it was tbe duty of tbe jury “to consider tbe fact that said alleged will provides that all of said property shall go to bis wife in case she survives him, and later provides that in ease of her death prior to bis, said property shall go to Lilly May Ponds and Pauline Ponds, and that bis wife should act as guardian for said children. This in itself is a circumstance for you to consider against tbe validity of tbe alleged will.” A reference to tbe will shows that in section 2 tbe testator appoints bis wife as executor and guardian of the other beneficiaries, if they should be minors at the time of his death, and in section 5 he provides that if his wife should predecease him he nominated “.” as executor and trustee and guardian of the said beneficiaries. This blank was not filled up, and said article 5 is based upon the contingency that his wife should not survive him.

It is also assigned as error that.the court refused to charge, “If the jury find from the evidence that the person to be benefited by said alleged will procured the same to be written, or advised the terms of the instrument, then a presumption of undue influence on her part is raised, and unless explained to the satisfaction of the jury that no such undue influence existed you will answer the issue No.’ ” This changes the burden of proof, which is upon the caveators to show undue influence. There is no evidence of undue influence on the part of any one in procuring the execution of this will. There was evidence tending to show that the wife was a stronger personality than the husband, and that in the ordinary affairs of life he was very much under her influence, and that a year after the will was made he was sent to a sanitarium. But the fact that a wife has influence with her husband, and even if there is evidence that she is the dominant partner, this does not of itself prove that she exerted that influence to dictate the terms of the will; and there is no evidence here that she did so. It would be.hard if a husband who may have had very little will of his own during life should on that account be held incompetent to express his will as to the disposition of his property after his death when there is, as in this case, no proof that there was in fact any undue influence exerted'upon him in making his testamentary will.

The question whether the husband had sufficient mental capacity to make the will was testified to by many witnesses, and the jury responded in the affirmative. We find

No error.  