In re the Will of Honeycutt

Court of Appeals of North Carolina

In re the Will of Honeycutt

162 S.E.2d 87, 1 N.C. App. 595, 1968 N.C. App. LEXIS 1144

DecidedJuly 10, 1968

StatusPublished

This text of 162 S.E.2d 87 (In re the Will of Honeycutt) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Will of Honeycutt, 162 S.E.2d 87, 1 N.C. App. 595, 1968 N.C. App. LEXIS 1144 (N.C. Ct. App. 1968).

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Opinion

Morris, J.

The caveator assigns as error several portions of the charge in which the trial judge inadvertently referred to “the will” and “the codicil” of the decedent. Since the trial judge instructed the jurors in most emphatic language in other parts of the charge that they were “the sole judges of the facts” and that they were not to consider anything the court may have said or done during the progress of the proceeding as the expression of any opinion on the facts, we are satisfied “that these trivial lapses of the judicial tongue did no injury to the caveator.” In re Will of Kemp, 236 N.C. 680, 73 S.E. 2d 906. In re Will of McDowell, 230 N.C. 259, 52 S.E. 2d 807. Although the better practice would be to refer to the script as the “purported will” and the “purported codicil” of the decedent, it will not be held as an expression of the court upon the weight and credibility of the evidence contrary to the requirements of G.S. 1-180 when it appears from the context of the instruction that [597]*597the trial judge was only referring to the writing itself, and must have been so understood by the jury. In re Will of Brockwell, 197 N.C. 545, 149 S.E. 852.

An examination of the record in this appeal fails to disclose any error for which a new trial of the issue involved in this proceeding should be granted. The remaining exceptions to the charge are too tenuous to require discussion and are overruled. The charge as a whole comes well within the established practice. The caveators have failed to show prejudicial error. The judgment establishing the script-in controversy as the last will of John Thomas Honeycutt must be upheld.

No error.

Campbell and Britt, JJ., concur.

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Morris, J.

The caveator assigns as error several portions of the charge in which the trial judge inadvertently referred to “the will” and “the codicil” of the decedent. Since the trial judge instructed the jurors in most emphatic language in other parts of the charge that they were “the sole judges of the facts” and that they were not to consider anything the court may have said or done during the progress of the proceeding as the expression of any opinion on the facts, we are satisfied “that these trivial lapses of the judicial tongue did no injury to the caveator.” In re Will of Kemp, 236 N.C. 680, 73 S.E. 2d 906. In re Will of McDowell, 230 N.C. 259, 52 S.E. 2d 807. Although the better practice would be to refer to the script as the “purported will” and the “purported codicil” of the decedent, it will not be held as an expression of the court upon the weight and credibility of the evidence contrary to the requirements of G.S. 1-180 when it appears from the context of the instruction that [597]*597the trial judge was only referring to the writing itself, and must have been so understood by the jury. In re Will of Brockwell, 197 N.C. 545, 149 S.E. 852.

An examination of the record in this appeal fails to disclose any error for which a new trial of the issue involved in this proceeding should be granted. The remaining exceptions to the charge are too tenuous to require discussion and are overruled. The charge as a whole comes well within the established practice. The caveators have failed to show prejudicial error. The judgment establishing the script-in controversy as the last will of John Thomas Honeycutt must be upheld.

No error.

Campbell and Britt, JJ., concur.

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162 S.E.2d 87, 1 N.C. App. 595, 1968 N.C. App. LEXIS 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-will-of-honeycutt-ncctapp-1968.

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