In Re the Will of Simmons

Supreme Court of North Carolina

In Re the Will of Simmons

150 S.E.2d 439, 268 N.C. 278, 1966 N.C. LEXIS 1179

CourtSupreme Court of North Carolina

DecidedOctober 12, 1966

Docket207

StatusPublished

Cited by5 cases

This text of 150 S.E.2d 439 (In Re the Will of Simmons) is published on Counsel Stack Legal Research, covering Supreme Court 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 Simmons, 150 S.E.2d 439, 268 N.C. 278, 1966 N.C. LEXIS 1179 (N.C. 1966).

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Opinion

Per Curiam.

We have examined carefully the assignments of error with reference to the admission and exclusion of evidence. We find no merit therein.

There was no error in the instructions to the jury, above mentioned, nor in the instruction with reference to the test of mental capacity to make a will, to which the caveator also excepted. In Re Craven, 169 N.C. 661, 86 S.E. 587. The burden was upon the cave-ator to prove that, at the time the will was executed, Simmons did not have the mental capacity required for the execution of a will. In Re Will of Isley, 263 N.C. 239, 139 S.E. 2d 243; In Re Will of Brown, 200 N.C. 440, 157 S.E. 420; In Re Thorp, 150 N.C. 487, 64 S.E. 379. The burden was also upon the caveator to show undue influence. In Re Will of West, 227 N.C. 204, 41 S.E. 2d 838. Since there was no evidence offered to show the existence of undue influence, it was not error to instruct the jury peremptorily upon that issue.

No error.

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Per Curiam.

We have examined carefully the assignments of error with reference to the admission and exclusion of evidence. We find no merit therein.

There was no error in the instructions to the jury, above mentioned, nor in the instruction with reference to the test of mental capacity to make a will, to which the caveator also excepted. In Re Craven, 169 N.C. 661, 86 S.E. 587. The burden was upon the cave-ator to prove that, at the time the will was executed, Simmons did not have the mental capacity required for the execution of a will. In Re Will of Isley, 263 N.C. 239, 139 S.E. 2d 243; In Re Will of Brown, 200 N.C. 440, 157 S.E. 420; In Re Thorp, 150 N.C. 487, 64 S.E. 379. The burden was also upon the caveator to show undue influence. In Re Will of West, 227 N.C. 204, 41 S.E. 2d 838. Since there was no evidence offered to show the existence of undue influence, it was not error to instruct the jury peremptorily upon that issue.

No error.

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Bluebook (online)

150 S.E.2d 439, 268 N.C. 278, 1966 N.C. LEXIS 1179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-will-of-simmons-nc-1966.

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