In Re the Will of Simmons

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

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.