In Re Will of Turnage

179 S.E. 332, 208 N.C. 130, 1935 N.C. LEXIS 339

• Court: Supreme Court of North Carolina
• Decided: April 10, 1935
• Status: Published

Opinion

Stacy, 0. J.

Tbe issue of testamentary capacity was answered in favor of tbe propounders, hence tbe exceptions and assignments of error addressed to this issue may be disregarded. Errors cured by tbe verdict are not ground for reversal on appeal. Daniel v. Power Co., 201 N. C., 680, 161 S. E., 210; Rankin v. Oates, 183 N. C., 517, 112 S. E., 32.

We agree with propounders tbat tbe evidence was not such as to warrant a verdict for caveator on tbe issue of undue influence, and tbe jury should have been instructed accordingly. Evans’ Will case, 123 N. C., 113, 31 S. E., 267. Tbe case, in this respect, rests upon tbe bare declaration of tbe testator, made four years after tbe execution of bis will, tbat be bad let others take advantage of bim, and lead bim to make tbe will. There is nothing to show wbat “advantage” was taken of tbe testator, and for aught tbat appears, tbe will was written as be wanted it at tbe time. He expressed no desire to revoke tbe will, which be might have done, but simply tbat be wanted to make a change in it. In re Hurdle, 190 N. C., 221, 129 S. E., 589; In re Creecy, 190 N. C., 301, 129 S. E., 822.

To constitute “undue influence,” within tbe meaning of tbe law, there must be something operating upon tbe mind of tbe person whose act is called in judgment, of sufficient controlling effect to destroy free agency and to render tbe instrument, brought in question, not properly an expression of tbe wishes of tbe maker, but rather tbe expression of tbe will of another. “It is tbe substitution of tbe mind of tbe person exercising tbe influence for tbe mind of tbe testator, causing bim to make a will which be otherwise would not have made.”

In short, undue influence, which justifies the setting aside of a will, is a fraudulent influence, or such an overpowering influence as amounts to a legal wrong. In re Mueller’s Will, 170 N. C., 28, 86 S. E., 719; Plemmons v. Murphey, 176 N. C., 671, 97 S. E., 648; In re Craven’s Will, 169 N. C., 561, 86 S. E., 587. It is close akin to coercion produced by importunity, or by a silent, resistless power, exercised by the strong over the weak, which could not be resisted, so that the end reached is tantamount to the effect produced by the use of fear or force. To constitute such undue influence, it is not necessary that there should exist moral turpitude, but whatever destroys free agency and constrains the person, whose act is brought in judgment, to do what is against his or her will, and what he or she otherwise would not have done, is a fraudulent influence in the eye of the law. In re Lowe’s Will, 180 N. C., 140, 104 S. E., 143; In re Abee’s Will, 146 N. C., 273, 59 S. E., 700.

New trial.