Walker, J.,
after stating the case: Whether the judge would allow the witness, W. A. McDonald, to be recalled, was a matter entirely within his discretion and when it is exercised, without any gross abuse, which is not even suggested here, we will not review it. The propound-ers opened the case by introducing their evidence, or so much as they thought sufficient to sustain their side of the issues. The caveators were then given ample opportunity to put in their evidence and all of it, including that which they afterwards proposed to introduce. The pro-pounders then introduced evidence in rebuttal and closed their case. The privilege, at this stage of the trial of recalling a witness for the purpose of offering testimony could not be exercised without the consent of the judge, which he might grant or withold at his discretion. The case of
In re Will of Andrew Abee,
146 N. C., 273, is so directly applicable that we content ourselves with this single citation. That was a contest as to the validity of a will, and the caveators requested of the court that they be permitted to recall' a witness for further examination. The request was denied, and this Court said -in affirming the ruling: “Our decisions are to the effect that this matter of recalling witnesses
for
further examination is in the discretion of the judge presiding at the trial, and his action in this respect is not open to review.
Sutton v. Walters,
118 N. C., 495;
Olive v. Olive,
95 N. C., 485.” This record shows that the judge merely refused to call the witness, W. A. McDonald, to the stand for-the purpose of reopening a closed case and reversing his former ruling by allowing the questions to be answered. If there was any doubt or obscurity as to the reason for his ruling, the proper method would have been to make the matter clear by a
certiorari
or remand, so that the judge could state the fact, that is, whether he exercised his
discretion merely, or decided as be did for want of power to rule otherwise.
Holton v. Lee, ante,
p. 105. It appears that the judge thought the caveators had sufficient opportunity to make their request before they closed their case, and that it was too late then for it to be considered, or for the case to be reopened for any purpose; but whatever may have been his reason, as he was merely exercising his discretion, his ruling must be left as he made it.
It is hardly to be supposed, after so many decisions to the contrary and after the law has been so thoroughly settled in that respect, that the judge would decide he had no power to recall the witness. If,therefore, any fair doubt existed as to the nature of the ruling, we would still incline to the view that the judge exercised his discretion. If he had said that he denied the motion for a want of power, a different question would arise.
Pannell v. Scoggin,
53 N. C., 408, merely holds that where an executor was made competent as a witness in a will contest, it makes no difference whether he appears on the record as plaintiff or defendant. It has no bearing on this case. Mrs. Byrd was not the witness, but McDonald was. The question here is, was she a beneficiary at the time the first questions were asked, and a respondent? whether her name appears in the record on one side of the case or the other.
This brings us to the other question of evidence, whether the testimony of
~W.
A. McDonald was competent. There were two devisees or legatees in the will, Mrs. Byrd and Mrs. McLendon. The offer was to prove that Mrs. McLendon had once said that her father’s mind had weakened, or failed, from the use of medicine, and that he could hardly recollect anything. It appears, therefore, that the effort was to attack the whole will and to invalidate it as a whole. This could not be done under the decision in
Linebarger v. Linebarger,
143 N. C., 229, and
In re Fowler,
156 N. C., 340, as the declaration of Mrs. McLendon would, of course, affect the other beneficiary, and, as said in those cases, this would be manifestly unjust. The issues here -were so drawn as to present the single question as to the validity of the will, as a whole, and not as to the validity of the gift to Mrs. McLendon.
It is suggested, incidentally, in the appeal bond, case on appeal, and brief, that Mrs. Byrd is a caveator; but this must be an inadvertence, as the record shows clearly that she was not, Mr. and Mrs. McDonald being the only caveators, and this was the state of the record when the issues were made up and the case tried. There is no order of the court making her a party to the caveat, nor does any application for that purpose appear in the record. On the contrary, she is described as a respondent, the citation having issued against Ella J. McLendon, Fannie Byrd, and T. W. Talbert, at the request of the caveators of the will
of Mrs. M. C. Talbert. It is apparent that she was not a party when this evidence was first offered, and if she became a party afterwards, or at any stage of the proceedings, it should appear in the record. The motion of the caveators, after the evidence was closed, to recall the witness
W.
A. McDonald implies that she was not a caveator when the first questions were asked. When the record and case conflict, the former controls.
Threadgill v. Comrs.,
116 N. C., 616, 625. If the evidence, as offered in this case, was competent at all, under the principles stated and discussed, with citation of authority, in
Linebarger v. Linebarger, supra,
it is certainly not competent, under the circumstances, as, when it was tendered, it would, on its face, have been prejudicial to the legatee other than Mrs. McLendon. If the waiver of Mrs. Byrd made the evidence competent, it should have been entered in apt time and regular order.
It was suggested at the hearing in this Court that the evidence was competent on the question of undue influence, but that can invalidate a will as a whole just as much as a want of mental capacity, and it was submitted in that way to the jury.. It is also suggested that the legacy to Mrs. McLendon might have been considered as a separate gift and set aside upon the ground of undue influence or fraud practiced by her, without annulling the entire will. The answer is, that this view, if allowable, was not suggested or properly raised, and the issues, submitted without objection, did not present any such aspect of the case, and there is no such exception; but the inquiry was as to the validity of the whole will.
Gash v. Johnson,
28 N. C., 289. The judge could have submitted the general issue
devisat vel non, or
a special issue, so that the jury might pass upon the validity of the whole will or of any part of it. It was said in
Gash v. Johnson, supra,
at p. 291: “The court ordered an issue of
devisavit vel non
to be made up and submitted to a jury. The issue which was made up under the order of the court was probably framed in such a manner as to confine the response of the jury (will or no will) to the'said paper
in toto,
whereas the court might have directed the issue to have been drawn up specially for the jury to find whether the paper-writing propounded as the last will of Reuben Johnson, deceased, was in fact his will, or any part of it, and' which part.
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Walker, J.,
after stating the case: Whether the judge would allow the witness, W. A. McDonald, to be recalled, was a matter entirely within his discretion and when it is exercised, without any gross abuse, which is not even suggested here, we will not review it. The propound-ers opened the case by introducing their evidence, or so much as they thought sufficient to sustain their side of the issues. The caveators were then given ample opportunity to put in their evidence and all of it, including that which they afterwards proposed to introduce. The pro-pounders then introduced evidence in rebuttal and closed their case. The privilege, at this stage of the trial of recalling a witness for the purpose of offering testimony could not be exercised without the consent of the judge, which he might grant or withold at his discretion. The case of
In re Will of Andrew Abee,
146 N. C., 273, is so directly applicable that we content ourselves with this single citation. That was a contest as to the validity of a will, and the caveators requested of the court that they be permitted to recall' a witness for further examination. The request was denied, and this Court said -in affirming the ruling: “Our decisions are to the effect that this matter of recalling witnesses
for
further examination is in the discretion of the judge presiding at the trial, and his action in this respect is not open to review.
Sutton v. Walters,
118 N. C., 495;
Olive v. Olive,
95 N. C., 485.” This record shows that the judge merely refused to call the witness, W. A. McDonald, to the stand for-the purpose of reopening a closed case and reversing his former ruling by allowing the questions to be answered. If there was any doubt or obscurity as to the reason for his ruling, the proper method would have been to make the matter clear by a
certiorari
or remand, so that the judge could state the fact, that is, whether he exercised his
discretion merely, or decided as be did for want of power to rule otherwise.
Holton v. Lee, ante,
p. 105. It appears that the judge thought the caveators had sufficient opportunity to make their request before they closed their case, and that it was too late then for it to be considered, or for the case to be reopened for any purpose; but whatever may have been his reason, as he was merely exercising his discretion, his ruling must be left as he made it.
It is hardly to be supposed, after so many decisions to the contrary and after the law has been so thoroughly settled in that respect, that the judge would decide he had no power to recall the witness. If,therefore, any fair doubt existed as to the nature of the ruling, we would still incline to the view that the judge exercised his discretion. If he had said that he denied the motion for a want of power, a different question would arise.
Pannell v. Scoggin,
53 N. C., 408, merely holds that where an executor was made competent as a witness in a will contest, it makes no difference whether he appears on the record as plaintiff or defendant. It has no bearing on this case. Mrs. Byrd was not the witness, but McDonald was. The question here is, was she a beneficiary at the time the first questions were asked, and a respondent? whether her name appears in the record on one side of the case or the other.
This brings us to the other question of evidence, whether the testimony of
~W.
A. McDonald was competent. There were two devisees or legatees in the will, Mrs. Byrd and Mrs. McLendon. The offer was to prove that Mrs. McLendon had once said that her father’s mind had weakened, or failed, from the use of medicine, and that he could hardly recollect anything. It appears, therefore, that the effort was to attack the whole will and to invalidate it as a whole. This could not be done under the decision in
Linebarger v. Linebarger,
143 N. C., 229, and
In re Fowler,
156 N. C., 340, as the declaration of Mrs. McLendon would, of course, affect the other beneficiary, and, as said in those cases, this would be manifestly unjust. The issues here -were so drawn as to present the single question as to the validity of the will, as a whole, and not as to the validity of the gift to Mrs. McLendon.
It is suggested, incidentally, in the appeal bond, case on appeal, and brief, that Mrs. Byrd is a caveator; but this must be an inadvertence, as the record shows clearly that she was not, Mr. and Mrs. McDonald being the only caveators, and this was the state of the record when the issues were made up and the case tried. There is no order of the court making her a party to the caveat, nor does any application for that purpose appear in the record. On the contrary, she is described as a respondent, the citation having issued against Ella J. McLendon, Fannie Byrd, and T. W. Talbert, at the request of the caveators of the will
of Mrs. M. C. Talbert. It is apparent that she was not a party when this evidence was first offered, and if she became a party afterwards, or at any stage of the proceedings, it should appear in the record. The motion of the caveators, after the evidence was closed, to recall the witness
W.
A. McDonald implies that she was not a caveator when the first questions were asked. When the record and case conflict, the former controls.
Threadgill v. Comrs.,
116 N. C., 616, 625. If the evidence, as offered in this case, was competent at all, under the principles stated and discussed, with citation of authority, in
Linebarger v. Linebarger, supra,
it is certainly not competent, under the circumstances, as, when it was tendered, it would, on its face, have been prejudicial to the legatee other than Mrs. McLendon. If the waiver of Mrs. Byrd made the evidence competent, it should have been entered in apt time and regular order.
It was suggested at the hearing in this Court that the evidence was competent on the question of undue influence, but that can invalidate a will as a whole just as much as a want of mental capacity, and it was submitted in that way to the jury.. It is also suggested that the legacy to Mrs. McLendon might have been considered as a separate gift and set aside upon the ground of undue influence or fraud practiced by her, without annulling the entire will. The answer is, that this view, if allowable, was not suggested or properly raised, and the issues, submitted without objection, did not present any such aspect of the case, and there is no such exception; but the inquiry was as to the validity of the whole will.
Gash v. Johnson,
28 N. C., 289. The judge could have submitted the general issue
devisat vel non, or
a special issue, so that the jury might pass upon the validity of the whole will or of any part of it. It was said in
Gash v. Johnson, supra,
at p. 291: “The court ordered an issue of
devisavit vel non
to be made up and submitted to a jury. The issue which was made up under the order of the court was probably framed in such a manner as to confine the response of the jury (will or no will) to the'said paper
in toto,
whereas the court might have directed the issue to have been drawn up specially for the jury to find whether the paper-writing propounded as the last will of Reuben Johnson, deceased, was in fact his will, or any part of it, and' which part. Frequently this special mode of framing the issue will be found most advisable. Then- the jury may respond that one or more of the legacies or devises mentioned in the paper is or are not any part of the last will; and that the residue of the paper-writing is the last will of the supposed, testator,” citing
Trembistown v. Alton,
1 Dow and Clark, N. T., 95. And finally it is argued that a separate issue should be ordered as to the undue influence exerted by Mrs. McLendon in obtaining her own legacy, as was done in
JÁnebarger's case.
This is an
swered by what we have already said, viz., that there was no such request made, and, besides, in the
Lmebarger case
there was a new trial, and the court did not order such a separate issue, but merely stated that “it could see no reason why a special issue might not be submitted to the jury as to the interest of Hosea.” It was left to the judge to do so on the next trial.
We cannot sustain the exception to the charge. When the instruction to which exception was taken is read in connection with the others given, several of them at the request of caveators, there was no error in stating the law of the case to the jury. The charge was perhaps not as strong as it might have been for the propounders. In the case of
In re Abee, supra,
where is was contended that there was no evidence of undue influence,
Judge Hoke
said: “It is established with us that in order to avoid a will on this ground the influence complained of must be controlling and partake to some extent of the nature of fraud.
Marshall v. Flinn,
49 N. C., 199;
Wright v. Howe,
52 N. C., 412;
Paine v. Roberts,
82 N. C., 451. As held in
Wright v. Howe,
supra: ‘The influence which destroys the validity of a will is a fraudulent influence, controlling the mind of the testator so as to induce him to make a will which he would not otherwise have made.’ ' It would serve no good purpose to go into any extended or detailed statement of the testimony. We have carefully read and considered it as given in the case on appeal, and we fully concur with the trial judge that there is no evidence tending to show undue influence, and are of opinion that the judgment establishing the validity of the will should be affirmed.” The record does not purport to set out all of the evidence; but if that which was omitted is no stronger in character than the part inserted, there was, perhaps, enough to carry the case to the jury; but it did not furnish any clear, or decisive, indication of undue influence. Old age, bad health, and weakness of mind are circumstances to be considered upon such an issue, but there is practically no evidence of actual fraud or that Mrs. McLendon took advantage of her father’s condition to unduly overcome his will or subject it to her own. The case would hardly have been any stronger with her declaration as to his mental condition super-added, as there already was full evidence on this phase of the case.
We find no error in the record.
No error.