This is tbе fourth time tbe present case bas been bere on appeal. It is beginning to look as if tbe shade of Maggie Nipson Lomax, whose purported will bas sо long vexed tbe courts, may be as bard to down as Banquo’s ghost. She left only a small estate, valued at some $12,000.00, accumulated by thrift and frugality while chambermaid at a hotel in Asheville. Counsel for the propounders, currently the winner, admonishes us that unless the litigation is stopped somewhere, “there is not going to be anything left for аnybody finally,” and adjures us “not to send the Lomax will case back.” We may as well confess a growing sympathy with that view, but we are at a loss to know how to make it a principle of decision. Even a harried Court must salve its conscience.
The three former appeals are reported as follows:
In re Will of Lomax,
Reference is made to the preliminary statement of the case in
The appellants assign as error that notwithstanding their admission at the beginning of the trial that the purported will had been properly signed and witnessed, and had been admitted to probate in common form, *500 (a) the propоunders bad been permitted to “go to tbe bat” with tbeir evidence first, tbus getting tbe advantage of a first impression on tbe jury; and (b) that tbeir counsel was permitted to cоnclude tbe argument to tbe jury.
Neither objection is meritorious. Tbe proceeding is
in rem,
and in many of its incidents beyond tbe control of tbe litigant parties and outside tbe rules pertaining to ordinary controversies respecting tbe rights of persons arrayed as parties plaintiff and parties defendant.
In re Haygood’s Will,
(b) Since both sides introduced evidence, tbe opening and conclusion was within tbe discretion of tbe triаl judge. Moreover, since, as stated, tbe burden of establishing tbe will was upon tbe propounders, the conclusion of tbe argument was appropriately thеirs.
We have attempted to clarify this feature of tbe trial, since a like situation may recur.
Tbe caveators- took 134 exceptions to the trial. Many of them are without merit, others marginal; and we are compelled to regard others as disclosing prejudicial error.
Tbe appellants direct our attention to a rather sweeping statement of tbe trial judge during tbe course of bis charge, tbe effect of which is to eliminate from consideration by tbe jury certain material evidence upon tbe question, of undue influence, on tbe theory that certain witnesses testifying on that issue were not competent to give testimоny by reason of tbeir relation to tbe case. We quote tbe exceptive passages:
“I call your attention again to tbe witnesses that I mentioned this morning, Maggie Nesbitt, Frank Stevens and Sadie Smith, who were offered by tbe caveators and permitted to testify about the question of tbe mental capacity of Maggie Lomax and about tbe conduct of Quick.
“I instructed you this morning that part of tbe evidence is competent and part is not competent. Anything that any of them may have said that tended to show any undue influence on tbe part of Quick would not be competent, and it was admitted by inadvertence, tbe Court under *501 standing at tbe time tbat it was offered, tbat while they were relatives, tbat they were not beneficiaries under tbe Will. Later tbe Court was advised tbat they were beneficiaries undеr tbe Will, and so my instruction to you is tbat you will not consider any part of tbe evidence of those three witnesses tbat tends to show any undue influence or other conduct tending to show tbat Quick bad any influence, or exerted any influence over Maggie Lomax.
“As to B. R. Quick, who has been attacked by tbe caveators, and charged with having procured Maggie Lomax to make this Will by reason of undue influence exerted over her, it will be proper for you to consider bis testimony in deniаl of tbe charge, . . . Counsel for both sides were frank and candid, having called tbe Court’s attention to this inadvertence, and it was agreed by all tbat I would give this instruction tbаt you would not consider tbe testimony tending to show undue influence except tbe testimony of Quick, but tbat you would consider tbe testimony of all of them tbat bears on tbe question of sufficient mental capacity of Maggie Lomax to make a Will.”
These instructions must have been very confusing to tbe jury on a vital part of tbe cоntroversy. Tbe very general designation of tbe evidence supposed to be admitted and tbat supposed to be excluded was too indefinite as a chart and compass to lead tbe jury back through tbe maze of testimony offered to a satisfactory result.
If tbe court intended tbe jury to understand tbat beneficiaries under tbe will were, by reason of their interest, incompetent as witnesses upon tbe question of undue influence, which was doubtless bis purpose, tbe instruction was еrroneous in law.
It has been frequently held tbat as between tbe propounder or an interested executor and a person who is interested in tbe result of tbe trial, tbe statute now known as G. S., 8-51, rendering an interested survivor incompetent as a witness to a personal transaction with a deceased person, applies in a contest over a will, notwithstanding tbe proceeding is
in rem. In re Will of Brown
(Byron Brown),
*502 It is only necessary tо say that the witnesses excluded by this ruling of the court, several of them by name (including Sadie Smith, who was not a beneficiary under the will), had given testimony tending to show undue 'influence on the part of Quick, the propounder, not relating to any transaction which the witness had with the testatrix, but as to the conduct of the propounder and сircumstances of at least some substantial bearing upon this issue.
Evidence of undue influence is usually of a circumstantial nature;
In re Will of Everett,
In this exclusion there was error, and the caveators are entitled to a new trial.
Error and remanded.