Thе following is the issue presented to the jury: “Is the paper-writing, or any part of same, propoundеd for probate; and if so, what part, the last will and testament of Augustus E. Allison, deceased?”
The propounders rested after proving the formal execution of the instrument, which was not controverted. Thе ground upon which the validity of this instrument as a will was impeached, was “that its execution was procurеd by the undue influence of Jane Allison, alias Jane Wheaton, and the said Augustus Allison was prevented by the conduct and threats and undue influence of said Jane Wheaton from altering and canceling said paрer,ashe desired and intended to do.”
*203 The caveators examined several witnesses offerеd in support of their contention, and, having closed, “his Honor stated that if the jury should set aside the will on thе testimony, the Court would be compelled to set the verdict aside, and in order that the caveаtors may have full benefit of the exception, the Court will charge the jury that the proof is not sufficiеnt to go to the jury. The caveators ask to have the jury pass upon the matter anyway, and the Court again says: ‘Well, gentlemen, you may do so if you choose, but you have the views of the Court.”’ Thereupon the pro-pounders called additional witnesses.
We have carefully examined all the testimony, as reported in the case on appeal, and we concur in the opinion expressed by his Honor when the caveators clоsed. It was a useless consumption of time and'protraction of the trial by the propounders to have introduced further testimony, and we can see nothing in the additional evidence offered, оn both sides, which should have changed the view already expressed by his Honor. The testimony is voluminous and еxtended, and no good purpose would be subserved by setting it out here; but there was no testimony which in itself tended to ■ establish the fact either of threats or of undue influence. The counsel for the propounders, however, presented no request in writing for a special instruction to that effect, though hе seems to have made it orally at the close of the caveator’s testimony and again during his argument.
Section 415 of The Code provides that “ counsel praying of the Judge instructions to the jury, shall put their requests in writing, entitled of the сause, and. sign them; otherwise the Judge may disregard them.”
The authorities on the subject are so numerous thаt we will cite only the last cases,
State
v. Horton,
There are several exceptions to the charge of his Honor, all of which but the one we shall notice hereafter are without merit, and indeed were nоt relied upon in this Court.
*204 His Honor instructed the jury, among other things: “If the jury believe that the will was executed by the dеceased in his life-time, a man capable of making a will, that is, of sound mind and disposing memory, and the sаme'was witnessed by James Norwood and Calvin E. Parrish, who signed the same as witnesses at the request and by the direction of the deceased and in his presence, then the Court charges you that this is the last will and tеstament of Augustus E. Allison, the deceased, unless the caveators have shown you from the evidencе that the will was procured by the undue influence and conduct of the witness Jane Allison exercised оver the deceased.” To this the propounders except.
By section 412, subsec. 3 of The Code, it is provided: “If there shall be errоr, either in the refusal of the Judge to grant a prayer for instructions, or in granting a prayer, or in his instructions generally, the same shall be deemed excepted to without the filing of any formal objections.” This section is not to be construed to permit an exception to be taken for the first time in the Suprеme Court, but it is sufficient if set out in appellant’s case on appeal, although the proper method of taking advantage of it is to assign error on a motion for a new trial. Clark’s Code, 2d Ed., p. -382. Herе we find an exception noted and an assignment of error in this particular; and we hold the excеption well •taken, although the propounders could not take advantage of the refusal оf his Honor to give the instruction asked, because it was not in writing, as required by the statute.
The error in the charge is in leaving it to the jury to decide whether the caveators had shown from the evidence that thе will was procured by the undue influence and •conduct of the witness Jane Allison exercised over thе deceased, when there was no evidence to go to the jury to enable them to find such to be the fact. If there had been any evidence, however slight, it would have been the duty <o.f his Honor to submit it to the jury, and if they should *205 have found against its weight, it would have been in his discretion to have set the verdict aside; but that province does not bеlong to this Court, and we could not have disturbed it.
The evidence in this case was not sufficient to raise a conjecture, and was an insufficient foundation for a verdict, and therefore was no evidenсe to be left to the jury.
State
v.
Vinson,
Although it was not error to refrain from giving instructions, unless they are asked, yet care must be taken when the Judge thinks it proper, of his own motion, or at the party’s, to give them, that they be not in themselves erroneous, or so framed as to mislead the jury.
Bynum
v.
Bynum,
New Trial. Error,