In re Will of Cooper, 166 N.C. 210 (1914)

March 25, 1914 · Supreme Court of North Carolina

166 N.C. 210

In re Will of W. W. COOPER.

(Filed 25 March, 1914.)

Wills — Wife a Beneficiary — Undue Influence — Presumptions.

Where the wife is the beneficiary under a will sought to be set aside for undue influence, the principles announced In re Everett’s Will have no application.

Appeal by caveator from Coohe, J., at December Term, 1913, of Wake.

Issue of devisavit vel non. Tbis issue was submitted: “Is tbe paper-writing being propounded, and every part thereof, tbe last will and testament of W. W. Cooper, deceased?” and was answered by tbe jury in tbe affirmative.

Tbe caveator^ appealed.

John W. Ilinsdale, Jr., for propounders.

R. C. Strong for caveator.

Pee Cubiam.

Tbe assignments of error relate to tbe charge of tbe court. We have examined tbe charge, and find no substantial error that in our opinion necessitates another trial.

Tbe position of tbe learn'ed counsel for caveator that tbe burden of proof under tbe facts of this case is on tbe propounder, tbe wife of the testator, to rebut tbe presumption of undue influence, is untenable.

“Tbe fact that a man bequeaths- bis estate to bis wife, excluding bis children and other relatives, is absolutely immaterial upon tbe question of undue influence. Tbe silent influence of affection and respect, augmented by tbe tender and kindly attention of a faithful wife, cannot be regarded as in any sense undue influence.” Underhill on Wills, 212; In re Peterson, 136 N. C., 28.

The Everett case, 153 N. C., 86, has no application here, where tbe wife is the beneficiary.

No error.