In re Will of Wilder, 205 N.C. 431 (1933)

Nov. 22, 1933 · Supreme Court of North Carolina

205 N.C. 431

In re Will of SALLIE D. WILDER.

(Filed 22 November, 1933.)

1. Appeal and Error J e—

Exceptions to tbe exclusion of testimony will not be considered on ■ appeal where it is not apparent of record wbat tbe answers of tbe witness would have been if be bad been allowed to testify.

2. Appeal and Error J d—

Tbe burden is on appellant to make error plainly appear, as tbe presumption is against him.

3. Trial E e—

An exception to tbe refusal of tbe trial court to give requested instructions will not be sustained where it appears that tbe instructions requested were substantially given in language equally explicit and clear.

Appeal by caveator from Schenclc, J., at March Special Term, 1933, of Mecelenbueg.

Issue of devisavit vel non, raised by a caveat to tbe will of Sallie D. "Wilder, late of Mecklenburg County, based upon alleged mental incapacity and undue influence.

From a verdict and judgment upholding tbe paper-writing propounded as tbe last will and testament of tbe deceased, tbe caveator appeals, assigning errors.

George W. Wilson and Glande B. Woltz for caveator.

Stewart & Bobbitt for propounder.

Stacy, C. J.

Two errors are assigned, one based upon tbe exclusion of evidence and tbe other upon tbe court’s refusal to give an instruction as prayed.

Tbe record does not show wbat tbe answers to tbe interrogatories propounded to tbe witness would have been, hence we cannot say tbe exclusion of tbe evidence was hurtful or erroneous. Where tbe record .shows exceptions to unanswered questions, without more, tbe exceptions will not be considered on appeal. Miller v. Bottling Co., 204 N. C., 608, 169 S. E., 194. We cannot assume that the answers w'onld have been favorable to the caveator. Rawls v. Lupton, 193 N. C., 428, 137 S. E., 175.

The burden is on appellant to show error, and he must make it appear plainly, as the presumption is against him. Frazier v. R. R., 202 N. C., 11, 161 S. E., 689; Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767; In re Ross, 182 N. C., 477, 109 S. E., 365.

The instruction requested, while not given in the exact language of the prayer, was substantially given by the court in language equally as explicit and clear. This was a sufficient compliance with the caveator’s request. Michaux v. Rubber Co., 190 N. C., 617, 130 S. E., 306; McIntosh Prac. & Proc., 636.

“The judge is not required to give an instruction in the very words used by counsel in the request for it, even if the instruction be a proper one. If he gives it substantially, and does not, by any change of language, weaken its force, it is a sufficient compliance with the law”— Walker, J., in Graves v. Jackson, 150 N. C., 383, 64 S. E., 128. See, also, to like effect, Shaw v. Pub. Service Corp., 168 N. C., 611, 84 S. E., 1010.

A careful perusal of the record leaves us with the impression that the case has been tried in substantial conformity to the decisions on the subject, and that the verdict and judgment should be upheld.

No error.