Matter of Will of Fields

331 S.E.2d 193 (1985)

In the Matter of the WILL OF Emma Ellis FIELDS, Deceased.

No. 8415SC1309.

Court of Appeals of North Carolina.

July 2, 1985.

*194 Cheshire & Parker by Lucius M. Cheshire, Hillsborough, for propounder-appellant.

Long & Long by Lunsford Long, Chapel Hill, for caveator-appellee.

WELLS, Judge.

The decisive question brought forward on appeal is whether the court erred in denying propounder's motions for directed verdict and for judgment notwithstanding the verdict. We apply the same evidentiary test to both motions. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). We consider the evidence in the light most favorable to the caveator, deeming her evidence to be true, resolving all conflicts in her favor, and giving her the benefit of every reasonable favorable inference. In re Andrews, 299 N.C. 52, 261 S.E.2d 198 (1980). Even where there are contradictions and conflicts in the evidence, the case should go to the jury on sufficient evidence. Id.

To prove undue influence, once propounder has shown due execution, caveator must show more than mere influence or persuasion. She must show some sufficient controlling force to destroy the free agency of the testatrix, such as to make the will properly the expression of the wishes of another, not testatrix. Id; In re Will of Kemp, 234 N.C. 495, 67 S.E.2d 672 (1951). Caveator ordinarily must rely on circumstantial evidence and inferences therefrom, In re Andrews, supra, particularly when as here testatrix was apparently a homemaker with little independent daily contact with the community.

Our supreme court has enumerated certain factors which are probative on the issue of undue influence. Id. Propounders rely heavily on this list. However, that court also recognized that the impossibility of setting forth all the various combinations of factors which make out a case of undue influence. The very nature of undue influence prevents the court from establishing precise tests by which to determine its existence. Id. It is the collective effect of the circumstances, and whether these would satisfy a rational mind of the existence of undue influence, that is determinative. Id.

We are persuaded that caveator produced sufficient evidence to establish a prima facie case of undue influence. The jury could find that Haskell Fields dominated testatrix' affairs, backed by the threat of irrational rages and physical violence, to the extent that testatrix even encouraged her own daughter to placate his sexual demands. The jury could find that Haskell Fields threatened to disown caveator when she refused him, and that he then did exactly that, using his control of his wife to enforce his will against her wishes. As in Andrews, the jury could have reached a different result, but the verdict reached was not so against the greater weight of the evidence to mandate its being set aside. See In re Will of Hodgin, 10 N.C.App. 492, 179 S.E.2d 126 (1971).

In a separate argument, propounder contends that the trial court erred in denying her motion for a new trial on the issue of devisavit vel non. Our decision has settled this issue, in caveator's favor. This assignment is overruled.

No error.

JOHNSON and COZORT, JJ., concur.