Matter of Will of King

342 S.E.2d 394 (1986)

In the Matter of The WILL OF Emmett J. KING, Deceased.

No. 856SC876.

Court of Appeals of North Carolina.

May 6, 1986.

*395 Knox & Kornegay by Robert D. Kornegay, Jr., Rocky Mount, for appellant Thomas J. King.

Moseley & Elliott by Bradley A. Elliott, guardian ad litem, Roanoke Rapids, for David King, Steven King and Missy King, grandchildren of Emmett J. King and children of Thomas J. King.

Thomas I. Benton, Roanoke Rapids, for appellee Jefferson Michael King Crowder.

PHILLIPS, Judge.

Two of the questions posed in appellants' brief cannot be considered because they were not raised in the trial court as required by Rule 10(a) of the N.C.Rules of Appellate Procedure. Appellate courts are courts of errors, and it is fundamental that an action not challenged as erroneous at trial may not be contested on appeal. The first question concerns the propriety of the court receiving testimony that the testator and the other co-owner of Halifax Linen, Inc. had executed a buy-sell agreement; but this testimony was not objected to by the appellants, who thereby waived their right to contest its admissibility. State v. Lucas, 302 N.C. 342, 275 S.E.2d 433 (1981). Furthermore, though the terms of the agreement are not recorded the testimony may have benefited the appellants since it *396 suggests that the testator may have been obligated to sell his interest in the linen business to his co-owner and thus did not have the right to devise it to the appellee or anyone else. The second question concerns the court's instruction to the jury about evaluating Dr. Frazier's expert opinion as to Mr. King's mental condition when the codicil was allegedly executed; but appellants did not object to the instruction before the jury retired, though given the opportunity to do so. Rule 10(b)(2), N.C. Rules of Appellate Procedure.

Following the trial the appellants made several motions, none of which were timely, however, except a motion for a new trial under the provisions of Rule 59, N.C. Rules of Civil Procedure. Since Rule 59 motions are addressed to the sound discretion of the trial court, Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982), the only question before us is whether the trial court abused its discretion in denying the motion. No abuse appears. Appellants' main argument is that the evidence does not show that the codicil was executed in the manner that the law requires. A codicil must be executed with the same formalities as attend the execution of a will. Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 352 (1940). Those formalities, set out in G.S. 31-3.3, are as follows:

(a) An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section. (b) The testator must, with intent to sign the will, do so by signing the will himself or by having someone else in the testator's presence and at his direction sign the testator's name thereon. (c) The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately. (d) The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.

Appellants contend that because of his illness and the medications received that the testator could not have had the mental awareness that is necessary for the execution of a testamentary document; and they argue at considerable length, mostly upon the premise that Mr. King did not know what was going on, that there was no evidence, express or implied, that the testator intentionally signed the codicil, that he signified to the attesting witnesses that the instrument was his, or that the codicil was signed by the attesting witnesses in his presence. These arguments will not be discussed in detail as a Rule 59 motion for a new trial is no substitute for timely motions for a directed verdict and judgment notwithstanding the verdict. Worthington v. Bynum, supra.

Nevertheless, a review of the record leads us to conclude that though the evidence as to the testator's mental capacity and awareness might fairly be regarded as weak, it was sufficient to support the verdict and its weight was for the jury. In re Will of Knowles, 11 N.C.App. 155, 180 S.E.2d 394 (1971). The witnesses to the codicil and Jeff Crowder testified that he did know what was going on and had sufficient mental capacity, in their opinion, to execute the will. In re Will of Cauble, 272 N.C. 706, 158 S.E.2d 796 (1968). While Dr. Frazier may have been better qualified than the lay witnesses to testify as to the testator's mental awareness and capacity, the jury was not obliged to accept his testimony over theirs and he did not see the testator at the time crucial to this case, as they did. Too, the terms of the codicil were consistent with the intention, expressed several times according to the testimony, to give his interest in the linen business to his grandson that had been helping him in it. That the testator received physical assistance in making his mark does not affect the validity of the instrument, In re Knowles, supra, and whether he was too weak to resist his daughter's actions, as appellants contend, was another question of fact for the jury. *397 The evidence that he made his mark on the codicil in the presence of the witnesses indicates that the instrument was his, G.S. 31-3.3(c), and is sufficient to imply a request that they attest his signature. In re Will of Kelly, 206 N.C. 551, 174 S.E. 453 (1934). In short the evidence before the jury tended to show, as they found, that the codicil was executed in accordance with all the requirements of our law and we cannot say that the learned trial judge, who heard the testimony and observed the demeanor of the witnesses, abused his discretion in letting the verdict and the judgment entered thereon stand.

No error.

HEDRICK, C.J., and JOHNSON, J., concur.