The opinion
Judge Britt
dissenting.
Caveators challenged the validity of the will in question on the grounds that (1) testatrix did not have sufficient mental capacity to make a will, and (2) that her signature to the *652 purported will was procured by Grady Venton Ricks through undue influence and duress. The burden of proof was on cavea-tors on both of said propositions of law. 7 Strong, N. C. Index 2d, Wills § 18.
While considerable evidence was presented by caveators and propounders tending to show the mental capacity of testatrix on 12 July 1973, caveators presented little if any evidence tending to show the exercise of undue influence by Grady Venton Ricks. Although undue influence may be proved by circumstantial evidence, In re Will of Beale, 202 N.C. 618 , 168 S.E. 684 (1932), the influence must be sufficient to amount to a substitution of the will of the influencing party for that of the testatrix. In re Will of Franks, 231 N.C. 252 , 56 S.E. 2d 668 (1949).
A careful review of the testimony leads me to conclude that about the only evidence of undue influence in this case was inferences that might be drawn from the challenged testimony of Grady Venton Ricks. In this testimony he told how he made the appointment with the drafting attorney, his transporting the testatrix to the attorney’s office, and even going with the testatrix into the attorney’s office while she gave instructions regarding the will. The majority holds that this testimony constituted vital evidence tending to establish the will and “to rebut the charge of undue influence.” I respectfully disagree. Without the challenged evidence, where was there any evidence of undue influence?
Assuming, arguendo, that the admission of the testimony was error, I do not think the error was sufficiently prejudicial to caveators to warrant a new trial. This case was tried primarily upon the issue of lack of mental capacity and the evidence would have supported a verdict either way on that issue. My vote is to leave undisturbed the verdict and judgment of the trial court.